IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI nd ON THE 2 OF MAY, 2022 WRIT PETITION No. 6815 of 2022 Between:-

SALIM KHAN, S/O SHRI B. MOHAMMED, AGED ABOUT 32 YEARS, PRATHMIK SHIKSHAK, GOVERNMENT NAVEEN PRIMARY SCHOOL BAMRI, BLOCK PALERA, DISTRICT-

TIKAMGARH (MADHYA PRADESH)

.....PETITIONER (BY SHRI NAVNEET DUBEY, LEARNED COUNSEL FOR THE PETITIONER)

AND THE STATE OF MADHYA PRADESH THROUGH PRINCIPAL SECRETARY, DEPARTMENT OF

1. SCHOOL EDUCATION (MINISTRY), VALLABH BHAWAN BHOPAL (MADHYA PRADESH)

COMMISSIONER, PUBLIC INSTRUCTIONS 2. GAUTAM NAGAR, BHOPAL (MADHYA PRADESH) DISTRICT EDUCATION OFFICER TIKAMGARH

3. DISTRICT TIKAMGARH (MADHYA PRADESH)

PRINCIPAL GOVT. EXCELLENCE HIGHER SECONDARY SCHOOL PALERA, DISTRICT

4.

TIKAMGARH (MADHYA PRADESH)

.....RESPONDENTS (BY SMT. G.K. PATEL, LEARNED GOVERNMENT ADVOCATE FOR THE RESPONDENTS/STATE)

This petition coming on for admission this day, the court passed the following:

ORDER

This petition has been filed under Article 226 of the Constitution of India challenging the orders dated 29.08.2021 (Annexure P/1) by which the petitioner who is working on the post of Prathmik Shikshak in Naveen Primary School Bamri, Block Palera, District Tikagarh has been transferred to Government Primary School Dunda Tora, District Tikamgarh. Petitioner has also challenged the order dated 17.01.2022 (Annexure P/5) by which his representation has been rejected.

Learned counsel for the petitioner submitted that the impugned order is in blatant violation of the transfer policy. He further submitted that this is the second round of litigation, earlier the petitioner had approached this Court in WP No.19509/2021 against the impugned order dated 29.08.2021. This Court was pleased to dispose of the petition vide order 21.09.2021 directing the respondent to consider and decide the representation.

Learned counsel for the petitioner submitted that while deciding the representation the ground that the petitioner is a member of the Office bearer of the Union has not been taken into consideration. The Office bearers are protected for two tenures from transfer according to the Clause 33 of the Policy. None of the grounds have been taken into consideration while rejecting the representation.

Learned counsel for the petitioner further submitted that the petitioner is still working since August, 2021 at the present place of posting which has been certified by the Head Master of the School vide letter dated 10.03.2022 (Annexure P/8). Therefore, on these grounds, he prays that the impugned orders may be set aside.

Per contra, learned counsel for the State submits that no interference with the order of transfer is warranted as the same has been done owing to administrative exigency. Moreover, the transfer policy is in the nature of A guidelines. There is no statutory violation of any rules and no malafide has been pleaded. Learned counsel for the State further submitted that on perusal of the order, rejecting the representation it can be clearly seen that the five grounds were raised by the petitioner in which the ground of office bearer has not been raised. With the aforesaid, she submitted that the petition being devoid of merit and substance, deserves to be dismissed.

Having heard learned counsel for the parties, I am of the view that there is substantial force in the submissions advanced by learned counsel for the State. Moreover, it is well settled in law that transfer is an incidence of service. Which employee should be posted where, is a matter for the appropriate authority to decide. The Supreme Court recently in the case of Namrata Verma Vs. State of U.P. and others by order dated 06.09.2021 passed in SLP (Civil) No.36717/2017 has held that it is not for the employee to insist to transfer him/her and/or not to transfer him/her at a particular place. It is for the employer to transfer an employee considering the requirement. Until and unless the transfer is vitiated by malafide or is