Bombay High Court
Bharat Ramkisan Shingade vs The State Of Maharashtra And ... on 17 April, 2017
Bench: S.V. Gangapurwala
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3318 OF 2017
Shri Bharat Ramkisan Shingade,
Age : 36 years, Occup.: Executive
Engineer, Majalgaon Canal Division
No.10, Parbhani, District Parbhani PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Principal Secretary,
Water Resources Department,
Mantralaya, Mumbai - 400 032
2. The Superintending Engineer,
Jaykawadi Project Circle,
GMIDC, Aurangabad
3. Shri Umesh Vishwanathrao Wankhede,
Executive Engineer, Minor Irrigation
Division, Parbhani,
District Parbhani
4. Dattatraya Balkrishna Pande,
Age : 57 years, Occup.: Service as
Executive Engineer, Majalgaon Canal
Division No.10 Parbhani,
R/o. "Aaditya"
C/o Shri Karegaon Road,
Parbhani RESPONDENTS
WITH
WRIT PETITION NO. 3483 OF 2017
Umesh Vishwanath Wankhede,
Age : 35 years, Occup.: Government
Service as Executive Engineer,
Lift Irrigation Division,
Osmanabad, R/o Osmanabad,
District Osmanabad PETITIONER
VERSUS
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1. The State of Maharashtra,
Through its Principal Secretary,
Water Resources Department,
Mantralaya, Mumbai - 400 032
2. The Superintending Engineer,
Jaykawadi Project Circle,
GMIDC, Aurangabad,
District Aurangabad
3. Shri Bharat Ramkishan Shingade,
Age : 36 years, Occu.: Service as
Executive Engineer, Majalgaon Canal
Division No.10, Parbhani,
District Parbhani
4. Dattatraya Balkrishna Pande,
Age : 36 years,
Occu.: Government Service,
R/o. "Aaditya" C/o Shri Chetan
Aundhekar, Yashodhan Nagar,
Karegaon Road, Parbhani,
District Parbhani RESPONDENTS
WITH
WRIT PETITION NO. 4492 OF 2017
1. The State of Maharashtra
(Through its Secretary)
Water Resource Department,
Mantralaya, Mumbai
2. The Superintending Engineer,
Jayakwadi Project Circle,
GMIDC, Aurangabad PETITIONERS
VERSUS
1. Dattatrya Balkrishna Pande,
Age : 57 years, Occ.: Executive Engineer,
Minor Irrigation Department, Parbhani,
R/o. N-3, CIDCO, Aurangabad
2. Shri Bharat Ramkrishnan Shingade,
Executive Engineer,
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Majalgaon Canal Division No.10,
Parbhani
3. Shri Umesh Vishwanathrao Wakhede,
Executive Engineer,
Lift Irrigation Division,
Osmanabad RESPONDENTS
----
Mr.V.D. Sapkal, Advocate holding for Mr.R.A. Tambe,
Advocate for the Petitioner in W.P.No.3318/2017
Mr.V.H. Dighe, Advocate for petitioner in
W.P.No.3483/2017 and for the respondent No.3 in
W.P.No.3318/2017
Mr.S.B. Talekar, Special Counsel for the petitioners/
State in W.P.No.4492/2017 and for the respondent/State
in W.P.Nos.3318/2017 and 3483/2017
Mr.S.B. Patil, Advocate for the respondent No.2 in
W.P.No.3318/2017
Mr.Ajay S. Deshpande, Advocate for respondent No.4 in
W.P.Nos. 3318/2017 and 3483/2017 and for respondent No.1
in W.P.No.4492/2017
----
CORAM : S.V. GANGAPURWALA AND
SANGITRAO S. PATIL, JJ.
JUDGMENT RESERVED ON : 4th APRIL, 2017
JUDGMENT PRONOUNCED ON : 17th APRIL, 2017
JUDGMENT (PER : SANGITRAO S. PATIL, J.):
Rule, returnable forthwith. With the consent of
the learned counsel for the contesting parties, heard
finally.
2. The above-numbered petitions have been filed to
challenge the judgment and order dated 8th March, 2017
passed in Original Application No.1 of 2017 by the
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learned Member of the Maharashtra Administrative
Tribunal Mumbai, Bench at Aurangabad ("Tribunal" for
short), whereby the order dated 30 th December, 2016,
issued by the Department of Water Resources, Government
of Maharashtra, Mantralaya, Mumbai, transferring the
Executive Engineers namely Shri D.B. Pande, Shri B.R.
Shingade and Shri U.V. Wankhede under the provisions of
sub-section (5) of Section 4 of the Maharashtra
Government Servants Regulation of Transfers and
Prevention of Delay in Discharge of Official Duties Act,
2005 ("the Transfer Act" for short), came to be quashed
and set aside.
3. As per the transfer order the above-named
Executive Engineers have been transferred as stated
below.
Sr. Name From To
No.
1 D.B. Pande Majalgaon Canal, Minor Irrigation
Division No.10, Division,
Parbhani Parbhani
2 B.R. Shingade Lift Irrigation Majalgaon Canal
Division, Division No.10,
Osmanabad Parbhani
3 U.V. Wankhede Minor Irrigation Lift Irrigation
Division, Parbhani Division,
Osmanabad
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4. Being aggrieved by the said transfer, Shri D.B.
Pande filed Original Application No.1 of 2017 before the
Tribunal mainly on the grounds that he has not completed
his normal three years' tenure as Executive Engineer at
Majalgaon Canal No.10, at Parbhani, he is due for
retirement on attaining the age of superannuation on 30 th
April, 2017 and the transfer order is illegal being
against the provisions of the Transfer Act.
5. The Secretary, Water Resources Department, the
Superintending Engineer, Jayakwadi Project Circle, GMIDC
Aurangabad, Shri B.R. Shingade and Shri U.V. Wankhede,
who were respondent Nos. 1, 2, 3 and 4, respectively
before the Tribunal opposed the claim of Shri D.B.
Pande, by filing replies. According to them, the
transfer of Shri D.B. Pande is legal and in consonance
with the provisions of the Transfer Act. The transfer of
Shri D.B. Pande was immensely necessary for completing
the project within the prescribed time appointing some
efficient and experienced Executive Engineer in his
place.
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6. The Tribunal considered the rival contentions
of the parties as well as the provisions of the Transfer
Act and came to hold that the Hon'ble Minister, Water
Resources Department, ordered transfer of Shri D.B.
Pande without recording any satisfactory and sufficient
reasons. The said transfer is against the provisions of
the Transfer Act and is malafide. The Tribunal,
therefore, quashed and set aside the transfer order
dated 30th December, 2016.
7. Heard Shri V.D. Sapkal, the learned Advocate
representing Shri B.R. Shingade, Shri V.H. Dighe, the
learned Advocate representing Shri U.V. Wankhede, Shri
S.B.Talekar, the learned Special Counsel, representing
the State and the Superintending Engineer, Jayakwadi,
Aurangabad and Shri Ajay S. Deshpande, the learned
Advocate representing Shri D.B. Pande.
8. As per Clause (i), of Section 1 of the Transfer
Act, "Transfer" means posting of a Government servant
from one post, office or Department to another post,
office or Department. As per sub-section (1) of
Section 4, no Government servant shall ordinarily be
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transferred unless he has completed his tenure of
posting as provided in Section 3. Sub-section (1) of
Section 3 states that for All India Service Officers and
all Group A, B and C State Government servants or
employees, the normal tenure in a post shall be three
years. Clause (ii), sub-section (4) of Section 4 shows
that the transfer 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 anytime in the
year 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. Sub-section (5) of Section 4 further shows
that notwithstanding anything contained in sub-sections
(3) and (4), the Competent Authority, may, in special
cases, after recording the reasons in writing with the
prior approval of the immediate superior of the
transferring authority, mentioned in the table given in
Section 6, transfer Government servant before completion
of his tenure post. Section 6 has given a table
containing groups of Government servants and Competent
Transferring Authorities. In the case of the Officers of
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All India Services, all Officers of State Service in
Group "A" having pay-scale Rs.10,650-15,850 and above,
the Hon'ble Chief Minister would be the Competent
Authority and for all Officers of State Services in
Group "A" having pay-scale less than Rs.10,650-15,850
and all Gazetted Officers in Group "B", the Hon'ble
Minister-in-charge in consultation with Secretaries of
the concerned departments would be the Competent
Authority. Second proviso to Section 6 states that the
Competent Transferring Authority specified in the table
may, by general or special order, delegate its powers
conferred under Section 6 to any of its Subordinate
Authority.
9. Advocate Shri Deshpande has produced copy of
the notification dated 25th April, 2016, issued by the
Department of Water Resources, Mantralaya, Mumbai, by
Order and in the name of the Hon'ble Governor of
Maharashtra in exercise of power conferred under Section
6 of the Transfer Act, delegating the powers of the
Hon'ble Chief Minister to the Hon'ble Minister for Water
Resources Department as the Competent Transferring
Authority for the purpose of sub-sections (4) and (5) of
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Section 4 of the Transfer Act for the Officers of Group
"A" having pay scale of Rs.15,600-39,100 G.P.
Rs.6,600/-. The Competent Subordinate Authority would be
the Principal Secretary of Water Resources (P and D).
Admittedly, the above-named three Executive Engineers
fall in this Group.
10. The impugned transfer order has been set aside
by the learned Member of the Tribunal, mainly on the
grounds that the Hon'ble Minister, Water Resources
Department, did not assign sufficient and satisfactory
reasons for effecting transfer of Shri D.B. Pande, no
special case was made out for his transfer as required
under the provisions of the Transfer Act and that the
transfer order is malafide and is in contravention of
the provisions of Section 4 (4) (ii) and Section 4 (5)
of the Transfer Act.
11. Shri V.D. Sapkal, the learned counsel for Shri
B.R. Shingade, pointed out to the office note proposing
transfer of the above-named Executive Engineers, which
was approved by the Principal Secretary of Water
Resources Department, and then by the Hon'ble Minister
of the said department. It is specifically mentioned in
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the said office note that for completing the Lower
Dudhna Project under the "Pradhan Mantri Krushi Sinchai
Yojna" (PMKSY) by 31st March, 2017, several instructions
were given to Shri D.B. Pande to take expeditious steps
to complete the project within time. However,
considering the cold response and the manner of
functioning of Shri D.B. Pande, it was not possible to
complete the project within time. Therefore, it was
proposed to appoint some efficient and experienced
Executive Engineer in the place of Shri D.B. Pande.
The Superintending Engineer sent a letter dated 30th
November, 2016 to that effect. Pursuant to that letter,
the Hon'ble Minister orally directed to make a proposal
for posting some efficient and experienced Executive
Engineer in the place of Shri D.B. Pande. The proposal
to transfer Shri D.B.Pande was approved by Principal
Secretary Shri I.H. Chahal. The said proposal was placed
before the Hon'ble Minister, who also approved it with a
specific note that in order to complete the project
under PMKSY, the transfer be effected pursuant to the
letter dated 30th November, 2016 sent by the
Superintending Engineer. Accordingly, the impugned order
of transfer came to be issued on 30th December, 2016.
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12. The learned counsel for Shri Shingade submits
that ordinarily, a Government servant should not be
transferred unless he completes his tenure of posting
i.e. three years. However, in view of the provisions of
sub-sections (4) (ii) and (5) of Section 4 of the
Transfer Act, notwithstanding anything contained in
Section 3 or Section 4 of the said Act, the Competent
Authority may, in special case, after recording reasons
in writing and with the prior approval of the immediate
superior transferring authority, referred to above,
transfer a Government servant prior to completion of his
tenure of post. He submits that for completion of the
project expeditiously under PMKSY, it was immensely
necessary to appoint some efficient and experienced
Executive Engineer in the place of Shri Pande, who was
on the verge of retirement and was not prompt enough to
complete the project within the prescribed time. He
submits that this was the special reason for effecting
the transfer of Shri Pande. The transfer is not tainted
with malafides. The submission note contains the reasons
for necessitating the transfer of Shri Pande. The said
submission note was approved by the Principal Secretary,
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who was Competent Transferring Authority and further
approved by his immediate superior i.e. the Hon'ble
Minister. Relying on the judgments in the cases of
Sanjeev Bhagwanrao Kokil Vs. State of Maharashtra and
Ors. 2013 (7) Bom. C.R. 148, State of Maharashtra and
anr. Vs. Omprakash Ghanshyamdas Mudiraj and anr. 2008
BCI 126 and State of Maharashtra Vs. Ashok Ramchandra
Kore and Anr. 2009 (3) Bom. C.R. 673, he submits that
the Tribunal was not right in doubting the wisdom of the
Hon'ble Minister in approving the transfer of Shri Pande
for the reasons mentioned in the submission note as well
as in his own endorsement. He submits that signing of
the submission note by the Principal Secretary
presupposes that he agreed with every aspect of the
proposal contained therein. He pointed out to the scope
of the powers of the Courts to interfere in the transfer
orders, as has been outlined by the Hon'ble the Supreme
Court in several judgments. He submits that the impugned
transfer order has been passed as per the procedure
prescribed in the Transfer Act. Relying on the judgment
in the case of Vishwanth Babunath Nath Vs. The State of
Maharashtra and others, (Writ Petition No.1459 of 2017),
decided by this Court on 16th February, 2017, he submits
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that the Tribunal was not justified in interfering in
the impugned transfer order.
13. The learned Special Counsel Shri Talekar,
representing the State and the learned counsel Shri
Dighe, representing Shri Wankhede, supported the
impugned transfer order and challenged the order passed
by the Tribunal, on the same grounds which have been
canvassed by the learned counsel Shri V.D.Sapkal.
14. As against this, the learned counsel Shri
Ajay S. Deshpande, representing Shri D.B. Pande, submits
that the impugned mid-term and mid-tenure transfer of
Shri Pande has been effected with the sole object to
accommodate Shri Shingade. Shri Pande was on the verge
of retirement. His transfer is not in consonance with
the provisions of sub-sections (4) (ii) and (5) of
Section 4 of the Transfer Act. According to him, the
transfer of Shri Pande, for the justifiable and special
reasons to be recorded in writing, could have been
effected by the Hon'ble Minister, after getting it
approved from the Hon'ble the Chief Minister. This
mandatory compliance has not been made while
transferring Shri Pande. The proposed transfers were not
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approved by the Civil Services Board. He submits that
there was no justifiable reason for transferring Shri
Pande. He further submits that the transfer order has
been implemented hastily in the absence of Shri
D.B.Pande since he was on leave. He stood relieved
hastily on the same day on which the impugned transfer
order was passed. Therefore, according to him, the
transfer of Shri Pande is liable to be quashed and set
aside. He supports the impugned judgment and order of
the Tribunal.
15. Here, it would be worthwhile to reproduce
paragraph 9 of the judgment in the case of Ashok
Ramchandra Kore and Anr. (supra), enumerating the
guiding principles laid down by the Hon'ble the Supreme
Court in various judgments.
"i) The courts should not interfere with the
transfer orders which are made in public
interest and for administrative reasons unless
the transfer orders are made in violation of
any statutory rule or on the grounds of mala
fides. (Mrs. Shilpi Bose & ors. Vs. State of
Bihar & ors.) 10, 1990 DGLS (soft) 696 : 1991
(Supp.2) SCC 659 : A.I.R. 1991 SC 532.
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ii) A Government servant holding a
transferable post has no vested right to remain
posted at one place or the other. Transfer
order issued by a Competent Authority does not
violate any of his legal rights. (Shilpi
Boses's case (supra).
iii) Who should be transferred where, is a
matter for the appropriate authority to decide.
Unless the transfer order is vitiated by mala
fides and is made in violation of any statutory
provisions, the court cannot interfere with it.
(Union of India & Ors. Vs. S.L. Abbas) 11, 1993
DGLS (soft) 409: 1993 (4) SCC 357 : A.I.R. 1993
SC 2444.
iv) Transfer of an employee is not only an
incidence inherent in the terms of the
appointment but also implicit as an essential
condition of service in the absence of any
specific indication to the contra in the law
governing or conditions of service. (State of
Uttar Pradesh & Ors. Vs. Gobardhan Lal) 12,
2004 DGLS (soft) 190: 2004 (11) SCC 402 : AIR
2004 SC 2165.
v) Transfer made even in transgression of
administrative guidelines cannot also be
interfered with, as it does not confer any
legally enforceable rights unless it is shown
to be vitiated by mala fides or made in
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violation of any statutory provision and so
long as the official status is not affected
adversely and there is no infraction of any
career prospects such as seniority, scale of
pay and secured emoluments (Gobardhan Lal's
case (supra).
vi) The courts should not deal with transfer
orders as if they are appellate authorities
over such orders, which could assess the
niceties of the administrative needs and
requirements of the situation concerned. They
cannot substitute their own decision in the
matter of transfer for that of competent
authorities of the State. Even allegations of
mala fides when made must be such as to inspire
confidence in the court or based on concrete
materials. (Gobardhan Lal's case (supra).
vii) Allegation of mala fides should not be
entertained on the mere making of it or on
consideration borne out of conjectures or
surmises. (Gobardhan Lal's case (supra).
viii) Except for strong & convincing reasons no
interference could ordinarily be made with an
order of transfer. (Gobardhan Lal's case
(supra)."
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16. In paragraph 8 of the judgment in the case of
Sanjeev Bhagwanrao Kokil (supra), this Court while
considering the scope of powers of the Courts to
interfere in the transfer orders, has observed as under:
"The statutory authorities having applied
themselves to the issues mentioned in the
proposal and having thought it appropriate to
transfer the petitioner as a special case and
in exceptional circumstances, it would
certainly qualify the test laid down in Section
4(4) proviso (ii) and/or 4(5) of the Act. That
is the subjective satisfaction of the concerned
authorities. Sufficiency of the material
considered by the Authorities for recording
their satisfaction, cannot be the basis for the
Court to doubt their wisdom."
17. The above referred settled legal position makes
it clear that the scope of the powers of the Tribunal or
the Courts to interfere in the transfer orders is very
limited. In the present case, a detail proposal for
transfer of Shri Pande and two other Executive
Engineers, was prepared giving specific reasons which
necessitated the transfer of Shri Pande. The submission
note containing the said proposal was approved by the
Principal Secretary of the Department, who was the
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Competent Transferring Authority, in view of the
Notification dated 25th April, 2016. The signing of the
said submission note by the Principal Secretary itself
indicates that he agreed with the contents of the said
proposal. The said proposal was then approved by the
Hon'ble Minister, who was delegated with the powers of
the Hon'ble the Chief Minister, as per the Notification
dated 25th April, 2016 and as such, was empowered to
approve the proposal for transfer of Shri Pande and two
other Executive Engineers, being the immediate superior
of the Principal Secretary, in view of the provisions of
sub-sections (4) (ii) and (5) of Section 4 of the
Transfer Act. Considering the reasons given in the
submission note for transfer of Shri Pande, it cannot be
said that the transfer of Shri Pande was effected with
malafide intention.
18. In the case of Omprakash Ghanshyamdas Mudiraj
and anr. (supra), it has been observed in paragraph 13
as under :
"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
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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."
19. Considering the above referred legal position
on the scope of powers of the Tribunal or the Court to
interfere in the transfer orders, we are of the view
that the transfer of Shri Pande has been effected by
following the proper procedure laid down in sub-sections
(4) (ii) and (5) of Section 4 of the Transfer Act. The
said transfer cannot be said to have been effected by
malafide exercise of powers. Though earlier the Civil
Services Board had not recommended transfer of Shri
Pande, since he was not due for transfer and was due for
retirement on 30th April, 2017, considering the special
reasons given in the submission note dated 1 st December,
2016 as also in the endorsement of the Hon'ble
Minister, the transfer of Shri Pande from one Division
to another at the same station i.e. at Parbhani, cannot
be said to be unjustifiable. The events subsequent to
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the passing of the transfer order i.e. relieving Shri
Pande when he was on leave, etc. as have been agitated
by Shri Deshpande, the learned Advocate, in our view,
are not relevant, particularly when we found that the
transfer order has been passed by following due
procedure and is not tainted with malafides. No
prejudice can be said to have been caused to Shri Pande
by such transfer.
20. The Tribunal did not consider the facts of the
case in proper perspective. The Tribunal should not have
doubted the reasons given by the Principal Secretary and
the Hon'ble Minister for transfer of Shri Pande, from
one Division to another at Parbhani. The Tribunal did
not consider the above referred legal position, which
clarifies the limited scope of powers of the Tribunal in
interfering with the transfer orders. In the
circumstances, the reasons given by the Tribunal, while
setting aside the transfer order of Shri Pande, cannot
be upheld. In the result, we pass the following order.
21. The writ petitions are allowed. The impugned
judgment and order dated 8th March, 2017 passed by the
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Maharashtra Administrative Tribunal Mumbai, Bench at
Aurangabad in Original Application No.1 of 2017, is
quashed and set aside. The impugned transfer order dated
30th December, 2016 is restored.
22. Rule is made absolute in the above terms. No
costs.
Sd/- Sd/-
[SANGITRAO S. PATIL] [S.V. GANGAPURWALA]
JUDGE JUDGE
sam/wp3318-2017+group
