Baburao S/O Durgadas Aasankar vs State Of Maharashtra, Thr. ...
2021 Latest Caselaw 12399 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH, NAGPUR.

                          WRIT PETITION NO.3272 OF 2021


     Baburao S/o Durgadas Aasankar,
     Aged about 57 years, Occ- Talathi,
     R/o Ramdut Complex, Nandura
     Road, Khamgaom, District Buldana                   .... PETITIONER



                                  // VERSUS //



  1. State of Maharashtra, through its
     Secretary, Land Revenue and Forest
     Department, Mantralaya,
     Mumbai

  2. Collector, Buldana

  3. Tahsildar, Khamgaon

  4. Sub-Divisional Officer, Khamgaon

  5. Shri R.M. Rathod,
     Aged about Major,
     Occ- Service, R/o Hansaraj Nagar,
     Khamgaon                                         .... RESPONDENTS

Mrs. Renuka Sirpurkar, learned counsel for the petitioner. Mr. N.R. Patil, learned AGP for the respondent Nos. 1 to 4. ________________________________________________________________

CORAM : SUNIL B. SHUKRE AND ANIL S. KILOR JJ.

DATE : 01.09.2021

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JUDGMENT: [PER SUNIL B. SHUKRE, J.]

1. Heard.

2. The contention is that as per Section 4(4) (clause-ii) of

the Maharashtra Government Servants Regulation of Transfers and

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

2005 for short), no government servant could be transferred by the

competent authority before completion of the tenure of his posting

at a particular place unless the authority is satisfied that the transfer

is essential due to exceptional circumstances or special reasons,

which are recorded in writing and prior approval of the next higher

authority.

3. However, in the present case, in spite of the fact that

petitioner had not completed his three years of posting at

Khamgoan, where he was brought from Januna to Khamgaon with

effect from 01.06.2019 and before completion of his tenure of

posting at Khamgaon, the petitioner was transferred without

seeking any further approval of next higher authority and without

reasons for his pre matured transfer.

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4. It is submitted that in order to show his bonafides, the

petitioner has joined his new place of posting at Tembhurna, but the

petitioner has filed this petition to exercise his right based upon the

provisions made in Section 4(4) of the Act, 2005.

5. It is also submitted that these contentions of the

petitioners have not been considered in any manner by the

Maharashtra Administrative Tribunal when it dismissed the

application filed by the petitioner on 09.07.2021.

6. Shri N.R. Patil, learned AGP, who appears on behalf of

the respondent Nos. 1 to 4 by waiving notice submits that since

Januna is a rural place which is situated hardly 4 to 5 km away from

Khamgaon, the petitioner could be considered to be working in

Khamgaon for a very long period of time and therefore, there is no

force in the submission that the petitioner has not completed his

over all tenure as Talathi at Khamgaon. He also submits even the

new place of posting, which is found at Tembhurna, is situated

hardly 7 kms. away from Khamgaon and therefore, no

inconvenience as such would be caused to the petitioner.

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7. Considering these submissions, we have decided to take

up this matter for final disposal right now without issuing any notice

to respondent No.5.

8. Hence, Rule, Rule is made returnable forthwith. Heard

finally with consent of learned counsel for the parties.

9. All the aforestated contentions and also the additional

contentions that the petitioner is due for retirement on 30.11.2022

have not been considered by the Maharashtra Administrative

Tribunal when it dismissed the application filed by the petitioner.

A bare perusal of the impugned order dated 09.07.2021 is

sufficient. The impugned order does not consider merits of the

matter in any way and simply decides the issue only on the ground

that as the petitioner has already joined and started working on the

transferred place, nothing survives in the original application.

10. The approach adopted by the Tribunal is not in the

interest of justice, especially when the petitioner is seeking

adjudication as regards the alleged violations of law in the matter.

11. In view of the above, petition is allowed.

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12. The impugned order is hereby quashed and set aside.

The matter is remanded back to the Maharashtra Administrative

Tribunal for its fresh consideration and decision in accordance with

law. The petitioner is directed to appear before Maharashtra

Administrative Tribunal on 06.09.2021 and thereafter ,Maharashtra

Administrative Tribunal is requested to decide the application after

giving opportunity of hearing to all the parties, in accordance with

law, as expeditiously as possible, preferably within eight weeks from

the date of appearance of the petitioner before it.

12. Rule accordingly.

                           JUDGE                                JUDGE
manisha