Rajendra S/O Bhimrao Salunkhe vs Jalgaon Jilha Maratha Vidya ...
2006 Latest Caselaw 946 Bom

JUDGMENT

M.G. Gaikwad, J.

Page 3026

1. Heard learned Counsel, appearing on behalf of the respective parties.

2. Rule. Rule is made returnable forthwith. With the consent of learned Counsel for the respective parties, this petition is heard finally at the stage of admission.

Page 3027

3. By this writ petition, the petitioner challenged the order of transfer dated 29-04-2006 issued by the respondents No. 2 and 3, transferring the petitioner from respondent No. 3 college to the Arts, Commerce and Science College at Yawal run by the same Institution i.e. respondent No. 1.

4. The petitioner has come with a case that he was appointed as Junior Clerk by order dated 30-11-1986 and since then, he is working with the respondent No. 3 college. He came to be confirmed by order dated 06-07-1987. On 16-08-1994, the petitioner had been elected as a Member of Local Managing Committee as per the provisions of Section 85 of the Maharashtra Universities Act, 1994. The said election of the petitioner came to be cancelled on technical grounds. However, again he was elected as a Member of the Local Managing Committee. In the year 1999, the petitioner was also elected as Director of the Cooperative Credit Society of employees of the Jalgaon District Maratha Vidya Prasarak Sahakari Samaj. In 2001, he had been elected as Secretary of the said Society. In capacity as Secretary and as a Member of the Local Managing Committee, the petitioner was expected to look after the grievances of the employees from Jalgaon and those of the other Institutions. Because of this reason, he was continued to work at Jalgaon with the respondent No. 3. It is contended by the petitioner that the respondent No. 2 who is the Secretary of respondent No. 1 had a desire to control the affairs of the Cooperative Credit Society of the Employees and because of the objections by the petitioner, the petitioner was being harassed by the respondent No. 2. In the elections to the Local Managing Committee held in 2002, the petitioner again came to be elected as Member of the Local Managing Committee for a term of five years. On 01-01-2004, the Principal of respondent No. 3 college made a request to the Chairman of the Co-operative Credit Society of Employees to provide financial assistance to the college to meet the expenses to be incurred during the visit of the team of the National Accredation and Assessment Council (for short, "NAAC"). The petitioner in capacity as Secretary of the said Society expressed his inability to render any such assistance. Because of this fact, the Principal of the college had developed grudge against the petitioner and the Society, and therefore, he was not deducting the amount towards the instalments of loan borrowed by the employees from their respective salaries.

5. In the respondent No. 1 Society, there are two parallel Managements and the disputes are going on since 1998 and the proceedings by way of change reports of the Managing Committees are still pending with the Assistant Charity Commissioner bearing Change Reports No. 47/2003 and 49/2003. Because of two parallel Bodies in the Management, two Writ Petitions bearing No. 2500/2005 and 2501/2005 came to be filed and those are pending in this Court. The petitioner being a member of rival group and on account of other instances, as contended by the petitioner, referred to above, the respondent No. 2 had a grudge and grievance against him. On 27-04-2006, the petitioner submitted an application for grant of leave for one and half day. Said application came to be sanctioned on 28-04-2006. However, on 29-04-2006, the brother of the petitioner received a telegram issued by the Principal of respondent No. 3 college to the effect that the leave of the petitoner has been cancelled and on 29-04-2006, the impugned order of Page 3028 transfer came to be issued, transferring the petitioner from respondent No. 3 college at Jalgaon to the college at Yawal. The said order of transfer is under challenge in the present writ petition, as malafide action on the part of the respondents.

In support of alleged malafides, the petitioner has also made reference to the complaint of theft lodged by the respondent No. 2 against the petitioner wherein the court of learned Judicial Magistrate, First Class at Erandol has granted "B" summary. A notice alleging misconduct dated 10-05-2006 also came to be issued against the petitioner.

6. On behalf of the respondents No. 1 and 3, affidavit-in-reply came to be filed which is at page No. 133 of the paper-book, wherein these respondents have denied all the allegations of malafides made by the petitioner. According to these respondents, the order of transfer dated 29-04-2006 is a general order of transfer whereby in all fourteen teaching and non-teaching staff members have been transferred on administrative ground and there are no malafides as such. According to the respondents, the petitioner was working in a college at Jalgaon for last more than twenty years and by the impugned order, he is transferred to a college at Yawal, which is at a distance of hardly 40 to 45 kilometers in place of the respondent No. 4. The respondent No. 4 in response to the impugned transfer order joined his duties at Jalgaon college and the order thus came to be implemented.

The respondent No. 4 has also filed his affidavit-in-reply (page 216 of the paper book) and affirmed that as per the transfer order, he was relieved from Yawal college and he joined the duties at Jalgaon college on 01-05-2006.

7. Mr. S.R. Barlinge, learned Counsel appearing on behalf of the petitioner advanced submission that following are the grounds which are sufficient to infer that the transfer order is malafide one.

[i] The petitioner is from rival group.

[ii] The action of transfer is hasty.

[iii] The respondent No. 2 lodged false complaint against the petitioner.

On the other hand, Mr. V.D. Hon, learned Counsel appearing on behalf of the respondents No. 1 to 3 submitted that the petitioner was working in the college at Jalgaon since last more than twenty years. The change reports referred in the petition were already decided by the learned Assistant Charity Commissioner. The appeal preferred by the present petitioner is also dismissed. The incident of financial assistance from the Cooperative Credit Society was of year 2004. The same is, therefore, not relevant to attribute any malafides.

8. It is not disputed that the petitioner came to be appointed as Junior Clerk in 1986 and since then, he was working at Jalgaon. The respondent No. 4 was working in a college at Yawal and he was out of Jalgaon for a period of thirty years as is admitted by the learned Counsel at the bar. By the impugned order of transfer, the petitioner was transferred from Jalgaon and posted at Yawal in place of respondent No. 4 and the respondent No. 4 is posted at Jalgaon. The college at Jalgaon and at Yawal are the colleges run by one and the same Institution i.e. the respondent No.1. There is also no dispute that the petitioner was elected as a Member of the Local Managing Committee Page 3029 from rival group. According to the petitioner, the said change report was challenged and the inquiries bearing No. 47/2003 and 49/2003 are pending before the Assistant Charity Commissioner. The order dated 12-04-2005 (page 45 of the paper-book) passed by the Assistant Charity Commissioner shows that the inquiry about the said change reports is pending with him. Earlier, change reports on the basis of elections held in 1997 for a term from 1998 to 2003 were also challenged. Both the groups claimed to be legally elected. However, the Assistant Charity Commissioner accepted the change reports of the group of respondent No. 2 and rejected the change report of the petitioner's group. Said decision was challenged before the Joint Charity Commissioner in Appeals No. 16/2002 and 17/2002. Both those appeals were dismissed. Writ Petition No. 2215/2002 (Exhibit-R4) was preferred and in that writ petition also, the status of the group of respondent No. 2 as validly elected members is accepted. Thus, these facts make it clear that the petitioner is from rival group since the year 1998 and has been fighting the litigation. However, during the period of those five years, no action has been taken against him like transfer or change of headquarters. Present general order of transfer, therefore, cannot be termed to be a malafide action solely on the ground that the inquiry on the change reports for subsequent elections bearing Nos. 47/2003 and 49/2003 are pending.

9. The another ground raised by the petitioner to attribute malafides is that of lodging of a complaint against the petitioner by the respondent No.2. A copy of the First Information Report (FIR) is produced on record at Exhibit-O. This complaint came to be filed on 24-03-2005 against four persons wherein the "B" summary came to be passed on 28-06-2005. The report mentions that because of two rival groups in the Management, complaints came to be filed against both the groups by each of them. The rival groups in the said Management is not a disputed fact. However, the complaint in question filed one year before the transfer order cannot be accepted to be an evidence to attribute malafides, for transfer of the petitioner.

10. The third ground that is put forth on behalf of the petitioner to show malafides is the alleged hasty action to issue the transfer order on 29-04-2006 when the petitioner was on leave and relieving him from the said post immediately. The petitioner applied for the leave on 28-04-2006 for one and half day. A general order of transfer came to be passed on 29-04-2006 and the leave of the petitioner came to be cancelled. It is not disputed that this transfer order is not an isolated order of transfer of the petitioner only. This transfer order came to be passed at the fag end of academic year 2005-2006 i.e. in the month of April, 2006. By this order, as many as fourteen teaching and non-teaching employees of the Institutinos run by respondent No. 1 Society have been transferred. Solely on the ground that the leave of the petitioner was cancelled and he was asked to join at the place of his new posting, it cannot be held that this transfer order is malafide one.

11. One of the contentions raised on behalf of the petitioner is that because of non-cooperation by the petitioner i.e. not providing financial assistance from the Credit Society to the College to bear the expenses during the visit of NAAC team, the petitioner came to be transferred. In support of this contention, reliance has been placed on the letters at Exhibit-H (pages 41 and 42 of the Page 3030 paper-book). The Principal of respondent No. 3 college addressed a letter to the Chairman of the Cooperative Credit Society of the Employees. The letter mentions that the college required funds as the NAAC team was going to visit the college and it was requested to provide some financial assistance. On the very next day, present petitioner who was then the Secretary of the said Credit Society replied the said letter and expressed inability to provide any assistance to the college. This incident did occur in the month of January, 2004. The order of transfer came to be passed on 29-04-2006. In case the respondent No. had any grudge or grievance against the petitioner because of petitioner's refusal to provide financial assistance to the college, the respondent No. 2 could have issued the order of transfer transferring the petitioner in 2004 or 2005 instead of waiting for two years. Thus, the incident which took place two years prior to the issuance of transfer order cannot be accepted to be an evidence of any malafides.

12. As discussed to above, the petitioner came to be transferred alongwith other fourteen employees in a general order of transfer. From the record, it is found that the petitioner could not substantiate the allegations of malafides. The petitioner was working in a college at Jalgaon for a period of more than twenty years, whereas the respondent No. 4 was working in a college at Yawal for about thirty years. Considering these facts, on administrative grounds, the impugned order of transfer came to be passed and it is not by way of punishment or it can not be termed to be a malafide action. The transfer is an incidence in service. Unless the malafides are shown in the transfer order, challenge to the transfer order cannot be entertained. In view of the facts and circumstances discussed to above, we do not see any malafide while issuing the impugned transfer order, and therefore, for the reasons stated above, interference in the impugned order by this Court is not warranted. Thus, the writ petition being without merit needs to be dismissed.

13. In the result, the writ petition is dismissed with no order as to costs. Rule is discharged accordingly.