Sadaram Thaganlal Turkar vs State Of Maharashtra And Ors.
2002 Latest Caselaw 1334 Bom

JUDGMENT

A.P. Shah, J.

1. Rule. Respondents waive service. By consent, Rule is made returnable forthwith.

2. The petitioner was appointed as Village Development Officer in the Zilla Parishad, Bhandara. Initially the petitioner was posted at Panchayat Samiti, Arjuni (Morgaon), Dist. Bhandara. Thereafter he was transferred to Panchayat Samiti, Gondia with effect from 2-12-1991. On 18-11-1998 the petitioner was promoted as Extension Officer (Panchayat) and posted at Panchayat Samiti, Pauni, Dist. Bhandara. Under the relevant rules petitioner's services were transferable within Bhandara District only. On 1-5-1999 Bhandara district was bifurcated into two districts namely Bhandara and Gondia. Accordingly Zilla Parishad of Bhandara was also bifurcated into two Zilla Parishads namely Bhandara Zilla Parishad and Gondia Zilla Parishad. In view of the bifurcation of the Zilla Parishad, options were called from the employees about their willingness to serve in the Zilla Parishad of their choice. Accordingly the petitioner gave his option for Gondia Zilla Parishad in the prescribed form. It appears that the power to effect such transfers was delegated to respondent No. 4 - Commissioner, Nagpur Division, Nagpur, who directed to effect such transfers immediately. The respondent No. 4 has specifically directed that the rules of Inter District Transfers would not be applicable to such transfers of class III and IV employees. The material portion of the order passed by the respondent No. 4 on translation reads as follows :

"In accordance with the above referred letter it is hereby informed that in case of such class 3 and class 4 employees who have filled in and submitted the option prior to the creation of Gondia District it is necessary to take action as per the option. For that, the Inter-District Transfer Rules will not apply. Because, if such transfers are made then, the service seniority of those employees would be considered afresh. This will cause loss to those employees".

3. The State Government vide its letter dated 3-7-2000 informed the Chief Executive Officers of both Zilla Parishads i.e. Bhandara Zilla Parishad and Gondia Zilla Parishad that it had no objection to the transfer of 200 employees as per their choice. Paragraph 3 of the said letter dated 3-7-2000 on translation reads as under :

"3. There is no objection to take from Gondia Zilla Parishad to Bhandara Zilla Parishad 200 employees of the same cadre instead of those 200 employees who are interested to go to the Gondia Zilla Parishad from the Bhandara Zilla Parishad, on the following criteria:

1) Bringing together of husband-wife

2) Service seniority.

The condition of minimum 10 years of service is relaxed by the Government for the mutual inter district transfer of said 200 employees.

4. As regards the 12 employees who wished to come to Bhandara Zilla Parishad from Gondia Zilla Parishad but who had not got the employees for mutual transfer, it is hereby informed that the transfers of 12 employees from Gondia Zilla Parishad, who had not got the substitute, have been made as per the guidelines laid down by the Government. Therefore, if the posts from the concerned Cadres are vacant in the Bhandara Zilla Parishad, then for sending such employees to Bhandara Zilla Parishad, they can be appointed on transfer. However, the Inter District Transfer Rules will be applicable for such transfers.

Therefore, you are requested to take immediate action in this matter and to immediately submit to the Government the list of the employees transferred".

4. It is seen from the above that 12 employees who wanted transfer from Bhandara Zilla Parishad to Gondia Zilla Parishad did not get replacement from Gondia Zilla Parishad and therefore it was decided that Inter District Transfer Rules shall apply to such transfers. It is an admitted position that the name of the petitioner does not figure in the category of 12 employees. Pursuant to the order of the Commissioner the petitioner was transferred to Gondia Zilla Parishad vide order dated 28-6-2001 and he joined at Gondia on 28-8-2001. By letter dated 15-2-2002. He was given a posting on a vacant post at Panchayat Samiti, Gorgaon District Gondia.

5. By letter dated 16-2-2002 the Dy. Secretary, Department of Rural Development and Water Conservation addressed to the Chief Officers of Gondia and Bhandara Zilla Parishads directed repatriation of Village Development Officers and Extension Officers on the ground that their transfers were effected in contravention of Inter District Transfer Rules. On the basis of this letter dated 16-2-2002, the petitioner was again transferred to Bhandara Zilla Parishad. The correctness and legality of this letter dated 16-2-2002 is questioned in this petition under Article 226 of the Constitution.

6. We have heard the learned counsel for the parties. Perused the records including the affidavits filed on behalf of the respondents. The impugned letter dated 16-2-2002 on translation reads as follows :

"Annexure II(ii)

DO L No. ZP/4000/M 384/M No. 6727/12 Rural Development and Water Conservation Department, Mantralaya, Mumbai 400032

Sub : After the bifurcation of the Bhandara Zilla Parishad the transfers under inter district transfers, of the Zilla Parishad employees working in Bhandara and Gondia districts.

Ref : 1) letter bearing No. ZPY 400 and 384/M No. 6727/14 dt .....2000 of this dept.

2) letter bearing No. PI Go/S/Panch/WS D2 9800 dt. 4-8-2001 of the ZP

3) Letter bearing No. ZPG S Panch/ws/D 20 18004/2001 dt. 28-8-2001 of the ZP

Dear Shri Janginwarji,

By the above referred letters from this department orders have been issued regarding inter district transfers pursuant to the bifurcation of both the Zilla Parishads viz Gondia and Bhandara. Therein, a principle has been set out viz that as many employees from the respective cadres wish to come to Gondia Zilla Parishad from their original Zilla Parishad viz. Bhandara, the same number of employees from the same respective cadres should be sent to Bhandara Zilla Parishad from Gondia Zilla Parishad and that for such inter district transfer following criterias are laid down ;

1) Posting of husband and wife together

2) Seniority in service.

In paragraph 4 of the very letter, it has been clearly mentioned that in this matter, the employees who are going to be transferred the Rules of inter district transfer will be applicable for such transfers.

2. As the inter district transfer Rules are applicable in this matter, those employees who wish to come to Gondia Zilla Parishad from Bhandara Zilla Parishad such employees can come to the posts of the district recruitment. Appointment cannot be made to the promotional posts by inter district transfer. As it has come to the notice of this department that pursuant to the letter date 3-7-2000 the employees viz the Rural Development Officer, Extension Officer (Panchayat) had been transferred under inter district transfer in some cases, your Zilla Parishad was informed on telephone that as the inter district transfer rules were applicable for such exchange, appointment should not be made to the promotional post by inter district transfer.

3. Vide your order issued under letter bearing no ZPG/GAD/ Pancha/WS/D 20/9880/2001 dated 4-8-2001, 15 inter district transfers have been made. The said inter district transfers have been made on account of bifurcation of the Ziila Parishads viz. Bhandara and Gondia. The same (the said transfers) include the employees from the cadres viz Gramsevaks, Rural Development Officers and Extension Officers (Panchayat). As the post viz Rural Development Officer is to be filled up only by promotion, the appointment to the promotional post of Rural Development Officer cannot be made by inter district transfer. As such, if you have absorbed the employees from the Bhandara Zilla Parishad to the post of Rural Development Officer, then they should be immediately sent back. Further, 75 present posts of the Extension Officer (Panchayat) are filled up by promotion. Therefore, (it should be ascertained) whether the posts, to which the employees have been appointed by inter district transfers, are promotional ones or not and if so, then even such employees should not be appointed to the promotional posts by inter district transfer. Therefore it should be ascertained as to whether the posts to which the said Extension Officers (Panchayat) have been appointed by inter district transfer, are reserved for direct recruitment or not. If the said posts are reserved for promotion, then such employees should not be appointed to such posts by inter district transfer. If such employees have come to you from the Bhandara Zilla Parishad then they should be immediately sent back. In this matter, action should be taken as per the order dated 3-7-2000. As many Gramsevaks have come to you from Bhandara Zilla Parishad under inter district transfer same number of Gramsevaks should be sent from Gondia Zilla Parishad to Bhandara Zilla Parishad under inter district transfer. While making such transfers, such transfers can be made on the basis of the criteria laid down in the letter dated 3-7-2000 and those criterias are 1) Posting of husband and wife together and (2) Seniority in service......"

7. On a perusal of the above letter it is seen that the concerned Secretary had completely misread paragraph 4 of the letter dated 3-7-2000. Paragraph 4 specifically dealt with only 12 employees who could not find their replacement in Gondia Zilla Parishad. The letter is clearly inapplicable to the employees who were transferred on the basis of the options including the present petitioner. In fact in the order passed by the Commissioner as well as in the letter dated 3-7-2000 issued by the State Government, it was specifically directed that the Inter District Transfer Rules would not be applicable to the transfers of the petitioner and other similarly situated employees. Once the State Government had decided not to apply the Inter District Transfer Rules to the transfers based on option and the replacement policy, then it is not permissible to change the stand and apply the Rules retrospectively to the transfers already effected.

8. In the result petition succeeds. Rule is made absolute in terms of prayer Clauses (i) and (ii). However, it is clarified that this order is restricted only to the case of the petitioner and the transfers of other employees already effected on the basis of the letter dated 14-3-2002 shall not be disturbed.