Bombay High Court
Prataprao Rangnath Sawade vs The State Of Maharashtra And ... on 28 July, 2021
Bench: S.V. Gangapurwala, R. N. Laddha
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3792 OF 2021
Prataprao Rangnath Sawade .. Petitioner
Versus
The State of Maharashtra and others .. Respondents
Mr. Sambhaji S. Tope, Advocate for the Petitioner.
Mr. S. G. Karlekar, AGP for Respondent Nos. 1 and 2.
Mr. A. R. Devakate, Advocate for Respondent No. 3.
CORAM : S. V. GANGAPURWALA &
R. N. LADDHA, JJ.
DATED : 28th JULY, 2021.
PER COURT:-
. We have heard Mr. Tope, learned counsel for the petitioner, the
learned A.G.P. for respondent Nos. 1 and 2 and Mr. Devakate, learned
counsel for respondent No. 3.
2. The petitioner assails the judgment and order passed by the
Maharashtra Administrative Tribunal in the Original Application filed
by the respondent No. 3 challenging the order of transfer.
3. It would appear that the present petitioner was working as
Project Director, Zilla Parishad, Parbhani and the present respondent
No. 3 was working as Additional C.E.O., Zilla Parishad, Jalna. Under
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the impugned order the respondent No. 3 is transferred as a Project
Director, District Rural Development Agency, Zilla Parishad, Jalna and
the petitioner is transferred as Additional C.E.O., Zilla Parishad, Jalna.
The Tribunal under the impugned judgment set aside the transfer
orders. Aggrieved thereby, the present petition.
4. Mr. Tope, learned counsel for the petitioner submits that the
entire procedure has been adhered while transferring the petitioner
and the respondent No. 3. The petitioner would be retiring from the
service on or about September 2022. When the petitioner is on the
verge of the retirement, the request of the petitioner for transfer is
required to be considered. There was complaint against the present
respondent No. 3. The petitioner has already joined at Jalna as
Additional C.E.O., Zilla Parishad and is working there for almost a year.
The petitioner has shifted his family at the transferred place. The
respondent No. 3 has also joined at the transferred place. After a lapse
of one year, no purpose would be served in again dislodging the
petitioner and respondent No. 3. The Tribunal failed to consider that
the sanction of the next higher authority was also obtained. All the
provisions of the Maharashtra Government Servants Regulation of
Transfers and Prevention of Delay in Discharge of Official Duties Act,
2005 (hereinafter referred as 'Transfer Act') have been complied with.
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The respondent No. 3 has also given the preference. In view of that, the
Tribunal ought not to have interfered with the order of transfer. The
learned counsel for the petitioner has relied upon the judgment of the
Apex Court in a case of Nagorao Shivaji Chavan (Dr.) Vs. Sunil
Purushottam Bhamre and others (Dr.) reported in 2019 (13) SCC 788.
The learned counsel also relies upon another judgment of the Apex
Court in a case of Union of India & Ors. Vs. H. N. Kirtania reported in
1989 AIR 1774. The reliance is also placed on the judgment of the Apex
Court in a case of Union of India and Another Vs. Deepak Niranjan
Nath Pandit reported in 2020 (3) SCC 404.
5. We have also heard the learned A.G.P. for respondent Nos. 1
and 2.
6. Mr. Devakate, learned counsel for respondent No. 3 supports the
judgment of the Tribunal and submits that order of transfer is arbitrary
against the said norms. The transfer of respondent No. 3 is mid tenure
and mid term transfer. The Tribunal has rightly considered all the facets
of the matter and has rightly passed the order quashing the transfer
orders. The ground of complaint against the petitioner has been raked
up in the original proceedings. No such complaint exist against the
respondent No. 3, nor any notice to that effect was ever issued to the
respondent No. 3.
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7. We have considered the submissions canvassed by the learned
counsel for respective parties.
8. We are not swayed away by the fact that the Member of
Legislative Assembly had recommended the transfer of respondent
No. 3, in absence of complaint on record.
9. There cannot be a dispute that the transfer of the respondent
No. 3 is mid tenure transfer as contemplated under Section 4 (5) of the
Transfer Act. Much emphasis is laid by the petitioner and the
Government that there is a complaint against respondent No. 3. The
nature of complaint, its gravity nor any enquiry conducted against the
respondent No. 3 is placed on record. A casual statement is made about
the complaint against the respondent No. 3 without placing anything
on record. We would have appreciated, if, the petitioner at his request
is transferred at a vacant post, but could not have dislodged the present
respondent No. 3 from her posting as the respondent No. 3 has not
completed her tenure at the said post.
10. The Court certainly is loath in interfering with the orders of
transfer, but if the order of transfer is against the statutory provisions
and arbitrary, then the Court certainly has a right to intervene.
11. In the present case, admittedly the transfer of the present
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respondent No. 3 is a mid tenure transfer. The present respondent
No. 3 has joined as Additional C.E.O., Jalna in June 2019 and within a
span of three (03) months is transferred from the said place. The same
is irrational and arbitrary. Arbitrariness is an antithesis to the rule of
law, justice, equity, fair play and good conscious. An arbitrary order
cannot be sustained.
12. The Tribunal has not committed any error in passing the
impugned judgment.
13. We grant four (04) weeks time to the petitioner to vacate the
post of Additional C.E.O., Zilla Parishad, Jalna. It is submitted that the
petitioner is in zone of promotion. If the petitioner is promoted he can
be transferred to other place by the Government on available vacant
post. If the petitioner is not transferred to any other promotional post
within this period of four (04) weeks, then the petitioner can be re-
posted at his original post at Parbhani, in case, the said post is vacant.
14. It is for the Government to take appropriate steps and transfer
the petitioner to his original or any other vacant post which according
to the Government would be available.
15. At the end of four (04) weeks the respondent No. 3 shall be
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allowed to join as Additional C.E.O., Jalna immediately.
16. Writ petition accordingly is disposed of. No costs.
( R. N. LADDHA ) ( S. V. GANGAPURWALA )
JUDGE JUDGE
P.S.B.
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