Courts Update Don't see why an ASI, having three years for...

Don’t see why an ASI, having three years for retirement, cannot be transferred: MP HC

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Jabalpur, Jun 25 (ILNS) The Madhya Pradesh High Court has dismissed the petition of an Assistant Sub-Inspector, challenging his transfer order, with the observation that nothing has been pointed out to show that why an employee, who has still three years for retirement, cannot be transferred.

The petitioner had challenged the June 14 order, whereby he was transferred from Krishi Upaj Mandi Samiti, Umaria to Madhya Pradesh Rajya Krishi Vipannan Board, Head Quarter, Bhopal.

A Single-Judge Bench of Justice Prakash Shrivastava, after hearing the Counsel for the parties and on the perusal of the record, noticed that the petitioner has been transferred by the order on the same post in the same pay scale on the administrative ground.

It is not in dispute that the order of transfer has been passed by the competent authority. It is the settled position in law that the transfer is an incidence of service and unless strong and cogent grounds are made out, the scope of interference in a writ petition challenging the order of transfer is very limited.

The order has not been shown to have been passed in violation of any statutory provision nor any malafidies have been shown or alleged, it added.

Rajesh Kumar Chand, Counsel for the petitioner, submitted that he had made the application for transfer to Shahdol, since he is the only member available to take care of his family and that the petitioner has only two years left for retirement and transfer is during the ban period. The petitioner had suffered from COVID-19, therefore, the order of transfer was liable to be set aside, added Mr Chand.

Aditya Narayan Shukla, Counsel for the proposed interveners, opposed the petition and contended that the interveners were local traders, who were harassed by the ASI. The police official has remained posted in the present place for the past 20 years and was also involved in corruption, said Mr Shukla.

The Court held that Counsel for the Petitioner has also not disputed the submission of Counsel for the interveners that the Petitioner has completed almost 20 years in the present place of posting. No RTPCR report has been placed on record by the Petitioner to demonstrate that he was tested Covid positive. In the representation (Annexure P/4), the Petitioner had stated that he was tested Covid positive on May 8, but, more than one month has passed since.

“So far as the petitioner’s request for transfer at Shahdol is concerned, the authorities are not bound to transfer the petitioner to the place of his choice but it is the administrative exigency which determines as to which employee is to be posted at what place” , the Court observed.

The High Court relied on the Supreme Court Judgement in the matter of Shilpi Bose vs State of Bihar reported in 1991 in paragraph 4 has held that :-

“4. In our opinion, the courts should not interfere with a transfer order which is 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………………..”.

Further the Court relied on the Apex Court Judgement in the matter of National Hydroelectric Power Corpn Ltd vs Shri Bhagwan reported in 2001 held that:-

“5. ………no government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders, as though they were the Appellate Authorities substituting their own decision for that of the management……………”.

“Though the petitioner has raised the plea that only three years are left for retirement and the transfer is during the ban period but nothing has been pointed out to show that what was the ban period and why an employee who has still three years for retirement cannot be transferred’, observed the Court, while dismissing the petition. ILNS/SHV/RJ

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