Kailas Pundlik Pawar vs Divisional Commissioner Nashik ...
2021 Latest Caselaw 7330 Bom

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PVR
                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                 CIVIL APPELLATE JURISDICTION

                             WRIT PETITION (St) NO.92852 OF 2020

      Kailas Pundlik Pawar.                              )... Petitioner

                       Vs.

      1.Divisional Commissioner Nashik Division)

      2. The State of Maharashtra.                       )

      3. Mr.Pankajkumar Suresh Pawar                     )...Respondents

                                         --
      Mr.Girish Godbole i/b. Mr.Avinash Naikwadi and Mr.Drupad Patil with
      Ms.Swati M.Jadhav, for the Petitioner.

      Smt.Neha Bhide, 'B' Panel Counsel for the State.

      Mr.A.Y.Sakhare, Senior Advocate with Mr.Rohan Mirpury with Mr.Viraj
      Kadam, for Respondent no.3.

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

                                RESERVED ON :       1 APRIL 2021

                         PRONOUNCED ON : 6 MAY 2021
                                        ----

      JUDGMENT: (Per G.S.Kulkarni, J.)

1. It is difficult to fathom that a transfer within the district and

that too at a distance of 25 kilometers can lead to such vociferous

aggression between the parties, oblivious of the basic jurisprudence that

for a Government Servant transfer is an incidence of service. Unknown

however, are the realities of the present times and the importance the

Government Servants attach to transfers and postings. Such issues have

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flooded the Courts. Sometimes we wonder as to whether transfer

assumes more importance to these employees, than the actual service.

The present case is quite an eye opener on the approach of the warring

parties.

2. The challenge in this petition is to an order dated 25 August

2020, passed by the Maharashtra Administrative Tribunal, Mumbai (for

short 'the tribunal') in the proceedings of Original Application

(O.A.No.942 of 2020) filed by respondent no.3 - Mr.Pankajkumar

Suresh Pawar. By the impugned order, respondent no.3's original

application stands allowed whereby the transfer order dated 18

September 2019, transferring respondent no.3, from the post of

Tehsildar, Dindori, District Nashik to the post of 'Assistant District Supply

Officer, Nashik', was set aside by the tribunal. Consequently, the

petitioner's transfer (of the even date) by which he was transferred as

Tehsildar, Dindori, replacing respondent no.3, also stood set aside. The

petitioner so aggrieved, is before us, in the present proceedings.

3. We note the relevant facts :- Respondent no.3 consequent

to his transfer on promotion vide posting/transfer order dated 7

September 2019, was serving on the post of "Tehsildar", Dindori, District

Nashik, which is a Group 'A' post. However, within ten days of

respondent no.3 taking charge, the Divisional Commissioner, Nashik

Division-respondent no.1, by his order dated 18 September 2019

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purportedly adhering to the '2019 guidelines' issued by the Election

Commission of India (for short, "the ECI") in relation to the filling up of

the vacant post, transferred respondent no.3 from the post of 'Tehsildar-

Dindori' to the post of 'Assistant District Supply Officer, Nashik', and in

respondent no.3's place transferred the petitioner, who at the relevant

time was holding the post of Tehsildar (Establishment) in the Office of

the Divisional Commissioner Nasik.

4. Before the tribunal, in assailing his transfer, respondent

no.3 contended that the transfer was a mid-term transfer which was in

complete breach of the provisions of the Maharashtra Government

Servants Regulation of Transfers and Prevention of Delay in Discharge of

Official Duties Act, 2005 (for short 'the 2005 Act'). He contended that

the Divisional Commissioner has no authority of making a mid-term /

mid-tenure transfer, for the reason that the posting and transfer order

dated 7 September 2019 posting him as Tehsildar, Dindori was issued by

the State Government which was being nullified by the Divisional

Commissioner illegally and without jurisdiction. Respondent No.3

contended that such transfer as effected by the Divisional Commissioner

was also in breach of the statutory mandate of the 2005 Act, even in

purported implementation of the guidelines issued by the Election

Commission of India. Respondent No. 3 contended that, if at all, it was

the State Government which had the authority as per the procedure

under the 2005 Act, to transfer him and not otherwise. He contended

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that such transfer was required to have an approval of the designated

higher authority as provided under Section 4(2) of the 2005 Act. The

next contention of Respondent no.3 relying upon Government

Resolution dated 21 February 2014 was to the effect that the

composition of Civil Services Board (for short 'CSB') as constituted by

the Divisional Commissioner, which recommended the impugned

transfer, was not in consonance with the requirements stipulated in the

said Government Resolution. He contended that the CSB was constituted

only to favour the petitioner, which was clear from the fact that there

was no proposal before the CSB to transfer the petitioner hence there

was no recommendation by the CSB to transfer the petitioner in place of

respondent no.3. Respondent no.3 contended that the petitioner's name

came to be subsequently added by an interpolation in the final typed

order, which according to respondent no.3 was wholly illegal.

Respondent no.3 hence contended that his transfer as also petitioner's

transfer in his place as Tehsildar, Dindori was patently illegal.

5. Respondent no.1-Divisional Commissioner filed his reply to

respondent no.3's original application, interalia contending that he was

empowered and had an authority to effect such transfers, in view of the

Orders of the State Government, communicated by the Deputy Secretary,

Revenue and Forest Department of the Government of Maharashtra, by

his letter dated 16 September 2019 (for short 'the 16 September 2019

Order'), which was issued to give effect to the guidelines issued by the

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Election Commission of India. Respondent no.1 contended that it was

noticed that respondent no.3 had worked for more than three years in

Nashik district and hence he could not have continued to discharge

duties as 'Tehsildar and Assistant Returning Officer, Dindori'. Respondent

no.1 stated that, the issue in regard to transfer of respondent no.3 from

the post of Tehsildar, Dindori was put up before the CSB which

recommended that he be transferred as Assistant District Supply Officer,

Nashik. Respondent No. 1 contended that the composition of the CSB

was also in accordance with the Rules and order dated 16 September

2019. Respondent no.1 thus contended that transfer of respondent no.3

was effected as per the requirement of the guidelines issued by the

Election Commission of India, hence such transfer was in accordance

with the Rules. A reference was made to Section 6 of the 2005 Act to

contend that relation to the officers falling in Entry 'B' of the table as set

out in Section 6, who were working at the Divisional or District level,

the Divisional Head was competent to transfer such officers, within the

Division and the District Head was competent to transfer such officers

within the district. Hence, respondent no.2 [State of Maharashtra

through Additional Chief Secretary (Revenue)] although was the

competent transferring authority to transfer all officers in the State

services Group A and Group B, according to the second proviso to

Section 6, respondent no.2 was competent to delegate the powers to any

subordinate authority and such authorization was effected by the order

dated 16 September 2019. It was contended that according to such

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authorization, respondent no.1 had appropriately issued the impugned

transfer order dated 18 September 2019 transferring respondent no.3

from the post of Tehsildar, Dindori, to the post of Assistant District

Supply Officer, Nashik and to transfer the petitioner in place of

respondent no.3 as Tehsildar Dindori. Respondent no. 1 stated that also

there were other officers, who were also transferred alongwith

respondent no.3.

6. The Tribunal considering the rival contentions while

allowing respondent no3's original application observed that the

principal issue was whether respondent no.1-Divisional Commissioner

was competent to effect mid-term/mid-tenure transfer of respondent

no.3. It is in this context, the contents of the order dated 16 September

2019 issued by the Deputy Secretary (Revenue and Forest Department)

addressed to all the Divisional Commissioner, was examined. The

Tribunal was of the opinion that when a transfer was effected mid-term/

mid-tenure, Section 4(5) of the 2005 Act was attracted which required

that in special cases, the competent authority after recording of the

reasons in writing and only with prior approval of the immediate

Superior, (in the present case the State Government) can transfer a

Government servant before completion of his tenure on the post. The

tribunal observed that the Divisional Commissioner however without

waiting for the approval of the Government, at his level transferred

respondent no.3, by the impugned transfer order dated 18 September

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2019, as the 'Assistant District Supply Officer, Nashik', from the post of

Tehsildar, Dindori. The tribunal observed that as per the provisions of

Section 6, for the post of 'tehsildar' being a Group A post, unless there

was an approval of the Hon'ble Chief Minister who was the only

competent authority to make a mid-term/mid-tenure transfer, and not

the Divisional Commissioner the impugned transfer order could not have

been issued by respondent no. 1- Divisional Commissioner. The tribunal

held that the Divisional Commissioner usurped the powers of the State

Government, taking shelter of the order dated 16 September 2019. The

tribunal also observed that the order dated 16 September 2019 did not

per-se confer any power to transfer, and that it merely provided that

vacant posts be filled up. The tribunal also rejected the petitioner's

contention that the guidelines of the Election Commission of India

would prevail over the statutory provisions namely of the 2005 Act. One

of the serious observations as made by the tribunal, was to the effect

that the CSB recommended the transfer of respondent no.3 as Tahasildar

(General Administration), Collector Office, Nashik and in his place one

Smt.Rachana M.Pawar was recommended for posting at Dindori from

Nashik, as seen from the minutes of the meeting of the CSB dated

September 18, 2019 and also revealing that the petitioner himself was

the member of the CSB in his capacity as Tehsildar (Establishment),

Divisional Commissioner which recommended the transfer of

respondent no.3. It was observed that it was evident from the record

that the Divisional Commissioner by interpolation and overwriting over

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proposed recommendations as made by the CSB, changed the

recommendation as made by the CSB and posted the petitioner as

Tehsildar, Dindori, in place of Smt.Rachana Pawar as also transferred

respondent no.3 as Assistant District Supply Officer, Collector Office,

Nashik. Referring to the decision of Supreme Court in " T. S. R.

Subramanian & Ors. vs. Union of India and Ors. (2013) 15 SCC 732, the

tribunal held that placing of transfer proposals before the CSB was a

mandatory requirement, which the Divisional Commissioner breached as

there was no proposal before the CSB to transfer the petitioner, and by

an interpolation as made in the original recommendation of the CSB, the

Divisional Commissioner transferred the petitioner as Tehsildar, Dindori.

It was held that there is a clear violation of the guidelines issued by the

Supreme Court in T. S. R. Subramanian & Ors.(supra). The tribunal

accordingly allowed respondent no.3's original application, whereby it

quashed the transfer order dated 18 September 2019, transferring

respondent no.3 to the post of Assistant District Supply Officer and

transferring the petitioner in his place as Tahasildar Dindori, Nashik. A

further direction was issued that respondent no.3 be posted on the post

from where he was transferred within two weeks from the date of the

said order.

7. It is on the above backdrop, the petitioner is before us in the

present proceedings, assailing the order passed by the tribunal. It needs

to be noted that the present petition was filed on 16 September 2020.

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The record would reveal that there was no ad-interim relief of any

nature granted in favour of the petitioner and it appears that the order

passed by the tribunal is already implemented, whereby, respondent

no.3 now continues on the post to which he was holding prior to the

impugned transfer order namely as Tehsildar, Dindori, and the petitioner

is working on the post of Tehsildar (Establishment) in the Office of the

Divisional Commissioner, Nashik. This would also depict that the State

Government has accepted in totality the impugned judgment and order

passed by the Tribunal, which includes the observations as made by the

tribunal of the Divisional Commissioner usurping the powers conferred

on the specified authorities under the 2005 Act, by misinterpreting the

order dated 16 September 2019 of the Deputy Secretary, Revenue and

Forest Department.

8. In our order dated 6 January 2021, we have observed of

being informed by the learned Counsel for the parties, of the pleadings

on the writ petition being complete and as a narrow issue was involved,

the petition be heard finally at the admission stage.

9. We have accordingly heard the parties finally. We have also

called for the original record and proceedings of the transfers in

question, from the State Government. The learned Special Counsel for

the State Government, accordingly, has placed such record before us,

which we have perused.

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10. In assailing the impugned orders passed by the tribunal, the

principal contention as urged by Mr.Godbole, learned Counsel for the

petitioner is on the finding as recorded by the tribunal in relation to the

order dated 16 September 2019 issued by the Deputy Secretary, Revenue

and Forest Department, in regard to the delegation of the authority to

effect transfers. It is his submission that the tribunal has proceeded on a

complete misreading of the order dated 16 September 2019, which is

clear from paragraph 7 of the impugned order passed by the tribunal, as

in extracting the said order, certain portion of the said order is omitted,

leading to an erroneous reading of the order, which according to

Mr.Godbole, has formed the basis of deciding the original application

against the petitioner. Such misreading by the tribunal, according to

Mr.Godbole, is fatal, as the tribunal has proceeded on the footing that

the Divisional Commissioner was not delegated the powers to effect

transfers and the power was only vested with such authorities as

specified in Section 4(5) read with Section 6 of the 2005 Act.

Mr.Godbole has submitted that the tribunal has also overlooked, that by

a Government Resolution dated 22 June 2016 the powers of transfer

from the cadre of Tehsildar were delegated to the concerned Divisional

Commissioner, including the power to effect mid-term/mid-tenure

transfer, which was to be done only after the recommendation of the

CSB. According to Mr.Godbole, once the CSB was duly constituted, the

tribunal could not have ignored that respondent no.3 had completed

more than three years in Nashik district and/or hence that he was

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required to be transferred, hence his transfer, could not be held to be

illegal.

11. Mr.Godbole would next contend that the tribunal has

completely overlooked the Election Commission of India's mandate,

namely that an officer working in the same district for more than three

years and connected directly to the election, should not be continued on

such posting, if such officer had completed three years in the district,

during the last four years. It is submitted that respondent no.3 was

clearly not eligible for holding any post which was connected with

election duties and more particularly as an Assistant Retaining Officer

(ARO). Hence, to implement the directives of the Election Commission

of India, the Divisional Commissioner, who was the delegate of the State

Government, was competent to transfer respondent no.3. Mr.Godbole

would thus contend that the impugned order passed by the tribunal

deserves to be set aside on the above counts.

12. Mr.Sakhare, learned Senior Advocate for respondent no.3 in

supporting the impugned order would submit that this is a classic case of

the Divisional Commissioner acting highhandedly as there was no

proposal whatsoever before the CSB to transfer the petitioner as

Tahasildar, Dindori, in respondent no.3's place and the same was issued

by making interpolations, as observed by the tribunal in paragraph 16 of

the impugned order. Mr.Sakhare would submit that indisputedly, the

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transfer of respondent no.3 on the post of Tehsildar was by virtue of his

promotion was made on 7 September 2019, and within ten days of such

posting on transfer, he was sought to be transferred by the Divisional

Commissioner and that too mid-term, contrary to the requirement of

Section 4(5) of the 2005 Act, by the Divisional Commissioner, on the

ground that it was the requirement of the Election Commission of India

on the purported ground that respondent no.3 had completed more than

three years in the Nashik District. It is submitted that, however, the real

intention to transfer respondent no.3 was to accommodate the petitioner

on the post of Tahasildar, Dindori as the record revealed. Mr.Sakhare

would submit that the findings as recorded by the tribunal in its detailed

order, are clearly borne out by the record, hence, no perversity can be

attributed to any of the findings. It is next submitted that, it is now quite

some time that the impugned order passed by the tribunal, has already

been implemented to the effect that the petitioner as also respondent

no.3 are working on their original posts, as directed by the tribunal.

Mr.Sakhare submits that the petition deserves to be dismissed.

13. Ms.Neha Bhide, learned Special Counsel for the State

Government has made submissions. She has stated that the orders

passed by the tribunal have already been effected as the State

Government / Divisional Commissioner has not challenged the orders

passed by the tribunal. She has made available the original record as

desired by us.

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14. We have heard learned Counsel for the parties. We have

also perused the record. At the outset, we may observe that the High

Court's power of judicial superintendence over the tribunal, is very

limited. It is not an appellate jurisdiction which the Court wields. The

Court would interfere only in case of patent illegality or perversity and if

the decision is founded on no material or is against the principles of

natural justice. The Court certainly in exercise of such jurisdiction,

would not correct an error of law which is not an error apparent on the

face of the record. The jurisdiction can also be exercised, if the Court is

of the opinion that the order would result in grave miscarriage of justice.

Such jurisdiction is certainly not exercised in a routine manner. These

are well settled principles of law in regard to exercise of such

jurisdiction which we are called upon to exercise in the present

proceedings.

15. Adverting to the above well established principles, we

propose to confine the scope of this petition on two basic issues, firstly,

whether the Divisional Commissioner had any authority to effect mid-

term/mid-tenure transfer de'hors the provisions of the 2005 Act, in

purported implementation of the guidelines of the Election Commission

of India or under the Government Resolution dated 22 June 2016; and

secondly, whether the impugned transfer order transferring respondent

no.3 satisfies the requirements of the provisions of the 2005 Act.

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16. It is not in dispute that respondent no.3 was promoted from

the post of Naiab Tehsildar to the post of Tehsildar and accordingly on a

transfer on promotion he was posted as Tehsildar, Dindori, vide order

dated 7 September 2019. Immediately within eleven days of such

transfer, respondent no. 3 was sought to be transferred by the impugned

transfer order dated 18 September 2019, from the post of Tehsildar

Dindori, to the post of Assistant District Supply Officer, Nashik. It is not

in dispute that the transfers of the officers belonging to 'cadre A' post are

governed by the 2005 Act. The relevant provisions under the definition

clause being Section 2 (b), (e) (g) (i) and Sections 3, 4, 5 and 6 read

thus:-

"2. Definition.- In this Act, unless the context otherwise requires,-

(b) "Competent authority" means the appointing authority of the Government servant and shall include the transferring authority specified in section 6;

(e) "Group A, B, C, and D posts" means the posts under the Government classified as Group A, B, C, and D posts by Government order, from time to time.

(g) "post" means the job or seat of duty to which a Government servant is assigned or posted;

(i) "Transfer" means posting of a Government servant from on post, office or Department to another post, office or Department;

(j) "Transferring authority" means the authorities mentioned in Section 6.

3. Tenure of posting.- (1) For All India Service Officers and all Groups A, B and C State Government Servants or employees, the normal tenure in a post shall be three years:

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Provided that, when such employee is from the non- secretariat services, in Group C, such employee shall be transferred from the post held, on his completion of two full tenures at that office or department, to another office or Department:

Provided further that, when such employee belongs to secretariat services, such employee shall not be continued in the same post for more than three years and shall not be continued in the same Department for more than two consecutive tenures.

(2) Employees in Group D shall normally not be subjected to fixed tenure. They shall not be transferred out from the station where they are serving except on request when a clear vacancy exists at the station where posting is sought, or on mutual transfer, or when a substantiated complaint of serious nature is received against them.

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) They 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 immediately superior] Transferring Authority mentioned in the

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table of section 6, transfer a Government servant before completion of his tenure of post.

5. Extension of tenure.- (1) The tenure of posting of a Government servant or employee laid down in section 3 may be extended in exceptional cases as specified below, namely:-

(a) the employee due for transfer after completion of tenure at a station of posting or post has less than one year for retirement;

(b) the employee possesses special technical qualifications or experience for the particular job and a suitable replacement is not immediately available; and

(c) the employee is working on a project that is in the last stage of completion, and his withdrawal will seriously jeopardise its timely completion.

(2) Notwithstanding anything contained in section 3 or any other provisions of this Act, to ensure that the Government work is not adversely affected on account of large scale transfers of Government servants from one single Department or office, not more than thirty per cent. of the employees shall be transferred from any office or Department at a time, in a year.

6. Transferring Authority.- The Government servants specified in column (1) of the table hereunder may be transferred by the Transferring Authority specified against such Government servants in column (2) of the table.

Table Groups of Government servantsCompetent Transferring (1) Authority

(a) Officers of All India Services,Chief Minister all Officers of State Services in Group "A" having pay-scale of Rs. 10,650-15,850 and above.

(b) All Officers of State Services in Minister-in-charge in Group "A" having pay-scalesconsultation with less than Rs. 10,650-15,850Secretaries of the [and all Gazetted Officers]concerned Departments. Group "B"

(c) All [Non-Gazetted employeesHeads of Departments.

                   in Group "B" and "C"]
               (d) All employees in Group "D"        Regional     Heads   of
                                                     Departments:

Provided that, in respect of officers in entry (b) in the table working at the Divisional or District level, the Divisional Head shall be competent to transfer such officers within the Division ; and the District Head shall be competent to transfer such officers within the District:

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Provided further that, the Competent Transferring Authority specified in the table may, by general or special order, delegate its powers under this section to any of its subordinate authority."

17. A plain reading of the above provisions would go to show

that ordinarily no Government Servant is to be transferred unless he has

completed a tenure of three years as provided in sub-section (1) of

Section 3. Sub-section (5) of Section 4 provides that the competent

authority may in special cases, after recording reasons in writing and

with the prior approval of the 'immediately superior transferring

authority' as set out in the table provided in Section 6, transfer a

Government servant before completion of his tenure on a post. In the

present case, respondent no.3 was admittedly transferred/posted as

'Tehsildar, Dindori' on 7 September 2019. Once he was so posted sub-

section (1) of Section 3 would take effect, for any transfer to be made,

which provides that for the Group 'A', 'B', 'C' posts, the normal tenure

"in a post" shall be three years. The word 'post' is also defined under

Section 2(g) of the Act to mean "the job or seat of duty to which a

Government servant is assigned or posted". Section 4(1) provides that

no Government servant shall ordinarily be transferred unless he has

completed his tenure of posting as provided in Section 3 which is of

three years, with an exception as made in sub-section (5) namely that

notwithstanding anything contained in Section 3, the competent

authority may, in special cases, after recording reasons in writing and

with the prior approval of the 'immediately superior' {See: sub section

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(5) of Section 4 read with Section 6 (supra) }, the Transferring Authority

as specified in the table of Section 6, transfer a Government servant

before completion of his tenure of post. Thus a cumulative reading of

these provisions would indicate that the competent authority would be

authorised to make a mid-tenure transfer, that is a transfer, prior to the

officer/ employee completing three years, in special cases, by recording

reasons and with prior approval of the competent authority.

18. The impugned transfer order dated 18 September 2019

issued by the Divisional Commissioner Mr.Rajaram Mane, in paragraph

(1) sets out the reason that in regard to the State Assembly Elections, no

post should remain vacant or if it is vacant, the same is required to be

filled up as per the guidelines of the ECI, from the officers who were not

connected with the election duties within the district or division, by the

Divisional Commissioner who is a competent officer exercising the

powers delegated by the State Government. Hence, applying the

provisions of Section 4(4) and Section 4(5) of the 2005 Act, respondent

no.3 was transferred from the post of Tahasildar, Dindori, District Nashik

to the post of Assistant District Supply Officer, Nashik, by a separate

order issued on the same date, by which the petitioner came to be

posted as Tahasildar, Dindori, in place of respondent no.3. It is however

quite curious, that in the said transfer order petitioner was shown to

have been transferred from the post of Special Executive Magistrate,

Ahmednagar, to the post of Tehsildar, Dindori, District Nashik, when

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factually he was posted as Tehsildar (Establishment), in the office of the

Divisional Commissioner Nashik. As to why the petitioner was not

shown to be discharging duties of Tahasildar (Establishment) in the

office of the Divisional Commissioner, Nashik when he was working on

the said post from 23 August 2018, is quite surprising. This apart,

whether the Divisional Commissioner, Nashik Division would at all have

any authority to transfer any officiating officer who is outside his

jurisdiction i.e. from Ahmednagar to Nashik, is also another issue. We

have grave doubt of the Divisional Commissioner having any powers

beyond his jurisdiction.

19. Be that as it may, we have perused the original record and

what is revealed is something which would certainly shock our

conscience, as we presently note. In our opinion, the petitioner clearly

has acted as a judge of his own cause (nemo judex in sua causa). This

is clear from the reading of the minutes of the CSB dated 18 September

2019, wherein the petitioner himself has become a party to take a

decision (as a member of the CSB) to recommend his own transfer as

Tehsildar -Dindori and to the impugned transfer of respondent no.3 from

the post of Tehsildar, Dindori to the post of Assistant District Supply

Officer, District Nashik. This is on the purported ground that respondent

no.3 was serving in the Nashik District for more than three years prior to

his post as Tehsildar, and as per the guidelines of Election Commission of

India, he cannot be posted in Nashik District.

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20. On a perusal of the record it is revealed that the original

recommendation as made by the CSB was totally different. The CSB had

recommended one Smt.Rachana Murlidhar Pawar, Tehsildar (General

Administration) Nashik, to be posted as Tehsildar, Dindori. Such

recommendation was signed by the petitioner in his capacity as a

member of the CSB being the Tehsildar (Establishment), Office of the

Divisional Commissioner, Nashik, alongwith the other members of the

CSB and the Chairman of the CSB. If that was to be the case, then

certainly the CSB was required to refer the matter to the competent

authority defined in Section 6, for respondent no.3 to be posted outside

Nashik district. However, the design appeared to be something else

namely to accommodate the petitioner on the post held by respondent

no.3. This is clear from a document of the same date (18 September

2019), namely the Minutes of the CSB to which the petitioner is

signatory. Being such member he became a party to a decision of his

own transfer from the post of Tehsildar (Establishment) Nashik as

Tehsildar, Dindori. He signed such decision with the co-signatories

namely the Deputy Commissioner and the Divisional Commissioner. A

perusal of such Minutes of the CSB show that there are interpolations as

made against the name of respondent no.3 and of Smt. Rachana

Murlidhar Pawar to the original decision taken by the CSB. It is thus

difficult to conceive as to how the petitioner can be a signatory to the

decision of his own transfer and that too ostensibly from Ahmednagar to

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Nashik District when the situation on record was completely different.

The petitioner has failed to give any explanation as to what authority he

had to be a party to the decision of his own transfer on the post held by

respondent no.3 namely Tahasildar, Dindori.

21. In our opinion the entire edifice that the guidelines of the

ECI were being implemented also appears to be quite sham when it

came to the transfer of respondent no 3 and to post the petitioner in his

place. This, inasmuch as on a perusal of the recommendations of the

ECI, it is clear that it would be applicable to those officers who are

serving in one 'district' for three years. In the event in respondent no.3's

case, the guidelines were to be stricto sensu implemented, then

necessarily the matter should have been left to the competent authority

for respondent no.3 to be transferred from Nashik district to some other

district, for the reason that the transfer was not a general transfer to be

effected in April-May of a year so as to be within the purview of

Government Resolution dated 22 June 2016 whereby the powers were

conferred on the Divisional Commissioner to make such transfer. Thus,

in our opinion, the tribunal is correct in observing that the Divisional

Commissioner could not have acted in construing any delegation of

authority to transfer vide order dated 16 September 2019 to make such

transfers contrary to the provisions of the 2005 Act. From the order

dated 16 September 2019 it is clear it is the Commissioner alone who

has been conferred powers to make transfers within the district, strictly

22 wp92852_2020.odt

in the light of the ECI guidelines, without there being any involvement

of the CSB, as in the present case. Further the order dated 16 September

2019 is also not a delegation as contemplated under the second proviso

below Section 6 of the 2005 Act. In our considered opinion, even

assuming that such a delegation is to be read in the order dated 16

September 2019 and surely, the Divisional Commissioner did not have

any authority to usurp and/or act contrary to the statutory provisions of

the 2005 Act and more particularly Section 3(1) read with Section 4(5)

read with Section 6, which are required to be read as a Code in itself to

make a mid term/ mid tenure transfer. This was a clear case where the

transfer from the post ['post' defined under Section 2(g)] was sought to

be made mid-term/mid-tenure, which required an approval of the

immediately superior authority as set out in table of Section 6 namely

the 'Chief Minister'. However, without such approval, respondent no.3

was sought to be transferred by the impugned transfer order. Hence,

there is nothing illegal in the tribunal observing that the impugned

transfer order transferring respondent no.3 was contrary to such

statutory provisions as contained in the 2005 Act. We accordingly hold

that the Divisional Commissioner had no authority to effect a mid-term/

mid-tenure transfer in purported implementations of the ECI guidelines,

under the order dated 16 September 2019. In our opinion, the transfer

of respondent no.3 was clearly in breach of the provision of the 2005 Act

as noted above. We accordingly answer the questions noted above.

23 wp92852_2020.odt

22. The above discussion would now leave us to examine

Mr.Godbole's submission that as CSB was validly constituted and as

respondent no.3 has completed three years in Nashik district, it was

competent for the CSB to recommend the mid-tenure transfer. In normal

circumstances, there would not be any difficulty to accept such

proposition as advanced by Mr.Godbole. However, the fallacy in

Mr.Godbole's argument is that of a complete neglect and discarding of

the fact that the petitioner himself was a member of the CSB and had

become a party to a decision to transfer himself and to be posted in

place of respondent no.3. This apart, in such decision taken by the CSB,

the provisions of Sections 3, 4 and 6 of the 2005 Act, as discussed by us

above, have been totally overlooked.

23. In regard to the next submission of Mr.Godbole that the

order dated 16 September 2019 as contained in the letter of the Deputy

Secretary, Revenue and Forest Department, is not correctly extracted by

the tribunal in paragraph seven of the impugned judgment of the

tribunal, hence the tribunal has proceeded on a wrong reading of such

communication, would not commend us, for the reason that the tribunal

in coming to a conclusion to allow respondent no.3's original

application, has certainly not proceeded on the sole premise of such

order of the State Government as communicated by the Deputy

Secretary. The tribunal has proceeded on the fundamental illegality of

not only of the breach of the provisions of the 2005 Act, but also on the

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Divisional Commissioner proceeding on a wrong footing in assuming

powers, not conferred on him as per the requirement of the second

proviso to Section 6 of the 2005 Act under the guise of applying the ECI

guidelines. In any case, we do not find that missing of some words in

the communication dated 16 September 2019, in the extract, as made by

the tribunal, could in any manner, result in a conclusion different from

the one as arrived by the tribunal, in regard to the illegality of the

impugned transfer as made by the Divisional Commissioner when tested

on the application of the 2005 Act. We accordingly reject Mr.Godbole's

contention in this regard.

24. In regard to applicability of all the guidelines of the ECI , as

we have noted above, if the Divisional Commissioner was of such

opinion that respondent no.3 had overstayed his tenure in Nashik

district and which was in some manner contrary to the guidelines of the

ECI which were to be implemented by the State, in such case the only

course available to the Divisional Commissioner, even exercising

authority as conferred by him under the order dated dated 16

September 2019, was to make recommendations to the competent

authority and seek an approval to transfer him outside Nashik district. It

was however, not permissible for the Divisional Commissioner to

undertake such exercise to accommodate the petitioner as Tehsildar,

Dindori, in assuming such powers under Government Resolution dated

22 June 2016 which operates in a completely different context namely

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in respect of powers delegated to the Divisional Commissioner to make

general transfers normally effected in April-May of a year, and then

conveniently combining such powers for implementing the orders dated

16 September 2019 which are issued to give effect to the ECI guidelines.

As both the said orders operate in different fields and in different

situations, it was illegal for the Divisional Commissioner to confer and

assume to himself such cumulative powers and to exercise the same

contrary to the provisions of the 2005 Act and to confer an illegal

benefit of a transfer as Tehsildar, Dindori. Even the CSB had not

recommended the transfer of the petitioner by displacing respondent

no.3. There was thus certainly an illegality in issuance of the impugned

transfer as noted by us.

25. Before we conclude, we may observe that the observations

of the gross misuse of the powers by the Divisional Commissioner, and

the illegality in relation to the interpolation as made by the Divisional

Commissioner, have been accepted by the State Government, as also by

the Divisional Commissioner who was a party before the tribunal, as also

before us. The impugned order passed by the tribunal has also been

implemented.

26. In the above circumstances, when the petitioner was himself

posted at Nashik, as Tehsildar (Establishment) in the office of the

Divisional Commissioner, we find no justification for the petitioner to

26 wp92852_2020.odt

become a party to a decision of his own transfer from the post he was

holding, to the post of Tahasildar, Dindori, which respondent no.3 was

holding. Despite such glaring facts being noted by the tribunal, the

petitioner for reasons best known to him and in our opinion quite

audaciously has filed the present proceedings. The proceedings in our

opinion are a patent abuse of the process of law and valuable public

time was spent, which the Court otherwise could have devoted to more

important, urgent and deserving cases during the present difficult times

created by the pandemic. We are certainly pained at such unreasonable

approach of the litigants who can endlessly litigate on such petty

matters of transfer and that too within the district, only because they

have resources to do so. We accordingly dismiss this petition with costs

quantified at Rs.25,000/- to be e-deposited by the petitioner with the

Maharashtra State Legal Services Authority within four weeks from

today, to be utilized for "Manodhairya Scheme".

27. We return the original record and proceedings to Mr.

Kakade, the Acting Government Pleader for the State Government.

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