Full Judgment
W.P.No.13523/2013 (S.K.Raikwar Vs State of MP and otheRs.16.08.2013 Heard Shri P.N.Dubey, learned counsel for the petitioner on the question of admission and interim relief.
The petitioner has filed this petition being aggrieved by order dated 23.07.2013 as well as order of relieving issued on the same day by which the petitioner has been transferred from Bhopal to Gwalior.
It is submitted that the petitioner is an office bearer of the M.P.SC/ST Union and therefore is protected from transfers in accordance with the policy of the State.
It is further submitted that the impugned order has been issued only on account of the fact that the petitioner has been made a witness in a case filed by another class-4 employee against the respondent No.3 and also on account of the fact that he interfered in the posting of a class-4 employee in the house of the Secretary of the Department and therefore the impugned order being malafide, deserves to be quashed.
Having heard the learned counsel for the petitioner, it is observed that though such allegations of malafide have been made against the person holding the post of Secretary of the Department, the said person has not been impleaded by name not have any allegations in that regard been made against him in his personal capacity.
It is settled law that where a person alleges malafide against any person he has to make specific and clear allegations in that regard in the petition against the individual concerned in his personal capacity and is also required to implead him by name in the petition failing which such allegations cannot be considered as has been held by the Supreme Court in the cases of State of Bihar and another versus P.P.Sharma, IAS and another 1992 Suppl (1) SCC 222.I.K.Mishra versus Union of India and another (1997) 6 SCC 228.Medley Minerals India LTD.versus State of Orissa and others (2004) 12 SCC 390.Federation of Railway Officers Association and others versus Union of India (2003) 4 SCC 289.
It is also undisputed and infact admitted that the petitioner has remained in Bhopal since more than 15 years and has also been relieved for joining his present place of posting at Gwalior by order dated 23.07.2013.
It is settled law that which employee is to be posted where is the sole prerogative of the employer and this court has no role to play in such a purely administrative matter except for the cases where the order of transfer is in violation of the policy as has been held by the Supreme Court in the cases of MRS.Shilpi Bose and others v.
State of Bihar and otheRs.AIR 199.SC 53.and Union of India and others v.
S.L.Abbas, (1993) 4 SCC 357.
In view of the aforesaid facts and circumstances and law laid down by a Division Bench of this court in the Case of R.S.Chaudhary versus State of M.P.and OtheRs.ILR [2007].MP 132.wherein after considering the entire case law, the Division Bench has held that in cases where the the transfer is alleged to have been made in violation of the transfer policy, the appropriate remedy of the petitioner is to approach the authorities themselves by filing a representation and as the petitioner in the present petition alleges that the impugned order violates the clause of the transfer policy which provides for retaining the office bearer of the association and also provides for a clause relating to the posting of husband and wife together.
Therefore, without entering into the merits of the case the petition filed by the petitioner is disposed of with a direction to the effect that in case the petitioner files a representation along with a copy of the order passed today and a copy of the petition before the authority concerned within 15 days, the same shall be considered and decided by the authority concerned in accordance with law, keeping the transfer policy in mind, within a period of two months thereafter.
The petitioner, if so advised, may also move an application for interim relief which shall be considered by the concerned authority at the earliest.
However, it is made clear that this court has not expressed any opinion on the merits of the case and therefore the authority would be at liberty to examine the matter keeping all facts and facets into consideration and thereafter either accept or reject the representation by passing a reasoned order.
With the aforesaid directions, the petition filed by the petitioner stands disposed of.
C.C.as per rules.
(R.S.Jha) Judge msp