Thursday, 31 October 2019

Madhya Pradesh HC: Personal problems of public servant should be considered while passing transfer orders

This Court is conscious of the fact that assailing an order of transfer on the ground of the son/daughter of transferred employee being in Class-11th and 12th is not a justiciable cause. However, our Constitution contemplates the State at the center or at provincial level, to be directed towards welfare of the people at large, which is only possible when the people are contented by the treatment they received from the State. Services, are an integral part of the system and are instrumental in making the administrative machinery of the State move. The directive principles of State Policy oblige the State to make available circumstances and atmosphere for the citizens to physically, mentally, socially and economically grow to their fullest potential and in-turn contribute towards the over all development of the nation. This concept is reflected from a bare reading of Article 38(1) of the Constitution of India which is one of the directive principles of State Policy, which is reproduced below for ready reference and convenience:—
Art.38(1)The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.”
4. For a public servant to strive towards excellence, it is of utmost importance that fair and equitable opportunities are made available by the State. One of the means to achieve this goal of providing equitable opportunities by the State is to make available healthy and stress-free working environment for a public servant. A stress-free working environment is inter alia possible when the State, functioning as an employer, while effecting transfers takes into account not only the administrative exigencies/public interest but also the genuine personal problems of the public servant liable to be transferred. A balance has to be struck by the employer which is though difficult but not impossible to achieve. Every government in it's capacity as an employer owes it to its employees. If this balance between the administrative exigency and personal inconvenience is kept in mind before every event of transfer, the cause of heart burning amongst public servants under transfer would reduce to the minimum thereby creating a healthy and congenial atmosphere between the employer and employees which in turn contributes greatly to the over all development of the particular institution and as well as the nation.

In the High Court of Madhya Pradesh(Gwalior Bench)
(Before Sheel Nagu and Vivek Agarwal, JJ.)

Ripudaman Singh Yadav  v. State of M.P. and Others
W.A. No. 1141/2019
Decided on July 16, 2019
Citation: 2019 SCC OnLine MP 1658

1. The instant intra Court appeal filed u/S. 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 questions the legality, validity and propriety of order dated 21.06.2019 passed in W.P. No. 11141/2019 by the learned Single Judge dismissing the petition on merits preferred by the petitioner/appellant herein against his transfer from Veterinary Hospital, Deenpura, District Bhind to Veterinary Hospital, Lakhanvas, Tehsil Byavra, District Rajgarh.
2. Though several grounds have been raised by the counsel for petitioner but the one which appeals to this Court is that the daughter of petitioner is pursuing her academic career in Class-11th which is a crucial stage in the career of a student which if disturbed can jeopardise the future career of a student.
3. This Court is conscious of the fact that assailing an order of transfer on the ground of the son/daughter of transferred employee being in Class-11th and 12th is not a justiciable cause. However, our Constitution contemplates the State at the center or at provincial level, to be directed towards welfare of the people at large, which is only possible when the people are contented by the treatment they received from the State. Services, are an integral part of the system and are instrumental in making the administrative machinery of the State move. The directive principles of State Policy oblige the State to make available circumstances and atmosphere for the citizens to physically, mentally, socially and economically grow to their fullest potential and in-turn contribute towards the over all development of the nation. This concept is reflected from a bare reading of Article 38(1) of the Constitution of India which is one of the directive principles of State Policy, which is reproduced below for ready reference and convenience:—
Art.38(1)The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.”
4. For a public servant to strive towards excellence, it is of utmost importance that fair and equitable opportunities are made available by the State. One of the means to achieve this goal of providing equitable opportunities by the State is to make available healthy and stress-free working environment for a public servant. A stress-free working environment is inter alia possible when the State, functioning as an employer, while effecting transfers takes into account not only the administrative exigencies/public interest but also the genuine personal problems of the public servant liable to be transferred. A balance has to be struck by the employer which is though difficult but not impossible to achieve. Every government in it's capacity as an employer owes it to its employees. If this balance between the administrative exigency and personal inconvenience is kept in mind before every event of transfer, the cause of heart burning amongst public servants under transfer would reduce to the minimum thereby creating a healthy and congenial atmosphere between the employer and employees which in turn contributes greatly to the over all development of the particular institution and as well as the nation.
5. In the conspectus of the aforesaid discussion, this Court is of the considered view that the public servant whose children are pursuing their career in the higher secondary stage of education, ought not to be disturbed barring emergent situation where transfer cannot be avoided or deferred.
6. The aforesaid observations cannot be turned into direction due to inherent limitations of the power of judicial review. Therefore, this Court requests the State and its functionaries to keep the aforesaid principle in mind while subjecting transfers particularly of such public servants whose children are in Class-11th and 12th.
7. A copy of this order be served on the Additional Advocate General Gwalior for doing the needful.
8. The Registry is further directed to communicate a copy of this order to the Chief Secretary of Government of M.P. for doing the needful.
9. Reverting to the facts of the present case, it is seen from the petition that before transferring the petitioner vide Annexure P/1 dated 12.06.2019 from Bhind to Rajgarh the employer has not taken into account the factum of daughter of petitioner pursuing her academic career in Class-11th.
10. Consequently, this Court is of the considered view that the State needs to consider this aspect.
11. Accordingly, present writ appeal is disposed of with direction to respondent No. 1 to reconsider the decision of transferring the petitioner from Bhind to Rajgarh vide Annexure P/1 dated 12.06.2019, provided the petitioner submits proof along with fresh representation within 10 (ten) days from today regarding the daughter of petitioner pursuing her Class-11th at Bhind.
12. If the aforesaid representation along with proof is submitted within the time period prescribed, then the petitioner/appellant shall not be compelled to join at the place of transfer till the respondent No. 1 takes a fresh decision on the said representation.
13. It is made clear that if the representation along with proof is not filed by the petitioner within 10 (ten) days from today, then the protection granted to petitioner as aforesaid shall become ineffective.
14. It is further made clear that while reconsidering, respondent No. 1 shall not be prejudiced by the impugned order of the learned Single Judge dated 21.06.2019 passed in W.P. No. 11141/2019 and also by the transfer order dated 12.06.2019.
15. Consequently, this petition stands disposed of with the aforesaid observation/direction and the impugned order dated 21.06.2019 passed in W.P. No. 11141/2019 to extent indicated above stands modified.
16. No cost.
 Gwalior Bench
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