Supriya Nanasaheb Jagtap After ... vs The State Of Maharashtra And Anr
2021 Latest Caselaw 6746 Bom

                                                   19. WPSt.8589_2021. Final.odt

 Vidya Amin

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CIVIL APPELLATE JURISDICTION

                       WRIT PETITION (ST) NO.8589 OF 2021

 Balaji Audambar Shinde                                  ...         Petitioner
             versus
 State of Maharashtra                                    ...      Respondent

                                       and
                       WRIT PETITION (ST) NO.8588 OF 2021
                          (Not on board, taken on board)

 Ms. Supriya Nanasaheb Jagtap alias
 Supriya Balaji Shinde                                   ...         Petitioner
             versus
 State of Maharashtra & Anr.                             ...      Respondents

 Mr. Anil Sakhare, Senior Advocate with Mr. Rohan S. Mirpury for the
 Petitioner.
 Mr. B.V.Samant, AGP for the State.
 Mr. Vikram Chavan i/b. M/s. C.K. Legal for respondent no. 2 in both the
 petitions.

                           CORAM :-   DIPANKAR DATTA, CJ &
                                      G. S. KULKARNI, J.

                           DATE :-    APRIL 27, 2021

 PC :

1. It is true that the husband and his wife may not be separated

when both the spouses are in government service, but to accept a

request, that they be not transferred 'at all' from a posting on which

they have overstayed, may possibly be overstretching of the norms, in

the absence of any circumstances which may justify such request. Such

is the case of the couple before us.

19. WPSt.8589_2021. Final.odt

2. These are two petitions, the first petition filed by Shri. Balaji

Audambar Shinde, who is the husband of the petitioner in the second

petition - Smt.Supriya Shinde.

3. Both the petitioners who are in the services of State Government

working as Food Safety Officers and were posted at Raigad, approached

the Maharashtra Administrative Tribunal (for short "the tribunal")

challenging their transfer from Raigad to Pune, vide order dated August

10, 2020 by filing their respective original applications, which have

been dismissed by the tribunal by the impugned common judgment and

order.

4. The petitioner in the second petition -Smt.Supriya Shinde has

already joined the transferred place of posting. Also, Mr.Anil Sakhare,

learned Senior Counsel for the petitioners did not advance any specific

submissions in the wife's petition.

5. Both the petitioners have completed their requisite tenure at

Raigad, making them liable for general transfers in April-May 2020. The

petitioner-husband has in fact completed more than 4 years at Raigad.

It is also not in dispute that prior to the issuance of the transfer order in

question, the petitioners had submitted options and requested the

19. WPSt.8589_2021. Final.odt

respondents to post both of them, at one place citing that they have

three years old son and that their family is settled at Panvel, District

Raigad, as also that the petitioner-husband's mother is suffering from

cancer. Eight such options were given in the Thane District and two in

Raigad District.

6. The petitioners' contention before the tribunal were interalia of

the transfer not being a 'general transfer' being normally effected in the

month of April-May of a given year, as the impugned transfer order was

issued on August 10, 2020. On this count, the petitioners contended

that the transfer was contrary to the provisions of Section 4(4)(ii) of the

Maharashtra Government Servants Regulation of Transfers and

Prevention of Delay in Discharge of Official Duties Act, 2005 (for short

'the 2005 Act'). It was also contended that the mother of the petitioner-

husband was a cancer patient and was registered for treatment at the

Tata Cancer Hospital, Kharghar, District Raigad, hence, a request as

made by the petitioners for extension of the posting at Raigad was

required to be considered by the respondents in terms of the

requirements as contained in Government Resolution dated April 9,

2018. It was thus contended that the transfer was in breach of the

Government Resolution dated April 9, 2018, as the options which were

given by the petitioners were not considered.

19. WPSt.8589_2021. Final.odt

7. By the impugned order, the tribunal rejected all the contentions

as urged by the petitioners. The tribunal observed that the transfer of

the petitioners was on administrative grounds, as also as per rules, the

petitioners were overdue for transfer from their respective postings at

Raigad. The tribunal also observed that the petitioners contention that

the transfer of the petitioners was not a general transfer was also not

correct, as in fact, general transfers were effected in August, 2020, as

the deadline to make the transfers in April-May 2020, was extended by

the Government Resolutions dated July 7, 2020 and July 23, 2020

which were issued due to the outbreak of the pandemic caused by

Covid-19 and the consequent lockdown. It was observed that as the

transfers were general transfers, there was no requirement of an

approval of the Chief Minister as per the provisions of Section 4 read

with Section 6 of the 2005 Act. The tribunal also did not accept the

petitioners case relying on the Government Resolution dated April 9,

2018, namely, that as the petitioner's mother was suffering from cancer,

the petitioners are required to be retained at Raigad. The tribunal

observed that at the time of submitting the option form, the petitioners

had merely submitted a copy of 'registration form', with the said

hospital, of the petitioner's mother-Shakuntala Patil, dated September

28, 2018, except for which, no other document was submitted to show

that his mother was diagnosed as a cancer patient and was undergoing

19. WPSt.8589_2021. Final.odt

treatment at Kharghar. It was observed that the hospital registration

form of the petitioner's mother was of 2018 and options for the transfer

were given by the petitioners in the year 2020. The petitioners had also

not submitted any contemporaneous document regarding a continuous

treatment at the hospital. The tribunal observed that the petitioners

contention that that they be retained at Raigad also could not be

accepted, as the petitioners were serving at Raigad over and above their

official tenure, hence, retaining them at Raigad was not permissible as

per the rules, except for some exceptional circumstances. The Tribunal

also observed that even the wife was posted in the Raigad District for

more than eight years in her service tenure, and that it was revealed

that time and again, extensions were sought by her to be posted at

Raigad. The tribunal, thus, held that there was no basis for the

petitioners to be continued at Raigad. It is on such premise, the original

applications of both the petitioners came to be dismissed.

8. Mr. Sakhare has very limited submissions to be urged. He would

submit that the tribunal ought to have granted to the petitioners the

benefit of the Government policy as reflected in the Government

Resolution dated April 9, 2018, as the petitioner's mother was a cancer

patient, who was availing treatment at the Tata Cancer Hospital at

Kharghar. Mr. Sakhare, in support of his contention, has drawn our

19. WPSt.8589_2021. Final.odt

attention to the medical papers in regard to the petitioner's mother's

treatment, to submit that she was certainly a cancer patient. According

to Mr. Sakhare, a compassionate approach was required to be adopted

before the petitioner could be transferred. It is submitted that as the

wife- Supriya, has already joined the posting at the transferred place,

there was no harm in continuing the petitioner-husband at Raigad.

9. On the other hand, Mr. Samant, learned AGP while opposing the

petitions has contended that the tribunal is correct in observing that the

medical papers of the petitioner's mother are of the year 2018, which

did not indicate continuation of any medical treatment at Raigad. It is

submitted that for such reason, the tribunal was right in not accepting

the petitioners' case falling within the purview of Government

Resolution dated April 9, 2018. He would submit that the intention of

both the petitioners was to ensure that both of them are retained at

Raigad, a place where the family had settled down. He would

accordingly, submit that no interference in both the petitions is

warranted.

10. Having heard the learned counsel for the parties, we are not

persuaded to accept the contentions as urged by Mr. Sakhare. It is

clearly not in dispute that both the petitioners were overdue for

19. WPSt.8589_2021. Final.odt

transfer. The petitioner-husband has in fact served for a period of 4

years and 7 months at Raigad. Also the petitioner-wife was due for

transfer having completed her required tenure at Raigad. The official

discipline, hence, certainly would require the petitioners to be

transferred. It is also not in dispute that the petitioners were well aware

that they were due for transfer and had accordingly, submitted their

options for the ensuing transfers. Once the options were given, it would

not lie in the mouth of the petitioners to contend that they cannot be

transferred to any other place except the place of their choice, when the

general transfers for the year 2020 were to be effected, which were

delayed due to the lockdown effected because of the current pandemic.

11. Thus, the only contention of the petitioner as urged by

Mr.Sakhare is to the effect that a compassionate view was required to be

taken by the respondents as the petitioner's mother was undergoing

treatment for cancer. We have perused the documents, which are part

of the original application, as referred by Mr.Sakhare to support such

contention. All such documents are of the month of September, 2018.

There are no contemporaneous documents on record for a period after

2018 to indicate that the petitioner's mother, in fact, is undergoing

treatment at Kharghar, District Raigad. In the absence of any such

documents, the tribunal has rightly not accepted the petitioner's case

19. WPSt.8589_2021. Final.odt

and has correctly recorded a finding that the petitioners had not made

out any case to interfere with the transfer on the ground of

ailment/treatment of the petitioner's mother.

12. The tribunal has passed a well-reasoned order. All the

contentions as urged on behalf of the petitioners were considered, and

we find no perversity or illegality in the order passed by the tribunal.

13. It is inevitable for someone in Government service to be

transferred, notwithstanding the difficulties and inconveniences he has

to suffer. If indeed the transfer of the petitioner-husband should be

reconsidered in view of his mother's ailment, there should be sufficient

justification therefor. He has been transferred to Pune, where medical

facilities are sufficient and adequate and at par with what is available in

Raigad, if not better. In such circumstances, the Court cannot be

swayed by arguments based on sentiments.

14. The writ petitions are, accordingly, dismissed.

15. In the facts and circumstances of the case, we grant one month's

time to the petitioner-husband to join duties at the transferred place.

No costs.

        (G. S. KULKARNI, J.)                          (CHIEF JUSTICE)