Unauthorized Absence During Transfer Dispute Not Justifiable Even with Alleged Harassment or Pending Representation: Madhya Pradesh High Court (DB) - 2025-04-27

Public Servant's Obligation to Join Transfer Post Upheld by MP High Court

Jabalpur , MP - The Madhya Pradesh High Court, in a significant ruling on service law, has set aside a Single Judge's order that directed the regularization of a retired Headmaster's period of absence during a transfer dispute. A Division Bench, presided over by Justice Sushrut Arvind Dharmadhikari , held that a public servant is obligated to comply with a transfer order and join the new place of posting unless a stay order is obtained from a competent authority, regardless of pending representations or allegations of harassment.

The judgment, delivered in an appeal filed under Section 2(1) of the Madhya Pradesh Uchha Nyayalay (Khandpeeth Ko Appeal) Adhiniyam, 2005, restored the original order of the Commissioner, Public Instructions, which had declared the period of absence from September 1, 2005, to November 30, 2006, as "no work no pay".

Background of the Case

The case involved a retired Headmaster who had served for over 37 years. He was transferred from his original posting but did not join the transferred location (first Khedicourt, later modified to Goula after a High Court order directing representation consideration). Instead of joining, the employee challenged the transfer and filed a complaint with the M.P. State Scheduled Caste Commission, alleging discrimination and harassment by the Block Education Officer, Amla.

Following the Commission's recommendation, the Director, Public Instructions, directed the District Education Officer to transfer the employee according to policy and issued a warning to the Block Education Officer. Consequently, the employee was transferred to a place of his choice ( Sasawad ) and joined duty on November 28, 2006.

The period during which the employee did not join the transferred locations (September 1, 2005, to November 30, 2006) was subsequently declared as "no work no pay" by the Commissioner, Public Instructions, in an order dated November 23, 2016. The employee challenged this order before a Single Judge of the High Court in 2021.

Single Judge's Decision

The Single Judge had allowed the employee's writ petition, quashing the Commissioner's order. The Single Judge reasoned that the alleged unauthorized absence was not attributable to the employee, citing that authorities had issued orders (like the Director's) and that the record reflected harassment at the behest of the Block Education Officer. The Single Judge directed the regularization of the period and payment of salary arrears with interest.

Arguments Before the Division Bench

The State, as appellant, argued that the employee admittedly did not perform duties during the disputed period and therefore was not entitled to salary under the principle of "no work no pay". They contended that the Single Judge wrongly relied on the Director's order and failed to appreciate that the employee's absence was voluntary and solely attributable to him, citing the Supreme Court decision in State of Bihar & Others v. Kripa Nand Singh .

The employee, as respondent, opposed the appeal, arguing that the initial transfer was irregular and contrary to rules, and he was subjected to harassment. He contended that his absence was justified under these circumstances and that the Single Judge's order finding no illegality requiring interference was correct.

Division Bench Analysis and Precedent

The Division Bench framed the core question: whether unauthorized absence can be regularized merely because of alleged harassment, a non-compliant transfer policy, or a pending representation before an authority without the power to direct service conditions.

The Court relied heavily on the well-settled principle of service jurisprudence regarding transfers. Citing the Supreme Court judgment in Gujarat Electricity Board and another v. Atmaram Sungomal Poshani , the Division Bench reiterated:

"Transfer of a government servant appointed to a particular cadre of transferable posts from one place to the other is an incidence of service... Whenever, a public servant is transferred he must comply with the order... If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation..."

The Court noted that the employee did not join either transferred location (Khedicourt or Goula) and remained absent while pursuing his grievance, including lodging a complaint with the Scheduled Caste Commission. The Bench specifically commented on the Commission's role, stating that while Article 338 of the Constitution empowers the National Commission for Scheduled Castes to investigate complaints regarding safeguards, it does not extend to interfering with routine service matters like transfer, promotion, or posting, which are governed by service rules.

The Court found that no interim protection or stay on the transfer order was ever granted by any legally empowered authority during the period of absence. Therefore, the employee had no justification for not joining duty at the transferred place.

The Division Bench found the Single Judge's conclusion that the absence was not the employee's fault and that he was not allowed to work to be incorrect. The Court stated that the employee simply did not report for duty at the transferred locations.

Final Decision

Based on its analysis, the Division Bench concluded that the period of unauthorized absence could not be regularized. The Court allowed the appeal, set aside the Single Judge's order dated September 26, 2023, and restored the Commissioner, Public Instructions' order dated November 23, 2016, which treated the period from September 1, 2005, to November 30, 2006, as "no work no pay".

The Court clarified that the employee would still be entitled to other consequential benefits as already directed by the Commissioner's order, although the nature of these benefits was not detailed in the judgment.

The ruling underscores the principle that public servants must adhere to transfer orders promptly unless a stay is granted by a competent court or authority, and pendency of representations or complaints, even alleging harassment or irregularity, does not automatically excuse absence from duty.