Nandita Dubey, J.:— On account of the prevailing conditions worldwide, brought about by the COVID 19 virus, this petition has been heard and decided through video conferencing, to maintain social distancing. The necessary parties have effectively been represented by their respective counsel through video conferencing.
2. This petition under Article 226 of the Constitution of India has been filed aggrieved by the order (Annexure P/19) dated 06.06.2020 whereby the petitioner's representation has been rejected.
3. As per petitioner, she was transferred vide order dated 06.02.2020 from Sehore to Panna during the suspension period to accommodate respondent no. 4 in the mid session. Earlier she has filed a writ petition no. 5579/2020 challenging the said transfer order and the same was disposed of on 06.03.2020 with a direction to the petitioner to submit a fresh representation and the respondents, in turn, were directed to decide the same within a further period of four weeks.
4. Learned counsel for the petitioner submits that petitioner has filed a fresh representation, but the respondents have not decided the same, instead, they have decided the earlier representation filed by her as is clear from impugned order dated 06.06.2020. He further submits that fresh directions may be issued to the respondents to decide the representation which was filed on 19.03.2020 vide Annexure P/18.
5. Learned Deputy Advocate General appearing for the respondents/State has vehemently opposed the prayer and submitted that the grounds raised in the second representation (Annexure P/18) have already been considered and decided by the impugned order.
6. Vide order dated 06.03.2020 this Court had disposed of the earlier writ petition no. 5579/2020 filed by the petitioner against her transfer order and directed her to file a fresh representation, and the respondents, in turn, were directed to decide the same by a reasoned and speaking order within a further period of four weeks, and the petitioner was allowed to continue for the time being at the present place of posting at Sehore.
7. A comparison of previous representation (Annexure P/13) and fresh representation (Annexure P/18) shows that the grounds raised by the petitioner in both the representations are same; that her husband Sunil Raikwar is working in Bank of India at Bhopal and her two daughters who are aged 3 and 5 years are studying in Nursery and K.G.I. Further she has stated that as per the policy of transfer, a no-objection certificate of the principal of the institution is required. Petitioner has also made allegations that to accommodate respondent no. 4, petitioner has been transferred. However, the same does not seem to be true as petitioner being a lecturer, could not be replaced by respondent no. 4 who is a stenographer.
8. Though the impugned order shows that the petitioner has not filed any fresh representation and the Department had decided the earlier representation filed by her, however, the grounds raised in the representation Annexure P/13 which are verbatim same as raised in Annexure P/18, dated 19.03.2020 have already been considered and decided by the impugned order.
9. In Bhagwat Singh Verma v. State of M.P. 2011 (3) MPHT 479 (DB) this Court has held:
“It is well settled in law that transfer is an incidence of service. Appellant admittedly holds a transferable post. Which employee should be posted where is a matter for the Appropriate Authority to decide. Until and unless the transfer is vitiated by malafide or is made in violation of any statutory provisions, the Court cannot interfere with the order of transfer. It is further held that a person against whom allegations of malafides are made, has to be personally impleaded and plea of malafides has to be properly pleaded and proved. Burden of establishing malafides is very heavy on the person who alleges it. See Indian Railway Construction Co. Ltd. v. Ajay Kumar . (2003) 4 SCC 579.)”
10. In Rajesh Gupta v. Bharat Sanchar Nigam Ltd. ILR 2009 MP 103, this Court has held:—
“A government servant holding a transferable post has no vested right to remain posted at one place or other. He is liable to be transferred from one place to other. Transfer orders issued by the competent authority do not violate any legal right. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead the affected party should approach the higher authority in the department.”
11. Transfer is an incidence of service and can only be interfered with, if it runs contrary to any statutory provision, issued by incompetent authority or proved to be mala fide. The employee has no indefeasible right to remain at a particular place. It is the prerogative of the employer to decide as to who should be transferred where.
12. In the instant petition, the petitioner could not establish breach of any statutory rule/policy or a case of mala fide. Hence no case warranting interference under Article 226 of the Constitution of India is made out.
13. This petition being devoid of merit is accordingly dismissed.
14. Certified copy/e-copy as per rules/directions.
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