Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.S. Oka, Sandeep K. Shinde, JJ.
Santosh Machhindra Thite – Appellant
Versus
State of Maharashtra – Respondent
Writ Petition No. 9844 of 2018
Decided On : 04-02-2019
Discharge of Official Duties Act, 2005 - Section 4- Constitution of India - Article 226- Acquisition of land – Claim of compensation - Transferred to the post - Copies of nothings signed by various government authorities were annexed to affidavit - Second respondent filed a reply in which a contention was raised that provisions incorporated in said Act of are regulatory and not prohibitory - It was submitted that a discretion is vested in authorities of first respondent to make exception whenever special circumstances exist - Third respondent relied upon a decision of Division Bench of this Court in case of Maharashtra Housing and Area Development Authority and Another - Petitioner filed rejoinder to affidavit in reply - There is an additional reply filed on behalf of State Government essentially for relying upon a letter received from Election Commission of India – Held, Insofar as the second judgment of the Apex Court, relied on by the learned counsel for Respondent herein is concerned, no doubt that learned counsel for Respondent is right in relying on the observations of Apex Court that merely because the transfer is being made at instance of public representative, same shall not be vitiated - However in present case, we are not interfering with the transfer order on ground that it is being done at behest of public representative but we are interfering on ground that same is being done without following relevant provisions of Maharashtra Transfer Act - For sake of repetition, we reiterate that such a transfer either of Respondent petitioner, which is a subject matter of the present petition could be done only in an exceptional circumstances and for special reasons and that too by recording reasons in writing – Court find that no such reasons or circumstances of whatsoever nature are recorded in impugned order of transfer and also in impugned order passed by learned Maharashtra Administrative Tribunal – Therefore only course that is available to us is to find out the reason from impugned transfer order - Only reasoning given is "in the public interest" and "administrative convenience - When Maharashtra Transfer Act stipulates recording of reasons, first it has to be recorded in the original file. If any transfer which takes away the right guaranteed to an employee of not being transferred prior to completion of his tenure is allowed, only by stating that it is in the public interest or on the ground of "administrative exigency" then it would frustrate the very purpose of the Act and makes the provisions of such Act redundant - In our considered view, it is necessary to record at least some reason as to how a special case is made out - No doubt that we do not expect an authority to write an elaborate judgment to make out a special case - However, at same time, in order to enable Court to exercise powers of judicial review at least it is necessary for an authority to write in brief as to how a special case is made out so that powers of judicial review which has been held to be a basic structure of Constitution can be properly exercised by High Court/Supreme Court – Appeal allowed
A.S. Oka, J.
1. The petitioner by filing this petition under Article 226 of the Constitution of India has taken an exception to the judgment and order dated 7th August 2018 passed by the learned Administrative Member of the Maharashtra Administrative Tribunal on original application filed by the petitioner. With a view to appreciate the legal and factual submissions, a brief reference to the factual aspects will be necessary.
2. The petitioner is in the service of the Government of Maharashtra. On 17th November 2015, the State Government transferred the petitioner from the post of the Deputy Collector of Rationing, G-Zone, Mumbai to the post of the Sub-Divisional Officer, Bhiwandi, District Thane. Before completion of normal tenure of three years, the State Government passed an order dated 7th June 2018 by which he was transferred to the post of Deputy Collector (Land Acquisition No. 4), Mumbai Suburban District. In fact, by the Government order dated 7th June 2018, transfer of three officers including the present petitioner was made admittedly in purported exercise of powers under sub-section (5) of section 4 of the Maharashtra Goverment Servants Regulation of Transfer and Prevention of Delay in Discharge of Official Duties Act, 2005 (for short "the said Act of 2005"). Under the said order dated 7th June 2018, as stated earlier, the petitioner was transferred from the post of Sub-Divisional Officer, Bhiwandi in District Thane to the post of Deputy Collector (Land Acquisition No. 4), Mumbai Suburban District which was the post occupied by one Smt. Archana Kadam (the third respondent herein). The second respondent-Mohan Naladkar who was holding the post of Sub-Divisional Officer, Wada, District Palghar was transferred to the post of Sub-Divisional Officer, Bhiwandi, District Thane held earlier by the petitioner. The third respondent was posted as Sub-Divisional Officer, Wada District, Palghar which was the post earlier held by the second respondent. The challenge in the Original Application No. 515 of 2018 filed by the petitioner before the Maharashtra Administrative Tribunal (for short "the said Tribunal") was to the said order of transfer dated 7th June 2018.
3. The first respondent - State Government filed a reply of Shri Santosh Vitthal Gawade. The stand taken by the State Government is set out in paragraphs 3 to 6. The said paragraphs 3 to 6 read thus:-
"3. I further submit that this Hon'ble Tribunal vide the aforesaid order dated 13.6.2018 in paragraph 4 has been pleased to observe that the Applicant following the impugned transfer order has handed over the charge to Respondent No. 2 and Respondent No. 2 has joined at his place. In other words, the order of transfer has been duly effected and implemented. Record further reveals that the Applicant having been relieved from the post of Sub-Divisional Officer, Bhiwandi, District Thane has not yet complied with the order of transfer dated 7.6.2018 as, the Applicant has not joined his duties at the place of transfer viz. Dy. Collector (Land Acquisition), No. 4, Mumbai Suburban.
4. I respectfully say and submit that the order of transfer dated 7.6.2018 has been issued in consonance with the provisions of ROTA-2005 and the order impugned adheres to the various orders issued by the Hon'ble Apex Court as well as by this Hon'ble Tribunal in the context of judgment rendered by the Hon'ble Apex Court in TSR Subramaniam and Others vs. Union of India and Others, decided on 31.10.2003 and followed by the circular issued by the Highest Competent Authority, as quoted on page no. 46 of the Original Application. Procedure so followed in compliance with the aforesaid judgment rendered by the Hon'ble Apex Court is mentioned herein-below.
5. I say and submit that the proposal of transfer and posting of 4 officers was prepared and approved by the Civil Services Board. The names of the present Applicant as well as names of Respondent Nos. 2 and 3 did not figure therein. Pursuant to the statu
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
