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1999 Supreme(Bom) 293
IN THE HIGH COURT OF BOMBAY
Y.K. Sabharwal C.J. S. Radhakrishnan, J.
Sunanda Das others ..... Petitioners.
Versus
State of Maharashtra others ..... Respondents.
Writ Petition No. 1395, 1397, 1398 and 1416 of 1999, decided on 13-4-1999.
Advocates appeared :
I.M. Chagla with J. Dwarkadas, S. Rustomjee, V. Joglekar, G. Patel, V. Diwan, A.V. Vazirani, K. Kharade and L. Pereira i/by Hariani Co. in W.P. 1395 of 1999, for the petitioners.
C.J. Sawant, Advocate General with R.D. Rane, A.G.P. and V.V. da Gama, A.G.P., in W.P. 1395 and 1397 of 1999, for the State and in W.P. 1397 and 1398 of 1999, for respondents 1 2.
R.A. Kapadia with P. Palkhiwala i/by Thakore Jariwala Associates, in W.P. 1395 of 1999, for respondent No. 2.
A.V. Anturkar, in W.P. 1397 and 1398 of 1999, for petitioners.
D.Y. Chandrachud, A.S.G. with R.G. Ketkar in W.P. 1397 and 1398 of 1999, for respondent No. 4 and in W.P. 1416 of 1999, for respondents 4 5.
V.P. Sawant in W.P. 1416 of 1999, for petitioner.
S. Venkiteswaran, S.A. with V.K. Ramabhadran in W.P. 1416 of 1999, for re- spondent No. 2 in W.P. 1416 of 1999.
Headnote:Article 226-Public interest litigation-Maintainability- Transfer order in respect of Municipal Commissioner doing his duty in taking strict action and ensuring demolition of unauthorised constructions in Pune municipal area-Every violation of illegality on part of Government cannot be made subject-matter of public interest litigation-In can be interfered only when impugned actions shake confidence of community-Such litigation not to be for private gain or personal profit or political motivation.-Any public spirited Advocate acting bona fide and not for private gain or personal profit or political motivation or any other oblique consideration, may file a writ petition in the High Court challenging the Unconstitutional or illegal action of the Government or any other constitutional authority prejudicially affecting the administration of justice and in such writ petition he may claim relief not for himself personally but for those who are the direct victims of such unconstitutional or illegal action. Because granting such relief to them would repair the injury caused to administration of justice. What is required is that the person for whom the relief is sought must be ready to accept it.
It deserves to the emphasised that, if the transfer was made on account of an officer doing his duty in taking strict action and ensuring demolition of unauthorised structures, then, it deserves to be severely condemned and quashed. An officer doing his duty cannot be asked to pack and go elsewhere particularly when it is known that in cities like Pune, there are rampant, unauthorised constructions. On the other hand, if the transfer is for administrative reasons, pending the enquiry, this Court would not interfere with such an order of transfer in these petitions even assuming there was violation of any guidelines. It cannot be doubted that it is not a routine transfer. If required in exigencies of service, an officer can be transferred within hours of posting as well. Transfer and posting is the right of an employer. Every violation of illegality cannot be made subject-matter of a public interest litigation. In public interest litigation, the Court would interfere when impugned action shakes the confidence of the community.
2.Some members of legal fraternity, some residents of Pune including some retired I.A.S. officers, one Corporator of Pune Municipal Corporation and a Citizens' forum have filed these petitions in public interest. The prayer in all the petitions is similar. It is to quash the Transfer Order dated 13th March, 1999, in respect of Arun Bhatia from the Post of Municipal Commissioner, Pune. The transfer order was made barely 6 days after Bhatia had been appointed to the said post. According to the petitioners, transfer of Bhatia is arbitrary, capricious and manifestly against public interest. It has been pointed out in the petitions that the City of Pune is in the need of precisely such stringent action as has been taken by Bhatia to prevent encroachments and rampant unauthorised developments, which had hitherto been largely ignored, resulting in widespread damage to the city and prejudice to the residents and citizens. The claim of the petitioners is that the transfer of an effective, honest and conscientious officers, if allowed, will lead to a resurgence of illegality and will strengthen the influence of violators of law. Besides, it has the effect of destroying and undermining the confidence of the public in public officials, the Government and the bureaucracy. Bhatia is stated to be an upright officer belonging to 1967 batch of Indian Administrative Service and stated to have served in various capacities as the Collector of Satara, Dhule, Raigarh and Mumbai, besides the Commissioner of Food and Drugs. Some instances have been given in these petitions, where, while working as officer, he unearthed corruption and other illegal practices. He is also alleged to have been transferred from the post of Divisional Commissioner, because of his sustained action against corruption amongst Village Talathis regarding manipulation of land records. We are, however, not concerned with the reasons of Bhatia's transfer from the post of Divisional Commissioner and his posting on 6th March, 1999, as Municipal Commissioner, Pune. What we are concerned in these petitions is whether the transfer of Bhatia within a span of 6 days is vindictive on account of mass demolition which had taken place on 10th March, 1999, despite his reputation of an upright and honest officer. Whether the transfer in question is by way of punishment for doing his duty or it is for some other reason is the point in issue.
3.According to the Government, there is no nexus between any act or omission of Bhatia in rendering his services as Pune Municipal Commissioner or Divisional Commissioner of Pune. Affidavits-in-reply to these petitions have been filed by the Chief Minister of the State, Chief Secretary as also Principal Secretary (Personnel), General Administrative Department, Government of Maharashtra. The sum and substance of all these affidavits is that the reason for transfer of Bhatia from the post of Pune Municipal Commissioner was an enquiry ordered/contemplated against him for leakage to press of correspondence between Bhatia and Chief Secretary. It is claimed that the prima facie view that Bhatia was responsible for such leakage and had thus violated service discipline and Conduct Rules had alone nexus with his transfer. In short, it is claimed that demolition drive had no correlation with Bhatia's transfer. It may be noticed that the Government has not disputed that the officer is honest and upright. It is correct that an officer being honest and upright does not give him any licence to violate the service discipline and conduct Rules. Bhatia is stated to be guilty of serious misconduct by leakage of confidential correspondence to press. There is also a suggestion of use of intemperate and unbecoming language by Bhatia, as also of criticism by him of the policies of the Government while in service. It is claimed that, though each officer has a right to express opinion on the file or through correspondenc
