Smt. Anita Choudhary vs State of M.P.

K.K. Lahoti, J.

Various petitions have been filed by the government servants assailing their transfer order issued by the Government. Though there is policy of the State Government by which certain guidelines have been issued in respect of the transfer orders and for filing representation against the transfer order. It appears that the aforesaid, remedy is not efficacious, so the employees are rushing to this Court for the redressal of the grievances, in place of approaching the authorities to the file representation and seek relief. Grievances, of the employees are in nut shell is as under :-

(i) That the transfer order is contrary to the policy of the State Government issued on 3.5.2005, and while issuing the transfer order, the instructions issued by the State Government have not been complied with.

(ii) That there is some personal or genuine difficulty to the employees which is either health or family problems, which is not taken care of and there is no proper redressal of the difficulties.

(iii) That the transfer order has been issued just to accommodate another employee or who sought request transfer which was allowed, or the employee has been transferred to a distant place though he has not completed/or completed the normal tenure.

(iv) That though in the policy, there is provision for relieving the employee within a period of one weak but same is not followed. No provision has been made for grant of reasonable joining period for the employees. Though the period of 7 days has been provided for joining but the respondents are not providing the joining period to the employees and are insisting to join forthwith which is contrary to the rules. Apart from this relieving order is issued along with the order of transfer which is also contrary to the transfer policy. It is prayed that the relieving should be made after a period of one week from the date of receipt of the transfer order, so that he may handover the charge to the concerned officer, but the employees on one hand are relieved along with service of transfer order and they are insisted to join forthwith without allowing a reasonable time to join at transferred place.

It is a settled law that on the basis of the transfer policy no interference can be made by this Court as held by the Apex Court in Union of India and Others Vs. S.L. Abbas, . The Apex Court held that until and unless the transfer order is against the statutory provisions, tainted with malafides, arbitrary or has been issued with ulterior motive, the order cannot be interfered. In the case of N.K. Singh Vs. Union of India and others, . The Apex Court held that "the only realistic approach is to leave it to the wisdom of hierarchical superiors to make the decision." If there is some breach of instruction or transfer policy or employee is facing some genuine difficulty then the respondent being employer has to consider it on filing representation. The Apex Court in S.L. Abbas (supra) has also directed that the only thing required is the departmental authority should consider the grievances of the employees in respect of non-compliance of the instructions issued by the State along with the exigencies of the administration. If any of the administrative instructions/guidelines are not followed, much less can it be characterized as malafide for that reason. To reiterate, the order of transfer can be questioned in a Court only where it is passed malafide or arbitrary or where it is made in violation of the statutory provisions.

Learned Advocate General submitted that after issuance of instructions of transfer policy, further circular is issued on 10.S.2005 by which a procedure has been notified for the consideration of representation of transferred employee. This provides as under :-

The representation against the transfer order issued within the District, after the approval of concerned Incharge Minister shall be sent to the concerned department.

The representation against the transfer order issued by the Collector within the district shall be considered by the Commissioner.

The representation against the transfer order at district level by Superintendent of Police shall be considered by the concerned Inspector General of the range.

The representation against the transfer order by the head of the department shall be considered by the concerned department either that the secrete y of the Department.

The transfer order issued by the department of Class I employees, representation against it shall be considered by the G.A.D.

It is stated by the learned Advocate General that by these instructions, a due care has been taken for the filing of the representation and decision there of. As per the instructions, the representation has to be made within a period of 3 days from the date of receipt of the transfer order by the concerned employee through his immediate superior of the Department. All the representation are directed to be decided as far as possible within a period of 7 days. It is also submitted by Shri Singh, learned Advocate General that the aforesaid mechanism has been formed to consider the grievances of the employees in respect of transfer orders forthwith and within a shortest period and nothing has been left by the State Government which may cause any grievance to the employees in this respect.

From the perusal of the aforesaid, though it appears that the State Govt. has tried to form a mechanism to consider the grievance of the employees against the transfer order, but the aforesaid circular does not provide complete redressal mechanism of the grievances of employees and also in respect of the employees transferred within the district. That various peons, nurses, assistant teachers handicapped persons, seriously ailing employees, women and other employees have been transferred within the district or within the State. Some of the districts are very large, where transfer order has been made in remote areas. Some of the employees are having complaint or genuine personal difficulties against the transfer. Some are complaining for the breach of the transfer policy. If their grievances of the employees transferred within district is redressed at the State level, naturally it will take a long time for the decision because the representation has to be sent by Head of the district to the concerned department. In these circumstances, if the grievance is redressed at the district level by some senior officer, it will be more appropriate, convenient, to consider the problem or difficulty and redressal of the grievances at the district level shall be efficatious remedy. And the employees who are transferred and having genuine difficulty may make representation and their representation shall be considered forthwith. Another flaw in the aforesaid instructions is that though the period of 3 days has been provided for filing representation and 7 days period is provided for the decision but in fact it takes a long time, during this tenure, when the employee is pursuing the remedy of representation is unable to get some protection or relieved, or in the meantime the other employee may also join to the office and this will create certain complications. While framing the aforesaid policy, such circumstances has not been taken care of. Apart from the officer who has been vested with the powers to decide the representation has not been given some discretion for interim protection till the decision of the representation.

Learned Advocate General submitted that all the aforesaid protection are not necessary, as the State Govt. has already taken care of for the redressal of the grievances expeditiously. But looking to the facts brought in my notice, this contention is far away from the truth.

On due consideration of the policy of the State Govt. dated 3.5.2005 about the transfer and subsequent circular of 10.5.2005, it will be appropriate for the State Govt. to make suitable provisions in this regard by issuing appropriate orders expeditiously. Accordingly the State is directed to take notice of these aspects and issue further instructions. Till the government takes a decision in this regard, it will be appropriate to direct the authorities to deal with the representation as directed herein under :-

The employees shall be at liberty to file representation against the transfer order as per circular dt. 3.5.2005 and 10.5.2005 even without approaching to this Court. The aforesaid policy decision shall be followed by the employees. The instructions herein are issued in addition/to supplement the aforesaid directions issued by the State Government.

So far as the transfer order effected within the district except by the Collector, the representation can be filed to the Collector concerned who shall decide the representation of the employees with the consultation of the District Head of the concerned department of whose the employee has been transferred. The concerned employee shall be entitled to file representation against the transfer order to the concerned Collector through the proper channel and one advance copy to the Collector, within the time period as fixed under the instructions dt. 10.5.2005 either that within a period of 3 days from the date of receipt of the transfer order.

On filing of the aforesaid representation, if any interim protection is prayed by the concerned employee for the deferment of the compliance of the transfer order or relieving that request shall also be considered forthwith by the concerned Collector, looking to the facts in representation and with the consultation of the aforesaid District head of the department. Thereafter, the Collector shall decide the representation of the employee expeditiously as far as possible within a period of 7 days from the date of receipt of the representation. In appropriate cases, the Collector concerned shall be free to seek approval of his decision from the concerned Minister of the department of whose employee has been transferred.

The decision of the Collector shall be communicated to the concerned department and employee forthwith, and shall be carried out by all the concern.

So far as the employee who are having State cadre and transferred by the Head of the Department is concerned, the representation shall be filed to the concerned department either that the Secretary of the Department through proper channel, if the employee makes a request for some interim protection, it shall be considered by the concerned Secretary on filing appropriate application by the concerned employee showing his grievance supported by necessary documents and/or affidavit. In that circumstances, the concerned secretary shall exercise his discretion for the grant of interim protection till the decision of the representation.

The transfer orders which are effected by the department either that the Secretary of the concerned department, representation shall be filed to the Secretary, G.A.D. as enumerated in the policy. The authority shall exercise its discretion to issue interim direction in appropriate cases where such request is made and in the opinion of the Secretary, the case is fit for grant of interim protection.

The decision on all there presentation shall be made expeditiously as far as possible as provided in the instructions either that 7 days.

The transfer order should not be communicated to the employee along with the relieving order and a reasonable time should be provided as enumerated in the transfer policy dt. 3.5.2005 which provided a weeks time for the relieving and reasonable period to join shall be given, as provided in the M.P. Civil Services Joining Time Rules, 1982.

The aforesaid directions are issued to meet out the exigency as indicated hereinabove and the State Government shall take a decision in this regard expeditiously as far as possible within a period of 30 days from the date of communication of the order. These directions shall be followed by all the concerned authorities, till a further decision is taken by the State.

In this petition, petitioner has challenged the transfer order Annexure P-1 and P-2, passed by the Director, Fisheries. The main grievance of the petitioner is that this order is contrary to the transfer policy of the state Government and has been issued just to accommodate respondent No. 2. The aforesaid grievance may be considered by the respondents on filing representation by the petitioner in this regard.

Petitioner is granted liberty to file representation to respondent No. 1 as per the policy of the State Govt, and the directions issued hereinabove.

With the aforesaid directions, this petition stands finally disposed of.