Sanjay Tulshiram Shinde vs Maharashtra State Electricity ...
2017 Latest Caselaw 9041 Bom

                                                               901-WPL.3056.2017.doc


  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
      ORDINARY ORIGINAL CIVIL JURISDICTION

                  WRIT PETITION (L) NO. 3056 OF 2017


 Sanjay Tulshiram Shinde              }
 Age 57 years, Occ. Chief             }
 Engineer, MSETCL, 603,               }
 Samrat Ashok Co-Op. Hsg.,            }
 Plot No. 102, RSC-37,                }
 Gorai II, Borivali (W),              }
 Mumbai 400 091                       }       Petitioner

                  versus

 1. Maharashtra State         }
 Electricity Transmission     }
 Co. Ltd. (MSETCL), through }
 its Chairman and Managing }
 Director, Having address at }
 Plot No. C19, Prakash Ganga, }
 8 th floor, Bandra Kurla     }
 Complex, Bandra (East),      }
 Mumbai - 400 051             }
                              }
 2. The Chief General         }
 Manager, Human Resources- }
 Technical Establishment      }
 Department, Maharashtra      }
 State Electricity            }
 Transmission Co. Ltd.,       }
 having address at Plot       }
 No. C19, Prakash Ganga,      }
   th
 7 floor, Bandra Kurla        }
 Complex, Bandra (East),      }
 Mumbai - 400 051             }
                              }
 3. Executive Director HR     }
 Human Resources              }
 Department, Maharashtra      }
 State Electricity            }
 Transmission Co. Ltd.,       }
 having address at Plot No.   }
 C19, Prakash Ganga,          }

                               Page 1 of 31
 J.V.Salunke,PA




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 8 th floor, Bandra Kurla     }
 Complex, Bandra (East),      }
 Mumbai - 400 051             }
                              }
 4. The State of Maharashtra }
 through the Department of    }
 Energy, having its office at }
 Mantralaya, Mumbai           }                  Respondents


 Mr. A. Y. Sakhare-Senior Advocate with
 Mr. Joel J. Carlos and Mr. Rohan S.
 Mirpury for the petitioner.

 Mr. Abhijeet Desai with Ms. Vrushali
 Maindad,     Mr.   Navin      Arora and
 Mr.Sudarshan Maheshwari i/b. M/s. Desai
 Legal for respondent nos. 1 to 3.

 Mr. Himanshu Takke-AGP for State.


                           CORAM :- S. C. DHARMADHIKARI &
                                    SMT. BHARATI H. DANGRE, JJ.

DATED :- NOVEMBER 24, 2017

ORAL JUDGMENT:- (Per S. C. Dharmadhikari, J.)

1. The petitioner, by this writ petition under Article 226 of the

Constitution of India seeks quashing and setting aside of an office

order dated 26th October, 2017 issued by the second respondent

to this petition.

2. Since pleadings are complete and we have heard both sides

extensively, we proceed to dispose of this petition finally by this

judgment.

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3. Rule. Respondents waive service. By consent, Rule is made

returnable forthwith.

4. The first respondent before this court is the Maharashtra

State Electricity Transmission Company Limited (MSETCL). The

second respondent is the Chief General Manager, Human

Resources-Technical Establishment Department of the first

respondent, whereas, the third respondent is the Executive

Director, Human Resources Department of the first respondent

company. The fourth respondent is the State of Maharashtra.

5. The petitioner has stated in the petition that he is Bachelor

of Engineering (Electrical) and holding a Masters degree in

Business Administration and Finance from the Nagpur University

and Tilak Maharashtra University, Pune. He joined the services

of the erstwhile Maharashtra State Electricity Board as Junior

Engineer (Electrical and Mechanical) on 4th October, 1980 and

continued to work as a Junior engineer upto 17 th November,

1984. He was then selected as Assistant Engineer (Electrical and

Mechanical) and was working as Assistant Engineer from 27 th

November, 1984 to 8th June, 1993. The petitioner was further

promoted as Deputy Executive Engineer (Electrical and

Mechanical) and continued to work on the said post from 30 th

June, 1993 to 16th June, 2001. Then he was promoted as

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Executive Engineer (Transmission) from 16th June, 2001 and

continued as Executive Engineer upto 20th June, 2006. The

petitioner has set out in the petition his achievements and how he

was instrumental in giving results so that the transmission

company-the first respondent before us was able to achieve its

targets.

6. It is common ground that the Maharashtra State Electricity

Board was divided into transmission, generation and distribution

companies. The transmission company's duties being clear, the

petitioner states that he was one of such officers, who, by his hard

work, sincerity and dedication, assisted his employer in achieving

the targets. That is how he was promoted as Superintending

Engineer on 20th June, 2006 and he continued as such upto 24 th

November, 2008. Thereafter, from 25 th November, 2008, he has

been promoted as Chief Engineer (Transmission). The petitioner

claims that he has worked on several important assignments at

various places and today is the senior most Chief Engineer as per

the seniority list.

7. Such a high level officer is aggrieved and dissatisfied with

his mid-term transfer. The complaint is that his transfer is not

for any administrative exigency. The petitioner is due to retire

on 31st January, 2018 and there is thus no warrant for

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transferring him from the post of Chief Engineer at the EHV-PC

O&M Zone, Vashi to the Corporate Office. The impugned order of

transfer dated 26th October, 2017 is contrary to the express

provisions in the circular dated 5th October, 2015. This is a

circular on the subject of transfer and outlines the complete

policy. Placing reliance upon clause 6 onwards, it is stated that

the officers, who have been enlisted in the 5 th Schedule, are the

competent authorities for effecting transfers. Ordinarily, if an

employee is due for transfer, then, he/she should be transferred

or shifted in the month of April-May during general transfers.

Thus, April-May is the period during which general transfers are

effected so that no inconvenience is caused to the employees and

their families. In the event any mid-term transfer is to be made

and not in this period, then, sanction of the superior officers must

be obtained.

8. Then, by clause 7(c), it is stated that as and when need

arises or occurs, then, administrative transfers can be effected,

but to subserve administrative interest. This is also taken to be

an exceptional circumstance warranting transfer and if such

transfer has to be effected, then, not only the competent authority

has to be approached, but equally, the superior officer who will

take the responsibility for effecting such transfers and approving

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them. The reasons should be assigned, according to the

petitioner, for such transfers. The petitioner then proceeds to

state that having been working at the post mentioned above,

there was no warrant for any transfer and he also invited our

attention to the same policy of transfer, which, according to him,

says that those who are likely to retire in immediate future,

namely, two years, they should not be generally transferred. It is

in these circumstances that it is stated that the petitioner was

shocked and surprised that despite the definite and clear policy

set out in the circular of 5 th October, 2015 and further amended

by circular dated 25th April, 2017, he was transferred. He was

brought at Vashi on 29th April, 2015. The petitioner was holding

additional charge of ERP and IT Head of the first respondent from

February, 2009 upto 26th October, 2017. After completion of 37

years of service, the petitioner was expecting a retirement which

ought to be happy and smooth. He was satisfied after rendering

37 years of blemishless service. At that time, he was served with

the impugned order shifting him from Vashi to the Corporate

Office at Mumbai. Pertinently, there is no permanent

appointment made in the petitioner's place and what has been

brought to our notice is that the Superintending Engineer, Panvel

would take additional charge of the post of the petitioner after the

petitioner's transfer.

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9. The petitioner made a representation, copy of which is

annexed as Annexure 'E', pointing out that there has been

absolutely no complaint nor any occasion for him to be

transferred and when he has just 2-3 months left for his

retirement. The petitioner has specifically enlisted in this

representation, not as his personal achievements, but that of his

team, the following:-

" I am instrumental in forming OPGW network in Mahatransco, which yields revenue to the company and has given good connectivity backbone to the communication. I have completed one of the finest project of RTU-DC and its operations in SLDC with new corporate look architecture of the building and installed technology therein.

I took efforts to save lot of amount in civil works of water proofing of Mahantansco Control Rooms and residential building wherein the same has been curtailed by providing the sheet to the control room and residential building.

400 kV Padghe S/stn is the major s/stn in the area which is feeding Mumbai city demand. There was no isolation arrangement and the bus conductor got deteriorated, which could not be replaced due to non availability of outage from SLDC. This situation continued for last 25 years and I feel proud to say that I had made bus sectionaliser arrangement by providing the re- orientation of 400 kV major feeders at Padghe, which is proposed to be commissioned by 30th October, 2017.

Goals achieved includes Capex of Rs.202.41 Crs, Capitalisation of Rs.230.98 Crs, Mumbai strengthening scheme to greater Mumbai region of Rs.798.28 Crores. The long pending ROW issues were for establishment of 100 kV Mumbra substations are resolved.

(Sanjay Shinde) Chief Engineer EHV PC O&M Zone, Vashi "

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10. He, therefore, requests that the transfer order be quashed.

11. Our attention has been invited to the Officer Order

No.214/impugned order dated 26th October, 2017. It reads as

under:-

In pursuance of approval accorded by the Competent Authority viz., the Chairman & Managing Director in exercise of the powers delegated to him under Schedule FIFTH appended to the MSETCL Employees' Service Regulations, 2012, the orders are issued as under:

(i) Shri. S. T. Shinde (01767330), Chief Engineer, EHV PC O&M Zone, Washi is hereby transferred to Corporate Office, Mumbai with an immediate effect and kept in waiting for posting until further orders. He stands relieved from the post of CE, Washi Zone, w.e.f. 26.10.2017 AN. His salary will be continued to draw against the post of CE, Washi as hither-to-before.

(ii) Consequent on transfer of Shri. Shinde, CE the additional charge of the post of CE, Washi Zone is entrusted with Shri. S. V. Gaherwar (01997343), SE, EHV O&M Circle, Panvel. He will be entitled for charge allowance as per Company's rules.

(iii) Further, Shri. M. B. Bhagwar (02232847), SE, ERP, Corporate Office, Mumbai is hereby called upon to look after the charge of ERP Department, Corporate Office, Mumbai. In addition to that he is given charge of IT Department. Consequently, the personnel working in IT Department will report to Shri. Bhagwat through their proper channel.

2. The above arrangements will come into force with an immediate effect."

12. On such a petition being served, the respondents have filed

an affidavit in reply. Rather, they have filed two affidavits in

reply. In the first affidavit at page 38 of the paper book, the

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respondents proceed to state that the petitioner was holding an

important post in the first respondent company. The respondents

have decided to entrust the petitioner with greater responsibility

due to his experience and knowledge relating to the work. It is

stated that the first respondent company takes all decisions

related to transfer of employees, allocation of work etc. only after

obtaining necessary approvals and strictly adheres to the

internal rules and regulations of the first respondent company. It

is stated that the circular, which is relied upon by the petitioner,

enables, by clauses 6 and 7, that in cases of administrative

exigencies after approval from the competent authority, namely,

the Chairman and Managing Director in the case of the present

nature, transfers can be effected. The petitioner cannot complain

for the simple reason that there are other officers who have been

transferred as well in the recent past. These officers have been

transferred though they have not completed the ordinary normal

period of three years. The affidavit proceeds on the footing that

though there are such defined and clear policies, the

administrative exigency would override them. These matters are

to be decided solely by the superior officers and particularly in-

charge of the Human Resources Department in the first

respondent company. Once they decide that there is a need to

bring in a fresh blood or another employee that does not mean

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that the transfer is malafide. This is the stand in the first

affidavit filed on 20th November, 2017.

13. Pertinently, there is an annexure to this affidavit styled as

Annexure 'C' collectively, which says that this is a copy of the

office note relating to the transfer and posting of the petitioner

and how the approvals in that behalf have been obtained. That

note reads as under:-

"OFFICE NOTE No. MSETCL HR-TE/Trf/CF(T)STS 619 Date: 27th October, 2017

Sub: Transfer & Posting of CE (Trans) Allotment of portfolio to Shri. S. T. Shinde (CE)

Submitted in pursuance to the instructions received from the higher authorities.

2. Vide this office order No. 214 (1162) dtd. 26.10.2017 Shri. S. T. Shinde, CE has been transferred from Washi Zone to Corporate Office, Mumbai and kept on waiting for posting until further orders. Now, directives have been received to submit a proposal to entrust the responsibilities of ERP and IT Department on him. For approval of the Competent Authority.

3. As per FIFTH Schedule appended to the MSETCL Employees' Service Regulations, 2012 the powers to transfer the officer of the rank of Chief Engineer are vested in the Chairman and Managing Director. In the instant case the transfer is already effected now the portfolio is to be assigned which is an administrative function. As per Administrative Circular No. 3 dated 24.11.2005 the power to decide the matters of general administration are also vested in the Chairman and Managing Director. As such the proposal is submitted for further orders please.

Submitted for approval/orders please.

A. G. M. (HR-1)"

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14. An additional affidavit has been filed after a brief hearing.

In that additional affidavit, the Chief General Manager (HR) of

the first respondent states that the petitioner has rendered

service of 37 years to the company. In order to avoid any stigma

on his reputation and character and to avoid any unpleasant

action, the petitioner has been transferred. This would enable

him to draw all the service benefits. It is within the framework of

the policy that the decision has been taken. It is purely an

administrative decision.

15. At the same time, the deponent of this affidavit states that

he desires to bring to the notice of this court certain factsheets,

which would indicate that when the petitioner was discharging

his service as Chief Engineer, Vashi Zone, he was of completely

high handed nature, hypocratic, accused of non-compliance of

administrative directions and not adhering to time constraints.

There have been many administrative lapses on his part. These

led to delay in completion of works and proper operation and

maintenance of transmission system. In the backdrop of such

administrative lapses, the management was many times

constrained to divert the assignments so allotted to Vashi Zone to

the Corporate Office in order to safeguard the business interest.

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16. Then, a reference is made to a letter dated 22 nd June, 2016

addressed by the office of the Chief Engineer, Maharashtra State

Load Dispatch Centre, Navi Mumbai to the Director (Operation),

Corporation Office, wherein, the authority had in a way

complained regarding abnormal delay in restoration of certain

works, which falls within the administrative control of the

petitioner. Since the petitioner failed to take any cognizance of

the complaint regarding restoration of line, a show cause notice

was issued dated 8th May, 2017. The show cause notice called

upon explanation from the petitioner as to why there had been

frequent changes in decisions/plans for restoration of lines and

also to explain the delay in restoration so caused at his instance

in the Padghe area, which had put the Corporate Office into lot of

inconvenience and hardship.

17. Then, a reference is made to the letter dated 5 th December,

2016 on the point of a tender which was issued and from the

petitioner's zone. There was no adherence to certain policy

regarding issuance of such tenders. Finally, on 11 th September,

2017, the petitioner was called upon by a letter to give

explanation as to why there has been a delay in execution of

certain scheme and projects.

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18. The affidavit continues to highlight the serious lapses much

less of a contract terminated by him without any authority and

assuming excessive jurisdiction. The said contract had to be

reinstated upon the indulgence of the Corporate Office. Thus, the

affidavit proceeds to allege that with a view to allow the

respondents to smoothen the operations of the unit, the petitioner

was transferred.

19. Then, an allegation is made in para 13 of this affidavit that

the petitioner has not forwarded his appraisal reports from 2013-

14.

20. It is in these circumstances that the transfer has been

justified. It is stated that the additional charge assigned to the

Superintending Engineer, Panvel, who has about 35 years'

experience, is a temporary administrative arrangement. In these

circumstances, this court should not take any cognizance of the

present complaint and grievance and interfere with the transfer

order. It is also urged that the petitioner has assumed charge in

the Corporate Office and he has been allotted work.

21. The petitioner has filed a rejoinder affidavit and it is taken

on record today, but a copy thereof was already served on the

respondents. In this rejoinder affidavit, the petitioner states that

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the action is completely arbitrary. Having served the first

respondent company, the petitioner did not desire to make

allegations, but in this affidavit in reply, when his alleged lapses

have been brought to the notice of this court, it becomes his duty

to point out that no show cause notice has ever been served on

him, as alleged. He also states that the petitioner has not taken

charge of the transferred post unconditionally, but under protest.

A letter dated 8th November, 2017 is relied upon. It is stated that

in this affidavit that the allegations that are made cannot justify

the punitive transfer. The letter dated 22nd June, 2016 is not

annexed to the affidavit, but that would indicate as to how it was

a routine work. The transmission line breakdowns are a part of

work hazard and is not restricted only to the zone of which the

petitioner was put in-charge. In fact a site report was called for

from the Superintending Engineer and that Superintending

Engineer's report, in the form of a letter dated 12 th August, 2016,

annexed as Annexure 'R2' to this affidavit, would indicate that

the problem of breakdown arose because of bad weather. Thus,

false statements are made on oath with a view to tarnish the

reputation of the petitioner. The letter dated 8th May, 2017 would

indicate that an explanation was called regarding restoration of

Talegaon line and the same was explained to the Director by

clearly stating that the said decision was taken to avoid further

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delay and the said explanation of the petitioner was accepted by

the Director. The petitioner takes strong exception to the use of

unparliamentary language, but we do not refer to it in further

details, save and except stating that there was a letter dated 15 th

December, 2016 with regard to issuance of a tender and the

matter was brought at rest. Thus, beyond routine

correspondence, there has never been any lapse or conduct of the

petitioner, which could be termed as unbecoming of an officer of

the first respondent. He has never defied any superior officer

much less misconducted himself. Pertinently, there was no

proposal for termination forwarded to the Corporate Office for

approval as far as any contract is concerned. It is in these

circumstances that he would submit that all the allegations made

in the additional affidavit in reply are but an afterthought. There

is nothing in the transfer order which would indicate that the

petitioner has been transferred because of any administrative

exigency or because of any misconduct or impending inquiry into

the same. Paragraphs 18 to 21 of this affidavit are thus relied

upon.

22. It is on the above materials that we have heard the oral

submissions.

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23. Mr. Sakhare learned senior counsel appearing for the

petitioner would submit that it is well settled that this court

would not interfere with a policy of transfer or an order of

transfer if it is made in administrative exigency. Ordinarily, this

court will not interfere with such routine transfers when they are

effected in order to smoothen the affairs of a public corporation.

Ordinarily, this court has never questioned the authority, power

and jurisdiction of the superior officers to effect an out of turn

transfer or a shifting mid-term. However, Mr. Sakhare would

submit that unless this court take serious note of some high

handed acts of public bodies, which, in the garb of exercise of

above powers, are in fact raising complex issues, then, we would

be failing in our duty to uphold the rule of law. Mr. Sakhare

would submit that the office order would indicate that an

purported approval was accorded by the competent authority in

exercise of the power conferred to him under the 5 th Schedule

appended to the MSETCL Employees' Service Regulations, 2012,

after the order of transfer. The transfer of the petitioner to

Corporate Office, Mumbai is with immediate effect, but he was

kept on waiting until further orders. Pertinently, Mr. Sakhare

submits that though the petitioner is transferred, there is no

permanent officer brought in his place, which is stated to be a

crucial post in the Zone. The Superintending Engineer at Panvel

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is given an additional charge. Mr. Sakhare then invited our

attention to page 60 of the paper book, which is a office note of

26th October, 2017, but the same, if carefully read, would indicate

that the transfer order was already issued and the approval was

sought later. The approval is on directives, but who issued these

directives to submit a proposal to make the changes in the post of

Chief Engineer has not been clarified. Thus, the whole document,

if carefully perused, would denote that there are signatures

appearing below the same. These signatures have been effected

because at page 59, the office note of 27 th October, 2017 had to be

submitted to comply with certain instructions received from

higher authorities. Mr.Sakhare would submit that there is no

indication in the affidavits in reply as to who are the higher

authorities. His argument, therefore, is that because the

petitioner had to be shifted on account of certain directives issued

from higher authorities and somebody else had to be brought in

his post that he was shifted abruptly and mid-term. This order,

coupled with the allegations now made, as an after thought, in the

affidavit in reply, certainly cast a stigma on his reputation and

character. The impugned order violates the mandate of Articles

14 and 16 of the Constitution of India. A public body is expected

to adhere to its own scheme and policy and unless there are

materials to depart from the same, the normal expectation is that

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the policy is strictly adhered to. His final argument is that if the

allegations are taken in their entirety, they would certainly

denote that the transfer is punitive in character. Therefore, Mr.

Sakhare would submit that the order be quashed and set aside.

24. Mr. Sakhare relies upon a judgment of the Hon'ble Supreme

Court in the case of Somesh Tiwari vs. Union of India and Ors. 1

and a Division Bench judgment of this court in the case of

Purushottam Govindrao Bhagwat vs. State of Maharashtra and

Ors.2.

25. On the other hand, Mr. Desai appearing for the respondents

would submit that in the writ petition there is not a single

averment alleging malafides or arbitrariness. There are no

pleadings to that effect. Further, relying upon the Hon'ble

Supreme Court judgments rendered from time to time on this

point, Mr. Desai would submit that so long as the transfer orders

are not questioned by making clear and precise allegations of

malafides, this court should not sit, as an appellate authority,

over the same. Mr. Desai would submit that if the allegations are

that the transfer orders are result of political pressure, then,

equally it is the bounden duty of a party like the petitioner to

plead that aspect and give particulars thereof. It is not open to

1 (2009) 2 SCC 592 2 2012(3) BCR 442

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allege malafides or arbitrariness orally. Mr. Desai then submits

that in the affidavit in reply the respondents are at pains to point

out as to how they avoided making allegations against the

petitioner though there were complaints of serious lapses on his

part. At the fag end of his career, they do not wish to cause any

embarrassment to him. He is shifted to the Corporate Office. A

balancing act is thus performed by the respondents. They wanted

to achieve best results by proper administration. Thus, to fulfill

the targets and obtain best performance from competent officials,

the shifting has been made. The petitioner should not, therefore,

complain about such transfers. From 2013 to 2014, the

petitioner has not submitted his self appraisal report, which is

also a serious lapse on his part. Thus, if the transfer is made in

administrative exigency, we must not interfere therewith. The

writ petition, therefore, be dismissed.

26. In support of his contentions, Mr. Desai would rely upon the

following decisions:-

(i) Airport Authority of India vs. Rajeev Ratan Pandey and Ors., 2009 III CLR 136;

(ii) National Hydroelectric Power Corporation Ltd. vs. Shri. Bhagwan and Anr., AIR 2001 SC 3309;

(iii) State of U. P. and Ors. vs. Gobardhan Lal, 2004 III CLR 78

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27. We need not refer to the settled principles. Suffice it to

state that a transfer is an incident of service. Once there is a

power to transfer and that power is exercised for administrative

reasons, to take care of administrative exigency, then, it is not for

this court to interfere with the same. However, wherever there

are defined and clear policies, rules and regulations and which

denote that the power of transfer should not be exercised mid-

term and an employee should be allowed to work ordinarily for

two to three years at one post, then, relaxation and deviation or

departure from such rules/regulations demands that a public

body records specific reasons. If the reasons are not recorded in

the communication, they must be at least be clear from the files

or the records produced before the court.

28. All that we do is we take a review on our judicial side of the

action of this nature, when there are allegations that there is a

violation of the mandate of Articles 14 and 16 of the Constitution

of India. That mandate is that every administrative action has to

be clean, just, non-arbitrary and non-discriminatory in nature. If

there are allegations that there are deviations and departures

from defined policies, rules and regulations and transfers are

effected for extraneous reasons, then, this court cannot shirk or

avoid its duty of scrutinising the record in its power of judicial

review.

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29. We have, therefore, on record the transfer order and the

two notes. Pertinently, the transfer order is dated 26 th October,

2017 issued by the Chief General Manager (HR). He is the second

respondent to this writ petition. The Office Order No. 214 recites

that the Human Resources-Technical Establishment Department

obtained approval of the competent authority, namely, Chairman

and Managing Director in exercise of the powers delegated to him

under the 5th Schedule appended to the MSETCL Employees'

Service Regulations, 2012.

30. We have also referred to these regulations and the powers

thereunder. The original circular is not before us, but it is stated

that the said regulations allow issuance of circulars. There is a

circular precisely on the point of transfer, dated 5 th October,

2015. These are the guidelines guiding the officials to effect

transfers. In that, we have a clear stipulation at page 23 of the

paper book. That is clause 2(d), which says that those employees,

who are going to retire in the next two years, should not be

ordinarily transferred. Undisputedly, the petitioner retires with

effect from 31st January, 2018. He has merely two months of

service left at his disposal. As far as the power to transfer mid-

term is concerned, clauses 6 and 7 would guide the authorities in

making such transfers. It is common ground that the transfers

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are effected by the end of academic year and particularly in the

month of April and May of every year. That is to enable the

employee, who is transferred, to organise his affairs and

particularly the family matters. He must take care of his

children's academic sessions and studies. He has also to make

other arrangements like accommodation etc. at his transferred

place. If the posting is at far off place, then, apart from travelling

time, he must get time to settle down. It is that endeavor which

mandates that such transfers should not be effected mid-term. If

they have to be effected, then, there are clear guidelines to that

effect. We think that when such orders are challenged before the

court, the least that is expected of the respondents then to

demonstrate from the transfer order or the note itself as to why a

party or person like the petitioner, at the fag end of the term and

on the eve of his retirement, should be transferred and brought to

the Corporate Office, but not assigned any duties. If this does not

visit him with stigma then what else, has not been clarified to us

at all. We find from the office note that there are no reasons

which would denote any administrative exigency or official

matter or overriding public interest which would require shifting

and transfer of an official, who is to retire in three months.

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31. Compounded with all this are the allegations now made in

the affidavit in reply, which Mr. Sakhare attacks as an

afterthought. Is there any serious lapse to proceed against the

petitioner departmentally? If, indeed a show cause notice was

issued, if indeed his behaviour was rude, non co-operative with

subordinates, superiors or contractors and public, then, this is

definitely a matter which should have been promptly

investigated, probed and inquired so as to subserve larger public

interest. We cannot accept the argument of Mr. Desai that the

respondents followed the policy of not embarrassing employees

like the petitioner. They decided not to visit people like the

petitioner with extreme consequences at the fag end of their

service. We must emphasise that the first respondent is a public

body. It has to abide by the constitutional mandate enshrined by

Articles 14 and 16 of the Constitution of India. It is not a private

authority, much less an entity of a Chairman and Managing

Director or like officials. They cannot go by whims and

fancies and take drastic decisions and thereafter justify them as

routine administrative matters. These are not purely

administrative matters as is being projected. If indeed there were

serious allegations and the performance of the petitioner was

below par, then, larger public interest demands that inquiries are

initiated by obtaining appropriate approvals from the higher

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authorities and Government departments, take the matter to its

logical end. Those deserving punishment even at the fag end of

their career ought to be punished. Besides, if the petitioner, as a

Chief Engineer has not performed to the satisfaction of the

respondents, his performance landed them in difficulty, there

were complaints, the targets were not achieved and the schemes

of transmission of electricity were not completed in time, then,

the least that was expected that an inquiry be made. Even today,

we do not see any such inquiry in the offing. Therefore, the first

contention of Mr. Desai that a lenient treatment or a view has

been taken in order to balance the authority of the respondents

with the power and the position of the petitioner, cannot be

accepted. We do not think that the respondents can oblige a

person like the petitioner, if he is indeed guilty of serious

misconduct. If there was a prima facie case of serious

misconduct, then, that should have been spelt out in the files and

notes. If indeed his presence was not conducive to the smooth

functioning and administration of the zone, then, that should

have been clearly recorded. There is no question of any official

hesitating to record a fearless and independent opinion about the

performance of another officer even if may be the Chief Engineer.

Therefore, when we demand complete adherence to the rule of

law, we expect the authorities like the respondents to spell out

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such materials in their orders itself. They should be discernible

from the order. The petitioner, on receipt of the office order, on

that day itself addressed a representation. He brought fore the

issue of not his performance, but the transfer policy. Secondly, he

also says that despite his best performance, there were certain

matters, which were not under his control, which resulted in

some delay in transmission.

32. We do not think that the office note, copy of which is at page

59 as also 60 of the paper book was already in existence. The

first office note at page 60 of the paper book shows that there are

directives received to submit proposal to make changes in the

post of Chief Engineer. These are the proposed changes and set

out in the note at page 60 of the paper book. This note is dated

26th October, 2017. Acting upon such a note, an approval order is

issued. Then, the petitioner's representation being on record, the

office note says and at page 59 that there has to be a transfer and

posting of the Chief Engineer (Transmission) and allotment of

portfolio to the petitioner. It says that this note is submitted in

pursuance of the instructions received from the higher

authorities. Though the petitioner has been transferred, he is

kept on waiting for posting until further orders. Directives were

received to submit a proposal for approval of the competent

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authority to entrust the responsibilities of ERP and IT

Department to him. That is how the approval of the competent

authority was sought.

33. Thus, it is clear that this note proceeds on the footing that

the transfer is already effected, but only the portfolio remained to

be assigned.

34. Mr. Desai would like us to believe that this is a proposal

seeking approval to the transfer. We do not think that pages 59

and 60 can be read in that fashion and manner. One refers to the

directives, which have been received already to submit proposal

to make the changes pursuant to which the order impugned in the

petition has been issued. The second is then seeking approval to

post somebody like the petitioner in the Corporate Office and

assign him work.

35. This is not on par with what the policy demands when a

person has to be shifted mid-term. We find that a public body

cannot depart from its policy and for reasons which are not

germane or relevant to achieve administrative efficiency, much

less to take care of administrative exigencies. The transfers

cannot be effected so as to accommodate somebody. They are not

to be effected because an official convenient to the superiors can

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be brought at a crucial post. The transfers cannot be effected also

to avoid holding departmental inquiries. In the least they cannot

be issued so as to oblige somebody, who is retiring shortly and

allow him to retire peacefully without any stigma even though he

is guilty of serious lapses while in service. We do not know how

all this achieves administrative exigency and guarantees

optimum results. Public interest demands that those vested with

such powers act as trustees of public. Eventually, all such powers

are in the nature of trust. They are coupled with a duty. If they

are not so exercised, a conclusion can be drawn that they are

vitiated by arbitrariness, unreasonableness, unfairness and they

cannot be termed as just. From the record of the present petition,

it is clear that the mandate of Articles 14 and 16 is violated

because, firstly, the order not indicating the reasons, much less of

any administrative exigency, secondly, the reasons are being

supplied by way of the affidavit and the additional affidavit as an

after thought and thirdly, despite such material being placed

before the court and alleging misconduct on the part of the

petitioner, the authorities are trying to justify their ex-facie

illegal action by urging that they do not want the petitioner to

face undue harassment at the fag end of his career. This reason is

not in public interest, to say the least.

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36. We do not think that any judgment of the Hon'ble Supreme

Court of India as also this court holds that despite such a position

emerging from the facts and circumstances of a particular case,

this court, in exercise of its judicial review conferred by Article

226 of the Constitution of India, cannot interfere and quash and

set aside any transfer order. We would be failing in our duty if we

uphold such action of public officials or public body when the

mandate of Articles 14 and 16 is clearly flouted.

37. None of the decisions that have been brought to our notice

lay down such a principle. Rather, in the case of Somesh Tiwari

(supra), the Hon'ble Supreme Court says in clear terms that if the

power is exercised not in public interest or administrative

exigency, the transfer order, may be administrative, but if issued

for reasons completely extraneous and has no nexus with the

object to be achieved, then, it should be interfered with. In para

16 of this judgment, the Hon'ble Supreme Court holds thus:-

"16. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the second malice in law.

The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say

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that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal."

38. Even in the Division Bench judgment in the case of

Purushottam Govindrao Bhagwat (supra) relied upon by

Mr.Sakhare, we find that the Division Bench was reminding the

State and the public bodies that transfers can be effected in

special cases or as an exception. The legislative intent is that

ordinarily Government servant will not be transferred prior to

completion of his tenure. However, it would be permissible in

special cases when the competent authority records the reasons

for the same and obtains prior approval of the immediately

superior transferring authority.

39. State of U. P. and Ors. vs. Gobardhan Lal 3 was a case where

the Hon'ble Supreme Court found that there was an interference

in the power of the State to transfer officers. There were disputed

questions of fact. Once the High Court was of a clear opinion that

there are disputed questions of fact, it should not have exercised

its power under Article 226 of the Constitution of India, much less

to interfere with an order of transfer. The challenge to it was not

clear, precise, but vague and ambiguous. The challenge was in

general terms. An allegation was made casually that the transfer

3 2004 III CLR 78

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orders are result of political pressure, but no particulars were

given. Hence, the appeals of the State were allowed and the order

of the High Court was set aside. Such is not the position emerging

from the record before us.

40. Equally, in the case of National Hydroelectric Power

Corporation Ltd. vs. Shri. Bhagwan and Anr.4, the Hon'ble

Supreme Court found that an order of transfer from an existing

place or office to the new project was being questioned on the

ground of prejudice in seniority. This was a routine exercise in

public interest and to improve efficiency in public administration.

Therefore, such orders could not have been interfered with.

41. In the case of Airport Authority of India vs. Rajeev Ratan

Pandey and Ors.5, by an interim order, the transfer was stayed by

the High Court. It is only some inconvenience of the officer

without any whisper of malafides which prevailed the Hon'ble

Supreme Court to interfere with it. Therefore, this order was set

aside being contrary to the settled principles. Even this judgment

is distinguishable on facts.

42. As a result of the above discussion, the writ petition

succeeds. Rule is made absolute in terms of prayer clause (a).

The transfer order is set aside.

4 AIR 2001 SC 3309 5 2009 III CLR 136

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43. We clarify that since the petitioner has assumed charge

under protest and without prejudice, all the more for the

aforesaid reasons, we do not find any justification for the

respondents preventing him from continuing as Chief Engineer at

Vashi, particularly because there is no permanent arrangement

made at that place.

44. We clarify that we have expressed no opinion as far as the

allegations against the petitioner, much less their merits. If any

inquiry can be initiated, even now, then let that be initiated and

concluded in accordance with law.

45. At this stage, Mr. Desai prays for stay of this order for a

period of four weeks. This request is opposed by Mr. Sakhare.

46. Having heard both sides, we find that the order of transfer

was ex-facie illegal and erroneous so also arbitrary. We would not

be justified in staying such an order. The prayer for stay is

refused.

(SMT. BHARATI H. DANGRE, J.) (S.C.DHARMADHIKARI, J.)

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