Smt. Vijaya D/O. Sahebrao ... vs The State Of Maharashtra Through ...
2016 Latest Caselaw 4672 Bom

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                IN THE  HIGH COURT OF JUDICATURE AT BOMBAY
                         CIVIL APPELLATE JURISDICTION




                                                                                  
                            WRIT PETITION NO.  8867  OF 2016




                                                          
    Smt. Vijaya d/o Sahebrao Chaudhari           ....   Petitioner
         vs
    1    The State of Maharashtra




                                                         
    2    The Chief Executive Officer,
         Pune Zilla Parishad, Pune
    3    District Health Officer,
         Health Department, Pune




                                              
    4    Medical Officer, Primary Health Centre,
         Rahu                      
    5    Medical Officer, Primary Health Centre,
         Karla.                                  ....    Respondents
                                  
    Mr. Ashwin Sakolkar for the petitioner.
    Mr. Sanjeev J. Rairkar  for respondents 2 to 5. 

                    CORAM:    ANOOP V. MOHTA AND 
          


                              G. S. KULKARNI,  JJ. 

DATE : August 12, 2016

ORAL JUDGMENT (Per G. S. Kulkarni, J.):

Rule, returnable forthwith. By consent of parties, heard finally.

2 The Petitioner, who is in the service of Zilla Parishad, Pune

as a Pharmacist, has been transferred by an order dated 30 April 2016

annexed at page 25 of the paper-book from Primary Health Centre,

Rahu, Taluka: Daund to the Primary Health Centre, Karla, taluka:

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    Maval, District. Pune.     The transfer order categorically records that 




                                                                                    

the Petitioner should be relieved on 31 May 2016 after the office

hours for enabling her to join at the transferred place and that the

Petitioner should immediately join the post at Karla. Accordingly, the

Petitioner, by her letter dated 31 May 2016 handed over the charge of

her post at Rahu, taluka Daund. On 1 June 2016, the Petitioner

reported at the transferred place. A letter to that effect is addressed to

the Medical Officer, Primary Health Centre, Karla.

3 It appears that only because certain report of the

Petitioner being relieved from Rahu was not received by the

concerned Medical Officer at Karla, the Petitioner was not permitted

to join and discharge her duties at the transferred posting. The

Petitioner therefore addressed letter dated 1 June 2016 to the Medical

Officer at Karla pointing out that she has been transferred by virtue of

the said transfer order and accordingly, she is entitled to work at the

transferred posting. However, surprisingly, by letter dated 3 June

2016 the Medical Officer, Primary Health Centre, Karla informed the

Petitioner, that as she has not produced the relieving order from Rahu

and, therefore, she would not be permitted to join duties at Karla.

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    4               A further complication is created by letter dated 6 June 




                                                             

2016 whereby the Medical Officer at Rahu informs the Petitioner that

she is un-authorisedly absent from 1 June 2016. The Petitioner was

called upon to show cause as to why disciplinary proceedings should

not be initiated against the Petitioner. By further communication

dated 6 June 2016, the Medical Officer, Primary Health Centre, Rahu

clarified that as his Office has not received the official transfer order

issued to the Petitioner and appropriate steps should be taken only

after transfer order is officially received by the Medical Officer at

Rahu.

5 The Petitioner, being aggrieved by the above actions,

approached the Maharashtra Administrative Tribunal (MAT) which,

initially by an order dated 28 June 2016 granted an ad-interim

protection to the Petitioner. However, by further order dated 12 July

2016,the MAT disposed of the Original Application on the ground that

Petitioner being an employee of the Zilla Parishad, the Tribunal did

not have jurisdiction under the Administrative Tribunals Act, 1985 and

and the Original Application was accordingly disposed of. It is in the

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above position the Petitioner has approached this Court in the present

Petition.

6 We have heard the learned counsel appearing for the

parties. Mr. Rairkar, learned counsel appearing for the Zilla Parishad,

at the outset does not dispute that the Petitioner was issued the

transfer order in question. He, however, submits that he would like to

file a reply to the writ petition. When it is not disputed that the

transfer dated 30 April 2016 is in operation and that the consequence

of the transfer order is that the Petitioner was required to hand over

the charge of her post at Rahu on 31 May 2016, we cannot agree to

the request of Mr. Rairkar that the Respondent Zilla Parishad be

granted an opportunity to file reply on some issues which do not fall

for consideration in this Petition. This submission thus need not

detain us in disposing of the petition as the basic fact of the issuance

of transfer order is not in dispute.

7 In pursuance to the transfer order dated 30 April 2016, the

Petitioner has handed over the charge on 31 May 2016 and reported

for duties at Karla on 1 June 2016. If this is the position, then we

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find it is surprising as to how the Petitioner could not be permitted to

join the duties at the transferred post at Karla and discharge her

duties/functions. We also find that the action which has been resorted

by the Medical Officer at Rahu threatening the disciplinary action

against the Petitioner is also totally unwarranted in the facts of the

case. The Petitioner cannot be rendered to be a victim of the

communication gap or any other official formalities which are pending

between two different offices. The transfer order being subsisting is

presumed to be legal and valid. This position has not been disputed

by the Zilla Parishad either before the Tribunal or before this Court.

8 In view of the above situation, we do not find that the

impugned action on the part of the Respondents in not permitting the

Petitioner to join posting at the transferred place at Karla is just and

proper. On the facts as they stand we have no hesitation, but to allow

the present Petition. The writ petition is accordingly allowed by

directing the Respondents to permit the Petitioner to join the

transferred place under the transfer order dated 30 April 2016. We

also quash and set aside communication dated 6.6.2016 annexed at

Exhibit H (page 35) of the Petition. The Respondent shall also make

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the payment of arrears of salary, if any, to the Petitioner at the

transferred place of posting within a period of two weeks.

9 At this stage, M. Rairkar, learned counsel appearing for

Zilla Parishad, states that there are certain issues which are pending

before the Commissioner. We do not express any opinion as that is not

the subject matter of the present Petition.

10 Rule is made absolute in the above terms. There shall be

no order as to costs.

Parties to act on an authenticated copy of this order.

    (G. S. KULKARNI, J.)                                  (ANOOP V. MOHTA, J.)