Opp. Datta Mandir vs The State Of Maharashtra
2010 Latest Caselaw 27 Bom

                                            1                                      wp-4827-10


mgn

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                 
                    APPELLATE SIDE, CIVIL JURISDICTION




                                                         
                          WRIT PETITION NO.4827 OF 2010


      Shri Shankarrao Narayanrao Jadhav           )




                                                        
      Age adult, Deputy Collector,     Group-A,   )

      working as Deputy Collector(Revenue) in )




                                                 
      the office of District Collector, Satara,
                                 ig               )

      r/o. Premvarsha Apartment, Bibwewadigaon)
                               
      Opp. Datta Mandir, Pune-411 037.            )..Petitioner
           

            Vs.
        



      1.The State of Maharashtra                  )





        through the Addl. Chief Secretary         )

       (Revenue), Revenue & Forest Department )

       Mantralaya, Mumbai-400 032.                )





      2.The Divisional Commissioner,              )

        Pune Revenue Division, Pune, office at    )

        Council Hall, Pune-411 001.               )




                                                         ::: Downloaded on - 09/06/2013 16:32:17 :::
                                         2                                        wp-4827-10

    3.The Principal Secretary & Chief Electoral )

      Officer, 6th Floor, Mantralaya,           )




                                                                               
      Mumbai-400 032.                           )




                                                       
    4.Smt. Jayashree Katare,                    )

      presently working as Probationer, Deputy )




                                                      
      Collector transferred and posted as       )

      Sub Divisional Officer, Haveli, Dist.Pune )..Respondents




                                           
                               
                              
    Mr. Y.S. Jahagirdar Senior Advocate i/b. Mr. N.V. Bandiwadekar, for the
    petitioner.
    Mr. A.V. Anturkar i/b. Mr. G.M. Savagave, for respondent No.4.
    Mr. S.R. Nargolkar, G.P., for respondent No.1.
           


                               CORAM: B. H. MARLAPALLE &
        



                                      U.D. SALVI, JJ.

DATE: 13th & 14th October, 2010.

ORAL JUDGMENT (PER B.H. MARLAPALLE, J.)

Heard. Rule. Respondents waive service. Petition is heard finally.

2. This petition filed under Articles 226 and 227 of the Constitution

arises from the order dated 30th April, 2010 passed by the Maharashtra

3 wp-4827-10

Administrative Tribunal in O.A. No.214 of 2009. The petitioner was

posted as Sub Divisional Officer, Haveli, Pune and on completion of his

tenure of more than 3 years was due for transfer. As per the instructions in

letter dated 14th November, 2008 from the Chief Electoral Officer proposals

were invited from the Divisional Commissioners for transfer of officers

who were required to be transferred at the behest of the Commission. On

31st December, 2008 the Divisional Commissioner, Pune, had submitted his

list to the State Government of all such officers. The name of the petitioner

was included in the said list. The proposal was processed and submitted to

the Chief Electoral Officer for his concurrence and such a concurrence was

given on 18th February, 2009. The proposal was then placed before the

Chief Minister through the Revenue Minister and with some modifications

it was approved. Consequently on 2nd March, 2009 by a common order

addressed to the Divisional Commissioner, Pune 28 officers under him

were sought to be transferred from one station to another and on account of

the instructions of the Election Commission of India. However, the

authorities realised that the modifications made in the proposal by the

Chief Minister were not placed before the Chief Electoral Officer and,

therefore, on 3rd March, 2009 the order dated 2nd March, 2009 was

stayed/kept in abeyance. On obtaining concurrence of the Chief Electoral

4 wp-4827-10

Officer for the modification as well, the impugned order, in place of the

order dated 2nd March, 2009 for transfers was issued. The petitioner who

was sought to be transferred from Pune to Satara as Deputy Collector

(Revenue) by the order dated 2nd March, 2009 retained his transfer to

Satara even in the subsequent order dated 6th March, 2009. Being

aggrieved by this order dated 6th March, 2009 the petitioner approached the

Tribunal in O.A. No.214 of 2009. At the same time some other officers

from the very same transfer order dated 6th March, 2009 and who were

from the Pune Revenue Division had also approached the Tribunal in O.A.

Nos.202, 212, 213 and 517 of 2009.

3. In all these applications, the Tribunal had passed orders setting

aside the transfers. Writ Petition No.7141 of 2009 came to be filed before

this Court by Smt. Nilima Dhaigude, who was respondent in O.A. No.202

of 2009 challenging the judgment of the Tribunal rendered on 11th August,

2009. It was submitted by Smt. Nilima Dhaigude before this Court that the

Tribunal had allowed the applications on a wrong admission that before

issuing the order dated 6th March, 2009 approval of the Chief Minister was

not obtained though it was essential and mandatory and she wanted to

resile from the said concession. This Court did not consider such a request

and left the petitioner therein to approach the Tribunal with a review

5 wp-4827-10

application. The Review Application came to be dismissed and, therefore,

Smt. Dhaigude approached this Court in the second round by filing Writ

Petition No.9665 of 2009. A Division Bench of this Court was pleased to

dismiss the said petition as well on 23rd November, 2009. Thus the four

other officers who were transferred by the impugned order dated 6th March,

2009 have succeeded before the Tribunal as well as before this Court in

O.A. Nos.202, 212, 213 and 517 of 2009 and on a common ground that

before issuance of the transfer order dated 6th March, 2009 the approval of

the Chief Minister was not obtained.

4. The petitioner's O.A., was also allowed initially by the Tribunal on

11th August, 2009 and the same order came to be challenged before this

Court in Writ Petition No.7269 of 2009 by Smt. Jayshree Katare, who was

respondent No.4 in the O.A. On 18th February, 2010 a Division Bench of

this Court disposed off the petition in the following terms:-

(a) Order dated 11th August, 2009 passed by the Maharashtra

Administrative Tribunal in Original Application No.214 of 2009 is

set aside.

(b) Original Application No.214 of 2009 is remitted back for

denovo consideration and decision in accordance with law.

All contentions available to both the sides are kept open to be urged

6 wp-4827-10

before the MAT. Parties to appear before the MAT on 8th March,

2010 along with a copy of this order.

(c) The MAT is requested to hear and dispose of the Original

Application as expeditiously as possible preferably within a period of

six weeks from 8th March, 2010.

5. On remand the Tribunal dismissed the Original Application No.214

of 2009 by the impugned order. The Tribunal has held that though the

affidavit filed on behalf of the State Government had conceded that

approval of the Chief Minister was not obtained before the order dated 6th

March, 2009 was issued, the same failure or deficiency could not in any

way affect the petitioner's transfer as his posting which was in the order

dated 2nd March, 2009 was retained in the subsequent order dated 6th

March, 2009 as well. In paragraph 11 of the impugned order the Tribunal

stated thus:-

"I have had an occasion to peruse the record produced by

Respondents 1 & 2. It is true that the order dated 2.3.2009 was

issued after following due procedure. However, the order dated

6.3.2009, appears to have been issued without approval by the Chief

Minister, but only after approval by the Revenue Minister. Here, it is

worth nothing that the applicant's posting from Sub Divisional

7 wp-4827-10

Officer, Haveli to Deputy Collector, Satara was approved by the

Chief Minister before the order of 2.3.2009 was issued, and the same

remained unchanged in the order of 6.3.2009. Thus, those transfers

which have been approved prior to issue of order of 2.3.2009 and

remained unchanged in the order of 6.3.2009 did carry the approval

of the Chief Minister and to that extent, the provisions of the Act

have been complied with. In a nut shell, the applicant was to be

transferred as per Election Commission of India guidelines and has

been transferred after making out a special case, with the approval of

the next higher authority."

6. Mr. Jahagirdar, the learned Senior Counsel appearing with Mr.

Bhandivadekar for the petitioner referred to the orders passed by the

Tribunal in O.A. Nos. 202, 212, 213 and 517 of 2009 as well as the orders

passed by this Court in Writ Petition No.7141 of 2009 and Writ Petition

No.9665 of 2009 and reiterated that the failure to obtain prior approval of

the Chief Minister would vitiate the transfer order dated 6th March, 2009 in

its entirety. He also relied upon the affidavit in reply filed by Shri

Rajendra Surve, Deputy Secretary in the Revenue and Forest Department,

Government of Maharashtra in this petition as well It was further urged

that the approval of the Revenue Minister in consultation with the

8 wp-4827-10

Additional Chief Secretary,(Revenue) to the transfer order dated 6th March,

2009 would not meet the requirements of the Maharashtra Government

Servants Regulation of Transfers and Prevention of Delay in Discharge of

Official Duties, Act, 2005 (for short "the Transfer Act") and, therefore, the

Tribunal was in error in holding that in the petitioner's case it was not

necessary to obtain the Chief Minister's approval before the fresh order

dated 6th March, 2009 was issued.

7.

Mr. Anturkar, the learned Counsel for the respondent No.4 by

referring to the provisions of the Transfer Act submitted that the Revenue

Minister was the Competent Authority to issue the impugned order dated

6th March, 2009 and it was not necessary to seek prior approval of the

Chief Minister before the said order was issued and in this regard he has

relied upon the Competent Transferring Authorities as mentioned in the

Table in Section 6 of the Transfer Act. Mr. Anturkar while supporting the

view taken by the Tribunal in the impugned order further tried to persuade

us that even if the record indicated that as on 6th March, 2009 the

Additional Chief Secretary or the Revenue Minister had not signed the

proposal which culminated in the order dated 6th March, 2009 that by

itself would not vitiate the transfer orders and more so because the

9 wp-4827-10

Divisional Commissioner himself is a competent transferring authority to

issue such orders within his jurisdiction and he pointed out that on the very

same day i.e. on 6th March, 2009 the Divisional Commissioner issued a

separate order. He also submitted that there was no change so far as the

petitioner is concerned in the original posting as well as the revised

posting and the concurrence of the Chief Electoral Officer obtained on 18th

February, 2009 covered the petitioner's case. Hence on any count the

transfer order dated 6th March, 2009 could not be faulted with.

8. Before we consider the rival contentions of the parties and the

reasoning set out by the Tribunal in the impugned order, we must refer to

some of the salient features of the Transfer Act, which has been brought

into force from 12th May, 2006. The Scheme of Section 3 of the Transfer

Act assures minimum tenure of 3 years as far as possible and it is called as

normal tenure. Whereas the Scheme of Section 4 of the Transfer Act

envisages different forms of transfers as follows:-

(a) General transfers or normal transfers.

(b) Mid term transfer.

(c) Transfers on account of promotions.

(d) Transfers on request.

10 wp-4827-10

(e) Transfers on administrative exigencies.

Undoubtedly, the transfers on promotion, on request or on

administrative exigencies would be mid term transfers as well. The

Transfer Act does not contemplate transfers on account of the directions

issued by the Election Commission, but they may fall in the category of

special transfers/mid term transfers.

9. As per Section 6 of the Transfer Act the competent transferring

authorities have been notified in the table therein and they are as under:-

Groups of Government servants Competent Transferring Authority

(a) Officers of All India Services, all Chief Minister Officers of State Services in Group "A"

having pay-scale of Rs.10,650-15,850

and above

(b) All Officers of State Services in Group Minister-in-charge in consultation

"A" having pay-scales less than pay- with Secretaries of the concerned scale of Rs.10,650-15,850 and all Department.

Gazetted Officers in Group "B".

(c) All non-Gazetted employees in Group Heads of Departments.

"B" and "C".

(d) All employees in Group "D" Regional Heads of Departments.

The proviso below Section 6(1) of the Transfer Act read as under:-

"Provided that, in respect of officers in entry (b) in the table

working at the Divisional or District level, the Divisional Head shall

11 wp-4827-10

be competent to transfer such officers within the Division and the

District Head shall be competent to transfer such officers within the

District:

Provided further that, the Competent Transferring Authority

specified in the table may, by general or special order, delegate its

powers under this section to any of its subordinate authority."

10. General transfers are issued between April and May whereas the mid

term transfers are issued under the circumstances mentioned in the proviso

below Section 4(4) as well as Section 4(5) of the Transfer Act. The orders

issued under Section 4(5) are to be issued by recording reasons in writing

and in special cases, but with the prior approval of the immediate superior

transferring authority as mentioned in the Table to Section 6. The transfer

orders to be issued under the instructions of the Election Commission will

be the transfers for special reasons and midterm transfers.

11. So far as Competent Transfer Authority is concerned, as noted

earlier, the same has been defined in Section 6(1) of the Transfer Act and

the proviso below the said Section enables the Competent Transferring

Authority to delegate its powers by general or special orders to any of its

12 wp-4827-10

subordinate authority.

12. It is not in dispute that the petitioner is an Officer in the pay scale of

less than Rs.10,650-15,850/- (unrevised pay scales) and is in Group "B"

and hence the Competent Transferring Authority for the petitioner would

the Minister in charge in consultation with the Secretary of the Revenue

Department. The Chief Minister is the Competent Transferring Authority

only for the officers of All India Services and of State service in Group "A"

having pay scale of Rs.10,650-15,850/- and above. The petitioner is not an

officer in that category, for which the Competent Transferring Authority is

the Chief Minister. Thus the stand maintained before the Tribunal by all

the parties and upheld by the Tribunal that the Chief Minister was required

to approve the transfer of the petitioner is not supported from the scheme

of the Transfer Act. No material has been placed before us to point out that

when the transfers are being undertaken as per the instructions of the

Election Commission, the same proposal is required to be placed before the

Chief Minister for his approval after it is cleared by the Chief Electoral

Officer. The orders passed by this Court in Writ Petition No.6503 of 2009

as well as in Writ Petition No.71141 of 2009 and Writ Petition No.9665 of

2009 are based on this premise that the transfer order dated 6th March, 2009

13 wp-4827-10

was not approved by the Chief Minister before it was issued. This Court

was undoubtedly misled by all the parties in these petitions. We do not

find any material to hold that the impugned transfer order dated 6th March,

2009 was required to be approved in advance by the Chief Minister unless

it was contended that some of the officers in the said transfer order were

drawing pay scale of Rs.10,650/- to Rs.15,850/- or above and are in Group

"A" of the State service. But such a case has not been made out in the

affidavit filed by Shri Rajendra Surve, Deputy Secretary, Revenue and

Forest Department though he has made a bald statement that such an

approval by the Chief Minister was necessary. This affidavit does not find

support from the scheme of the Transfer Act.

13. Now in so far as the merits of this case is concerned, Mr. Jahagirdar,

the learned Senior Counsel has drawn our attention to the Departmental

note which was the basis of the transfer order dated 6th March, 2009. The

Section Officer appears to have put up a note on 6th March, 2009 and Shri

Game, Deputy Secretary also signed it on the same day. However, the

Additional Chief Secretary (Revenue) has seen the note post-facto i.e. after

the transfer order dated 6th March, 2009 was already issued. The note does

not indicate as to when the Revenue Minister signed it. It was submitted

14 wp-4827-10

by Mr. Jahagirdar, the learned Senior Counsel that unless the Revenue

Minister in consultation with the Additional Secretary (Revenue) had

signed the proposal on 6th March, 2009 or prior to that date, it could not be

an order issued by the Competent Transferring Authority. Such a ground

was already raised before the Tribunal and it was not found favour for the

reasons that so far as the petitioner is concerned, there was no change in his

posting in the transfer order dated 2nd March, 2009 and 6th March, 2009.

The Tribunal also observed that in any case the petitioner had stayed at

Pune for more than three years and was due for transfer in the general

transfers..

As the record does not definitely indicate that the Revenue Minister

signed the proposal after 6th March, 2009 it cannot be said that he had not

signed it on 6th March, 2009 when the proposal was prepared and submitted

and the record does not specifically state that the Revenue Minister has

signed the proposal post-facto, more so when such an endorsement appears

below the name of the Additional Chief Secretary. However, just because

the Additional Chief Secretary has signed the proposal on 7th March, 2009

by itself would not vitiate the transfer order dated 6th March, 2009. We

cannot disregard a possibility that the Revenue Minister consulted the

15 wp-4827-10

Additional Chief Secretary even on telephone and if the Additional Chief

Secretary was not available in the office, the same was post-facto placed

before him on the next day so as to bring the record in order. This view is

also supported from the note itself which indicate that the Additional Chief

Secretary was not available on 6th March, 2009. The relevant portion of the

note could be usefully reproduced as under:-

".....%yaanausaar sa%var kaya-vaahI krNyaacao inado-Sa maa.mau#ya saicava yaaMnaI

idlao Aahot. sadr inado-Saacyaa AnauSaMgaanao Apr mau#ya saicava ³mahsaUla´ yaaMnaI

%yaaMcao ivaSaoYa kaya- AiQakarI yaaMnaa Aaja id.6À3À2009 raojaI durqvanaIva$na

maa.mau#ya saicava yaaMnaI idlaolyaa inado-Saanausaar badlyaacao AadoSa ta%kaL

inayaimat krNyaacyaa saUcanaa idlyaa Aahot....."

14. We must also deal with the issue raised by Mr. Anturkar, the learned

Counsel for the respondent No.4 regarding competence of respondent No.2

to issue the impugned transfer orders on the same day. It was contended by

Mr. Anturkar that the proviso below Section 6 of the Transfer Act permitted

delegation of power and the order issued by Respondent No.2 on 6th March,

2009 is required to be upheld. We do not find substance in this argument.

We have already noted that the respondent No.2 was called upon to furnish

the names of all the officers who were liable to be transferred under the

16 wp-4827-10

instructions of the Election Commission and all the Revenue Divisional

Heads were also issued likewise instructions. The transfers were being

contemplated at the State level pursuant to the said directions of the

Election Commission. The proposal which has received given concurrence

from the Chief Electoral Officer on 18th February, 2009 was not a proposal

for a particular division or for transfers within the region, though the

impugned order dated 6th March, 2009 confines only to the Pune Revenue

Region and it is clear from the record that the respondent No.2 issued a

fresh order under his signature based on the order issued from the Revenue

Department and addressed to him.

15. We must also add that transfer is an incidence of service and the

Courts/Tribunals should not ordinarily interfere in such orders. The

petitioner had completed his tenure of three years at Pune and was due to

be transferred even otherwise in the general round of transfers in April-

May, 2009. Despite this, it is clear that the applicants vigorously contested

the transfer order. The Courts/Tribunals must curb such tendencies, lest the

public administration may become a casualty. The public servants

litigating against such transfer orders is not a healthy sign of good public

administration and at the same time it is a manifestation of their oblique

17 wp-4827-10

interests bringing their reputation under the clouds of suspicion. It would

be, therefore, in their own interests that they follow the general transfer

orders rather than challenging them before the Tribunal/Court.

16. In the premises we do not find any reasons to cause interference in

the impugned order and in our considered opinion the Tribunal has dealt

with all the issues raised before it and the reasons set out in the impugned

order do not suffer from any error. The petition must, therefore, fail and

the same is hereby dismissed, however, without any order as to costs.

    (U.D. SALVI, J.)                         (B. H. MARLAPALLE, J.)