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High Court of Judicature at Bombay
A.M. KHANWILKAR & V.K. TAHILRAMANI, JJ.
Sanjeev Bhagwanrao Kokil
Versus
The State of Maharashtra & Others
Writ Petition (Lodging) No.1677 of 2012
Decided on : 09-10-2012
Endorsement "proposal approved" made by superior Authority Chief Minister, is not non-compliance of requirement of recording reasons in writing under Section 4(4) and 4(5) of Act. - The last requirement under these provisions, is that, the transfer order may be passed only with the prior approval of the next higher authority or with prior permission of the immediately preceding Competent Transferring Authority (CTA) mentioned in the table of Section 6, as the case may be. In the present case, it is indisputable that the prior approval of the concerned Authority has been obtained before issuing the transfer order against the petitioner.
A prior i, it would necessarily follow that there is no infraction either of Section 4(4) proviso (ii) or Section 4(5) of the Act, in any manner. On this finding, enquiry into other issues will be w holly unnecessary and the challenge to the impugned transfer order must fail.
Maharashtra Government Servants Regulation of Transfer and Prevention of Delay in Discharge of Official Duties Act, 2005 - Section 4 - Transfer.
Issuance of fresh corrected transfer order, cancelling earlier wrong transfer order, is not two transfer orders issued against petitioner in quick succession. - The letter dated 7th February, 2011, mentions that the State Government has approved the proposal to transfer the petitioner because of complaints received against him whilst working in M.R.A. Marg Police Station. It further states that the communication of the Government dated 24th January, 2011 incorrectly mentions "Amravati City" instead of "L-Division". Therefore, instead of "Amravati City", it should read as "Armed Police L- Division, Mumbai" and the transfer order of Amravati City be cancelled and fresh order be issued and forwarded to the State Government forthwith. Considering the above, it is not a case of two transfer orders issued against the petitioner in quick succession, as is contended.
Rather, it is a case of issuing corrigendum or correction of the transfer order dated 26.1.2014 which in turn, was issued on the basis of State Government communication dated 24th January, 2011. This transfer was based on the proposal mooted by the competent authority which has been considered by the Authorities at different levels [Section Officer, Under Secretary, Principal Secretary (Appeals & Security), Minister (Home)], right upto the Chief Minister. After approval of the proposal by all these Authorities, it was decided to transfer the petitioner from M.R.A. Marg Police Station to Armed Police L-Division within Mumbai.
The statutory authorities having applied themselves to the issues mentioned in the proposal and having thought it appropriate to transfer the petitioner as a special case and in exceptional circumstances, it would certainly qualify the test laid down in Section 4(4) proviso (ii) and/or 4(5) of the Act. That is the subjective satisfaction of the concerned authorities. Sufficiency of the material considered by the Authorities for recording their satisfaction, cannot be the basis for the Court to doubt their wisdom. The first requirement, be it under clause (ii) in proviso to Section 4(4) or for that matter, Section 4(5) has been fulfilled in the fact situation of the present case. It is nobody’s case that the transfer order passed against the petitioner has not been issued by the competent authority.
Maharashtra Government Servants Regulation of Transfer and Prevention of Delay in Discharge of Official Duties Act, 2005 - Section 4 - Transfer proposal.
Where transfer proposal was mooted by competent authority and was considered by Authorities at different levels therefore if qualifies test of subjective satisfaction of Authorities under Section 4(5) (ii) of Act. - The tenor of the proposal and the manner in which it has been couched, itself manifests the reasons which necessitated transfer of the petitioner from M.R.A. Marg Police Station to some other post, albeit within Mumbai. The fact that the highest authority has merely made endorsement of "proposal approved" on the proposal, does not mean that there is non-compliance of the requirement of recording reasons in writing. If the superior authorities and in particular, the Chief Minister, having made the endorsement "proposal approved", it presupposes that he agreed with every aspect mentioned in the proposal. If he were to disagree with any of the fact or reason stated in the proposal, he would have certainly made noting in that behalf. Even if he wanted to add further fact or reason in addition to the ones mentioned in the proposal, he would have made a noting in that behalf. Suffice it to observe that the fact that the Chief Minister, who is the final authority, having merely made endorsement "proposal approved", in no way, results in non-compliance of the requirement of recording reasons in writing as predicated in Section 4(5) or for that matter Section 4(4) proviso (ii) of the Act.
Maharashtra Government Servants Regulation of Transfer and Prevention of Delay in Discharge of Official Duties Act, 2005 - Sections 4 and 6 - Transfer order.
Where prior approval of concerned Authority was obtained before issuing transfer order against petitioner therefore there is compliance of provision under Section 4 of Act. - The respondents are justified in contending that the argument of the petitioner is founded on misinformation and misreading of the reply affidavit. Reply affidavit cannot be read out of context. The reply affidavit will have to be read as a whole. If so read, it restates the reason already recorded in the transfer order namely; it was essentially to transfer the petitioner "for administrative reason". That reason is not only noticed in the transfer order but also in the proposal. Thus, the stand taken in the reply affidavit is no different than the reason which weighed with the concerned Authorities to direct transfer of the petitioner.
Maharashtra Government Servants Regulation of Transfer and Prevention of Delay in Discharge of Official Duties Act, 2005 - Sections 4 and 6 - Transfer order.
Where reason for transfer noted in Transfer Order as "administrative reason" therefore it cannot be said that order is without reason. - Thus understood, not placing the proposal before the State Police Complainants Authority would not and cannot vitiate the decision making process resorted to in the fact situation of this case.
A.M. Khanwilkar, J.
1. This Writ Petition, under Article 226 of the Constitution of India, takes exception to the judgment and order passed by the Maharashtra Administrative Tribunal dated 4.5.2012 in Original Application No.174 of 2011. The Tribunal rejected the Original Application preferred by the petitioner challenging the letter dated 7.2.2011 issued by Respondent No.2 and consequential order of Respondent No.1 published on 5.4.2011. The factual matrix as reproduced by the Tribunal in the impugned judgment is not disputed. The same reads thus:
“2. The Applicant was posted as a Senior Police Inspector at M.R.A. Marg Police Station, Mumbai. By a letter dated 24th January, 2011, Respondent No.2 conveyed to Respondent No.1 the approval of the State Government to a proposal to transfer the Applicant for posting in Amravati City and to replace him at M.R.A. Marg Police Station, Mumbai by Respondent No.3. Accordingly, Respondent No.1 published an order in the Police Notice dated 25th January, 2011 giving effect to the decision of Respondent No.2 as conveyed by its aforesaid letter. However, Respondent No.2 wrote a letter to Respondent No.1 on 7th February, 2011 stating that the approval of Government was actually for the transfer of the Ap0plicant to Armed Police L-Division, Mumbai and the earlier letter dated 24th January, 2011 mentioned Amravati City by an inadvertent error and directing that the order dated 25th January, 2011 issued by Respondent No.1 posting the applicant to Amravati City should be cancelled and a revised order posting the Applicant in Armed Police L-Division, Mumbai should be issued. In compliance with this direction, Respondent No.1, by an order published in the Police Notice dated 5th April, 2011, cancelled his earlier order published on 25th January, 2011 qua the Applicant and posted him in the Armed Police L-Division, Mumbai. Being aggrieved, by this CA, the Applicant has impugned the said letters dated 24th January, 2011 and 7th February, 2011 issued by Respondent No.2 and the consequential orders published by Respondent No.1 in the Police Notice dated 25th January, 2011 and 5th April,2 011. His prayer is that these letters and orders be quashed and set aside and he be granted all consequential service benefits.
3. As has been noted above, the letter of Respondent No.2 dated 24th January, 2011 conveying the approval of Government to the transfer of the Applicant to Amravati City has been superseded by its subsequent letter dated 7th February, 2011. Similarly, the order of Respondent No.1 published in the Police Notice of 25th January, 2011 inter alia transferring the applicant to Amravati City was cancelled qua the Applicant by the order of Respondent No.1 published in the Police Notice dated 5th April, 2011. Consequently, the said letter dated 24th January, 2011 and order published on 25th January 2011 are non est and the prayer for them to be quashed and set aside does not survive and is rejected as redundant. Hereafter, therefore, this judgment considers the prayer to quash and set aside only the aforesaid letter dated 7th February, 2011 issued by Respondent No.2 and the consequential order of Respondent No.1 published on 5th April, 2011.”
(emphasis supplied)
2. The Tribunal rejected the argument of the petitioner that the impugned communications cum order were in the nature of transfer order. Instead, the Tribunal held that the petitioner, having been transferred from M.R.A. Marg Police Station to Armed Police L-Division, Mumbai, it did not entail in change of headquarter and was, therefore, not a case of transfer within the meaning of Maharashtra Government Servants Regulation of Transfer and Prevention of Delay in Discharge of Official Duties Act, 2005 (hereinafter referred to as `the Act of 2005'). For this, reliance was placed on the unreported decisions of Division Bench of this Court in ShriR.P. Shivdas vs. State of Maharashtra & Ors. (Writ Petition No.3301 of 2010 decided on 11.10.2
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