AI Structured Summary
Not yet generated for this judgment
Judgment
This petition under Article 226 of the Constitution of India has been filed against the orders dated 27/9/2019 and 1/3/2019 passed by the Commissioner, Panchayat Raj Secretariat.
The necessary facts for disposal of the present petition in short are that the petitioner is working on the post of Panchayat Coordination Officer and by order dated 1/3/2019 he was transferred from Janpad Panchayat, Ghatigaon (Barai), District Gwalior to Janpad Panchayat, Morena, District Morena. The said order was put to challenge by the petitioner by filing a writ petition No.4575/2019, which was disposed of by the coordinate Bench of this Court by order dated 8/3/2019, thereby directing the authorities to decide the representation by passing a reasoned and speaking order and till then, the effect and operation of the order dated 1/3/2019 was stayed. It appears that the petitioner made a representation on 25/9/2019 and submitted that he is the Regional Secretary of the Regional Executive of M.P. Employees Congress Union and accordingly, he is exempted from transfer for two tenures and in spite of that, the petitioner has been transferred. It was further mentioned that the petitioner has already lost his wife and the petitioner is aged about 56 years and 9 months and is a patient of high blood pressure and is a diabetic. The petitioner has to look after his old and infirm parents and there is no other member in the family of the petitioner to do so. The Commissioner, Panchayat Raj Secretariat by impugned order dated 27/9/2019 rejected the representation. Accordingly, this petition has been filed challenging the orders dated 27/9/2019 and 1/3/2019.
It is submitted by the petitioner that on 27/2/2019 he was appointed on the post of Regional Secretary of Regional Executive of M.P. Karmchari Congress and, therefore, in view of clause 11.17 of the transfer policy, he is exempted from transfer for two tenures and thus, the transfer of the petitioner is bad and in violation of the transfer policy. It is further submitted that no post is vacant in Janpad Panchayat Morena and, therefore, the transfer of the petitioner is bad and further since there is nobody to look after his old and infirm parents and, therefore, the transfer order should have been withdrawn.
Heard the petitioner in detail.
So far as the question of holding the post of Regional Secretary is concerned, clause 11.17 of the Transfer Policy reads as under:-
"11.17 राज्य शासन से पत्राचार करने की मान्यता प्राप्त कर्मचारी संगठनों के प्रदेश/संभाग/जिला/तहसील/विकास खण्ड शाखा के पदाधिकारियों यथा- अध्यक्ष/सचिव/कोषाध्यक्ष को पद पर नियुक्ति उपरांत स्थानांतरण से दो पदावधि के लिये अर्थात 4 वर्ष तक की सामान्यतः छूट प्राप्त होगी। यह सुविधा उसके पूरे सेवाकाल में नियमानुसार दो पदावधि के लिये मिलेगी। 4 वर्ष से अधिक पदस्थापना अवधि पूर्ण होने पर प्रशासकीय आवश्यकता अनुसार ऐसे पदाधिकारियों को भी स्थानांतरित किया जा सकेगा। संगठन के पदों में नियुक्ति की पूर्व सूचना के संबंध में सक्षम प्राधिकारी की संतुष्टि का आधार मुख्य होगा। इस संबंध में शासन के पत्र क्रमांक एफ 10-6/05/1-15/क.क. दिनांक 24 अप्रैल, 2006 के प्रावधानों का अवलोकन करें, जिसमें स्पष्ट किया गया है कि मान्यता प्राप्त कर्मचारी संगठनों द्वारा निर्वाचन के पश्चात् निर्वाचित पदाधिकारियों की सूची उनके कार्यकाल सहित संबंधित कलेक्टर को दी जायेगी इसके साथ-साथ संबंधित विभाग प्रमुख, जहां वे कार्यरत हों, तथा सामान्य प्रशासन विभाग (कर्मचारी कल्याण प्रकोष्ठ) को दिनांक 30 अप्रैल की स्थिति में सौंप दी गई हो, उन्हीं पदाधिकारियों को स्थानांतरण से छूट का लाभ दिया जाना चाहिए।"
From the above-mentioned clause, it is clear that exemption is available only to a duly elected office-bearer and not appointed or nominated. The petitioner has annexed a certificate dated 27/2/2019 issued by State President, MP Karmchari Congress, according to which, the petitioner was appointed on the post of Regional Secretary of Regional Executive of M.P. Karmchari Congress. Thus, it is clear from the certificate that the petitioner was never elected as Regional Secretary, but he has been appointed/nominated. Even during the course of arguments the petitioner could not point out the date on which the election programme was declared. He also could not disclose the number of candidates, who were in fray. He also could not disclose the number of voters and even no such document has been filed which may indicate that the petitioner was elected in an election. Accordingly, this Court is of the considered opinion that since the petitioner was never elected on the post of Regional Secretary, but he was merely nominated/appointed, therefore, he is not entitled for the exemption granted under clause 11.17 of the Transfer Policy.
So far as the question of non-availability of the post at Janpad Panchayat Morena is concerned, although the petitioner has raised the said ground in the writ petition, but in a representation made by him to the respondents, he did not raise this ground and accordingly, the respondents did not have any opportunity to consider the said aspect. Since disputed question of fact has been raised by the petitioner for the first time before this Court, therefore, this Court is of the considered opinion that in spite of the opportunity which was available to the petitioner, if he has deliberately not raised the question of non-availability of the post in Janpad Panchayat Morena, then the petitioner cannot be permitted to raise such ground for the first time before this Court.
So far as the question of old and infirm parents of the petitioner is concerned, this Court cannot act as an appellate authority of the employer and it is for the employer to consider the personal difficulties of its employer. Once the employer has rejected the prayer of the petitioner for cancellation of his transfer order on the ground that his parents are old and infirm person, then this Court has no jurisdiction to interfere with the administrative decision of the employer/respondents.
It was further contended by the petitioner that he has been transferred within a short period of his posting. However, during the course of arguments he has admitted that he is working at the present place of posting of the last more than three and half years and, therefore, it is clear that the petitioner has already completed his normal tenure of three years. Furthermore, it is well established principle of law that the transfer policy is an executive guidelines and is not enforceable.
The Supreme Court in the case of Union of India and Others vs. S. L. Abbas reported in AIR 1993 SC 2444 has held as under:-
"6. An order of transfer is an incident of Government Service. Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority." Fundamental Rule 15 says that "the President may transfer a Government servant from one post to another". That the respondent is liable to transfer anywhere in India is not in dispute. It is not the case of the respondent that order of his transfer is vitiated by mala fides on the part of the authority making the order,- though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed "mischief" to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at Shillong, his children are studying there and also because his health had suffered a set-back some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force.
Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the government employee a legally enforceable right."
The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Roy v. Union of India [(1993) 1 SCC 148], National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan [ (2001) 8 SCC 574], State Bank of India v. Anjan Sanyal [(2001) 5 SCC 508] and it has been held that the transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a court of law in exercise of its discretionary jurisdiction under Article 226 unless the court finds that either the order is mala fide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders.
The Supreme Court in the case of Gujarat Electricity Board v. Atmaram Sungomal Poshani, reported in (1989) 2 SCC 602 has held as under :
"4. Transfer of a government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No government servant or employee of Public Undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance with the transfer order, he would expose himself to disciplinary action under the relevant rules......."
The Supreme Court in the case of Rajendra Singh v. State of U.P., reported in (2009) 15 SCC 178, has held as under :
"8. A government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the government servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires."
The Supreme Court in the case of Airports Authority of India v. Rajeev Ratan Pandey, reported in (2009) 8 SCC 337, has held as under :
"10. In the writ petition, the transfer order has been assailed by the present Respondent 1 on the sole ground that it was violative of transfer policy framed by the appellant. The High Court, did not even find any contravention of transfer policy in transferring Respondent 1 from Lucknow to Calicut. In a matter of transfer of a government employee, scope of judicial review is limited and the High Court would not interfere with an order of transfer lightly, be it at interim stage or final hearing. This is so because the courts do not substitute their own decision in the matter of transfer.
In the present case, the High Court fell into a grave error in staying the transfer order which, if allowed to stand, may cause prejudice to the administrative functioning of the appellant."
The Supreme Court in the case of State of U.P. v. Gobardhan Lal, reported in (2004) 11 SCC 402 has held as under :
"7. It is too late in the day for any government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.
A challenge to an order of transfer should normally be eschewed and should not be countenanced by the courts or tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that courts or tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer."
The Supreme Court in the case of Union of India and Others vs. S. L. Abbas reported in AIR 1993 SC 2444 has held as under:-
"7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the government employee a legally enforceable right."
Thus, considering the contentions made by the petitioner in the light of the law, laid down by the Supreme Court, this Court is of the considered opinion, that no case is made out warranting any interference in the matter. Accordingly, the petition fails and is hereby dismissed.