Omprakash Sharma vs The State of Madhya Pradesh

Calling in question tenability of an order dated 18.06.14 passed by the Writ Court in W. P. No. 5406/06, appellant has filed this writ appeal. By the said writ petition, certain orders passed by the State Govt. refusing permission to the petitioner to withdraw a consent given for his transfer to the State of C.G. has been rejected.

Petitioner was appointed in the Water Resources Department as a Sub Engineer on 13.12.83. When the new State of C.G. was formulated in the year 2000 and when the Madhya Pradesh Reorganization Act came into force, petitioner was posted in the Water Resources Department in District Janjgir now in the State of C.G. After bifurcation of the State of M.P. into the State of C.G. respectively, petitioner was allocated to the State of M.P. and vide order dated 16.10.02, he was posted in the office of Executive Engineer, Light Machinery, Tubewell and Gate Sub-Division Umaria. In April 2003, petitioner sought transfer to the State of C.G. on mutual basis with one Shri Sandeep Agrawal who was Sub Engineer posted in the State of C.G. No objection was called for from both the States and it is said that petitioner''s offer was accepted. Petitioner was transferred to the State of C.G. and Shri Sandeep Agrawal was transferred to the State of M.P.

Shri Sandeep Agrawal reported for duty and is working in the State of M.P. The petitioner came out with a case that after submitting an option in the year 2003, he has already withdrawn his option on 24.01.06 vide Annexure P-7 and as without 2 considering the withdrawal of the option on 24.01.06, he is being transferred to the State of C.G. vide order dated 24.02.06, therefore, he challenged the same by filing the writ petition and after its dismissal, this writ appeal.

Shri V.K. Dubey invited our attention to the return filed by the State Govt. in the writ petition and argued that in para 2 of the return, the State Govt. has come out with a case that the petitioner has submitted the consent letter in October, 2005 duly attested by Notary in Jabalpur along with the consent of Shri Sandeep Agrawal and the consent letter has not been withdrawn and, therefore, it is tried to be emphasized that the State Govt. has come out with a wrong case. It is said that the consent was given by the petitioner sometimes in the year 2003. He withdrew it in the year 2004 itself and, therefore, the contentions and assertions made in the return that the consent was given in the year 2005 vide Annexure R-1 is said to be incorrect. It is emphasized that this affidavit Annexure R-1 is a false and fabricated document.

Shri Rahul Jain refuted the aforesaid and argued that the petitioner had given the consent in October, 2005 and it is based on this consent that the order dated 24.02.06 was passed. Shri Rahul Jain contends that no consent of the petitioner of the year 2003 is available and even withdrawal of the consent vide Annexure P-4 on 18.08.04 is denied by Shri Rahul Jain by saying that this letter was never received by the Government. There is no acknowledgment of the same and accordingly, Shri Rahul Jain argues that there is no merit in the contentions advanced by the petitioner and the learned Writ Court has rightly dismissed the writ petition.

We have considered the rival contentions and we have gone though the reasons given by the Writ Court in rejecting the prayer 3 made by Shri V.K. Dubey. The learned Writ Court has found that petitioner has given his consent along with Shri Sandeep Agrawal and because of the consent, petitioner and Shri Sandeep Agrawal were both transferred. Shri Sandeep Agrawal has joined in the State of M.P. and now without consent of Shri Sandeep Agrawal, he cannot withdraw the consent. That apart, the communication made by the petitioner on 18.08.04 vide Annexure P-4 is produced to say that he withdrew the consent by sending the letter through U.P.C., this is disbelieved by the Writ Court and, therefore, this statement is not proved.

Accordingly, we are of the considered view that the findings recorded by the Writ Court are proper and the same does not call for any interference. Even though, petitioner says that he gave his consent in the year 2003 and withdrew it on 18.08.04 before the impugned order was passed on 24.02.06. There is no proof or authentic material available on record to hold that petitioner''s contention in this regard is correct. Withdrawal of the consent on 18.08.04 vide Annexure P-4 is a device by the petitioner only to make out a case that he has withdrawn his consent. If infact a communication was made by the petitioner in this regard, there should have been acknowledgment of the same issued by the competent authority or officer of the department or atleast the same should have been sent by Registered post acknowledgment due. Sending of the document through U.P.C. is not a proof of its sending or receipt of it to the person concerned in this regard. It is a well settled principle of law that the communication made or the notices sent by U.P.C. is not a proof of sending of the letter or communication.

That being so, the learned Writ Court has not committed any error in disbelieving sending of the communication Annexure P-4 by the petitioner. That apart, except for making a bald 4 statement that the consent letter Annexure R-1 is a false and fabricated document, petitioner has not adduced enough material to say so. The document Annexure R-1 is a Notarized document and it bears the signature of the petitioner and Shri Sandeep Agrawal and in disbelieving the contentions made by the petitioner, we see no error committed by the Writ Court in the matter warranting interference. The learned Writ Court has considered each and every aspect of the matter in its right perspective and, therefore, we see no error in view of the same warranting interference.

The appeal is therefore dismissed.