This petition under Article 226 of the Constitution of India has has been filed seeking the following reliefs:-
''7(I) That, the impugned order annexure P/1 dated 30.05.2020 may kindly be quashed.
(II)Â Â Â Â Â Â Â Â Â That, respondent authorities may kindly be further directed to permit the petitioner as on the present place of posting.
(III)Â Â Â Â Â Â Â That, other relief doing justice including cost be ordered.''
It is submitted by the counsel for the petitioner that by order dated 29/08/2029 (Annexure P2), the petitioner was transferred to Gwalior from Shivpuri.
Since the wife of the petitioner is also in a Government job, therefore, she also got herself transferred from Sheopur to Gwalior. It is submitted that
once again by the impugned order (Annexure P1) the petitioner has been transferred to Bhopal on administrative ground. It is further submitted that
according to the transfer policy, every efforts should be made to keep the husband and wife at the same place and the petitioner has made a
representation against his transfer order which is still pending. It is further submitted that the petitioner is undergoing the treatment for depression at
Gwalior. It is further submitted that in view of unprecedented Covid- 19 pandemic situation, coupled with the fact that there is a large number of
Covid-10 positives at Bhopal, at present it will not be possible for the petitioner to execute the transfer order.
Per contra, it is submitted by the counsel for the State that the transfer is an exigency of service and the transfer policy is not enforceable by law and
there is no absolute bar that if the husband and wife are posted at the same place, then any of those spouses cannot be transferred.
Considered the submissions made by the counsel for the parties through Video Conferencing.
The petitioner has been transferred on the ground of administrative exigency. It is well-established principle of law that the transfer order can be
challenged on the ground of mala fide and an employee has no right to remain at a particular place and the authorities are not required to disclose the
reasons pointing out the administrative exigency.
The Supreme Court in the case of Shilpi Bose (Mrs.) and Others vs. State of Bihar and Others, reported in 1999 Suppl (2) SCC 65 9has held as
under:-
''4. In our opinion, the Courts should not interfere with a transfer Order which are made in public interest and for administrative reasons unless the transfer Orders are
made in violation of any mandatory statutory Rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain
posted at one place or the other, he is liable to be transferred from one place to the other. Transfer Orders issued by the competent authority do not violate any of his
legal rights. Even if a transfer Order is passed in violation of executive instructions or Orders, the Courts ordinarily should not interfere with the Order instead
affected party should approach the higher authorities in the Department. If the Courts continue to interfere with day-to- day transfer Orders issued by the
Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest. The High Court over
looked these aspects in interfering with the transfer Orders.''
The Supreme Court in the case of State of MP and Another vs. S.S.Kourav and Others, reported in (1995) 3 SCC 270 has held as under:-
''4. It is contended for the respondent that the respondent had already worked at Jagdalpur from 1982 to 1989 and when he was transferred to Bhopal, there was no
justification to re-transfer him again to Jagdalpur. We cannot appreciate these grounds. The courts or Tribunals are not appellate forums to decide on transfers of
officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the courts or tribu-nals are not expected to interdict the
working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall
stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background foundation.
In this case we have seen that on the administrative grounds the transfer orders came to be issued. Therefore, we cannot go into the expediency of
posting an officer at a particular place. ''
The Supreme Court in the case of Somesh Tiwari vs. Union of India and Others reported in (2009) 2 SCC 592 has held as under:-
''20. The respondents knew that the matter was pending before the Tribunal. They did not approach the Tribunal to obtain leave for passing the second order of
transfer. They passed an order of transfer while considering the cases of promotion and transfer of a large number of officers. The order of transfer suffered from a
total non application of mind in so far as it proceeded on the premise that the appellant had already joined his post at Shillong. Even it was not stated that the said
order of transfer was being passed in modification of the earlier order of transfer or upon reconsideration of the matter afresh on humantarian ground or otherwise.
We may place on record an extract from the note sheet of Member (P&V) dated 31st October, 2005 which reads as under :-
AC(P) (i.e. petitioner) has tried to fix responsibility on some superintendents for loss/closure of some files about investigations against assessees, those
superintendents, who happened to belong to SC/ST category on being thus pressured, has complained to the police and other agencies alleging harassment of
backward classes by Sh. Somesh Tiwari, a Brahmim, these complaints were found to be baseless and the police had not pursued the matter. Having failed at the local
level it is possible that these officers had lodged the complaint at Delhi which resulted Sh. Tiwari's transfer. Sh. Tiwari is an honest and well intentioned officer..... It is
proposed to give him less harsh posting.
(emphasis supplied)
Removal of the appellant from Bhopal to a place which is '' less harsh'' was thus recommended, which had evidently been acted upon. It is thus demonstrable that
''Shillong'' was considered to be a harsh posting.''
So far as the posting of the husband and wife at the same place is concerned, it is well-established principle of law that the transfer policy is not
enforceable by law and even otherwise, there is no absolute bar that if the husband and wife are posted at a similar place, then any of those spouse
cannot be transferred.
So far as the difficulty in executing the transfer order is concerned, this Court is conscious of the judgment passed by the Division Bench of this Court
in the case of Mridul Kumar Sharma vs. State of MP reported in ILR (2015) MP, 255 6by which, it has been held that a direction to decide the
representation can be issued only after the employee executes the transfer order. However, in the peculiar facts and circumstances of the case,
where the number of Covid- 19 positives are increasing day-by-day, the contention of the counsel for the petitioner that at present it would not be
possible for the petitioner to get the accommodation at Bhopal, therefore, in order to do complete justice, this Court is of the considered opinion that
the respondents must decide the representation without insisting upon the execution of the transfer order.
Accordingly, it is directed that the effect and operation of the transfer order dated 30/05/2020 (Annexure P1) shall remain stayed for a period of two
months from today. The competent authority is directed to decide the representation made by the petitioner positively within a period of two months.
The direction to decide the representation should not be construed as a direction to cancel the transfer and the representation shall be decided strictly
in accordance with law.
With aforesaid observations, this petition is finally disposed of.
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