Bombay High Court
The State Of Maharashtra vs Omprakash Ghanshyamdas Mudiraj on 18 December, 2008
Bench: Naresh H. Patil, S.R. Dongaonkar
(1)
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
Writ Petition No.4859 Of 2008
1) The State of Maharashtra ]
Through its Principal Secretary, ]
Water Resources Department, ]
Mantralaya, Mumbai. ]
]
2) The Chief Engineer, ]
Water Resources Department, ]
Sinchan Bhawan, Jalna Road, ]
Aurangabad. ] .. Petitioners.
Versus
1) Omprakash Ghanshyamdas Mudiraj, ]
Age 58 years, ]
Occupation Government Service, ]
Superintending Engineer, ]
R/o Nanded Irrigation Circle, ]
Nanded. ]
]
2) Ramchandra Keshavrao Nitturkar, ]
Age 50 years, ]
Occupation Government Service, ]
Superintending Engineer, ]
Sinchan Bhawan, ]
Workshop Road, Nanded. ] .. Respondents.
...
Shri. N.B. Khandare, Government Pleader, for petitioners.
Shri. J.N. Singh, Advocate for respondent No.1.
Shri. Sandeep S. Deshmukh, Advocate for respondent No.2.
...
CORAM: NARESH H. PATIL &
S.R. DONGAONKAR, JJ.
Dated: 18th DECEMBER 2008
ORAL JUDGMENT (Per Naresh H Patil, J.):
J.)
1) In this writ petition filed under Article 226 of
the Constitution the petitioners challenge the order dated
18-7-2008 passed by the Maharashtra Administrative
Tribunal Mumbai, Bench at Aurangabad in Original
Application No.306 of 2008.
2) The factual matrix, in brief, is as under :
. The
respondent No.1 - Omprakash Ghanshyamdas
Mudiraj was working as Superintending Engineer Nanded
Irrigation Circle Nanded at the relevant time. He assumed
charge at Nanded on 23-2-2007 in pursuance to the order
dated 17-3-2007. Respondent No.1 - the applicant in the
Original Application before the Maharashtra Administrative
Tribunal (for short - "the Tribunal") is to retire on 31st
December 2008 on attaining superannuation. It is the
contention of respondent No.1 before the Tribunal that he
intended to settle at Nanded and his pension papers were
forwarded by the Chief Engineer of Nanded Circle.
3) It is an admitted fact that after issuance of the
transfer orders, the respondent No.2 - R.K. Niturkar
joined his new posting as Superintending Engineer at
Nanded Irrigation Circle but the respondent No.1 who was
transferred to Nashik did not join.
4) In the contentions of the respondent No.1 raised
before the Tribunal, the transfer order, which was
challenged before the Tribunal, deserved to be set aside
due to mala fides and for non compliance of the provisions
of the Maharashtra Government Servants Regulation of
Transfers and Prevention of Delay in Discharge of Official
Duties Act, 2005 (for short, "the Act of 2005"). The
respondent No.1 submitted before the Tribunal that there
was no
Government to
sufficient record and material before
transfer him from Nanded to
the
Nashik.
State
The
transfer order was issued only to accommodate respondent
No.2 at Nanded.
5) The Tribunal called for the original record and
verified the same which included names of some of the
Engineers who were to be transferred in accordance with
the Chart Nos.1 and 2. The Tribunal observed that the
name of respondent No.1 herein was not appearing either in
Chart No.1 or Chart No.2 of the Superintending Engineers
proposed to be transferred under the Annual General
Transfers of 2008. The name of respondent No.1 in the
list of impugned transfer order of 11 Superintending
Engineers was appearing at Sr.No.7.
6) Perusal of the impugned order passed by the
Tribunal shows that the issue of mala fide was not
considered by the Tribunal as a ground for setting aside
the transfer order. In the view of the Tribunal it was
non compliance of the provisions of sub section (5) of
section 4 of the Act of 2005. The Tribunal addressed the
issue of sufficiency of reasons for issuance of transfer
orders. The endorsements made against the name of
respondent No.2 as appearing in the transfer proposal were
discussed and considered by the Tribunal and in view of
the
placed
said
discussion and appreciation
the Tribunal reached conclusion that the order
of the material
of
transfer which was questioned before the Tribunal was bad
in law due to non compliance of the requirement of sub
section (5) of section 4 of the Act of 2005.
7) The learned Government Pleader submitted that it
is settled position in law that transfer is an incidence
of service and it shall not be interferred unless it is
established that there are mala fides, it is against the
provisions of law and for want of prior approval of the
competent authorities. The learned Government Pleader
submitted that one of the glaring aspects of the matter is
that respondent No.1 who was directed to join at Nashik
did not obey the order and did not join the post at Nashik
even till this date. In such circumstances the respondent
No.1 was not entitled to raise challenge to the transfer
order. In the submission of the Government Pleader the
Tribunal exceeded its jurisdiction in scrutinizing the
sufficiency of the material placed before the State
Government to take a decision to transfer the respondents
No.1 and 2 prior to their normal tenure of three years of
service at the given place. Exigencies and exceptional
circumstances prevail upon the State Government, according
to the Government Pleader, to transfer an employee even
prior to completion of 3 years of normal tenure and even
in accordance
igwith the provisions of the Act of 2005
employee is liable to be transferred, if in the opinion of
an
the State, circumstances exist for such a transfer. In
the facts of the case there were reasons and circumstances
due to which the transfer orders had to be issued. In
support of the contentions raised the learned Government
Pleader has placed reliance on the following judgments :
. Union of India v. S.L. Abbas, JT 1993 (3) S.C.
678.
. State of M.P. vs. S.S. Kourav, AIR 1995 SC
1056.
. S.C. Saxena v. Union of India, (2006) 9 SCC
583.
In the case of S.C. Saxena (cited supra) it was observed
in para 6 :
"6. .... In the first place, a government servant
cannot disobey a transfer order by not reporting at
the place of posting and then go to a court to
ventilate his grievances. It is his duty to first
report for work where he is transferred and make a
representation as to what may be his personal
problems. This tendency of not reporting at the
place of posting and indulging in litigation need
to be curbed. Apart therefrom if the appellant
really had some genuine difficulty in reporting for
work at Tezpur, he could have reported for duty at
Amritsar where he was so posted......"
8)
In the present case in the transfer proposal, copy
of which is part of the order of the Tribunal as reflected
in para 31, we find that, against the name of respondent
No.2 - Niturkar there is endorsement that he had requested
for his transfer to Aurangabad or Pune due to certain
difficulties. The State noticed that there was lack of
proper liaison between the officers due to which over all
functioning at Nashik got affected. Therefore it was
proposed that respsondent No.2 be transferred. In the
bottom of the said endosrement there is reference to the
name of respondent No.1 - Mudiraj in whose case the State
had received a representation submitted by Mr. Bhimrao
Gonarkar, District office bearer of Republican Party of
India (Democratic), Nanded. Some sort of enquiry was
going on, according to the endorsement made in that
respect. In one of the columns of the said proposal two
recommendations of Mr. Prakash Sundarrao Solanke, M.L.A.
and Mr. Dilip Deshmukh, M.L.C. are mentioned.
Considering these aspects of the matter, it was proposed
to transfer respondent No.2 at Nanded and respondent No.1
at Nashik.
9) It would be necessary to consider the provisions
of Chapter II of the Act of 2005. Section 3 relates to
tenure of posting. The normal tenure in a post shall be
three years. Section 4 relates to tenure of transfer. It
mandates
transferred
that
ig no government servant shall ordinarily
unless he has completed his tenure of posting
be
as provided in section 3. Sub section (4) provides that
the transfers of government servant shall ordinarily be
made only once in a year in the month of April or May.
For our purpose it would be relevant to reproduce the
provisions of Section 4(4) and (5) of the Act of 2005.
"4.(4)
4.(4) The transfers of Government servant shall
ordinarily be made only once in a year in the month
of April or May;
Provided that, transfer may be made any time in the
year in the circumstances as specified below,
namely:--
(i) to the newly created post or to the posts which
become vacant due to retirement, promotion,
resignation, reversion, reinstatement,
consequential vacancy on account of transfer or on
return from leave;
(ii) where the competent authority is satisfied
that the transfer is essential due to exceptional
circumstances or special reasons, after recording
the same in writing and with the prior approval of
the next higher authority.
(5) Notwithstanding anything contained in section 3
or this section, the competent authority may, in
special cases, after recording reasons in writing
and with the prior permission of the immediately
preceding Competent Transferring Authority
mentioned in the table of section 6, transfer a
Government servant before completion of his tenure
of post.
10) Proviso to sub section (4) of Section 4 says that
transfer
circumstances
may
be made at any time in the
as enumerated in clauses (i) and (ii).
year in the
We
are concerned with clause (ii) which provides that where
the competent authority is satisfied that the transfer is
essential due to exceptional circumstances or special
reasons, after recording the same in writing and with the
prior approval of the next higher authority, it could be
made in a year prior to completion of normal tenure in a
post which is three years. Sub section (5) of Section 4
further provides that the competent authority may, in
special cases, after recording reasons in writing and with
the prior permission of the competent transferring
authority, transfer a Government servant before
completiion of his tenure.
11) In the submission of the learned Government
Pleader there were special reasons which were recorded and
after taking into consideration the same, transfer orders
were effected.
12) Learned counsel appearing for respondent No.2 Mr.
Sandeep Deshmukh has supported submissions of the
Government Pleader and submitted that there is absolutely
no evidence for alleging that the order of transfer was
vitiated by mala fide or the same was passed to
accommodate respondent No.2 in place of respondent No.1.
In
beyond
the submission of the counsel, the Tribunal
its powers in appreciating sufficiency of
travelled
reasons
which weighed with the State for passing transfer orders.
The provisions of the Act of 2005 were fully complied
with. In the submission of the counsel the respondent
No.1 was disentitled to raise challange to the order of
transfer as he failed to obey the order of the State.
13) We find that by now the law is settled on the
issue of interference in transfer orders. No government
servant or employee has any legal right to be posted
forever at any one particular place or place of his choice
since transfer is not only an incidence but a condition of
service, necessarily in public interest and in aid of
efficiency in the public administration. Unless an order
of transfer is shown to be outcome of mala fide exercise
or stated to be in violation of statutory provisions,
normally the Courts or Tribunals would not interfere as a
matter of routine.
. Once transfer orders are effected on account of
administrative exigency it is for the competent authority
to deal with the same as to who should be placed at what
place and who should be transferred from one place to
another and as to how long persons should be retained at a
particular place. All these things will depend upon facts
and
dealing with
circumstances
the
of each case to be
issue of transfer from
considered
one place
while
to
another.
14) The learned counsel Mr. Singh appearing for
respondent No.1 submitted that the transfer order in
question is issued just to accommodate respondent No.2 on
the recommendation of M.L.A. and M.L.C. who were not
local representatives and were nowhere concerned with the
functioning of respondent No.1. As regards the issue of
under recovery of water taxes by respondent No.1, the
counsel submits that normally insistence of recovery is
around 50% and in the tenure of respondent No.1 the
recovery was 14% and the said factor should not have been
a ground for transferring a senior officer of the rank of
Superintending Engineer. The State ought to have
considered the functioning of respondent No.1 on other
matters in which he was very much successful. By picking
up one facet of the functioning of the respondent No.1 the
State unreasonably took decision to transfer just after
more than a year after respondent No.1 had started working
at Nanded. From the application and rejoinder filed the
counsel brought to our notice that issues of mala fide,
unreasonabless, accommodation and violation of the
provisions of law were raised by the respondent No.1
before the Tribunal. In the submission of the counsel
prior
transfer
approval
ig was one of the essential
which was not complied with in this case.
conditions to
From
the chart of proposal which is part of the order of the
Tribunal it was pointed out by the counsel that the
Hon'ble the Chief Minister made endorsement to the effect
that "Pl. consider" and there is no endorsement of prior
approval. It was further submitted that respondent No.1
is to retire by 31st December 2008. He had already
submitted his pension papers. He had decided to
permanently settle at Nanded and in that view of the
matter the State ought to have desisted from transferring
him. The counsel has placed reliance on the judgment in
Syed Yakoob vs. K. S. Radhakihsnan, AIR 1964 SC 477 in
support of his contention that there are limits on the
jurisdiction of the High Court while issuing writ of
certiorari under Article 226 of the Constitution. A writ
of certiorari can be issued for correcting errors of
jurisdiction committed by inferior courts or tribunals.
This Court would not enter into appreciation of facts
while dealing with the orders of transfer. The counsel
further placed reliance on judgment in State of A.P. v.
Prameela Modi, (2006) 13 SCC 147 in support of his
contention that High Court in exercise of powers under
Article 226 cannot convert itself into a court of appeal
and indulge in reappreciation or re-evaluation of
evidence. We have perused all the judgments cited by the
learned counsel.
15) Firstly, we do not find any justifiable reason
with the respondent No.1 not to obey the order of transfer
issued by the State. In violation of the said order of
transfer respondent No.1 without joining the posting at
Nashik approached the Tribunal. It is informed to this
Court that, even till today he has not joined at Nashik
though he is due to retire by 31st December 2008. This
circumstance goes against respondent No.1 in the facts of
this case.
16) In the facts of this case we find that the
Tribunal exceeded its jurisdiction in reappreciating and
verifying sufficiency of reasons in evaluating the
transfer order. This is not a case of no reasons with the
State or the grounds based on imagination for effecting
transfer order. M.L.A. and M.L.C. had recommended to
the State Government in the case of respondent No.2 and
the State had received certain complaints against
respondent No.1 though submitted by an office bearer of a
political party and some sort of enquiry was in the
process. The State did find that the percentage of
recovery of water taxes was not achieved to the desired
extent by respondent No.1. Though the Tribunal did not
find names of respondents Nos.1 and 2 in the charts 1 and
2 placed
Department
before the Tribunal by the Desk Officer of
that would not disentitle the State Government
the
to consider cases of the respondents individually and pass
appropriate orders before they could complete their normal
period of 3 years. Proviso to sub section (4) of Section
4 of the Act of 2005 entitles and permits the State
Government to pass an order of transfer prior to
completion of normal period of 3 years in case where
exceptional circumstances are noticed or special reasons
are found. Certainly the provisions of the Act of 2005
are required to be strictly followed while effecting
transfer order.
17) Whether the reasons propounded by the State
Government for transferring the respondents are sufficient
or otherwise could not have been gone into by the
Tribunal. The Tribunal even assessed the sufficiency of
reasons by referring to the case of one Mr. M.A. Mate,
Superintending Engineer in Yawatmal Irrigation Circle
having completed target 100% recovery. The said case was
considered, as Mr. Mate, according to the Tribunal, was
transferred prior to completion of his normal period.
Such comparison in the facts of the case was not essential
as each case will have to be considered on its own merits
by the State. The employer would be the best judge to
appreciate performance of its employees and their
suitability
mandates that
in a particular place.
the State shall comply with the
At the same time, law
necessary
requirements as envisaged under the provisions of Section
4(4) for effecting transfers (order) prior to completion
of normal tenure of posting. We find that in this case
the State has considered individual cases of both the
respondents and decided to transfer them. The Tribunal
did not discuss the issue of mala fide. Therefore, we are
of the opinion that the said issue need not be taken up by
us for consideration in exercise of extra ordinary writ
jurisdiction under Article 226 of the Constitution of
India. We find in the facts of the case that the State
had complied with the provisions of Section 4 of the Act
of 2005. There are special reasons with the State for
effecting transfer orders and the contention of
accommodation of respondent No.2 in the facts of the case
cannot be accepted.
18) We may caution the State that, cases of transfer
of employees prior to normal period of three years on the
complaints of political parties should be looked into very
cautiously and with close scrutiny. It is necessary to
discourage counter proposals for and against the employees
by political parties to be the sole basis for transferring
an employee. Of course, each case will have to be tested
in the background of its peculiar facts and circumstances.
19) We
are of the opinion that the Tribunal committed
error of jurisdiction. The view of the Tribunal goes
contrary to the established principles and the ratio of
the judgments cited on the matter relating to interference
of Courts / Tribunals in the matters of transfers. The
writ petition is therefore required to be allowed.
20) The Writ Petition is allowed. The order dated
18-7-2008 passed by the Member (Judicial), Maharashtra
Administrative Tribunal, Mumbai, Bench at Aurangabad in
Original Application No.306 of 2008 is quashed and set
aside. Rule is made absolute accordingly with no order as
to costs.
Sd/- Sd/-
(S.R. DONGAONKAR, J.) (NARESH H. PATIL, J.)
"Authenticated Copy"
rsl/ wp.4859.08
