Ganesh Tulshiram Pagare vs The State Of Maharashtra Thro ...
2017 Latest Caselaw 2102 Bom

                                        1                   W.P.No.12817/16

                                    UNREPORTED

                     IN THE HIGH COURT OF JUDICATURE AT

                                       BOMBAY

                                BENCH AT AURANGABAD.


                           WRIT PETITION NO.12817 OF 2016
                                        WITH
                                 C.A.NO.131 OF 2017
                                          IN
                           WRIT PETITION NO.12817 OF 2016


          Ganesh S/o Tulshiram Pagare,
          Age 47 years, Occ.Service,
          R/o Snehnagar, Near Rajasthan
          School, D.P.Road, Beed,
          Tq. and Dist.Beed.            ... Petitioner.

                           Versus

          1. The State of Maharashtra,
          through its Secretary,
          Urban Development Department,
          Mantralaya, Mumbai-32.

          2. The Commissioner/Director,
          Municipal Administration,
          Government Transport Services
          Building, 3rd floor,Worli,
          Mumbai.

          3.The Divisional Commissioner,
          Municipal Administration
          Department, Aurangabad
          Division, Aurangabad.

          4. The District Collector,
          Collector Office, Beed.

          5. The Chief Officer,
          Municipal Council, Beed,
          Tq. and Dist.Beed.                     ... Respondents.




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                                                 2                   W.P.No.12817/16


          Mr.S.P.Urgunde, advocate for the petitioner.
          Mr.V.S.Badakh, A.G.P. for the State.
                                  ...

                                    CORAM : S.V.GANGAPURWALA AND
                                            SANGITRAO S. PATIL,JJ.

Date : 02.05.2017.

ORAL JUDGMENT (Per S.V.Gangapurwala,J.)

1. Rule. Rule returnable forthwith. With

the consent of the parties, the petition is taken

up for final hearing.

2. The petition takes exception to the

order passed by the Maharashtra Administrative

Tribunal, thereby rejecting the Original

Application challenging the transfer order dated

12.8.2016.

3. According to Mr.Urgunde, learned

counsel, the order of transfer is mid-tenure and

mid-term transfer. The provisions are not

followed. Between 2014 and 2016, the petitioner

has been transferred three times. Even transfer

from one post to another and/or one Department to

another Department amounts to transfer. The

learned counsel further submits that transfer in

question is a mid-term transfer.

4. Learned A.G.P. submits that the

transfer was made consider exigencies, complaints

being received and the order of the Commissioner

dated 2.3.2016. The Divisional Commissioner is

the next superior authority to the appointing

authority.

5. Mr.Indani, learned counsel for the

intervener submits that in fact, the Commissioner

had written on 2.3.2016 to the Collector,

however, the petitioner approached this Court and

filed Writ Petition bearing W.P.No.3584/2016 in

which initially stay was granted by this Court

and because of the order of stay operating, the

transfer order could not be passed by the

Collector. The said petition was decided in

July 2016 and thereafter in August 2016, the

order of transfer is passed. It is because of

litigation pending in the Court and the

prohibitory orders operating, the transfer order

was not issued. The learned counsel submits that

it is at the behest of the Commissioner, who is

the next superior authority the order of transfer

is issued and as such the provisions of Transfer

Act are followed.

6. We have considered the submissions.

7. We need not enter into the debate as

to whether it is a mid-tenure transfer. The

order of transfer dated 8.12.2016 is a mid-term

transfer.

8. If it is stated that the transfer is at

the behest of the Divisional Commissioner then

the order of transfer would be hit by the

doctrine of order by dictation which is not

permissible.

9. If it is assumed that the Collector

being the appointing authority has passed the

order of transfer then provisions of Section

4(ii) has not been complied as the proposal is

not placed before the Commissioner who is the

next superior authority. This Court while

disposing of earlier Writ Petition bearing

W.P.No.3584/2016, under its order dated

18.7.2016, had observed that the State should

apply the transfer policy in accordance with the

relevant procedure, Rules, Government

Resolutions.

10. The Transfer Act, 2005 would be

applicable to the petitioner as the petitioner is

an employee in the State cadre. Admittedly, the

proposal is not placed before the next superior

authority.

11. In view of that the impugned order of

the Tribunal is quashed and set aside, so also

the impugned order of transfer to the extent of

petitioner is set aside.

12. Needless to state, the Respondents are

at liberty to take steps with regard to transfer

of petitioner in accordance with the Transfer

Act, 2005.

13. Rule accordingly made absolute in above

terms. No costs.

14. In view of disposal of Writ Petition,

Civil Application also stands disposed of.

                           Sd/-                      Sd/-

          (SANGITRAO S. PATIL,J.)          (S.V.GANGAPURWALA,J.)



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