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2014 Supreme(Bom) 1894
High Court of Judicature at Bombay
ANOOP V. MOHTA & N.M. JAMDAR, JJ.
State of Maharashtra, through the Principal Secretary, (Housing Department) & Others
Versus
Padmashri Shriram Bainade, Deputy Collector & Others
Writ Petition No. 9781 of 2014
Decided On : 17-12-2014
For the Petitioners:S.U. Kamdar, Senior Advocate with R.R. Shetty, Advocate, P.G. Sawant, AGP.
For the Respondents:R1, N.V. Bandiwadekar, Sagar Mane i/by B.V. Bandiwadekar, Advocates.
Headnote:Constitution of India - Article 226 Exercise of writ jurisdiction. - A detailed reasoned order passed by Tribunal, not suffering from any illegality or perversity, cannot be interfered with in exercise of writ jurisdiction. The Tribunal also recorded reasons for interfering with the order treated it to be transfer order, as quoted in paragraph Nos. 32 to 39. This finding and the basis of setting aside order passed by the applicant, Court have to test under Article 226 of the Constitution of India. To interfere with such order/detailed reasoned order passed by the Tribunal, unless there is a perversity and/or illegality and the order is based upon the extra material than the law. The reason so recorded above and the findings so given, just cannot be stated to be contrary to the record, bad in law and/or perverse to interfere with the same.
Maharashtra Government Servants Regulation of Transfer and Prevention of Delay in Discharge of Official Duties Act, 2005 - Sections 4(4), (5) and 10 Mid-term transfer order. - Unreasoned mid-term transfer order based upon unproved alleged misconduct and dereliction of duty is bad in law and cannot be sustained. - The transfer is a part of service contract and/or the service jurisprudence. "Transfer is an incidence of service" "Reason to be recorded" cannot read to mean, no reason should not be communicated at any circumstances, specially when it is obligatory on the part of the State to act fairly, transparently and reasonably. The decision needs to be actuated by consideration based on law and the record and certainly not an extraneous consideration. Unreasoned order is always vulnerable to challenge and stated to be mala fide.
The State/Authority needs to act bona fide. Therefore, cannot be restricted to meant for and/or with the private record/department. It must be reflected before taking any action/order. Perversity or irrationality; bona fide, legality of reasons difficult to test, if not disclosed at the time of order/action itself. It is normally the unreasoned mid-term order or such orders are vulnerable to challenge. An executive order on undisclosed or unreasoned foundation of alleged misconduct and dereliction of duty is also vulnerable to challenge on the ground of malice in law.
Such undisclosed burdened mid-term order, of transfer affects the status of the employee, it violates the service conditions thus illegal, though it is administrative order. It has civil consequences. The principle of natural justice is applicable. The State Act and not any guidelines govern such State Government transfer order, such transfer order is arbitrary, irrational and violates Article 14 of the Constitution of India.
Maharashtra Government Servants Regulation of Transfer and Prevention of Delay in Discharge of Official Duties Act, 2005 - Sections 4(4), (5) and 10 Object of. - Act, 2005 regulates transfers of officers and mandates Government to take action against erring officers who are negligent in performance of their duty. - The Act not only regulates the transfers by providing a security of tenure for minimum period but also mandates the government to take action against the erring officers who are negligent in performance of their duty.
ANOOP V. MOHTA, J.
1. Rule, returnable forthwith. Heard finally by consent of parties.
2. The Petitioners (The State) have challenged Judgment dated 13 October 2014 passed by Maharashtra Administrative Tribunal, Mumbai (Tribunal) in Original Application No. 839 of 2014, by which a mid-term transfer order dated 30 August 2014 issued by the State has been set aside.
3. The basic events of the case are as under:-
On 16 august 2014, a letter proposing Respondent No.1's (the employee) transfer was submitted to the Principal Secretary, Housing Department. On 19 August 2014, the Under Secretary, Housing Department submitted a note proposing transfer of Respondent No.1. On 19 August 2014, the Deputy Secretary, Housing Department approved the note. On 20 August 2014, the file reached the office of the Hon'ble Chief Minister and on the same date, it was approved. On 21 August 2014, the file came back to the Principal Secretary, Housing Department. On 22 August 2014, the Principal Secretary, Housing Department sent Office Note to the Deputy Secretary, Revenue and Forest Department informing the decision to transfer and requested for action. On 30 August 2014, the transfer order was issued. An independent note was moved by the Deputy Secretary, Revenue Department seeking modification/cancellation of the transfer order in view of letter of request received from the Chief Election Commissioner. The suggestion contained in the note was declined.
4. The transfer order issued by the Petitioner-State is as under:-
“Repatriated Repatriation of Smt. Padmashree Bainade, Dy. Collector (Enc/Rem) Colaba Mumbai in her parent department.
Dated 30th August, 2014.
Government Order:
In exercise of the powers conferred by sub section 4(4) & 4(5) of the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005, deputation of Smt. Padmaja Bainade, Deputy Collector (Enc/Rem) Colaba Mumbai has been terminated and she is repatriated.
Additional Collector Mumbai City to relieve Smt. Padmaja Bainade, Deputy Collector to join in her parent department.
Divisional Commissioner, Konkan Division is hereby authorized to give appointment to Smt. Padmaja Bainade, Dy. Collector. By the order and in the name of Governor of Maharashtra.”
It is clear that the State has invoked Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005 (the Act) but plain reading of the order shows it was intended order of repatriation by termination her services as Deputy Collector (Enc/Rem), Colaba, Mumbai. The State has invoked the Act, for repatriation, but intended mid term transfer. The State has invoked wrong provisions for wrong purpose and passed the vague, unbased, inconsistent and unreasoned mid-term transfer order. This act not only deals and regulates transfers, but also various other aspects of service of Government servants, official duties and responsibilities of the concerned authorities, covering transfer and disciplinary action. Relevant sub sections 4(4) & 4(5) of the Act reads as under:-
(1)………………
(2) ………………
(3) ………………
(4) The transfers of Government servants shall ordinarily be made only once in a year in the month of April or May:
Provided that, transfer may be made any time in the year in the circumstances as specified below, namely:
(i) To the newly created post or to the posts which become vacant due to retirement, promotion, resignation, reversion, reinstatement, consequential vacancy on account of transfer or on return from leave.
(ii) Where the competent authority is satisfied that the transfer is essential due to exceptional circumstances or special reasons, after recording the same in writing and with the prior approval of the next higher authority.
(5) Notwithstanding anything contained in section 3 or this section, the competent authority may, in special cases, after recording reasons in writing and with the prior approval
