Rajendra Pandurang ... vs The State Of Maharashtra, Thr. ...
2022 Latest Caselaw 7052 Bom

46-WP-1568-22                                                           1/6


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

                    WRIT PETITION NO.1568 OF 2022


Rajendra Pandurang Chikhalkhunde,
Aged 38 years, Occu. Service
R/o Presently posted as Chief Officer,
Municipal Council, Butibori,
District Nagpur                               ... Petitioner

-vs-

1. The State of Maharashtra,
   Through its Secretary,
   Department of Urban Development,
   Mantralaya, Mumbai

2. Collector, Nagpur

3. Jumaa Pyarewale,
   C.O. Nagar Parishad, Wadi,
   District Nagpur                            ... Respondents

Shri N. R. Saboo, Advocate for petitioner.
Ms K. R. Deshpande, Assistant Government Pleader for respondent Nos.1
and 2.
Respondent No.3 served.

                CORAM : A. S. CHANDURKAR AND URMILA JOSHI-PHALKE, JJ.

DATE : July 22, 2022

Oral Judgment : (Per : A. S. Chandurkar, J.)

Rule. Rule made returnable forthwith and heard the

learned counsel for the parties.

The challenge raised in this writ petition is to the order

passed by the Maharashtra Administrative Tribunal in Original

Application No.08/2022 thereby refusing to interfere in the order of

transfer that was issued to the petitioner.

46-WP-1568-22 2/6

2. The petitioner is holding the post of Chief Officer. He was

initially serving as Chief Officer at Municipal Council, Lakhani, District

Bhandara. On 22/12/2020 he was transferred from that Municipal

Council to Butibori Municipal Council. Within a short period of about

a year he was transferred from Butibori to Kanhan Municipal Council.

Being aggrieved the petitioner challenged the aforesaid order of

transfer before the Tribunal. Though the order of transfer was initially

stayed by the order dated 15/02/2022, the Tribunal held that as the

order of transfer as issued was in the light of directives received from

the State Election Commission, no case was made out for interfering

with that order. Being aggrieved the petitioner has challenged the

aforesaid order.

2. The learned counsel for the petitioner submits that the

order of transfer is a mid-term transfer order. The same was not

recommended by the Civil Services Board. On the contrary the said

Board observed that the petitioner did not complete the requisite

prescribed period under Section 4(1) of the Maharashtra Government

Servants' Regulation of Transfers and Prevention of Delay in Discharge

of Official Duties Act, 2005 (for short, the Act of 2005). It therefore

did not recommend the petitioners' transfer. The grievance is that

even in absence of such recommendation, a mid-term order of transfer 46-WP-1568-22 3/6

has been issued. The Tribunal erroneously proceeded to assume that

the mid-term transfer was on account of directives of the State Election

Commission dated 22/12/2021. As per the directives only those

officers who had completed the term of three years were liable to be

taken into consideration for transfer. These directives infact were

sought to be implemented by the State Government by calling for

necessary information on 03/02/2022. This was after the issuance of

the impugned transfer order dated 03/01/2022. Attention was invited

to the order passed in O.A. No.10/2022 dated 04/01/2022 at the

Principal Seat of the Tribunal wherein after noticing absence of reasons

in the transfer file, the Tribunal proceeded to stay the order of transfer.

In support of his submissions the learned counsel placed reliance on

the decisions in S. B. Bhagwat vs. State of Maharashtra and ors.

2012(3) Mh.L.J. 197 and Kishor Shridharrao Mhaske vs. Maharashtra

OBC Finance and Development Corporation, Mumbai and ors. 2013(3)

Mh.L.J. 463. He also invited attention to the judgment of the

Hounourable Supreme Court in T.S.R. Subramanian vs. Union of India

and Ors. AIR 2014 (SC) 263 to urge that recommendation of the Civil

Services Board ought to have been considered before transferring the

petitioner. It was thus submitted that the order passed by the Tribunal

was liable to be set aside.

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3.         The    learned   Assistant   Government     Pleader   for   the

respondent Nos.1 and 2 supported the order passed by the Tribunal.

She submitted that in absence of any malafides there was no reason to

interfere with the order of transfer. The same was issued in

administrative exigencies. The Tribunal after considering all relevant

material refused to interfere in the order of transfer and hence the writ

petition was liable to be dismissed.

4. We have heard the learned counsel for the parties and we

have perused the documents on record. It is an admitted fact that on

22/12/2020 the petitioner came to be transferred to Municipal Council

Butibori. Shortly on completing period of one year, another order of

transfer dated 03/01/2022 has been issued. On the directions of the

Urban Development Department, various proposals were placed before

the Civil Services Board for considering the necessity to transfer certain

Chief Officers. In the meeting dated 30/12/2021 the said Board

examined the proposal of the petitioner's transfer and did not

recommend the same on the ground that the petitioner had not

completed the period stipulated at Butibori. Notwithstanding such

observations by the Board, the order of transfer came to be issued

merely by referring to administrative exigencies. Before the Tribunal,

the State Government contended that the order of transfer was issued 46-WP-1568-22 5/6

in view of the directives of the State Election Commission. Perusal of

these directives dated 22/12/2021 of the Commission require

identifying such Officer to have completed period of three years on

31/03/2022 for being considered for transfer. The petitioner does

not satisfy the requirement stated therein. This was the very same

aspect that was considered by the Board. It is also seen that after the

communication dated 03/02/2022 issued by the Additional Secretary

to the Divisional Commissioner, relevant information was directed to

be collected in the context of the directives of the State Election

Commission issued on 22/12/2021. Admittedly the petitioner has

been transferred prior thereto on 03/01/2022. In other words, the

stand taken by the State Government for proposing and recommending

the transfer of the petitioner was on account of directives received

from the State Election Commission is not substantiated by any

material on record. The material indicates otherwise. It is thus

obvious that the plea of administrative exigencies that was taken by

relying upon directives of the State Election Commission is not

supported by any record. Thus, neither the recommendations of the

Civil Services Board nor the directives issued by the State Election

Commission justify the impugned order of transfer.

5. The decisions relied upon by the learned counsel for the 46-WP-1568-22 6/6

petitioner indicate that merely making an order of transfer would not

be sufficient without reasons existing in support thereof. The

mandatory provisions of Section 4(5) of the Act of 2005 have to be

complied with. We find this material is lacking in the present case.

The Tribunal failed to consider relevant aspects and merely proceeded

on the basis that the transfer was effected on the directives of the

State Election Commission without verifying the material aspects.

6. Hence for aforesaid reasons the order passed by the

Tribunal in Original Application No.08/2022 dated 16/03/2022 is set

aside.

The petitioner is entitled to continue to serve as Chief

Officer at Municipal Council Butibori in terms of the earlier transfer

order dated 22/12/2020.

Rule is made absolute in aforesaid terms with no order as to

costs.

(Urmila Joshi-Phalke, J.) (A. S. Chandurkar, J.)

Asmita Digitally signed byASMITA ADWAIT BHANDAKKAR Signing Date:25.07.2022 14:57:56