Rajendra Kumar Sharma vs State Of Madhya Pradesh And Others

In this petition, under Article 226 of the Constitution of India, petitioner has assailed the order dated 5/7/2019 passed by respondent no.2, whereby the petitioner, who is working as Panchayat Secretary, has been transferred from Gram Panchayat Deeghodi Block Kolaras to Gram Panchayat Pachrai, Block Khaniyadhana.

Learned counsel for the petitioner contends that the order of transfer is in violation of transfer policy dated 19/5/2017, as has been adopted by the Panchayat and Rural Development Department vide memo dated 1/6/2017. It is further submitted that the transfer has been done on the recommendation of respondent no.3, an Ex-MLA. It is contended that the transfer order has been passed during the ban period in violation of clause 9.2 of the transfer policy without obtaining any approval of the concerned Minister. It is further pointed out that clause 9.3 of the transfer policy provides that transfer can be effected within the district on account of administrative reasons, whereas in the present case, there is no administrative exigency shown for transfer of the petitioner, except at the behest of a politician. Learned counsel for the petitioner has placed reliance on the order of this court dt.31.10.2013 passed in W.P.No.1191/2013 (S) Pratap Singh Mandeliya Vs. State of M.P. and others, in which this court was pleased to order that transfer order can be passed only in administrative exigency or in public interest. The court observed that in case of Sarvesh Kumar Awasthi Vs. U.P. Jal Nigam and others as reported in 2003 (11) SCC 740, the Apex Court held that the power of transferring an officer cannot be wielded arbitrarily, mala fide or an exercise against efficient and independent officer or at the instance of politicians. For better administration, the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration. Placing reliance on such observation of Hon'ble Supreme Court, as has been quoted by the coordinate Bench of this court in the case of Pratp Singh Mandeliya (supra), he prays for quashing of the impugned order.

In response, learned Government Advocate submits that no interference with the order of transfer is warranted as the same has been done owing to administrative exigency. The transfer does not fall within the category of frequent transfer nor is driven by any malice. The transfer policy is nothing but a guideline which does not have any statutory force. With the aforesaid, he submitted that the petition being devoid of merit and substance deserves to be dismissed.

Heard, learned counsel for the parties.

Paragraph 9.2 of the transfer policy clearly provides that during ban period, transfer can be effected only after obtaining concurrence and in coordination of the concerned Minister. On a bare perusal of the letter dated 4/6/19 (Annexure P/2) sent by respondent no.3 to the concerned Minister for transferring the employees, it is apparent that the transfer has been done in colorable exercise of power and at the behest of an Ex MLA which is against the transfer policy. Thus, as per law laid down in the case of Sarvesh Kumar Awasthy (Supra), the transfer order at the instance of a politician is not sustainable.

In view of the aforesaid, the impugned order dated 5/7/19 (Annexure P/1), so far as it relates to the petitioner, is hereby set aside.

The petitioner, accordingly, stands allowed with no order as to cost.