Ratnamala Vitthalrao Bidgar ... vs The State Of Maharashtra And ...
2021 Latest Caselaw 12847 Bom

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                                       (1)

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                    915 WRIT PETITION NO.789 OF 2020

 Ratnamala Vitthalrao Bidgar alias
 Sau. Ratnamala Santosh Narate,
 Age: 42 years, Occu: Service as
 A.N.M. (Arogya Sevika),
 R/o. Chhatrapati Chowk, Nanded
 Tq. and Dist. Nanded                                   ...PETITIONER

          VERSUS

 1.       The State of Maharashtra,
          Through its Principal Secretary,
          Rural Development Department,
          Mantralaya, Mumbai-400 032

 2.       Deputy Commissioner (Establishment),
          Office of the Divisional Commissioner,
          Aurangabad Division, Aurangabad

 3.       Chief Executive Officer,
          Zilla Parishad, Nanded

 4.       District Health Officer,
          Zilla Parishad, Nanded                     ...RESPONDENTS
                                       ....

 Mr V. S. Panpatte, Advocate for petitioner;
 Mr S. R. Yadav-Lonikar, A.G.P. for respondent Nos.1 & 2;
 Mr S. B. Pulkundwar, Advocate for respondent Nos.3 & 4


                                CORAM : RAVINDRA V. GHUGE
                                               AND
                                        S. G. MEHARE, JJ.

DATE : 8th September, 2021

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ORAL JUDGMENT : (Per : Ravindra V. Ghuge, J.)

1. Rule. Rule made returnable forthwith and heard finally by

the consent of the parties.

2. The petitioner has put forth prayer clauses (B) and (C) as

under :

"B. By a writ of certiorary or any other appropriate writ or direction in the like nature, the transfer order dated 06.06.2019 issued by the respondent no.3 transferring the petitioner from Martala under P.H.C., Kapsi, Tq.: Loha to Umari (Ba.), Tq.: Kinwat at Exhibit 'E', so also the decision dated 05.12.2019 passed by the respondent no.2 at Exhibit 'J' may please be quashed and set aside;

C. By a writ of mandamus or any other appropriate writ or direction in the like nature, the respondent no.3

- Chief Executive Officer, Zilla Parishad may please be directed to give posting to the petitioner at appropriate place on vacant posts within 30 Kms. from the present posting of her husband i.e. Kaudgaon, Tq.: Loha, Dist.: Nanded."

3. The petitioner has joined service with the Zilla Parishad as a

'Arogya Sevika / Auxiliary Nurse Midwife (ANM)' in 1994.

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After marriage, she has been working at various places. She

sought a change in the Zilla Parishad employment and has been

accommodated by the Government by moving her to Zilla

Parishad, Nanded.

4. Grievance is that the petitioner has been transferred from

Martala sub-centre of Primary Health Centre, Kapsi, Tq. Loha, to

Umari (Ba.), Tq. Kinwat, in the Nanded District. After she put in

16 years for the Prabhani Zilla Parishad, she moved over to

Nanded Zilla Parishad. Her husband is a primary school teacher

with the Nanded Zilla Parishad. Her husband had once worked at

Jaldhara, Taluka Kinwat, which is a tribal area, from 16/06/2016

to 15/08/2018. He sought a transfer on request and therefore,

within two years, moved out from tribal area.

5. It is submitted that the location at which the petitioner has

been transferred, does not figure in the list of the villages of

Taluka Kinwat. She was not due for transfer. She has been

working at Kapsi from 01/06/2019. She has been transferred by

the impugned order dated 06/06/2019 to Umari (Ba.), which is a

tribal area. She has not put in 10 years service at Kapsi. There is

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no vacancy available at Umari. She is the treasurer of the

Maharashtra Zilla Parishad Nurses Sanghatana, Nanded, elected

on 27/01/2019. The Government Resolution dated 15/05/2014

carves out an exception to the union leaders and they are insulated

from transfer.

6. The learned Advocate representing Nanded Zilla Parishad

relied upon the affidavit-in-reply filed by the Chief Executive

Officer, Zilla Parishad, Nanded, dated 25/02/2021. He points out

specific paragraph Nos.9, 10, 11, 13 and 14, which can be

summarized as under :

(a) The Government Resolution referred to above

mandates employees to work in tribal and naxalite areas;

(b) Out of the total posts of 406 A.N.Ms. in Nanded

district, 112 were working in Kinwat and Mahur Talukas.

(c) 10% of the senior employees are required to be

transferred from Kinwat and Mahur Talukas as they are

working in tribal areas so as to enable them to work in non-

tribal area;

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(d) As per the seniority list prepared and which is not

objected to by the petitioner, she is the senior most

employee at Kapsi and has never worked in tribal or

naxalite areas for last 26 years;

(e) The exempted persons from being transferred to the

tribal area or naxalite area are:-

i) Handicapped employees and parents of mentally

retarded child. Provided they produce the certificate

issued by competent authority to that effect before 30 th

of April.

ii) Widow, Divorcee, Cancer patient/ Paralysis

patient who is under treatment of Dialysis.

iii) All employees above 53 years of age.

iv) Employees who are in category of Drivers or

Draftsman.

As per above G.R. except these four categories

there is no category which is exempted from general

transfer;

(f) The petitioner has worked at a single place for 15

years;

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(g) Only four elected office bearers of the

authorised/approved associations can be exempted from

transfer vide Government Resolution dated 02/01/2017;

(h) The petitioner has been elected as a treasurer of a

newly registered union which is not recognized with the

State Government;

(i) A treasurer of a union cannot be exempted;

(j) If the husband of the petitioner requests for couple

arrangement as he is working in the same Zilla Parishad as

an 'Assistant Teacher', he can be accommodated within 30

kms. from the place where the petitioner is posted.

7. It calls for no debate that transfer is a normal incident of

service. So also, this Court had suo-moto registered Writ Petition

No.3278/2010 and had delivered orders on 13/09/2012 and

21/11/2012 at the Principal Seat, directing the State Government

to have a policy of deploying members of the health services at

tribal or naxalite areas since it was noticed that the employees are

not willing to work in such areas. With an intention of ensuring

that proper health services are rendered to the people residing in

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tribal and naxalite areas, this Court had issued the said orders.

The Government Resolution dated 15/05/2014 was in pursuance

of the directions of this Court.

8. The petitioner was earlier working with the Parbhani Zilla

Parishad. After marriage, on account of couple arrangement, she

applied for movement from the Parbhani Zilla Parishad to Nanded

Zilla Parishad. This does not mean that her service in the Nanded

Zilla Parishad is to be reckoned as a fresh stint with the Zilla

Parishad so as to contend that she cannot be transferred within a

particular period. She has been working in non-tribal and non-

naxalite areas for 26 years. Being the senior most person and

having never been posted in the tribal area, she was transferred to

the said place where she has joined and is presently working for

more than two years.

9. The contention of the petitioner that because she is now

elected as a treasurer of a Union, she is insulated from transfer, is

misconceived. This Court held in Blue Star Limited Vs. Blue

Star Workers' Union & others, 1996(3) Bom.C.R. 480, that an

employee is first an employee of the organization. He draws

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salary because he is an employee. Becoming a union office

bearer is a matter of choice and that does not place an employee in

a special category.

10. The learned Advocate for the Zilla Parishad has relied upon

the following judgments :

i) State of Uttar Pradesh and others Vs. Siya Ram and

another, (2004) 7 SCC 405;

ii) Yogesh Pratap Singh Vs. Government of Maharashtra

through the Additional Chief Secretary (Home), and others,

1998 (2) BCR 1;

iii) Mohd. Masood Ahmad Vs. State of Uttar Pradesh,

(2007) 8 Supreme Court Cases 150;

iv) Vyankatrao Ghalappa Savle Vs. Zilla Parishad and

others, 2010 (2) All M.R. 48.

11. As the law laid down by the Hon'ble Apex Court in State of

Uttar Pradesh and ors. Vs. Siya Ram and another (supra), unless

the transfer is shown to be with mala fide intention and there are

no administrative exigencies, there should not be any interference

in the transfer orders. Same is the view taken by the learned

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Division Bench of this Court in Yogesh Pratap Singh (supra). In

Mohd. Masood Ahmad (supra), the Hon'ble Apex Court held that

a transfer is a normal incident of service and therefore, judicial

interference should be in rarest of rare case. Though the transfer

of Mohd. Masood was on the recommendation of the M.L.A., the

Hon'ble Apex Court concluded that this would not vitiate the

transfer.

12. We find that no mala fides or laches are attributable to the

conduct of the Zilla Parishad. The petitioner has not worked in a

tribal area for 26 years. Due to the administrative exigencies and

being the senior most A.N.M., she has been posted in a tribal area

for the first time.

13. In view of the above, this petition, being devoid of merits is,

therefore, dismissed. Rule is discharged.

(S. G. MEHARE, J.) (RAVINDRA V. GHUGE, J.) sjk