Varsha Mahesh Ghughari vs The State Of Maharashtra Through ...
2023 Latest Caselaw 6358 Bom

                                  1                                WP1026.2023.odt
             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD.

                        WRIT PETITION NO. 1026 OF 2023

Mrs. Varsha Mahesh Ghughari,
Age : 53 years, Occu. Service,
(as Executive Engineer, P.W.D. Dhule),
R/o. 3, Nagai Colony, Deopur, Dhule.                              ...Petitioner

       Versus

1]     The State of Maharashtra,
       Through its Addl. Chief Secretary,
       Public Works Department,
       M.S., Mantralaya, Madam Cama Road,
       Hutatma Rajguru Chowk,
       Mumbai.

2]     The Chief Engineer,
       Public Works Region,
       Nashik, Govind Nagar,
       Nashik.

3]     The Superintending Engineer,
       Public Works Division,
       Dhule.

4]     Mr. Ravindra Ratan Patil,
       Executive Engineer,
       Public Works Department,
       Dhule Municipal Corporation,
       Dist. Dhule.                                        ...RESPONDENTS

                                    .....
       Ms Preeti R. Wankhede - Advocate for the petitioner
       Mr. A. S. Shinde - AGP for respondent/State
       Ms Suchita A. Dhongade - Advocate for respondent no. 4
                                   .....

                                      CORAM : MANGESH S. PATIL
                                                     AND
                                              S. G. CHAPALGAONKAR, JJ.

ARGUMENTS CONCLUDED ON : 06.06.2023 JUDGMENT PRONOUNCED ON : 05.07.2023

2 WP1026.2023.odt

JUDGMENT [ Per S. G. Chapalgaonkar, J. ] : -

1. The petitioner approaches this Court under Article 226 of

the Constitution of India, challenging the order dated 13 January 2023

passed by the Maharashtra Administrative Tribunal in Original

Application No. 1161 of 2022, by which mid-term and mid-tenure

transfer order dated 28 December 2022 issued by respondent no. 1 -

State of Maharashtra through its Addl. Chief Secretary has been

confirmed.

2. The petitioner contends that she entered in the service of the

Government of Maharashtra in its Public Works Department as an

Assistant Engineer. Thereafter, she was promoted to the post of

Executive Engineer and as such, posted at Public Works Department,

Dhule, since 07 August 2020. Before the petitioner could complete her

normal tenure of three years, as per provisions of Section 3(1) and 4(1)

of the Transfers Act, by order dated 28 December 2022, she has been

transferred to the post of Executive Engineer under the establishment of

Dhule Municipal Corporation by way of mid-term and mid-tenure

transfer. The petitioner challenged the said order before the

Maharashtra Administrative Tribunal, bench at Aurangabad, by filing

Original Application No. 1161 of 2022, however, it came to be

dismissed.

3 WP1026.2023.odt

3. Ms Preeti R. Wankhede, learned advocate for the petitioner,

would submit that impugned transfer order is unjust, arbitrary and mala

fide. She would submit that the petitioner was not due for her transfer

and could not have been transferred in violation of the provisions of

Section 3(1) and 4(1) of the Maharashtra Government Servants

Regulation of Transfers and Prevention of Delay in Discharge of Official

Duties Act, 2005 [hereinafter referred to as "Transfers Act"]. She would

submit that the respondent nos. 1 to 3 failed to adhere to the principles

of natural justice while effecting the transfer. She would further urge

that the object of her transfer was only to accommodate the respondent

no. 4 who exerted political influence to secure the choice posting at

PWD Dhule. As such, she alleges that the impugned action is tainted

with mala fides.

4. She would further submit that the consent of the petitioner

was necessary before sending her on deputation in view of Rule 36 of

Maharashtra Civil Services Rules, 1981 as well as the procedure as

prescribed under Government Resolution dated 17th December, 2016.

Apparently, said procedure is not adhered to by the respondent

authorities, hence, the order impugned is contrary to the rules

prescribed. She would further urge that the Maharashtra Administrative

Tribunal did not consider the above aspects while deciding the Original

Application.

4 WP1026.2023.odt

5. Ms Wankhede would further submit that the respondents

are trying to justify the action by projecting that the transfer of

petitioner has been effected in the interest of the administration since

there were many complaints against her. She would point out that the

petitioner was never offered opportunity of hearing as regards so-called

complaints against her. She would further urge that the respondent no.

4 had requested for transfer on her post. His request was then

recommended by Member of Legislative Assembly (in short "MLA"). On

such development, a farce is made regarding so-called complaints

received against the petitioner and a false story has been cooked up

against her, to make out some reason for transferring her to make a way

for choice posting of the respondent no. 4.

6. Ms Wankhede relying upon the judgments of the Supreme

Court of India in the matters of Somesh Tiwari Versus Union of India &

Ors. reported in 2009 (2) SCC 592 and Judgement of Madras High

Court in case of P. Karunakaran v. The Union of India and others

reported in (2014) 4 ServLR 62, submits that if the transfer is based on

complaint, the petitioner ought to have been given an opportunity of

being heard and in absence of such an opportunity, the transfer order

cannot be sustained in law. She would further rely upon the judgment

in the case of State of Punjab and others vs. Inder Singh and others

5 WP1026.2023.odt reported in (1997) 8 SCC 372, to submit that without the consent of the

petitioner, she should not have been deputed to the Municipal

Corporation particularly by flouting the prescribed norms.

7. Mr. A. S. Shinde, learned AGP for respondent nos. 1 to 3

and Mrs. Suchita Dhongade for respondent no. 4 supported the transfer

order as well as the order passed by the Maharashtra Administrative

Tribunal. Mr. Shinde would urge that the re-appreciation of evidence is

not the job of this court while exercising the jurisdiction under Article

226 of the Constitution of India. The Tribunal has applied its mind to all

the contentions raised on behalf of the petitioner and recorded elaborate

reasons for not entertaining the Original Application and refused to

interfere in the impugned transfer order. He would submit that the

petitioner failed to bring on record material to demonstrate mala fides

on the part of the respondent - authorities. Further, there is nothing to

show that the mandatory provisions of law have been violated. He

would further submit that there cannot be any dispute that the authority

to transfer the services of the petitioner vested with respondents. He

would point out that the Civil Services Board, upon consideration of the

various aspects of the matter, recommended transfer of the petitioner

and the recommendation has been approved by the Hon'ble Chief

Minister. In that view of the matter, no interference can be made in the

impugned orders.

6 WP1026.2023.odt

8. Before we proceed to consider the submissions advanced on

behalf of the respective parties, it would be appropriate to refer to the

parameters of jurisdiction to be exercised by the writ court in the

matters relating to transfer of the employees. The Supreme Court of

India in the matter of National Hydroelectric Power Corporation Ltd.

Versus Shri. Bhagwan and another reported in (2001) 8 SCC 574

observed in paragraph no. 5 thus :

"5. ......... It is by now well settled and often reiterated by this Court that no government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders as a matter of routine, as though they are the appellate authorities substituting their own decision for that of the management, as against such orders passed in the interest of administrative exigencies of the service concerned.........."

9. Similarly, in case of State Bank of India Versus Anjan Sanyal

and others reported in (2001) 5 SCC 508, the Hon'ble Supreme Court of

India has observed in paragraph no. 4, which reads thus :

"4. An order of transfer of an employee is a part of the service conditions and such order of transfer is not required to be interfered with lightly by a court of law in exercise of its discretionary jurisdiction unless the

7 WP1026.2023.odt court finds that either the order is mala fide or that the service rules prohibit such transfer or that the authorities, who issued the order, had not the competence to pass the order.............."

10. The material on record clearly suggests that the respondent-

authorities had received the complaints against the petitioner which

were signed by subordinate officers and staff working at Public Works

Department, Dhule. The administration at the office was hampered to a

large extent. On receiving such complaint, the proposal was routed for

transfer of the petitioner through Civil Services Board, which is having

authority to recommend the transfers. The recommendation of the

Board has been approved by the highest State Authority and then only

the petitioner has been transferred giving the reasons of administrative

exigency. No flaw has been pointed out in the procedure adopted by the

respondents in effecting the transfer.

11. So far as the submissions on behalf of the petitioner that

the consent of respective department was not obtained before deputing

the petitioner, the Maharashtra Administrative Tribunal has considered

the procedure underlined in the Government Resolution dated

17 December 2016, 16 February 2018 and 03 December 2020 and

recorded a finding that obtaining consent of the petitioner would not be

mandatory or relevant. The Tribunal has further noted that previously

the petitioner herself had consented for her deputation on the post of

8 WP1026.2023.odt Executive Engineer at Dhule Municipal Corporation and the post has

always been filled in by deputation of the officers from the department

of the State Government. Even it is observed that by Government

Resolution dated 03 December 2020, the post of Executive Engineer,

Dhule Municipal Corporation, is declared to be 'deputation post'. It is,

therefore, apparent that the objection of the petitioner has been dealt

with by the Tribunal and which it has rejected after assigning valid

reason.

12. The contention of the petitioner that the transfer order is

mala fide and effected with an intention to accommodate the

respondent no. 4, has been dealt with in the order of the Tribunal. It is

specifically observed that the transfer order was effected on

recommendation of the Civil Services Board and such recommendations

are approved by the highest State authorities i.e. the Minister of Public

Works Department as well as the Hon'ble Chief Minister of the

Maharashtra State. No mala fides are attributed against the authorities,

who are empowered to effect the transfers. Merely because the

respondent no. 4 had shown his interest to be posted at Public Works

Department, Dhule and the recommendation was made by the local

MLA, itself would not constitute mala fides against the respondent

authorities. Therefore, the objection in this regard is liable to be

rejected. The Tribunal has recorded a finding based on material that the

9 WP1026.2023.odt transfer order has been given effect only to overcome the exceptional

circumstances leading to maladministration at PWD office arising out of

the reluctance shown by entire subordinate staff working under

petitioner.

13. We have considered the law laid down by the Supreme

Court in the matter of Somesh Tiwari (supra) and also in the matter of

P. Karunakumar (supra) by Madras High Court. We agree with the

reasons recorded by the Tribunal to distinguish the so judgments. For

the aforesaid reasons, we do not find that any case is made out to

interfere in the impugned order in exercise of the writ jurisdiction.

Hence, Writ Petition is dismissed.

        [ S. G. CHAPALGAONKAR ]                  [ MANGESH S. PATIL ]
                  JUDGE                               JUDGE


SGP