Dhawal P. Antapurkar vs The State Of Maharashtra Thru The ...
2023 Latest Caselaw 932 Bom

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                                                           WP-5599-2019


       IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                       CIVIL APPELLATE JURISDICTION

                    WRIT PETITION NO. 6957 OF 2019



The State of Maharashtra                        .....Petitioner

       V/s.

1. Shri. Sanjay Dinkarrao Mankar

2. Dhawal P. Antapurkar                         .....Respondents



                               ALONGWITH

                  WRIT PETITION NO. 5599 OF 2019

                                       WITH

              INTERIM APPLICATION NO. 3733 OF 2022



Dhawal P. Antapurkar                            ....Petitioner

       V/s.

The State of Maharashtra

and Ors.                                        .....Respondents

                                       ----

Mr. N.C. Walimbe, Assistant Government Pleader in WP-6957-2019

and for respondent in Writ Petition No. 6957/2019

Mr. Mohan Sudame i/by. Mr. Piyush Pande, Advocate for the

petitioner and for Respondent No.1 in Interim Application in Writ

Petition No. 5599-2019 and in IA.




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Mr. Sanghraj Rupwate a/w. Mr. Shashikant M. Mane, Advocate

for respondent no.2 in Writ Petition No.5599 of 2019 and for

respondent no.1 in Writ Petition No. 6957-2019.



                      CORAM : S.V. GANGAPURWALA, ACTING C.J.

                                       SANDEEP V. MARNE, J.

                      Judg. Resd. On :             19 January, 2023.

                      Judg. Pron. On :             30 January, 2023.

Judgment (Per Sandeep V. Marne, J.) :

1. Rule. Rule made returnable forthwith. By consent of

the parties, taken up for final hearing.

2. Judgment and order dated 29th March, 2019 passed by

Maharashtra Administrative Tribunal (Tribunal) in Original

Application No. 1038 of 2018 is the subject matter of challenge in

the present petition. In that Original Application, Sanjay

Dinkarrao Mankar (Respondent no.1 in Writ Petition No. 6957 of

2019) had challenged order dated 20 November, 2018 by which

his posting on promotion to the post of Joint Director-Boilers was

changed from Nagpur to Solapur. By the order impugned in the

present petition, the Tribunal has allowed the Original

Application of Sanjay Dinkarrao Mankar, setting aside the order

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dated 20th November, 2018 and has directed to restore his posting

at Nagpur as per earlier order dated 29 th September, 2018. The

Tribunal has made certain adverse observations against Shri.

Dhawal P. Antapurkar, Director, Steam Boilers who was

impleaded as respondent no.2 in personal capacity in Original

Application No. 1038/2018. This has triggered filing of Writ Petition

No. 5599 of 2019 by Mr. Antapurkar challenging the impugned

judgment of the Tribunal and seeking expungement and

deletion of adverse findings therein.

3. Since Mr. Antapurkar (Writ Petition No. 5599 of 2019) is

mainly concerned with expunction of adverse findings in the

impugned judgment, we propose to treat Writ Petition No. 6957 of

2019 filed by the State Government as the lead matter by

referring to the parties therein in the present Judgment, State

Government as Petitioner, Mr. Mankar as Respondent No. 1 and

Mr. Antapurkar as Respondent No. 2.

4. Respondent No.1 was serving as Deputy Director of

Boilers (Group 'A') at Solapur. By order dated 29 th September, 2018

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he came to be promoted to the post of Joint Director (Group 'A')

and posted at Nagpur. It is averred that the posting was granted

in pursuance of recommendations of the Civil Services Board.

The Respondent No.1 accordingly reported at Nagpur and

assumed charge of the post of Joint Director of Boilers on 5 th

October, 2018. However, by letter dated 5 th October, 2018

respondent no.2 informed him that his action of taking over the

charge of the post of Joint Director at Nagpur was not in

accordance of rules and the Respondent No.1 was reprimanded

for unilaterally leaving the charge of the post of Deputy Director,

Solapur and taking over the charge of Joint Director at Nagpur.

5. By order dated 20 November, 2018, the posting of the

Respondent No.1 was changed from Nagpur to Solapur. He felt

aggrieved by the order dated 20th November, 2018 and

approached the Tribunal by filing Original Application No. 1038 of

2018. The order changing the posting from Nagpur to Solapur was

assailed inter-alia on the ground of malice on the part of

respondent no.1. By judgment and order dated 29 March, 2019,

the Tribunal proceeded to allowed Original Application and set

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aside the order dated 20 November, 2018 directing restoration of

Respondent No.1's posting at Nagpur, granted vide order dated 29

September, 2018. Both State Government as well as Respondent

No. 2 are aggrieved by the Order of the Tribunal.

6. Appearing for the petitioner, Mr. Walimbe, learned

AGP would contend that the Tribunal exceeded its jurisdiction in

interfering in the order of transfer in ignorance of settled principle

that the scope of judicial review in the matter of transfers and

posting is extremely narrow. That the Tribunal should therefore

have been loath in interfering with the order of posting. He would

submit that there were complaints against the Respondent No.1

during the tenure of his previous posting at Nagpur and

considering that aspect, his posting was changed to Solapur. He

would further contend that, Respondent No.1 committed

misconduct in unilaterally leaving the charge of the post of

Deputy Director at Solapur and that he was never relieved from

Solapur. He unilaterally joined and took over the charge of the

post of Joint Director at Nagpur.

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7.            Mr.     Sudame,         learned   Counsel   appearing           for

respondent no.2 (petitioner in Writ Petition No. 5599/2019) would

question the correctness of the order passed by the Tribunal. He

would invite our attention to the handwritten remarks made on

order dated 29th September, 2018 endorsing grant of stay to the

posting order of the Respondent No.1 at Nagpur. He would submit

that the respondent no.2 had received a telephonic message

conveying decision of Chief Secretary, staying the posting order

at 4.00 p.m. on 4th October, 2018. That despite communication of

the said stay order to the Respondent No.1, he unilaterally

proceeded to take over charge of Joint Director at Nagpur and

thereby committed misconduct. Mr. Sudame would contend

that, he only followed the orders of the higher authorities and

therefore allegations of malafide made against him by the

Respondent No.1, were totally misconceived. He would question

the correctness of adverse findings recorded by the Tribunal in

the impugned judgment.

8. Mr. Rupwate learned Counsel appearing for the

Respondent No.1, would oppose the petitions and support the

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order passed by the Tribunal. He would submit that posting of

Respondent No. 1 at Nagpur was as per the recommendations of

the Civil Services Board and there was no reason for changing

the same within short span. He would further submit that mere

taking over charge of the position of Joint Director in pursuance

of valid order of posting cannot be a reason for cancellation of

the posting. Mr. Rupwate would seriously contend the theory of

posting order being stayed on 4 October, 2018. He would submit

that the Respondent No.1 was never communicated stay of the

posting order. He would question the conduct of respondent no.2

in making ex-parte remark on the posting order and not

conveying the same by written order/letter to the Respondent

No.1. He would reiterate the allegations of malafide, bias and

vindictive attitude of respondent no.2 raised before the Tribunal.

9. Rival contentions of the parties now fall for our

consideration.

10. There is no dispute to the position that, Respondent

No.1 was posted on promotion at Nagpur as Joint Director, Boilers

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in pursuance of recommendations made by the Civil Services

Board. It is therefore required to be presumed that the Civil

Services Board must have taken into consideration all the

relevant factors while recommending his posting at Nagpur. He

was obliged to report to the transferred post at Nagpur in

pursuance of the posting order dated 29 th September, 2018. He did

so and took over charge of the post at Nagpur on 5 th October,

2018. Whether he followed the prescribed procedure for handing

over charge of the Deputy Director at Solapur is a separate

matter altogether. The same cannot have any bearing on

validity of the posting order dated 29 September, 2018. We do not

wish to go into the issue whether Respondent No.1 validly gave up

the charge of the post of Deputy Director at Solapur. We are

informed that separate disciplinary proceedings are initiated

against him in that regard. We do not wish to comment on the

same. Suffice it to state that the posting order dated 29

September, 2018 continued to remain valid and the Respondent

No.1 was obliged to report at Nagpur within permissible joining

time.

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11. Now, we proceed to examine the stand of the State

Government and respondent no.2, that the posting order dated

29 September, 2018 was stayed on 4 October, 2018. This

contention is referable to handwritten endorsement made on

the posting order dated 29 September, 2018 by respondent no.2.

We fail to comprehend as to how the posting order dated 29

September, 2018 can be stayed by oral directives allegedly

communicated to respondent no.2 on telephone. If the posting

order was indeed intended to be stayed, such stay ought to have

been granted by a written order passed by competent authority.

No written order staying the posting order is placed on record

before us to show that any decision was taken to stay the posting

order dated 29 September, 2018. Also absent is any material to

show that the alleged decision dated 4 October, 2018 was

communicated to the Respondent No.1 in any manner. We

therefore refuse to accept the theory of the posting order being

stayed on 4th October, 2018.

12. The posting order dated 29 September, 2018 was later

altered by issuing order dated 20 November, 2018, by which

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Respondent No. 1 was shown to be posted as Joint Director, Boilers

at Solapur. The order does not specify any reasons for doing so.

The posting was modified within about two months. Now, we

proceed to examine the reasons cited in the affidavit-in-reply

filed by the State Government before the Tribunal to justify such

change of posting. Following pleadings were raised before the

Tribunal in the Affidavit in reply:

"7 With reference to contents of Paragraph No.6.3, I say that after due consideration the complaints against the Respondent No.1, during his recent tenure at Nagpur and in view of his completion of tenure at Nagpur, the Civil Services Board had recommended his posting after promotion at Solapur. Recommendation of Civil Services Board is hereto annexed and marked as EXHIBIT "R-2". Due to the seriousness of the complaints against the Respondent No.1 fact finding inquiry was initiated. In the meanwhile, the Respondent No.1 was restricted from inspecting Steam Boilers in Gondia District vide order dated 05.11.2017 which is annexed hereto and marked as EXHIBIT "R-3".

7.1. The Enquiry Officer after going through the complaints and meeting the complainants found that the complaints are of serious nature and the Respondent No.1 should be strictly warned regarding his behaviour. The report dated 16.11.2017 submitted by the fact finding authority is annexed hereto and marked as EXHIBIT "R-4". Accordingly, Director, Steam Boilers has issued a memo dated 23.02.2018 to the Respondent No.1 which is annexed hereto and marked as EXHIBIT "R-5".

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7.2. However, the Government directed that the Respondent No.1 should be posted at Nagpur. Accordingly, an order of promotion cum posting dated 29.09.2018 was issued, which is annexed hereto and marked as Exhibit "D" in the O.A

7.3. Thereafter, taking into consideration the complaints against the Respondent No.1 during his tenure at Nagpur, the matter of change in the posting of the Respondent No.1 was under consideration of the Government. However, in the meanwhile the Respondent No.1 on his own without being properly relieved from his charge of Deputy Director, Steam Boiler, Solapur directly took over the charge of the post of Joint Director, Steam Boiler, Nagpur in an unauthorised manner. However, a file was submitted for orders of Government. On which the, Government decided to revise the posting of the Respondent No.1 and post him at Solapur. Accordingly revised posting order of the Respondent No.1 was issued. The said Government Resolution dated 20.11.2018 is annexed and marked as Exhibit "A" in the O.A."

13. Thus alleged complaints filed against the Respondent

No.1 during his previous tenure at Nagpur and recommendations

of Civil Services Board dated 7th August, 2018 were cited as

reasons before the tribunal for change of Respondent No.1's

posting from Nagpur to Solapur. However, the Tribunal has

refused to accept the said reasons. After perusing the minutes of

the Civil Services Board, as well as, fact finding report submitted

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after investigating the complaints against the Respondent No.1,

the Tribunal has reproduced the endorsement on the report of the

Fact Finding Committee as under:

सदर प्रकरणी ननिनिावीी तक्रारी प्राप झाल्ा आहेत. त््ामुळे साप्रनवीच््ा नद. २५/०२/२०१५ रोजीच््ा पररपतकातील तरतुदीनिुसार ननिनिावीी पतांवीर अधधकर का्र वीाहीची आवीश्कता निाही. तसेच पृ. ३१/पनवीवीरील पतानिावीे श्री ननिवीास कॅटररिंचे श्री. जजतेद ठाकूर ्ांनिी श्री. मानिकर ्ांनिी बेका्दा वीॉचमनिसर वीरतीच का्र वीाही केली असूनि श्री. मानिकर ्ांचेनवीरोधात तक्रार करण््ासाठीच संचालनिाल्ासाठीच कंताटी तत्वीावीर कंपन्ातील बा्कांची कामे करणा-्ा कंपनिीच््ा सुपरवीा्झरनिे श्री ठाकूर ्ांनिा श्री. मानिकर ्ांचेनवीरोधात तक्रार करण््ाचा आग्रह केला होता वी वीारंवीार दबाब टाकत होता असे निमूद केले आहे. तरीही श्री. मानिकर हे ्ोग् पधदीतीनिे काम कररत असल्ानिे त््ांची तक्रार केली निाही वी तसेच मा. प्रधानि सधचवीांनिा घडलेल्ा प्रकरणाबाबत कळनवीले आहे. सबब सदर प्रकरणी ननिनिावीी तक्रारी वी श्री. मानिकर हे उतम काम करीत असल्ाबाबत अशा दोनही स्वीरूपाची पते प्राप झाली आहेत. तसेच प्रभारी संचालकानिी काही िंभीर तक्रारीच््ा अनिुषंिानिे श्री. मानिकर ्ांनिा समज नदले असल्ाचे कळनवीले आहे. तरी सदर प्रकरणी अधधक का्र वीाहीची आवीश््कता निाही असे वीाटते. तरी आदेशारर सादर.'

14. The Tribunal, thereafter proceeded to examine the

manner in which the change of posting was done and held as

under :

"17. Now, let us see the event which leads to the change of posting. In this behalf, the perusal of record reveals that because of act of Respondent No.1 to assume charge of Joint Director, Nagpur directly without issuance of relieving order by Respondent No.2, note was again placed before the Hon'ble Minister for direction to take necessary action for the alleged misconduct of the Respondent No.1. Thus, the note dated 06.10.2018 was placed by Desk Officer for seeking direction for the action to be taken about the alleged misconduct of the Respondent No.1 for relieving the post of Solapur unilaterally and taking over the charge at Nagpur without prior approval of

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Respondent No.2. On the said note, however, the Hon'ble Minister passed two line cryptic order as follows:

"श्री. स. नद. आनिकर ्ांनिा सहसंचालक, सोलापुर ्ा पदावीर पदस्रापनिा देण््ास मान्ता असावीी. "

18. The Hon'ble Chief Minister approved the endorsement made by the Hon'ble Minister. Thus, the note placed by Desk Officer was pertaining to proposed disciplinary action for alleged misconduct, but instead of passing further orders in that regard, the order of transfer to Solapur has been passed. There is absolutely no reason recorded in the order for change in posting from Nagpur to Solapur. The order passed by Hon'ble Minister does not reflect that the posting was changed due to complaints. Had it been the reason, it would have reflected in the order, but it is not so."

15. We have therefore no hesitation in arriving at a

conclusion that the order passed by the Tribunal does not suffer

from any jurisdictional error. It has considered the entire material

on record while passing the impugned judgment. The posting of

the Respondent No.1 was erroneously changed from Nagpur to

Solapur without following proper procedure and without there

being any ground to do so. One of the main factors taken into

consideration for change of posting appears to be the conduct of

the Respondent No.1 in unilaterally giving up the charge at

Solapur and taking up the posting at Nagpur. If the Respondent

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No.1 committed any misconduct in doing so, the same can be a

subject matter of enquiry. However, the same can never be a

ground to cancel the order of posting. The Tribunal has therefore

rightly interfered with the change of posting order.

16. There is however only one aspect where we wish to

interfere. True it is that the order of change of posting of the

Respondent No.1 was erroneous. The same appears to have been

issued in pursuance of approval given by the Hon'ble Minister.

The Tribunal has however made few adverse comments on

respondent no.2 (Petitioner in Writ Petition No. 5599/2019)

Therefore, while dismissing Writ Petition No. 6957/2019 and

upholding the order of the Tribunal, we feel that the change of

posting of Respondent No. 1 need not be attributed to the

conduct of Respondent No. 2. Accordingly, if any of the

observations made by the Tribunal are capable of being

perceived adverse to respondent no.2 (petitioner in Writ Petition

No. 5599/2019) the same shall stand expunged for all purposes.

17. We accordingly proceed to pass the following Order :

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  (i)       Writ Petition No. 6957 of 2019 is dismissed.

  (ii)      Writ petition No. 5599 of 2019 is partly allowed only to the

extent that the observations of the Tribunal in its

judgment and order which are adverse to Respondent

No. 2 shall stand expunged for all purposes.

(iii) The order of the Tribunal be implemented within about

two weeks from today.

(iv) Rule is discharged in Writ Petition No. 6957 of 2019 and

Rule is partly made absolute to the above extent in Writ

petition No. 5599 of 2019.

         (SANDEEP V. MARNE, J.)                            (ACTING C.J.)