Bombay High Court
Abhay Narayan Tripathi S/O ... vs Union Of India Thru Secretary, ... on 9 March, 2023
Bench: Sandeep V. Marne
23-WP.126.2019
jvs
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
SALUNKE
JV
Digitally signed
by SALUNKE J V
WRIT PETITION NO. 126 OF 2019
Date: 2023.03.10
11:39:19 +0530
Abhay Narayan Tripathi } Petitioner
Versus
Union of India & Ors. } Respondents
Mr. Ramesh Ramamurthy with
Mr.Saikumar Ramamurthy, Ms. Kavita
Anchan, Ms. Seema Sorte, Mr. Akhilesh
Deshmukh and Mr. Karthik Pillai for
the petitioner.
Ms. N. M. Mehra, AGP for respondents
2 and 3 (State).
CORAM: S. V. GANGAPURWALA, Act.CJ.&
SANDEEP V. MARNE, J.
DATE: MARCH 9, 2023
P.C.:
1. The petitioner is challenging the action of bureaucrats in
repatriating him from the post of Secretary, Maharashtra State
Commission for Child Rights to his parent department, i.e., the
Forest Department.
2. Mr. Ramamurthy, learned advocate for the petitioner
submits that the petitioner joined as a member of the Indian
Forest Service, All India Group 'A' in Maharashtra Cadre in the
year 1987. In the year 2011, the petitioner was posted as
Secretary of the Maharashtra State Commission for Child Rights
without any fixed tenure. On 9th February 2018, the petitioner
was relieved from the post of Secretary, Maharashtra State
Commission for Child Rights without following the procedure of
Civil Services Board and without approval of the competent
authority, namely, the Hon'ble Chief Minister.
23-WP.126.2019
3. The learned advocate for the petitioner relies upon the
Indian Forest Service (Cadre) Rules, 1966 (for short "the Rules of
1966"). According to him, all appointments of the cadre post shall
be made by the Central Government in consultation with the
State Governments or the State Governments concerned may
determine the tenure of all or any of the cadre posts specified in
Item 1 of the Schedule to the Rules of 1966. According to the
learned advocate, the Civil Services Board, on its own, cannot
issue an order of repatriation. The same has to be endorsed by the
Hon'ble Chief Minister. According to him, respondents 5 to 9, who
constituted the Civil Services Board, without authority, in
flagrant violation of the rules, repatriated the petitioner. The
petitioner could get the knowledge of the same when the
petitioner joined the repatriated post and the information
received under the Right to Information Act, 2005. The members
of the Civil Services Board could not have usurped the authority
vested in the Hon'ble Chief Minister. The act of the respondents 5
to 9 being dehors the statutory rules, is illegal. The action of
respondents 5 to 9 in illegally repatriating the petitioner
tantamount to malice in law.
4. The learned advocate for the petitioner relies upon the
judgment of the Apex Court in the case of T. S. R. Subramanian &
Ors. vs. Union of India & Ors., reported in (2013) 15 SCC 732. It is
submitted that the Civil Services Board was constituted pursuant
to the said judgment. The civil services are to be finally
accountable to the political executive. According to the learned
advocate, the procedure is required to be followed.
5. We have heard the learned AGP.
6. The petitioner's parent department is the Forest
Department. The petitioner, in the year 2011, on his own volition,
requested for being deputed with the Women and Child
23-WP.126.2019
Development Department. The request of the petitioner was
considered and the petitioner was deputed to the said department
as the Secretary. The period of deputation was not fixed,
according to the petitioner. The petitioner as such was not
deputed for a fixed tenure. It is submitted by the learned advocate
for the petitioner that if the deputation period is not fixed, the
same is normally four years. The petitioner had already
overstayed the period of deputation. Much emphasis is placed by
the learned advocate for the petitioner on the ground that the
procedure has not been followed while repatriating the petitioner
and that the respondents 5 to 9, qua the members of the Civil
Services Board, could not have, without the concurrence and
assent of the Hon'ble Chief Minister, repatriated the petitioner.
7. We find this submission of the learned advocate for the
petitioner more than difficult to comprehend. It would appear
that the petitioner, on or about 25th May 2017 and 21st
September 2017 made request to the Chief Secretary,
Government of Maharashtra for repatriation. The petitioner
sought transfer from the present post, on account of completion of
six years and requested either to shift his service at the places
sought by him or repatriate him to the parent department. On one
hand the petitioner on his own volition seeks repatriation to his
parent department and upon being repatriated to his parent
department, now raises a challenge that he could not have been
repatriated by the Civil Services Board on the ground that the
assent of the Hon'ble Chief Minister was not obtained.
8. The order of repatriation was not detrimental to the
petitioner or against the willingness of the petitioner. The
petitioner cannot be allowed to approbate and reprobate. On one
hand, on two occasions, the petitioner made request for
repatriation and on the other hand, he is challenging the
23-WP.126.2019
repatriation for which he himself had already made the request.
Assuming that there is some infraction in the procedure, the
same would not give a cause to the petitioner to seek inquiry
against the members of the Civil Services Board for the simple
reason that it is the petitioner who had sought for repatriation
not once, but twice and his request was acceded to. Upon joining
the repatriated post, it will not be open for the petitioner to
challenge the same on the ground that while repatriating him, the
procedure was not adhered to. The petitioner cannot blow hot and
cold at the same time.
9. In light of the above, we are not inclined to entertain the
writ petition. The same is dismissed. No costs.
(SANDEEP V. MARNE, J.) (ACTING CHIEF JUSTICE)
