Bombay High Court
The State Of Maharashtra Through Its ... vs Sonyabapu Bansi Deshmukh And Ors on 7 February, 2025
Author: A.S. Chandurkar
Bench: A. S. Chandurkar
2025:BHC-AS:6166-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BHARAT
CIVIL APPELLATE JURISDICTION
DASHARATH
PANDIT
Digitally signed
by BHARAT
WRIT PETITION NO. 11740 0F 2024
DASHARATH
PANDIT
Date: 2025.02.07
17:37:32 +0530
THE STATE OF MAHARASHTRA
THROUGH ITS
ADDITIONAL CHIEF SECRETARY
HOME DEPARTMENT & OTHERS ..PETITIONERS
VS
PRAMILA VITTHAL KAWALE & OTHERS ..RESPONDENTS
WITH
INTERIM APPLICATION NO.15200 OF 2024
IN
WRIT PETITION NO.11740 OF 2024
SAMEER SHANTARAM WAGH ..APPLICANT
IN THE MATTER BETWEEN
THE STATE OF MAHARASHTRA
THROUGH ITS
ADDITIONAL CHIEF SECRETARY
HOME DEPARTMENT AND OTHERS ....PETITIONERS.
V/s
SMT. PRAMILA VITHAL KAWALE
AND OTHERS ....RESPONDENTS
WITH
WRIT PETITION NO.18051 OF 2024
THE STATE OF MAHARASHTRA
THROUGH ITS
ADDITIONAL CHIEF SECRETARY
HOME DEPARTMENT & OTHERS ..PETITIONERS
VS.
SONYABAPU BANSI DESHMUKH
& OTHERS ..RESPONDENTS
1/21
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WITH
INTERIM APPLICATION NO.15581 OF 2024
IN
WRIT PETITION NO.18051 OF 2024
SUNIL BABURAO MANE ..APPLICANT
IN THE MATTER BETWEEN
THE STATE OF MAHARASHTRA
THROUGH ITS
ADDITIONAL CHIEF SECRETARY
HOME DEPARTMENT & OTHERS ...PETITIONERS
V/S
SONYABAPU BANSI DESHMUKH
& OTHERS ..RESPONDENTS
WITH
WRIT PETITION NO. 17630 OF 2024
THE STATE OF MAHARASHTRA
THROUGH ITS
ADDITIONAL CHIEF SECRETARY
HOME DEPARTMENT & OTHERS ..PETITIONERS
VS.
KISHOR PARASHRAM KHANDVI & OTHERS ..RESPONDENTS
WITH
WRIT PETITION NO. 17629 OF 2024
THE STATE OF MAHARASHTRA
THROUGH ITS
ADDITIONAL CHIEF SECRETARY
HOME DEPARTMENT & OTHERS ..PETITIONERS
VS.
VIKAS VISHWANATH ADAGALE & OTHERS ..RESPONDENTS
WITH
WRIT PETITION NO. 17628 OF 2024
THE STATE OF MAHARASHTRA
THROUGH ITS
ADDITIONAL CHIEF SECRETARY
HOME DEPARTMENT & OTHERS ..PETITIONERS
VS.
2/21
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HANMANT NIGAPPA KANKADAKI & OTHERS ..RESPONDENTS
------------
Dr. Birendra B. Saraf Advocate General a/w Ms. Neha S Bhide,
Government Pleader & Mrs. Reena A. Salunkhe, Assistant
Government Pleader for the Petitioners in all the above writ
petitions.
Mr. Prashant Katneshwarkar, Senior Advocate i/b. Mr.Prashant
M.Nagargoje, Advocate for the respondent no.1 in Writ Petition
No.11740 of 2024.
Mr. Mihir Desai, Senior Advocate i/b. Mr. Prashant M. Nagargoje
a/w Mr.V.B.Narke & Ms. Sanskriti Yagnik, Advocates for the
Applicant-Intervener in Interim Application No. 15200 of 2024 &
for the respondents in Writ Petition No.18051 of 2024.
Mr. Prashant M. Nagargoje a/w Mr. V. B. Narke, Advocates for the
respondent in Writ Petition No.17630 of 2024.
Mr. Prashant M. Nagargoje a/w Mr. V.B.Narke for the respondent
no. 1 in Writ Petition No.17628 of 2024 & for the respondent nos.1
to 8 in Writ Petition No.17629 of 2024.
Mr. Bhupesh G.Singh, Law Officer present.
Mr. Sidharth Kamble, Law Officer to I.G.P. Kolhapur present.
------------
CORAM : A. S. CHANDURKAR & RAJESH S. PATIL, JJ.
Date on which the arguments were heard : 17/12/2024
Date on which the Judgment is pronounced : 07/02/2025
JUDGMENT:
(Per A.S. Chandurkar, J.)
1] This batch of writ petitions raises challenge to the common
judgment of the Maharashtra Administrative Tribunal (Tribunal,
for short) dated 19/07/2024 whereby the learned Member of the
Tribunal decided various Original Applications that had been
preferred by police personnel in the rank of Police Inspector,
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Assistant Police Inspector and Police Sub-Inspector who had been
transferred by the order dated 26/02/2024 in view of the
directives issued by the Election Commission of India (ECI, for
short). The learned Member of the Tribunal was of the view that
the transfer orders that had been issued in view of directives of
the ECI would lose their efficacy at the conclusion of the general
elections and hence the transfers effected on that basis were in
the nature of deemed deputation of the concerned police personnel
during that period.
2] On 21/12/2023, the ECI issued communication to the Chief
Secretary of all States and Union Territories as well as respective
Chief Electoral Officers stating therein that no officer connected
directly with elections should be permitted to continue in the
current revenue district of posting if he/she was posted in her/her
home district and if he/she had completed three years in that
district during the last four years or would be completing three
years on/or before 30/06/2024. The Additional Director General
of Police, Maharashtra State in the light of aforesaid
communication dated 21/1/2023 issued by the ECI and
communication dated 22/02/2024 issued by the Chief Election
Officer, Maharashtra State, issued transfer orders to about 73
police personnel in exercise of powers conferred under Section 22-
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N(2) of the Maharashtra Police Act, 1951 (for short, Act of 1951).
It was stated that these transfers were effected in public interest
as well as on account of administrative exigencies. Some of the
transferees being aggrieved by the order of transfer approached
the Tribunal and filed separate Original Applications. The learned
Member of the Tribunal after hearing the concerned parties held
that the transfer orders were perishable in nature and that they
did not have lasting effect at the conclusion of the elections by the
ECI or the State Election Commission. The State of Maharashtra
through its Home Department being aggrieved by the said
common judgment has preferred these writ petitions.
3] Dr. Birendra Saraf, learned Advocate General in support of
the challenge as raised to the impugned judgment submitted that
the learned Member of the Tribunal committed an error in holding
that the orders of transfer issued pursuant to the directives issued
by the State Election Commission on 21/12/2023 were perishable
in nature and that they were effective only till the time election
process was ongoing. The orders of transfer having been issued in
exercise of the powers conferred by Section 22-N of the Act of
1951 did not result in any deemed deputation of the transferees
as held by the learned Member. He referred to the directives
issued by ECI dated 21/12/2023 and submitted that in
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accordance therewith and with a view to comply with such
directives issued by the ECI in exercise of the authority conferred
by Article 324 of the Constitution of India, the transfer orders had
been effected. The issues and grounds of challenge raised by the
transferees had been considered in detail by the Division Bench
in Mahendra Eknath Mali vs. State of Maharashtra, 2018 (5)
Mh.L.J. 307. It had been held in clear terms that there was no
question of any deputation in view of such transfer during the
period when the election process was ongoing. The Division
Bench had considered the judgment of the Karnataka High Court
in Election Commission of India and Others vs. State of Karnataka
and Others, 2013 CJ (Kar) 595 and had distinguished this aspect.
Despite aforesaid, the learned Member of the Tribunal did not
follow the ratio of the said judgment in Mahendra Eknath Mali
(supra) and instead sought to rely upon the judgment of the
Karnataka High Court referred to above. There was no question of
applicability of Section 28A of the Representation of the People
Act, 1951 and the orders of transfer could not have been
interfered with on that count. The Home Department was within
its jurisdiction in effecting transfers and it was not stated therein
that transfers were to remain effective only during the period when
the election process was ongoing. The power conferred by Section
22-N of the Act of 1951 had been exercised in public interest and
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good faith pursuant to the directives issued by the ECI. As a
result of the impugned judgment the entire exercise undertaken
by the Home Department was set aside for reasons that were not
sustainable in law. To substantiate his submissions the learned
Advocate General also placed reliance upon the decisions in Babu
Barkya Thakur vs. State of Bombay and Others, AIR 1960 SC
1203, Regina vs. Kelly (Edward) [1999] 2 WLR 1100, Ranji Kumar
vs. Suresh Kumar Malhotra and Another, (2003) 5 SCC 315 and
State of Maharashtra and Another vs. Anuradha Subhash Dhumal,
2022 (2) Mah LJ 669. It was thus submitted that the common
judgment deciding various Original Applications was liable to be
set aside and the transfer orders dated 26/02/2024 ought to be
implemented in its true letter and spirit.
4] Mr. Prashant Katneshwarkar, learned Senior Advocate
appearing for respondent no.1 in Writ Petition No.11740 of 2024
opposed the said submissions. Supporting the impugned
judgment of the Tribunal, it was submitted that Article 324 of the
Constitution of India conferred power of superintendence,
directions and control of the election process upon the ECI. There
was no power conferred on the State Government to effect
transfers on the ground that the general elections were to be
conducted. Referring to the provisions of Article 328 of the
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Constitution of India, it was submitted that the impugned transfer
orders had been effected in exercise of power conferred by Section
22-N of the Act of 1951. Inviting attention to the order passed by
the Co-ordinate Bench in Writ Petition No.9499 of 2016 (Smt. Jyoti
Hanuman Patil vs. The Principal Secretary (Revenue) and Others)
with connected writ petitions dated 07/10/2016, it was submitted
that though the State Government had been directed to frame a
policy in the matter of transfer in such situations, no such policy
had been framed till date. Section 22-N of the Act of 1951
prescribes duration of the normal tenure of posting of police
personnel. Though it was permissible to effect a transfer in an
exceptional case in public interest as well as on account of
administrative exigencies, the common transfer order dated
26/02/2024 did not indicate existence of any exceptional case so
as to curtail the normal tenure of posting. Except for stating that
transfers were being effected in view of the directives issued by the
ECI on 21/12/2023, the Police Establishment Board (PEB, for
short) merely referred to the aforesaid directives and
recommended the said transfers. The learned Member of the
Tribunal rightly placed reliance upon the judgment of the
Karnataka High Court in Election Commission of India and Others
(supra). The ratio of the decision in Mahendra Eknath Mali
(supra) was not applicable to the case in hand. Reference was
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made to the provisions of Section 28-A of the Representation of
People Act, 1951 and it was submitted that the transfer as effected
could operate only during the period when the of elections were in
progress. At the conclusion of such elections, the police personnel
were entitled to be brought back to their original place of posting.
The concept of deemed deputation was rightly applied by the
learned Member of the Tribunal. To substantiate his contentions,
the learned Senior Advocate placed reliance on the decisions in
Dattatraya R. Karale vs. Shekhar Balasaheb Genbhau and Others,
2024 SCC OnLine Bom 868, Ankur Prabhakar Patil vs. State of
Maharashtra and Others, 2024 SCC OnLine Bom 2890, Sachin
Ashok Patil vs. State of Maharashtra and Others, AIR Online 2021
Bom 3565, Santosh Machhindra Thite vs. State of Maharashtra
and others, 2019 (4) Mh.L.J. 547, the decision in D.G.P.
Maharashtra and others vs. Dr. Nitin s/o Bhaskarao Kashikar and
others decided at the Aurangabad Bench in Writ Petition no.11574
of 2024 on 25/10/2024, The State of Maharashtra through its
Secretary and Another vs. Hareshwar Raghunath Ghuge and others
delivered at the Aurangabad Bench in Writ Petition No.8316 of
2024 on 07/08/2024, Smt. Jyoti Hanuman Patil vs. The Principal
Secretary (Revenue) and others delivered at the Principal Seat in
Writ Petition No.9499 of 2016 with connected writ petitions on
07/12/2016, T.S.R. Subramanian and others v. Union of India and
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others, (2013) 15 SCC 732, Ramadhar Pandey vs. State of U.P. and
others, 1993 AIR SCW 2581, Election Commission of India vs. State
Bank of India Staff Association Local Head Office Unit, Patna and
others, 1995 Supp (2) SCC 13, A.C. Jose vs. Sivan Pillai and
Others, (1984) 2 SCC 656, judgment in Anurag Gupta vs. The
Election Commission of India and others delivered by the High
Court of Jharkhand at Ranchi in W.P.(S) No.1714 of 2019 on
03/05/2019, Election Commission of India and Another vs. The
State of Karnataka and Others delivered by the High Court of
Karnataka at Bangalore in W.P. Nos. 17123-124 of 2013, 17295-
297 of 2013 & 17298-299 of 2013 (S-CAT) It was thus submitted
that the impugned orders of transfer were rightly interfered with
by the Tribunal and hence there was no merit in the challenge
raised to the common judgment.
5] Mr. Mihir Desai, the learned Senior Advocate appearing for
the respondents in Writ Petition No.18051 of 2024 also opposed
the submissions of the learned Advocate General. He submitted
that in terms of the Circular dated 21/12/2023 it was only if a
public servant was directly connected with the conduct of
elections that he was liable to be shifted from the earlier place.
Since the conduct of elections was notwithstanding the nature of
such transfers, it was rightly held that same were effective till the
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time election process was ongoing. While the period during which
the election process was ongoing, the same could be treated to be
in public interest. However, on completion of the elections, the
public interest of keeping the police personnel away from their
place of posting would not arise. It was then submitted that since
the various vacant posts were now available where the
respondents could be accommodated, that exercise could be
directed to be undertaken. As a common transfer order had been
issued only in view of the directives issued by the ECI and with
the completion of the election process, the purpose behind such
transfer had been served. There was no impediment in sending
back the respondents at the respective places of their initial
posting. The concept of deemed deputation during the period
when the election process was in operation being reasonable
ought to be upheld. He therefore submitted that there was no
case made out to interfere in exercise of writ jurisdiction. The writ
petitions were therefore liable to be dismissed.
6] We have heard the learned counsel for the parties at length
and with their assistance we have perused the documents on
record. We have thereafter given due consideration to the
respective contentions. In the Original Applications preferred by
the various police personnel, mid-term transfer orders issued by
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the Home Department in view of the directives issued by the ECI
were under challenge. The Home Department has sought to
justify these mid-term transfers by relying upon the provisions of
Section 22-N(2) of the Act of 1951 to urge that they had been
effected in public interest as well as in view of administrative
exigencies. On the other hand, the police personnel challenging
the orders of transfer contend that there was no public interest
involved for curtailing the normal tenure of posting assured by
Section 22-N(2) and assuming that the orders of transfer were
issued pursuant to the directives of the ECI, the public interest
came to an end at the conclusion of the elections. Hence the
purpose of the transfer orders had been served. The learned
Member of the Tribunal has accepted the contention raised by the
police personnel that the mid-term transfer orders did not have
lasting effect and that the same should be treated as worked out
at the conclusion of the elections. He further held that at the
conclusion of the elections, the "deemed deputation" with the ECI
would also come to an end and that the transferred police
personnel were entitled to be reverted back to their respective
establishments. To arrive at this conclusion, the learned Member
placed heavy reliance on the judgment of the Karnataka High
Court in Election Commission of India and Others (supra).
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7] It was urged by the learned Advocate General that a Co-
ordinate Bench of this Court in Mahendra Eknath Mali (supra) had
considered a somewhat similar challenge to a transfer order
issued in view of the directives of the State Election Commission.
After distinguishing the judgment of the Karnataka High Court
referred to above, this Court had negatived the contention that at
the conclusion of the general elections, the deputation with the
ECI would come to an end thus giving a right to the police
personnel to be reverted back to their respective establishments.
It would therefore be necessary to consider the judgment in
Mahendra Eknath Mali (supra). The petitioner therein was serving
on the post of Tahasildar at the relevant time when the State
Election Commission issued directions on 19/01/2016 to the
State Government in the matter of conduct of free and fair
elections. The said elections were to be held during the period
from November, 2016 till February, 2017. On the basis of the
aforesaid directives, the said petitioner came to be transferred. In
proceedings filed for challenging the order of transfer, the Tribunal
was of the view that in effect, the orders of transfer had been
issued in view of ensuing elections and that at the end of such
elections the concerned officers were required to be brought back
to their original position. In a challenge raised to the order passed
by the Tribunal, the State Government sought to justify its action
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by relying upon the provisions of Section 4(4) and 4(5) of the
Maharashtra Government Servants Regulations of Transfers and
Prevention of Delay in Discharge of Official Duties Act, 2005. It
was held that a transfer order issued under the instructions of the
ECI could be categorised as a mid-transfer for a special reason
within the permissible parameters under Section 4(4) and 4(5) of
the Act of 2005. The Court was satisfied that the order of
transfer had been issued as a result of administrative exigencies
and on account of special circumstances, namely the directives
issued by the ECI. It found that the procedure prescribed under
the Act of 2005 had been duly followed.
A contention was raised on behalf of the employee that as
the order of transfer was issued pursuant to the directions of the
State Election Commission, it ought to be construed as an order
on deputation. In that regard, reliance was placed on the decision
in Election Commission of India and Others (supra) of the
Karnataka High Court. The Division Bench held that the order of
transfer did not indicate that it was to remain in operation only till
the completion of the election process. The proposal for transfer
had been scrutinized by the Civil Services Board before making
such recommendation for transfer and that the procedure
prescribed under the Act of 2005 had been followed. It was
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therefore held that such an order of transfer could not be treated
as amounting to placing the employee on deputation that was to
operate only till the conclusion of the elections. On these counts,
the order passed by the Tribunal was set aside and the transfer
order was upheld. The judgment of the Karnataka High Court was
distinguished by the Division Bench.
8] In our view, the contention raised by the police personnel in
the present proceedings that the orders of transfer having been
issued in view of the directives of the ECI on account of general
elections and at the conclusion of such elections the deemed
deputation of such police personnel ought to come to an end
cannot be accepted. A similar contention raised by relying upon
the decision of the Karnataka High Court in Election Commission
of India and Others (supra) has been repelled in Mahendra Eknath
Mali (supra). We are in agreement with the view taken by the Co-
ordinate Bench in Mahendra Eknath Mali (supra) and are thus
inclined to follow the same. The decision in Mahendra Eknath
Mali (supra) was brought to the notice of the learned Member
which finds reference in para 17 of the impugned order. However,
without considering the ratio of the said decision, the learned
Member sought to follow the ratio of the judgment of the
Karnataka High Court in Election Commission of India and Others
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(supra). Since the judgment of the Karnataka High Court was
considered by the Division Bench in Mahendra Eknath Mali
(supra) and was distinguished, the decision in Mahendra Eknathi
Mali (supra) was binding on the learned Member of the Tribunal.
The learned Member therefore ought to have applied the ratio of
the said decision to the facts of the present case. Having failed to
do so, the learned Member has taken a view which is contrary to
the ratio of the decision of this Court in Mahendra Eknath Mali
(supra). It is true that the provisions of Section 4(4) and 4(5) of
the Act of 2005 were under consideration in the said decision. In
our view, the same would not make much difference as the said
provisions provide an exception to the normal tenure of a
government servant and permit a mid-term transfer being effected
in exceptional circumstances and for administrative exigencies. A
similar power has been conferred by Section 22-N(2) of the Act of
1951 which came to be exercised by the Home Department.
Moreover, as required under the Act of 2005 the matter in the
present case was referred to the PEB. We are therefore of the
considered opinion that the learned Member of the Tribunal
having failed to apply the ratio of the decision in Mahendra Eknath
Mali (supra) to the facts of the present proceedings has proceeded
to incorrectly hold that the orders of transfer were in the nature
of "deemed deputation" and that at the end of the elections, the
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transferred police personnel were entitled to be reverted to their
initial place of posting. For this reason, a case for interference in
exercise of extraordinary jurisdiction has been made out.
9] Mr. Prashant Katneshwarkar, learned Senior Advocate
appearing for the respondent no.1 in Writ Petition No. 11740 of
2024 relied upon the decision in Dattatraya R. Karale (supra) to
urge that the impugned order did not satisfy the requirement of
Section 22-N(2) of the Act of 1951. Referring to the minutes of the
meeting of the PEB dated 22/02/2024, he submitted that except
by referring to the Circulars dated 21/12/2023 issued by the ECI
and 22/04/2024 issued by the State Election Commission, the
orders of transfer were recommended. It was urged that the said
minutes of the PEB did not reflect due consideration of relevant
aspects while issuing the orders of transfer. In Dattatraya R.
Karale (supra), the Division Bench has held that while subjecting
an officer to mid-term transfer in exercise of power conferred by
Section 22-N(2) of the Act of 1951 there ought to be atleast one
reason of the nature referred to in the proviso to sub-section (1) or
sub-section (2) of Section 22-N of the Act of 1951. It was further
held that in view of Article 324 of the Constitution of India, the
ECI had been vested with plenary powers of superintendence,
direction and control of elections. The Circular dated 21/12/2023
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was required to be seen in this perspective and directives issued
by the ECI were required to be mandatorily followed by the State
Government. In the said case, it was found that the requirements
contained in clause 6(vi) of the Circular dated 21/12/2023 issued
by ECI had not been satisfied and hence it was held that the
transfer of respondent no.1 therein was not in accordance with
the provisions of Section 22-N(2) of the Act of 1951.
10] Perusal of the minutes of the PEB dated 25/02/2024
indicates that reference has been made to the Circular dated
21/12/2023 issued by the ECI as well as the communication
dated 22/02/2024 issued by the State Election Commission. On
that basis requisite information from the concerned superior
police authorities was called. After considering the Circular dated
21/12/2023 and communication dated 22/02/2024 referred to
above, the power conferred by Section 22-N(2) of the Act of 1951
was invoked and seventy three officers came to be transferred.
Since the transfers in question have been effected only in view of
the directives of the ECI, it cannot be said that there is absence of
any public interest or absence of any exceptional case in
transferring the concerned officers. The Circular dated
21/12/2023 issued by the ECI being binding on the State
Government, it cannot be said that the PEB by transferring the
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concerned officers after taking recourse to the said Circular was
not entitled to do so. Once it is found that the directives of the
ECI were binding on the State Government, steps taken to comply
with the same in public interest would be sufficient to invoke the
power conferred by Section 22-N(2) of the Act of 1951 and effect
transfers accordingly. On that count we do not find that any fault
can be found with the orders of transfer.
11] Reference was made to the various decisions of this Court
to urge that the impugned orders of transfer did not satisfy
requirements of Section 22-N(2) of the Act of 1951. We however
are satisfied from the material on record that the PEB has acted in
accordance with the Circular dated 21/12/2023 issued by the ECI
and consequential communication. The Circular dated
21/12/2023 issued by the ECI being binding on the State
Government, it would be an exceptional circumstance to invoke
the power conferred by Section 22-N(2) of the Act of 1951 for
effecting a mid-term transfer.
12] We thus find that the learned Member of the Tribunal was
not justified in holding that the transfer orders issued to the
concerned police personnel were to remain effective only till the
time the elections were held. The orders of transfer do not
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indicate that they were to remain in effect only till such time the
elections were to conclude. Hence the orders of transfer have to
be treated as orders of mid-term transfer not limited for any
particular period.
13] We are however mindful of the contention that presently
there are some vacancies available at certain Stations on which
the respondents seek placement. It would be open for the Home
Department to fill-in such vacancies by following the prescribed
procedure. While doing so it would also be open for the Home
Department to take into consideration any request made by the
concerned police officers to be considered for being posted at such
vacant post.
14] Accordingly, for the aforesaid reasons, the following order is
passed:-
(i) The order dated 19/07/2024 passed by
the learned Member of the Maharashtra
Administrative Tribunal is quashed and set
aside. The Original Applications raising
challenge to the transfer orders stand
dismissed.
(ii) It would however be open for the Home
Department to fill-in any existing vacancies
in accordance with law after considering any
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request/representation made in that regard.
(iii) Rule in all the above writ petitions is
made absolute. Parties to bear their own
costs. The Interim Applications also stand
disposed of.
[ RAJESH S. PATIL, J. ] [ A.S. CHANDURKAR, J. ]
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