MP HC | Transfer done in colorable exercise of power and at the behest of Ex-MLA held is unsustainable

Madhya Pradesh High Court: S.A. Dharmadhikari, J., allowed a petition as the transfer of the petitioner was done at the instance of the politician which was against the transfer policy.

In the pertinent case, the petitioner, working as Panchayat Secretary, was transferred from Gram Panchayat Deeghodi, Block Kolaras to Gram Panchayat Pachrai, Block Khaniyadhana.

The counsel for the petitioner contended that the order of transfer was in violation of the transfer policy dated 19-05-2017. He further submitted that the transfer has been done on the recommendation of Respondent 3, an Ex-MLA and the transfer order has been passed during the ban period in violation of Clause 9.2 of the transfer policy without obtaining any approval of the concerned Minister. It is further pointed out that Clause 9.3 of the transfer policy provides that transfer can be effected within the district on account of administrative reasons, whereas in the present case, there is no administrative exigency shown for transfer of the petitioner, except at the behest of a politician. The petitioner placed reliance on the order passed in Pratap Singh Mandeliya v. State of M.P., 2013 SCC OnLine MP 10796, in which this Court was pleased to order that transfer order can be passed only in administrative exigency or in public interest.

The Court observed that in case of Sarvesh Kumar Awasthi v. U.P. Jal Nigam, (2003) 11 SCC 740, the Supreme Court held that the power of transferring an officer cannot be wielded arbitrarily, mala fide or an exercise against an efficient and independent officer or at the instance of politicians.

High Court added to its above observation that the transfer policy clearly states that during the ban period, the transfer can be effected only after obtaining concurrence and in the coordination of the concerned Minister.

In the instant case, it was apparent that the transfer was done in colorable exercise of power and at the behest of an Ex-MLA which was against the transfer policy. Thus, the Court held that as per the law laid down in the case of Sarvesh Kumar Awasthy, the transfer order at the instance of a politician is not sustainable.[Rajendra Kumar Sharma v. State of M.P., 2019 SCC OnLine MP 2722, decided on 25-09-2019]

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