Yogendra Bhargava vs M.P. State Agricultural Marketing Board and Others

Sujoy Paul, J.—This is second visit of petitioner to this Court. Petitioner was transferred by order dated 04-04-2013 from Shivpuri to Bhitarwar (Gwalior) in lieu thereof respondent No. 3 was transferred from Bhehsdehi Betul to Shivpuri by order dated 04-04-2013. Petitioner by filing writ petition No. 2508/2013 challenged the said orders. This Court by order dated 12-04-2013 granted interim order in favour of petitioner. However, after hearing the parties, said case was disposed of by order dated 10-05-2013. Petitioner and respondent No. 3 were directed to submit detailed representation for their grievance in question and submit it before respondent No. 2. In turn, respondent No. 2 was directed to consider and decide the representation in accordance with law respectively. Interim order was directed to be continued till decision on the said representation. The respondents by communication dated 19-06-2013 and by speaking order dated 18-06-2013 Annexure R/1 rejected the representation of petitioner. These orders are assailed in this petition.

Case of the petitioner is that in obedience of the order passed by this Court he preferred a detailed representation against the transfer order dated 04-04-2013 Annexure P/2. It is contended in the representation Annexure P/3 that his transfer within thirteen months amounts to frequent transfer. In paragraph 4 of the said representation dated 16-05-2013 it was contended that respondent No. 3''s maximum period of deputation is over, therefore, by no stretch of imagination he can substitute the petitioner. It is contended that in absence of any valid extension in favour of respondent No. 3, he is unsuitable to replace the petitioner.

Shri S.P. Jain and Shri Brijesh Sharma learned counsels for employer and respondent No. 3 respectively submit that transfer is incident of service. In absence of any statutory violation, proved malafide or change in service condition, no interference is warranted. It is further submitted that it is not the case of petitioner that transfer order is not passed by the competent authority.

I have heard learned counsel for the parties and perused the record.

This Court directed the petitioner and respondent No. 3 in writ petition No. 2508/13 to submit the representation. The said representation was rejected by speaking order dated 18-06-2013 and communication was made on 19-06-2013. Petitioner made a specific representation that respondent No. 3''s maximum period of deputation is over and he cannot replace him. A perusal of rejection order Annexure P/1 and Annexure R/1 show that the said contention of petitioner is not dealt with at all. The document dated 07-08-2013 Annexure R/3 makes it clear that maximum period of deputation of respondent No. 3 came to an end on 14-07-2009. This was extended after rejection order on 07-08-2013 up to 31st December, 2014.

Learned counsel for respondent No. 3 placed reliance on the circular dated 12th December, 1994 Annexure R-3/8 to rebut the contention of petitioner that after completion of 4 years on deputation which is normally treated as maximum period of deputation, it can further be extended and therefore, no flaw can be found in the action of the respondents. It is apt to quote the relevant portion of the said circular:

The underlined portion makes it clear that deputation beyond maximum period of 4 years can be extended when both the departments have consensus on the same. On a specific query from the Bench, Shri Jain learned counsel for the employer fairly submits that deputation of respondent No. 3 is extended in anticipation of consent/approval of his parent department.

There is no manner of doubt that transfer order can be interfered with only in limited cases where it is established that transfer order is passed without authority of law by incompetent authority, it is proved to be a malafide exercise of power, it changes the service condition of an employee to his detriment or it violates any statutory provision.

However, the Apex Court in N.K. Singh Vs. Union of India and others, has held that if by way of transfer an employee is substituted by another employee who is not suitable/competent to hold the post, the transfer order can be interfered with. In the present case specific objection of the petitioner is that he could have been substituted by respondent No. 3. On the date of transfer i.e. 04-04-2013, his maximum period of deputation was over and there was no extension of deputation either on 04-04-2013 or on the date of rejection of representation dated 18-06-2013. The extension is granted later on, on 07-08-2013. Thus, this cannot validate the order of transfer. This is sorry state of affair that employer has not dealt with this aspect. In other words, petitioner''s specific objection about impermissibility of transfer of respondent No. 3 in place of petitioner specifically raised in representation is not dealt with. In the considered opinion of this Court, rejection order suffers from serious infirmity because the material point has not been dealt with by the said authority. Considering the aforesaid, orders impugned Annexure P/1 and P/10 are set aside. Respondent/employer is directed to decide the aforesaid aspect afresh dispassionately without getting influenced by its earlier orders Annexure P/1 and P/10. This exercise be completed within 3 weeks positively. Till fresh decision as above, interim order passed by this Court dated 20-08-2013 shall continue.

Petitioner is disposed of. No costs.