Bombay High Court
Anil Pandurang Parkhe vs The State Of Maharashtra And Ors on 16 March, 2021
Bench: G. S. Kulkarni
PVR wp-st-2856-21.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (St.) NO. 2856 OF 2021
Shri.Anil Pandurang Parkhe ...Petitioner
Versus
1.The State of Maharashtra
through Principal Secretary,
Revenue Dept., Mantralaya
2. The Inspector General of Registration
and Stamps, Maharashtra State.
3. Shri.Gopinath Saheba Kolekar ...Respondents
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Mr.Nargolkar i/b. Mr.V.V.Ugle, for the Petitioner.
Mr.P.P.Kakade, Government Pleader with Smt.R.A.Salunkhe and
Smt.G.P.Sonawane, AGP for the State-Respondent.
Mr.Sujeet Joshi i/b. Mr.Veer Kankaria, for Respondent no.3.
----
CORAM : DIPANKAR DATTA CJ &
G. S. KULKARNI, J.
RESERVED ON: MARCH 12, 2021.
PRONOUNCED ON : MARCH 16, 2021.
JUDGMENT: (Per G.S.Kulkarni, J.)
1. The petitioner is aggrieved by a judgment and
order dated 28 November 2021 passed by the Maharashtra
Administrative Tribunal (for short "the Tribunal") whereby
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on an original application as filed by respondent no.3, the
petitioner's transfer from Nashik to Pune stands upset. The
tribunal has set aside the impugned transfer order whereby
respondent No.3 was sought to be mid-tenure transferred
from the post held by him at Pune.
2. The narrative of events leading to the litigation
needs to be noted.
Respondent no.3- Gopinath Saheba Kolekar filed
Original Application No.530 of 2020 before the tribunal
challenging an order dated 30 September 2020, transferring
him mid tenure, from the post of Joint District Registrar,
Class-I, Pune, to the post of Assistant Inspector General of
Registration & Stamps, Desk-7, Pune. Prior to the said
posting at Pune, respondent no.3 was posted at
Aurangabad. By an order dated 31 May 2018, he was
transferred at Pune as Joint District Registrar, Class I, Pune
City. It is thus not in dispute that respondent no.3 had not
completed a term of three years at Pune so that he could be
transferred from his current posting and that too mid-term.
The reason being that Section 3 of the Maharashtra
Government Servants Regulation of Transfers and
Prevention of Delay in Discharge of Official Duties Act,2005
(for short 'the Transfer Act') provides that in the normal
course unless an employee completes a tenure of three
years on a posting, he should not be transferred.
3. However by the impugned transfer order dated
30 September 2020, respondent No.3 was sought to be
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transferred mid-term and/or mid-tenure invoking Section
4(4)(ii) and Section 4(5) of the Transfer Act. The petitioner
who admittedly was not due for transfer, was posted on his
request on the vacancy which had arisen on the transfer of
respondent no.3. As the transfer of respondent no.3 was made
invoking Section 4(4)(ii) and Section 4(5) of the Transfer
Act, the same are required to be noted, which reads thus:-
"4. Tenure of transfer. - (1) No Government servant
shall ordinarily be transferred unless he has
completed his tenure of posting as provided in section
3.
(2) The competent authority shall prepare every year in the
month of January, a list of Government servants due for transfer,
in the month of April and May in the year.
(3) Transfer list prepared by the respective competent authority
under sub-section (2) for Group A Officers specified in entries
(a) and (b) of the table under section 6 shall be finalised by the
Chief Minister or the concerned Minister, as the case may be, in
consultation with the Chief Secretary or concerned Secretary of
the Department, as the case may be:
Provided that, any dispute in the matter of such transfers
shall be decided by the Chief Minister in consultation with the
Chief Secretary.
(4) The transfers of Government servants shall ordinarily be
made only once in a year in the month of April or May:
Provided that, transfer may be made any time in the year in the
circumstances as specified below, namely:-
(i) to the newly created post or to the posts which become
vacant due to retirement, promotion, resignation, reversion,
reinstatement, consequential vacancy on account of transfer or
on return from leave;
(ii) 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.
(5) Notwithstanding anything contained in section 3 or this
section the competent authority may, in special cases, after
recording reasons in writing and with the prior [approval of the
PVR wp-st-2856-21.docx
immediately superior] Transferring Authority mentioned in the
table of section 6, transfer a Government servant before
completion of his tenure of post.
(emphasis supplied)
4. The tribunal heard the parties on their respective
pleadings. The tribunal also examined the records produced
before it. In the impugned order, the tribunal while setting
aside respondent no.3's mid-term transfer, observed that the
entire exercise of transferring respondent no.3 was without
any basis and illegal. It was observed that respondent no.3's
case for transfer was considered by the Civil Services Board
(CSB), in its meeting held on 7 August 2020. The minutes
of the CBS's meeting recorded that it was necessary to
transfer respondent no.3 as complaints were received
against respondent no.3, by invoking Section 4(4)(ii) and
Section 4(5) of the Transfer Act. The CSB recorded that
Mr.Kailash Davange who was working as Assistant District
Registrar and Stamps Officer, Nandurbar, be posted in place
of respondent no.3 at Pune.
5. As to what transpired when the decision of the
CSB came to be forwarded for approval of the Hon'ble
Finance Minister and thereafter of the Hon'ble Chief
Minister is quite significant. The Hon'ble Ministers approved
a proposal to the effect that on the vacancy which would be
created on the transfer of respondent no.3, the petitioner
who was working as Assistant District Registrar, Class I, at
Nashik be accommodated on respondent No.3's post at
Pune. The tribunal also observed that there was no
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proposal before the CSB in regard to transfer of the
petitioner. However, the name of the petitioner cropped up
when the file reached at the higher level in the Ministry.
The tribunal observed that transfer of respondent no.3 was
made only to accommodate the petitioner and more
particularly when respondent no.3 had not completed three
years at the said posting. The tribunal held that the reasons
for transfer of respondent no.3 that there are complaints
against him, were wholly unfounded, as except for such
bare words, there was no material that there were any
pending complaints against respondent no.3. The Tribunal
while allowing respondent no.3's original application,
passed the following order:-
"ORDER
(A) The Original Application is allowed.
(B) The impugned transfer order dated 30.09.2020
is quashed and set aside.
(C) The Respondent Nos.1 and 2 are directed to
repost the Applicant as Joint District Registrar, Class-
I, Pune (City) within two weeks from today.
(D) The learned Advocate for Respondent No.3
sought stay to the order. Whereas, the learned
Advocate for Respondent No.3 stating that for four
months, the Applicant is away from his post. In view
of the reasons recorded in the order, I am not inclined
to stay the order.
(E) No order as to costs."
6. Mr.Nargolkar, learned Counsel for the petitioner
would submit that the impugned order passed by the
tribunal deserves to be quashed and set aside, inasmuch as,
there was no prejudice caused to respondent no.3 as his
PVR wp-st-2856-21.docx
transfer was within Pune from one post to another, namely
from the post of Joint District Registrar, Class I to the post
of Assistant Inspector General of Registration & Stamps,
Desk-7, Pune. He submits that there were justifiable reasons
for his transfer namely that there were complaints against
respondent no.3 hence, an administrative decision was
taken to transfer respondent no.3, which ought not to have
been disturbed by the tribunal. Mr.Nargolkar submits that it
was necessary that the petitioner is transferred from Nashik
to Pune as he had made a representation for such transfer
and which came to be granted by the State Government.
7. On the other hand, learned Counsel for
respondent no.3 in supporting the impugned order would
submit that the transfer of respondent no.3 as observed by
the tribunal was high-handed and illegal. He submits that
malice against respondent no.3 was apparent on the face of
the record. It was rightly observed by the tribunal that the
transfer of respondent no.3 was made only to accommodate
the petitioner. The impugned order passed by the tribunal is
based on the materials before it, as also the reasons
recorded by the tribunal for setting aside the transfer are
fully borne out by record which leaves no scope for
interference of this Court in its writ jurisdiction under
Article 227 of the Constitution.
8. We had heard this petition on 15 February 2021,
when we directed the parties to maintain status quo with
regard to the present postings held by them. We recorded
PVR wp-st-2856-21.docx
that the petitioner having joined in terms of the transfer
order was functioning as the Joint District Registrar, Pune,
whereas the respondent no.3 was functioning as the
Assistant Inspector General of Registration and Stamps,
Pune. We directed that the learned Government Pleader
shall also produce the relevant file for our perusal on the
adjourned date of hearing. Accordingly, the original files
were produced for perusal of the Court.
9. Having perused the minutes of the meeting of the
CSB dated 7 August 2020, it is quite clear that the only
reason to transfer respondent no.3 was on the ground of
purported complaints which were three in number. There
was no consideration and application of mind by the CSB,
as to what were these complaints, their status, authenticity
etc. The CSB merely referring to these complaints found it
appropriate to invoke the provisions of Section 4(4)(ii) and
Section 4(5) of the Transfer Act, to transfer respondent no.3
mid-term/mid-tenure, from his said posting. We find
ourselves in complete agreement with the tribunal, when
the tribunal observes that on examination of the record on
such complaints it was clear that two complaints dated 25
July 2019 and 16 November 2019 respectively, were filed
by anonymous persons. In regard to the third complaint, it
was a complaint in regard to one document dated 30
August 1993 which was purportedly produced by one
Mr.Anna Chougule which came to be registered on 21
February 1997. The complaint was that the said document
was bogus and should not have been registered. At the
PVR wp-st-2856-21.docx
time when the registration of the said document had taken
place, admittedly, respondent no.3 was not the person
holding the post of Joint Registrar at Pune, hence, he had
no role to play in the registration of such document. He was
also not posted at Pune. The tribunal has recorded that the
official respondents also could not connect respondent no.3
to such complaint. The tribunal thus, and in our opinion,
correctly observed that it was wholly erroneous for the CSB
to make a reference to such complaints and proceed to take
decision to recommend transfer of the respondent no.3.
10. In so far as the transfer of the petitioner from
Nashik to the post held by respondent no.3 at Pune was
concerned, it is clearly seen from the minutes of the
meeting of the CSB, that such transfer of the petitioner from
Nashik to Pune was not the subject matter of any such
consideration by the CSB. We have noted from the original
file that the petitioner had made a representation on 7
October 2020 to transfer him from Nashik to Pune for
personal reasons. The petitioner also decided to take a
political route to get himself transferred from Nashik to
Pune, namely that he approached the Secretary,
"Maharashtra Pradesh Congress Committee". In pursuance
of such request of the petitioner, Shri.Rajaram Deshmukh,
Secretary, Maharashtra Pradesh Congress Pradesh
Committee addressed a letter dated 7 August 2020 to
Shri.Balasaheb Thorat, Hon'ble Minister (Revenue),
Maharashtra State, requesting that the petitioner be
transferred from his posting at Nashik to the post of Joint
PVR wp-st-2856-21.docx
District Registrar and Stamp Officer, Class-I, Pune city.
Thereafter, the Hon'ble Minister (Revenue) and ultimately
the Hon'ble Chief Minister on 13 August 2020 approved the
transfer of the petitioner from Nashik to Pune, to be
accommodated on the post which would fall vacant on
transfer of respondent no.3. Thus the recommendation of
the CSB to transfer one Mr.Kailash Davange on respondent
no.3's post at Pune, came to be so substituted by
transferring the petitioner from Nashik to Pune.
11. Perusal of the original file on the transfers in
question, also indicate that the petitioner had made a
representation on 7 August 2020 that he be transferred
from Nashik to Pune on account of his son's education and
on account of family difficulties. Such representation was
made to the Desk Officer, Government of Maharashtra. It is
thus clear that transfer of the petitioner was completely
dehors the mandate of the provisions of the Transfer Act
and purely at his request. The proposal to transfer the
petitioner was not a subject matter of consideration before
the CSB. The petitioner also resorted to a novel method of
approaching the "Maharashtra State Congress Committee",
and through such political influence and interference
appealed to the Hon'ble Revenue Minister and the Hon'ble
Chief Minister, to take a decision to transfer him from
Nashik to Pune, on the post held by respondent no.3.
12. In so far as the transfer of respondent no.3 is
concerned, there was no ground whatsoever to transfer him
PVR wp-st-2856-21.docx
mid-term/mid tenure, as the alleged complaints, as noted
above were totally bogus, in regard to which a finding of
fact has been recorded by the tribunal. Further in taking
such decision the CSB acted in complete derogation of the
Government Circular dated 11 February 2015, which was
issued to deal with a situation when complaints against a
State Government servant are received and the manner in
which such complaints are to be considered, in taking
decision to transfer such Government Servant. The said
circular came to be issued in pursuance of the directions of
the tribunal in Original Application No.703 of 2014. The
State acted in complete breach of the said circular in taking
a decision to recommend the transfer of respondent no.3
mid-term, when there was no reason on recod to transfer
respondent no.3. The tribunal has correctly observed that
the transfer of respondent no.3 was thus solely to
accommodate the petitioner. The petitioner also used the
political influence to seek his transfer from Nashik to Pune.
Thus there were no exceptional circumstances or special
reasons to transfer respondent no.3 mid tenure. Hence
Section 4(4)(ii) and (5) were totally inapplicable.
13. For the above reasons, we are not inclined to
accept any of the submissions of Mr.Nargolkar, neither his
submission that the transfer of respondent no.3 was legal,
can be said to be correct nor the same is borne out by the
record. His submission that there was no prejudice to
respondent no.3 by the impugned transfer also cannot be
accepted, as the transfer of respondent no.3 was in
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complete breach of the provisions of the Transfer Act. We
accordingly reject in its entirety, the case as urged on behalf
of the petitioner. The tribunal, considering the decision in
Somesh Tiwari Vs. Union of India (2009)2 SCC 592 has
rightly held that the transfer although is an incident of
service, however in the present case, the transfer was
wholly illegal.
14. As a sequel to the above discussion, we have no
hesitation but to dismiss the petition. It is accordingly
rejected. The parties shall abide by the orders of the
tribunal, which be done within two weeks from today. We
refrain from passing any order as to costs.
15. Original file be returned to the learned
Government Pleader.
G. S. KULKARNI, J. CHIEF JUSTICE
Digitally
signed by
Prashant
Prashant V. Rane
V. Rane Date:
2021.03.16
21:00:33
+0530
