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IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BENCH
Prakash Shrivastava, J.
Rabikant Tiwari and Ors. – Appellants
Versus
State of M.P. and Ors. – Respondents
W.P. Nos. 15911, 7416, 7444, 10301, 10318, 10633, 10714, 16040, 16433, 17415 of 2020
Decided On : 27-02-2021
Transfer - Contract Employee - 24.02.2020 - Clause 9.1, 3.5 - The court discussed the provisions of the policy dated 24.02.2020, specifically Clause 9.1 and 3.5, which permitted transfer of contract employees based on administrative exigencies. The court referred to previous judgments and held that transfer is permissible under the policy, and the employer has the right to transfer employees based on administrative needs.
Fact of the Case:
The petitioner, a contract employee, challenged a transfer order citing non-transferable services. The respondents argued that the transfer was necessary due to administrative exigencies and vacancies at the transferred place. The petitioner had not complied with the transfer order.
Finding of the Court:
The court found that the appointment order and policy contained provisions for transfer, and previous judgments supported the permissibility of transfer for contract employees based on administrative needs. The court also noted the petitioner's failure to join at the transferred place and the absence of statutory violations or malafide in the transfer order.
Issues: The issues involved the permissibility of the transfer of a contract employee based on administrative exigencies and the petitioner's compliance with the transfer order.
Ratio Decidendi: The court held that the terms of the contract and the policy permitted the transfer of the petitioner, and the employer had the right to transfer employees based on administrative needs. The court also cited the Supreme Court's position on interference in transfer orders.
Final Decision: The court dismissed the petitions, finding no grounds for interference in the impugned transfer order.
ORDER :
Prakash Shrivastava, J.
1. Heard finally with consent.
This order will govern the disposal of W.P. No. 15911/2020, W.P. No. 7416/2020, W.P. No. 7444/2020, W.P. No. 10301/202, W.P. No. 10318/2020, W.P. No. 10633/2020, W.P. No. 10714/2020, W.P. No. 16040/2020, W.P. No. 16433/2020, W.P. No. 17415/2020, as it is jointly submitted by the learned counsel for the parties that all these petitions involve common question.
2. For convenience, facts have been taken from WP No. 15911/2020. By this petition, the petitioner has challenged the transfer order dated 07.03.2020 whereby the petitioner who is working as Contract Mobiliser (Samooh Prerak) has been transferred from Block Deosar, Singrauli to Block Khilchipur, District Rajgarh. The petitioner is also aggrieved with the order dated 21.09.2020 whereby the petitioner's representation against the impugned order of transfer has been rejected.
3. Learned counsel appearing for the petitioner submits that the petitioner is a contract employee and in terms of Clause 9.1 of the policy dated 24.02.2020, he cannot be transferred. He further submits that the petitioner's services are non-transferable and in support of his submission he placed reliance upon the judgment of this Court in the case of Ashok Tiwari vs. M.P. Text Book Corporation and another reported in 2010 (2) MPLJ 662 and in the case of Smt. Vandana Dandotiya vs. State of M.P. and others. He has further submitted that in identical petition WP No. 16811/2020 (Purshottam Suryavanshi vs. State of MP and others), interim order has been passed on 01.12.2020.
4. Opposing the prayer, learned counsel for the respondents has submitted that the service of the petitioner is transferable on account of the administrative exigencies. The petitioner has already been relieved but he has not complied with the order of transfer and identical petition has been dismissed.
5. Having heard the learned counsel for the parties and on the perusal of the record, it is noticed that though the appointment of the petitioner is on contract basis but the appointment order dated 01.09.2015 itself contains the following conditions:
The policy circular dated 24.02.2020 has been placed on record and the said circular contained provision in respect of the transfer:
9-1 lafonk veys dh fu;qfDr LFkku fo'ks"k ,ao dk;Z fo'ks"k ds fy;s gksus ds dkj.k LFkkukarj.k dk Áko/kku ugha gSA Ák'kklfud O;oLFkkvksa dks ns[krs gq, fo'ks"k ifjfLFkfr;ksa esa LFkkukarj.k fd;k tk ldsxkA lafonk vuaca/k lekIr dj LFkku ifjorZu djrs gq, leku dk;Z o ifjofrZr LFkku gsrq uohu vuqca/k fd;s tkus dh Lohd`fr nh tk ldrh gSZ uohu vuqca/k dh vof/k dk;Z ij mifLFkfr fnukad ls ml foRrh; o"kZ dh 31 ekpZ rd gh gksxhA
The above clause has been considered by the Co-ordinate Bench of this Court in WP No. 1027/2021 vide order dated 05.02.2021 in the case of Shabana Begum vs. State of M.P. and others and it has been held that the said clause permits transfer. The view taken by the Co-ordinate Bench in the matter of Shabana Begum(supra) after noting clause 9.1 of the policy reads as under:
"The impugned order has been issued under Clause 9.1 of the circular. From plain reading of Clause 3.3 of the circular, it is clear that in case of change of place, a fresh agreement shall be executed at the changed place.
Clause 9.1 is in two parts. The first part of this Clause provides that the contractual employee shall be appointed for a particular place and for discharging particular duties and there is no provision for transfer. However, the second part of this clause provides that in view of administrative exigencies, under special circumstances a contractual employee can be transferred and in that situation after changing the place of posting, permission for execution of new agreement at the changed place can be granted and the tenure of the contractual employee at the changed place would b
The main legal point established is that the terms of the contract and the policy permit the transfer of contract employees based on administrative exigencies, and the employer has the right to trans....
The transfer of contract employees is permissible under certain conditions as provided in the terms of the contract and relevant policies.
Government servants have no vested right to remain posted at a place of their choice and can be transferred in administrative exigencies, and the courts should not interfere with transfer orders made....
Transfer of an employee is an essential condition of service and can only be interfered with in exceptional circumstances. Courts have limited jurisdiction to interfere in transfer matters.
Judicial review of employee transfers is limited; transfers are administrative unless proven mala fide or in violation of statutory provisions.
The employer's discretion in transferring a contractual employee must be exercised judiciously and cannot be arbitrary; the court can intervene if proven tainted with malice.
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