While taking a very strong exception to the whimsical transfer order being issued arbitrarily of a bureaucrat at the insistence of a state minister, the Madhya Pradesh High Court as recently as on April 27, 2022 in a latest, learned, laudable and landmark judgment titled Shyam Kumar Singh vs State of Madhya Pradesh in Writ Appeal No. 400 of 2022 set aside the transfer order of a bureaucrat who was being transferred at the 'insistence' of the State Minister of Urban Administration. It merits mention that 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 also further went to the extent of holding that such interference by the Executive in matters of transfer was 'highly inappropriate'.
To start with, this brief, brilliant, bold and balanced judgment authored by Hon'ble Shri Justice Ravi Malimath, Chief Justice for a Bench of the Madhya Pradesh High Court at Jabalpur comprising of himself and Hon'ble Shri Justice Purushaindra Kumar Kaurav sets the ball rolling first and foremost putting forth in the opening para about the reason of the petitioner going in appeal that, "Aggrieved by the order dated 13.04.2022 (Annexure-A-1) in Writ Petition No.8470 of 2022 passed by the learned Single Judge in dismissing the petitioner's plea challenging the order of transfer, the petitioner is in appeal."
To put things in perspective, the Bench then envisages in the next para of this notable judgment that, "The case of the writ petitioner is that he is an Officer of the State Municipal Services. He is scheduled to superannuate on 31.08.2022. He is presently working as the Commissioner, Municipal Corporation, Burhanpur. That when the writ petitioner who was working on the post of Commissioner, Municipal Corporation, Ratlam, he was transferred by the order dated 09.07.2020 to Rewa, as the Joint Director, Urban Development and Housing Department. Within a period of 11 months, by the order dated 04.06.2021, he was transferred from Rewa as the Commissioner, Municipal Corporation, Burhanpur. By the impugned order dated 07.04.2022 (Annexure-P/1 to the writ petition) merely after a period of ten months, he has been transferred to Bhopal as Joint Director, Directorate, Urban Administration and Development, Bhopal. Questioning the same, instant writ petition was filed."
As it turned out, the Bench then observed in the next para of this judgment that, "The learned Single Judge came to the view that even though there is a frequency of transfer of less than a year, the post of the Chief Municipal Commissioner is a sensitive post. That undue long stay at a particular place aids in development of vested interest. That it is the State Government, being the employer of the writ petitioner, who is in the best position to adjudge suitability of a particular person. Since the petitioner has not pleaded malafides nor was he able to demonstrate that the impugned order of transfer has been issued by any incompetent authority, the writ petition was dismissed."
On the one hand, the Bench then remarks in the next para that, "The learned Senior Counsel Shri R.N. Singh appearing for appellant's counsel submits that the impugned order of transfer as well as that of the learned Single Judge are erroneous and liable to be interfered with. That there was no valid reason for transferring the writ petitioner. That he has been transferred frequently on whichever post he held. That he has less than four months to go for his superannuation. Therefore, irrespective of the contentions, he pleads that the ground that he has to retire in less than four months, should have prevailed upon the authority in not transferring him. Therefore, he pleads that the appeal be allowed by setting aside the impugned order of transfer."
On the contrary, the Bench then also brings out in the next para of this extremely commendable judgment that, "The State have filed their additional objections in the Court today. They have also produced the records. It is stated therein that based on the recommendations received by the local elected representative for shifting the petitioner out of the Municipal Corporation, Burhanpur, the petitioner was transferred. It is also contended that the same would not affect his retiral dues nor would there be any financial loss. That the transfer is an incidence of service. Hence, he pleads that the appeal be dismissed."
In hindsight, the Bench then recalls in the next para of this laudable judgment after hearing learned counsels that, "The original records of the case were summoned. The same would indicate that a communication was received from the office of the Hon'ble Chief Minister dated 30.12.2021 to the Directorate of Municipal Administration indicating that the Hon'ble local Member of Parliament has made a recommendation for transfer of the petitioner from Burhanpur to Bhopal and to shift the respondent No.2 in his place. 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 the transfer of the petitioner. The same also bears the signature/approval of the Principal Secretary of the department. Thereafter, the note dated 07.03.2022 indicates that the Minister for Urban Administration has made a recommendation to transfer the petitioner from Burhanpur as well as to transfer the respondent No.2 to Burhanpur. Based on the said recommendations of the Minister, the same was placed for approval before the Hon'ble Chief Minister, who has approved the same on 06.04.2022. Thereafter, the impugned order of transfer has been issued."
While pooh-poohing the petitioner's transfer, the Bench then is quite forthcoming in candidly conceding in the next para of this learned judgment that, "On considering the original records as well as the objections filed by the State, the only inference that can be drawn is that the writ petitioner has been transferred purely and solely based on the recommendations made by the concerned elected representatives. There is no other reason assigned at all. The transfer order is not even in public interest or for any other reason. It has been effected purely on the recommendations of the concerned elected representatives."
Quite forthrightly, the Bench then notes in the next para of this refreshing judgment that, "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."
Most forthrightly, the Bench then clearly lays down in the next para of this pragmatic judgment that, "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."
As a corollary, the Bench then hastens to add in the next para of this forthright judgment that, "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."
Most markedly, the Bench then clearly, cogently and convincingly holds in the next para of this brief judgment that, "The further contention that it is a sensitive post and, therefore, a person should not remain for long is not a reason, as can be made out from the original records. The department as well as the concerned Commissioner having considered the recommendations of the elected representatives have clearly opined that it is not a fit case for transfer. Notwithstanding the same, he has been transferred. Therefore, whether the post is sensitive or not, is not a reason that can be found from the records to effect the transfer. The only reason that can be inferred from the records is that the transfer is based on a recommendation. No such recommendation can be a valid ground to sustain an order of transfer."
For sake of clarity, the Bench then stipulates in the next para of this robust judgment that, "It is further pleaded by the respondent No.2 that he has already occupied the position at Burhanpur. If that be so, then necessarily his order of transfer also would have to be quashed and he would have to be reverted back to his earlier position or await further orders from the Government. As of now, we are of the view that the petitioner is entitled to continue in the present place, namely, as Commissioner of Municipal Corporation, Burhanpur. The respondent No.2, who is presently holding charge, shall hand over the charge to the petitioner and await further orders from the State."
Finally, the Bench then concludes by holding in the final para of this learned judgment that, "Hence, for all these reasons, the appeal is allowed. The order passed by the learned Single Judge dated 13.04.2022 (Annexure-A-1) in Writ Petition No.8470 of 2022, is set aside. The impugned order of transfer dated 07.04.2022 (Annexure-P/1) passed by respondent No.1, is quashed. Since the impugned order of transfer also includes the transfer of respondent No.2, apparently, the said order also would stand quashed based on the aforesaid observations. The respondent No.2 shall hand over charge to the writ petitioner and await further orders from the State."
In a nutshell, the Madhya Pradesh High Court deserves all the kudos for quashing the whimsical transfer order of a bureaucrat at the arbitrary instance of a State Minister. It has to be conceded that the Court very rightly pointed out that such brazen interference by the Executive in matters of transfer the transfer order was highly inappropriate. So such a transfer order had to be quashed which the Madhya Pradesh High Court did accordingly! Very rightly so!