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'Such Interference Is Highly Inappropriate': MP High Court Quashes Transfer Order Of Bureaucrat Passed At 'Insistence' Of State Minister

Zeeshan Thomas
9 May 2022 12:30 PM GMT
Reassessment Order Passed Without Considering Reply To The Show Cause Notice: Madhya Pradesh High Court Directs Dept. To Issue Fresh Order

Image Courtesy: Lokesh Mewara

The Madhya Pradesh High Court, recently set aside the transfer order of a bureaucrat who was being transferred at the 'insistence' of the State Minister of Urban Administration.

The Court observed that although the elected representatives can always recommend the transfer of an employee, it ought to be done citing genuine and cogent reasons. It further noted that such interference by the Executive in matters of transfer was 'highly inappropriate'.

Elucidating the power of the Court in matters of transfer, the division bench of Justice Ravi Malimath and Justice P.K. Kaurav observed-

If an order of transfer is made on extraneous or unacceptable reasons then judicial review of such an order is permissible. If a transfer order is passed on an extraneous consideration, the same can be interfered with by the Court. The Court is therefore duty bound in such circumstances to find out as to whether the transfer is bonafide or for extraneous consideration, or as a measure of punishment or otherwise.

The facts of the case were that the Appellant was being transferred from the post of Commissioner, Municipal Corporation, Burhanpur to Bhopal as Joint Director, Directorate, Urban Administration and Development, Bhopal. He assailed the transfer order before the Writ Court, which came to the view that even though there was a frequency of transfer of less than a year, the post of the Chief Municipal Commissioner is a sensitive post.

The Writ Court had further observed that undue long stay at a particular place aids in development of vested interest and that the State Government, being the employer of the Appellant/Petitioner, was in the best position to adjudge suitability of a particular person. The Court had thus concluded that since the Appellant/Petitioner had not pleaded malafides nor was he able to demonstrate that the impugned order of transfer was issued by any incompetent authority, the writ petition was liable to be dismissed.

Challenging the impugned order of transfer and the abovementioned decision of the Writ Court, the Appellant argued that the State had no valid reason to transfer him. He further submitted that he was due to retire in four months and thus his transfer order be set aside.

Per contra, the State argued that transfer is an incidence of service and owing to the same, the Appellant was being transferred.

Examining the facts of the case and documents on record, the Court observed that the Chief Minister's Office had communicated to the Directorate of Municipal Administration indicating that a local MP had recommended the transfer of the Appellant. However, the Department, having considered the same, did not recommend the transfer. The file was then placed before the Commissioner of Urban Administration. There also the Commissioner, Urban Administration did not recommend his transfer. Thereafter, the Minister for Urban Administration had made a recommendation to transfer the Appellant from Burhanpur. Based on the said recommendations of the Minister, the file was placed before the Chief Minister, who approved the same. Thereafter, the impugned order of transfer was issued.

The Court noted that the transfer order did not point out any reason for transferring the Appellant and that he was being transferred purely on the recommendation of the concerned elected representative. Taking strong exception to this, the Court opined-

It is needless to say that an elected representative can always recommend a transfer of an employee. However, such a recommendation has to be for genuine and cogent reasons. It cannot be justified by usurping the authority of the concerned administrative department. In the instant case, the concerned administrative department has declined to transfer the petitioner. The same has also been endorsed by the Principal Secretary of the department. Notwithstanding the same, the concerned Minister has made a recommendation contrary to the opinion of the department. The said file was placed for approval before the Hon'ble Chief Minister, who was therefore compelled to approve the same. Such interference in matters of transfer, in our considered view, is highly inappropriate. Even though there can always be a recommendation, it cannot be forced upon the concerned authorities to effect the orders of transfer. The transfer of the petitioner, therefore, is not on any administrative ground or in public interest, but only due to insistence made by the concerned Minister.

The Court observed that considering the fact that the transfer was ordered only on the basis of the recommendation of the Minister, the impugned order was unsustainable-

In view of the facts and circumstances involved and as disclosed by the original records, the transfer order becomes unsustainable. No transfer order can be sustained if it is made purely on the ground of a recommendation made by a Minister. Therefore, we are of the view that the impugned order becomes unsustainable in law.

With the aforesaid observations, the Court set aside the decision of the Writ Court and further quashed the impugned order of transfer. Accordingly, the appeal was allowed.


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