Jitendra Manohar Jadhav vs The State Of Maharashtra And ...
2016 Latest Caselaw 227 Bom

                                                                    9206.2015 WP.odt
                                                1




                                                                              
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD




                                                      
                              WRIT PETITION NO.9206 OF 2015


              Jitendra Manohar Jadhav,




                                                     
              Age: 49 Years, Occ. Service as Laboratory
              Tehnician in Rural Hospital, Amalner,
              Dist. Jalgaon, R/o. Mutthe Lane,
              Amalner, Dist. Jalgaon.                   PETITIONER




                                         
                        VERSUS

              1]
                             
                       The State of Maharashtra,
                       Through the Secretary,
                       Public Health Department,
                       Mantralaya, Mumbai.
                            
              2]       The Deputy Director of Health Services,
                       Nasik Region, Nasik.
      

              3]       The Director of Health Service,
                       Aarogya Bhavan,
                       St. Gorges Hospital Compound,
   



                       V.T., Mumbai 400 001.

                    Copies to be served on G.P., H.C.
                    Aurangabad Bench.                  RESPONDENTS





                                          ...
              Mr. Ajay S. Deshpande, Advocate for the Petitioner
              Mr. A.G.Magare, AGP for the Respondent Nos.1 to 3 / State
                                          ...
                                     CORAM: S.S.SHINDE &
                                                 P.R.BORA, JJ.

Reserved on : 09.02.2016 Pronounced on: 02.03.2016

JUDGMENT: [Per S.S.Shinde, J.]:

1] This Petition takes exception to the decision

rendered by the Administrative Tribunal, dated 25.08.2015

9206.2015 WP.odt

in Original Application No.440 of 2015 at Exhibit-E, and

also, to the impugned order of transfer dated 30.05.2015 at

Exhibit-B issued by respondent no.3, thereby transferring

the petitioner from Rural Hospital, Amalner, Dist. Jalgaon to

District Hospital, Nandurbar, on administrative ground.

2] It is the case of the petitioner that, the

petitioner came to be posted at Amalner in Rural Hospital in

Jalgaon District on his own request. The petitioner is

working as Laboratory Technician in Rural Hospital,

Amalner, from 01.06.2011. Being a Group-C Government

Servant, as per the provisions of the Transfer Act, 2005, he

is entitled to continue at a station for two consecutive

tenures of three years each. Accordingly, the petitioner

was expecting to be continued at his present place of

posting at Amalner till May, 2017. However, before he

completes the prescribed tenure, he is sought to be

transferred from Amalner, District Jalgaon to Nandurbar

District Hospital, Nandurbar, by the impugned order dated

30.05.2015, which has been served upon the petitioner on

08.07.2015.

3] It is further the case of the petitioner that, bare

perusal of the impugned transfer order reveals that, there

9206.2015 WP.odt

has been no compliance of the statutory provisions while

issuing the same, especially while effecting the petitioner's

mid-tenure transfer. No prior approval, as is required to be

obtained for effecting mid-tenure transfer, has been

obtained thereby the impugned order of transfer is an order

issued in contravention of the provisions of Transfer Act,

2005, and therefore, the same deserves to be quashed and

set aside by this Court. On 13.07.2015, the petitioner

approached the Administrative Tribunal, challenging the

transfer order dated 30.05.2015 predominantly on the

ground of it being issued in contravention of the provisions

of Transfer Act, 2005. On 17.08.2015, the respondents filed

reply-affidavit at the last moment containing in numerous

complaints against the petitioner by stating that, the

Director being the superior authority of the State help and

thus he is competent to take decision and there is no need

to obtain special permission regarding transfer of the

petitioner.

4] It is further the case of the petitioner that, as a

matter of fact, in the wake of the provisions of Section 3

and Section 4 of the Transfer Act, 2005, solely on the basis

of the submissions regarding competence of respondent no.

9206.2015 WP.odt

3 of issuing mid-tenure transfer, Original Application was

required to be allowed, however, to the petitioner's dismay,

the Administrative Tribunal has failed to conceive the effect

of such transfer issued in contravention of the provisions of

Transfer Act and the Tribunal has ventured to observe that,

the provisions of the Transfer Act are not mandatory.

Therefore, Writ Petition deserves to be allowed by quashing

the impugned order of transfer, to subserve the ends of

justice.

5] The learned counsel appearing for the

petitioner also invited our attention to the averments in the

additional affidavit filed by the petitioner on 25th January,

2016. He submits that, the reply affidavit was submitted by

the respondents on 14th August, 2015 itself, and then the

matter was finally heard on the same day. It is also

submitted that, since the matter was taken up for hearing

on the same day, the petitioner could not file detailed

rejoinder-affidavit so as to controvert the claims made in

the affidavit-in-reply. The learned counsel appearing for

the petitioner pressed into service exposition of the Hon'ble

Supreme Court in the case of Union of India and others Vs.

S.L.Abbas1.

1 [1993] 4 SCC 357

9206.2015 WP.odt

6] Upon hearing the learned counsel appearing for

the petitioner and the learned AGP appearing for the

respondent - State, and upon careful perusal of the

pleadings in the Petition, averments in the additional

affidavit filed by the petitioner, and the reasons assigned by

the Maharashtra Administrative Tribunal, we are of the

opinion that, the matter needs to be remitted back to the

Maharashtra Administrative Tribunal for re-consideration on

all issues raised by the petitioner for the reasons stated

herein below. There is no denial to the fact that, the

respondents filed affidavit in reply before the Maharashtra

Administrative Tribunal on 14th August, 2015, and as

contended by the learned counsel appearing for the

petitioner, the petitioner had no opportunity to file

rejoinder-affidavit to controvert the claims made in the

affidavit in reply. Secondly, it appears that, the

Maharashtra Administrative Tribunal in para 9 to 11 of the

impugned order has discussed in detailed about the

allegations made against the applicant. It appears that,

relying upon the material placed on record by the

respondents, the Maharashtra Administrative Tribunal in

para 11 held that, there are number of complaints against

the applicant and even the Municipal Council Employment

9206.2015 WP.odt

Union, Amalner, has made serious allegations against the

applicant wherefrom it seems that the applicant was not

performing his duty properly and was causing

inconvenience to the patients. There are other

observations also in the said paragraphs. It is also

observed that, the provisions of Transfer Act are not

mandatory, and therefore, the Maharashtra Administrative

Tribunal dismissed the Original Application.

7] In our opinion, the petitioner ought to have

been given opportunity to reply averments in the affidavit-

in-reply filed by the respondent - State on 14th August,

2015. However, it appears that, on the same day, the MAT

proceeded to decide Original Application finally. The

averments in the said affidavit in reply relate predominantly

to the factual assertions. The learned counsel for the

petitioner submits that, additional affidavit filed by the

petitioner may be treated as rejoinder affidavit in Original

Application so as to adjudicate controversy on facts.

However, first time while exercising the writ jurisdiction,

such exercise is not desirable. The discussion in the

impugned Judgment of the Maharashtra Administrative

Tribunal in para 9 to 11, may likely to affect upon the

9206.2015 WP.odt

service career of the petitioner, in case said discussion is

not confined to the issue of transfer. The petitioner did

raise the point that, the provisions of Transfer Act are not

mandatory, however, it appears that, the said point has not

been elaborately discussed and dealt with by the

Maharashtra Administrative Tribunal. Therefore, without

entering into the merits of the issues raised in this Petition,

we deem it appropriate to quash and set aside the

impugned Judgment and order dated 25th August, 2015,

passed by the Maharashtra Administrative Tribunal in

Original Application No. 440 of 2015, and accordingly, same

is quashed and set aside. Original Application No.440 of

2015 is restored to its original file. The parties are

relegated before the Maharashtra Administrative Tribunal

for adjudication afresh of the Original Application on all the

issues raised in the Original Application and the present

Petition. The Maharashtra Administrative Tribunal to decide

the Original Application afresh as expeditiously as possible,

and preferably within 6 weeks from today.

Needless to observe that, the petitioner will be

entitled to tender affidavit in rejoinder before the

Maharashtra Administrative Tribunal.

9206.2015 WP.odt

8] Writ Petition is partly allowed. Petition stands

disposed of on above terms.

                               Sd/-                                 Sd/-




                                                     
                      [P.R.BORA]                           [S.S.SHINDE]
                          JUDGE                                JUDGE
              DDC