NITYA RAM SHARMA Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS is second visit of the petitioner against the transfer order. The petitioner was aggrieved by order dated 19.07.2012 (Annexure P/2), whereby he was transferred from Govt. K.R. Girls College, Gwalior to Govt. Kanya P.G. College, Morar, Gwalior on administrative ground and in lieu thereof, respondent No.4 was transferred on her own request. This Court in the first round of litigation i.e. WP No. 5369/2013 disposed of the petition with the direction to decide the representation of the petitioner and till decision of representation, transfer order was stayed.

(2.) IT is contended by the petitioner that representation Annexure P/5 was preferred, but respondents without taking into account the said representation and by giving erroneous finding that representation is not received, affirmed the transfer order. Although, Shri Alok Sharma, learned counsel for the petitioner contended that representation was actually sent by speed post. I am not inclined to enter into the controversy whether the representation was actually sent and received by the respondents or not. The question which needs to be considered is whether the transfer of the petitioner can be said to be in administrative exigency. The singular ground to assail the transfer order, as canvassed, is that college in which petitioner has been transferred, the post of Asstt. Grade III is not lying vacant. This contention of the petitioner is supported by the document filed with the return dated 05.03.2013 (Annexure R/1).

(3.) THIS is settled in law that transfer is a condition of service and order of transfer can be passed in administrative exigency or in public interest. The petitioner has no legal right to remain posted on a particular place. However, while exercising power of transfer, it is obligatory on the part of the department to see that the place where the employee is transferred, post is lying vacant. State Govt. by considering order of this Court passed in WP No. 14195/2007 (S) decided to ensure that before transfer of an employee it must be seen that the post is lying vacant. However, in the present case, it is clear that petitioner is transferred to a place where post was not lying vacant. This kind of exercise was disapproved by this Court in 2001 (1) MPHT 234 (Ashok Kumar Tiwari Vs. State of M.P. and others). In para 5 this court opined that it was required to be looked into whether the office to which the man is being transferred has any available vacancy or not. In operative portion (para 8) interference in transfer order was made for the reason that there was no vacancy at the transferred place.