Sidharth Shripati Ohal vs The State Of Maharashtra And ...
2016 Latest Caselaw 6664 Bom

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             IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                         BENCH AT AURANGABAD




                                                   
                             WRIT PETITION NO.154 OF 2015

    Sidharth Shripati Ohal,
    Age-50 years, Occu-Service,




                                                  
    R/o 193, Sahyognagar,
    Nanded, Dist.Nanded                                 -- PETITIONER

    VERSUS




                                         
    1.     The State of Maharashtra,
           Through its Secretary,
                              
           Rural Development Department,
           Mantralaya, Mumbai-32
                             
    2.     The State of Maharashtra
           Through its Secretary,
           School and Sports Department,
           Mantralaya, Mumbai-32,
      


    3.     The Divisional Commissioner,
           Aurangabad Region, Aurangabad,
   



    4.     The Zilla Parishad, Nanded,
           Through its Chief Executive Officer





    5.     Renukadas s/o Narayan Dhanorkar,
           Age-44 years, Occu-Service,
           R/o Superintendent,
           Education Department,
           Z.P.Nanded. 





    6.     Gajanan Shivajirao Levekar,
           Age-45 years, Occu-Service as
           Superintended Panchayat Samiti,
           Ardhapur, Tq.Ardhapur,
           Dist.Nanded                                  -- RESPONDENTS

Ms.P.S.Talekar h/f Mr.S.B.Talekar, Advocate for the petitioner. Mr.S.P.Sonpawale, AGP for respondent Nos. 1 to 3. Mrs.Y.M.Kshirsagar, Advocate for respondent No.4.

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Mr.S.R.Choukidar, Advocate for respondent No.5. Mr.S.S.Gangakhedkar, Advocate for respondent No.6.

( CORAM : RAVINDRA V. GHUGE, J.) DATE : 24/11/2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2.

I have considered the submissions of the learned Advocates for

the respective sides at length. Considering the order that I intend to

pass, I am not required to advert to their entire submissions.

3. There is no dispute that the petitioner was due for transfer in

2014 as per rules. It is equally undisputed that the petitioner had

exercised an option within the rules for being transferred to

Ardhapur.

4. While considering the submissions of the learned Advocates on

10/02/2015, I had recorded the contentions of the litigating sides as

under :-

"1. Shri Panpatte, learned Advocate appears on behalf of respondent No.4 and prays for time to file an affidavit-in-reply.

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2. Issue notice before admission to the respondents, returnable on 11.3.2015. Learned AGP waives service for respondent Nos.1 to 3.

Shri Panpatte, learned Advocate waives for respondent No.4. Hamdast granted for respondent No.5.

4. The contentions of Shri Talekar are summarized as follows:-

(a) The State of Maharashtra in relation to the Zilla Parishads

has issued guidelines, dated 15.5.2014, as regards the

procedure to be followed for transferring Group "C" and "D" employees of the Zilla Parishad within the district of the Zilla

Parishad.

(b) Clause 6 at page No.37 and Clause 4(c)(3) & (5) on page

45 of the petition paper book are mandates which have not been

complied with by the respondents while issuing the impugned transfer order dated 18.5.2014.

(c) Clause 4(c)(8) appearing on page 46 indicates that there ought to be a video recording of the counselling sessions, which has been done and respondent No.4 is in possession of such recordings.

(d) Respondent No.5 had not even appeared for the counselling and the video recording indicates the same. Yet, respondent No.5 has been transferred to Ardhapur, which was a preference expressed by the petitioner.

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(e) The vacancy position chart dated 16.5.2014, at page 68, indicates one vacancy at Panchayat Samiti, Ardhapur and no

vacancy at Panchayat Samiti, Mahur.

(f) The petitioner had declared his option, in writing, for being

transferred to Panchayat Samiti, Ardhapur in the counselling session, which is at page 57.

(g) Page 58 is a transfer order, dated 18.5.2014 which was

prepared so as to transfer the petitioner to Ardhapur, but has not been issued and does not bear the signature of the Chief

Executive Officer, Zilla Parishad, Nanded.

(h) Page 59 is the report of the counselling session, dated

18.5.2014 virtually accepting the request of the petitioner, but

transferring him to Panchayat Samiti, Mahur against the option exercised and when there was no vacancy at Mahur.

(i) Page 78 is the order passed by the fourth respondent, dated 9.7.2014, staying the transfer of the petitioner until further orders.

(j) The petitioner preferred an appeal before the Competent Authority, which delivered the impugned order dated 20.11.2014, rejecting the appeal, despite accepting the contentions of the petitioner.

5. In the light of the above, respondent No.4 is directed to make a

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statement on oath as regards the events that have transpired during the counselling session and produce the Compact Disc (CD) with

regard to the same, with copies to the other sides. Similarly, respondent No.4 shall file an affidavit in reply in the light of the specific contentions set out by the petitioner in the petition and which

have been recorded herein above in this order."

5. The issue, therefore, is limited as to whether the petitioner had

given his consent for being transferred to Mahur. There is no dispute

on this count that according to the government's rules and

regulations applicable, the petitioner has exercised the preference for

Ardhapur, which was accepted. The second paragraph of the

impugned order of the Divisional Commissioner dated 20/11/2014,

by which the appeal filed by the petitioner has been rejected,

indicates that in the counselling session, which was recorded vide

videography, it is seen that the vacancy at Mahur was not indicated

on the video screen and considering the same, the option to be

transferred to Ardhapur expressed by the petitioner was accepted.

However, while issuing the impugned transfer order, by which the

petitioner was transferred to Mahur, the petitioner was kept in the

dark and it was beyond his knowledge as to why he was transferred

to Mahur.

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6. The Government Resolution dated 15/05/2014 which

introduced the procedure and the conditions for transfer, clearly

indicates in Chapter II under the title of Intra District Transfers vide

clause 4(k)(3) that the available vacancies should be brought to the

notice of those employees who are liable/due to be transferred, at

least 2 days prior to the counselling session. Clause 4(k)(5)

thereunder mandates that once the employee expresses an option

which is accepted in the counselling session, his signature should be

obtained on the documentation and accordingly he would be

subjected to transfer to that particular post. Clause 8 thereunder

mandates recording of counselling session by videography.

7. It is thus undisputed that the counselling session took place,

same was recorded through videography and the option exercised by

the petitioner to be transferred to Ardhapur was accepted.

8. The subsequent developments that have occurred cannot be

overlooked. Vide order dated 16/10/2015, the petitioner, who had

joined at Mahur, which is the place of transfer under challenge, was

brought back to the establishment at Nanded. He is accordingly

working at the said place pursuant to the said order. The order of

the C.E.O., Zilla Parishad, Nanded dated 12/10/2015 indicates the

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name of the petitioner at Sr.No.3 by virtue of which he was

transferred from the Panchayat Samiti, Mahur to the Health

Department, Zilla Parishad, Nanded. Since then, he has been

working at Nanded for the past about 14 months.

9. It is informed that the transfer procedure begins sometime in

the month of April/May and those employees who are due to be

transferred under the rules are called upon to express their options.

The procedure as is laid down under the GR dated 15/05/2014 is

scrupulously followed.

10. In this backdrop, it is apparent that the impugned transfer

order dated 20/06/2014 is rendered unsustainable. The petitioner

has already been brought back to Nanded since October 2015. The

impugned order being unsustainable in the light of the rules and

policies of the respondents, therefore needs to be set aside. However,

the petitioner cannot be insulated against transfers since he is due to

be transferred, provided the rules and the procedure is followed.

11. It is stated that clause 3(kh) under Chapter I Zilla Parishad

Employees Transfer Policy under the GR dated 15/05/2014 creates a

restriction on the transfer of an employee who is likely to complete 53

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years of age on or before 31st day of May. It is further stated that the

petitioner herein is likely to gain benefit of the said clause. I do not

have to deal with the said issue since the respondents / State

Authorities and the Zilla Parishad are aware of the policies set out in

the GR dated 15/05/2014 and they can take a decision in this

context.

12.

In the light of the above, this petition is partly allowed. The

impugned order of transfer dated 20/06/2014 is quashed and set

aside. So also, the order dated 20/11/2014 upholding the transfer is

also quashed and set aside. The respondent Authorities shall

maintain status-quo as existing today till the next phase of transfers

and in the event the petitioner is due for transfer, the respondent/

authorities would consider the same strictly in accordance with their

rules and the GR dated 15/05/2014. Needless to state, in the event

of any unpaid wages of the petitioner during the pendency of these

proceedings, the Zilla Parishad shall accordingly ensure that the

unpaid wages are paid.

13. Rule is made partly absolute in the above terms.

( RAVINDRA V. GHUGE, J.)

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