1997 Supreme(Bom) 401

IN THE HIGH COURT OF BOMBAY
A.V. Savant C, JJ.
Yogesh Pratap Singh . Petitioner.
Versus
Government of Maharashtra through the Additional
Chief Secretary (Home), others. Respondents.
Writ Petition No. 2621 of 1997, decided on 31-7-97.
Advocates appeared :
Yogesh Pratap Singh in-person.
C.J. Sawant, A.G. with V.V. Pai, for respondents Nos. 1 to 3.
Dr. B.R. Naik with Prashant Naik, for respondent No.4.
V.K. Rambhadran, for respondent No.5.
M.I. Sethna, S.A. with V.S. Masurkar, for respondents Nos. 7 8.

Headnote:Bombay Police Act, 1951

       Sections 4 and 6-See Constitution of India, Articles 166, 14, 16 and 226.

       Bombay Police Manual

       Chapter I, para 30-See Constitution of India, Articles 166, 14, 16 and 226.

       Central Administrative Tribunals Rules of Practice, 1993

       Rule 154(c), Appendix VII, Item 3 and VIII, Item I-See Constitution of India, Articles 166, 14, 16 and 226.

       Rule 154(c), Appendix VII, Item 3 and VIII, Item (1)-Dispute of petitioner-Petition of posting and transfer-Jurisdiction under Appendix VIII, Rule 154-Disputes lies in Appendix VIII, Rule 154- Transfer case to be heard by single bench and not division bench.

       Order I, Rule 3-See-Constitution of India, Articles 116, 14, 16 and 226.

       Articles 166, 14, 16 and 226-Both husband, and wife Government officers-Petitioner transferred-Challenge to transfer-Ground-As per guidelines both should be posted at one place--Held-Scope of guidelines is limited-It is only desirable not compulsory-Before marrying an officer this factor must be kept in mind-Hardships are to be faced.-In the case of All India Services (like the case below) the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the others posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the postings of both one place without sacrifice of the requirements of the administration and needs of other employees.

       Articles 166, 14, 16 and 226-Bombay Police Act, 1951, Sections 4 and 6-Bombay Police Manual Chapter I, Para 30-Challenge to transfer-Ground-Instead of D.G.P. joint secretary of Home Dept. proposing it-Held-No violation of Sections 4 and 6 of Bombay Police Act, as any officer from D.G.P. and above can initiate the approval.-It is relevant to note that under Section 4 of the Bombay Police Act, 1951, the Superintendence of the Police Force throughout the State vests in and is exercisable by the State Government and the Secretary Government in Horne Department, whether designated as Secretary, Horne Secretary, Special Secretary, Additional Chief Secretary or otherwise in charge of Law and Order division of the Home Department shall exercise control, direction and supervision over the entire police force. Section 6 of the Bombay Police Act, deals with the Director General of Police, who has to be appointed, subject to the provisions of Section 4, by the State Government, who shall exercise such powers and perform such functions and duties and have such responsibilities and authorities, as may be provided by or under the said Act or orders made by the State Government.

       Articles 166, 14, 16 and 226-Central Administrative Tribunals Rules of Practice, 1993, Rule 154(c)-Apps. VII, Item 3, VII, Item 1-Transfer matter-CA.T. deciding by only one member-Jurisdiction-Contention-Such matters should be dealt with by two members-Held-Under Rule 154(1) transfer matters can be decided by a single member-Unsuccessful party is denied challenging decision by single member.-Dealing with the competence of a single member to decide the matter relating to promotion, the Supreme Court held that the question is not of initial lack of jurisdiction. Since the matter was decided after considering the case on merits, the Supreme Court held that it was no longer open to the unsuccessful party to plead that the single member had no jurisdiction to decide the issue of that the order suffer from initial lack of jurisdiction. It may incidentally be mentioned here that no objection was raised before the learned single member when he heard the petitioner on merits and decided the matter on 29th Mary, 1997. In view of the above, Court find no substance in this contention of counsel.

       Articles 166, 14, 16 and 226-Evidence Act, 1872, Section 101-Code of Civil Procedure, 1908, Order I, Rule 3-Rules of Business Framed by Government of Maharashtra, Rule 15(i)(ix)-Transfer order-mala fide-Challenged-Transfer being proposal by joint secretary and approved by Dy. Chief Minister-Still none is made party-Held-It is the duty of allegating party to prove the mala fide-Allegations have no merit-The High Court took the view that though there was no direct evidence it could reasonably be inferred that the tampering was done at the behest of the Chief Minister. With respect, Court does not think that the ratio of the decision in Nilagekar Patils case has any application to the facts of the case before Court when no allegations of mala fides are made against Smt. S who initiated the proposal and against the Chief Minister who accorded the final approval to the transfer.

       Articles 166, 226 and 311-Husband and wife serving in Government Department-Application of Transfer-Administrative ground reason for the transfer-Petitioner does not possess any right to claim to be posted in same place-Mala fides is the only basis to challange the transfer.- There is no right in a Government servant to insist that he and his wife also in a Government servant Ice should be posted at one and the same place.

       They may be posted ordinarily at one place but either of them may be transferred to other places for administrative purposes. In such case of transfer one has to necessarily find out whether the order is vitiated either by mala fides or by breach of provisions of law or even rules it is relevant to bear in mind that in accordance with rules of business framed by State Government on exercise of its power under Article 166 of the Constitution, the proposal for appointment, posting and transfer of All India and Class I Service and such other officers as may be specified from time to time by special general order are matters which may be submitted to Chief Minister before issue of the orders. In the instant case allegations were not made against the Chief Minister and Joint Secretary who initiated the proposal for transfer but were made against the Chief Secretary and other persons who were not concerned with the matter" and hence the order of transfer could not be interfered with the High Court.

       Section 101-See Constitution of India, Articles 166, 14, 16 and 226.