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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD
S.V. Gangapurwala, R.G. Avachat, JJ.
Ashok S/o Rangnath Barde – Appellant
Versus
State of Maharashtra, through its Secretary, Home Department – Respondent
Writ Petition No. 5320 of 2018
Decided On : 22-12-2018
Constitution of India, 1950 – Article 226 – Maharashtra Police Act, 1951 – Section 22A – Promotion – Transfer – Assailed in this writ petition is the order, passed by the Maharashtra Administrative Tribunal, Mumbai, Bench dismissing Original Application filed by the petitioner challenging the order of his transfer from Aurangabad to Kannad – Petitioner joined as a Constable in police service, namely State Reserve Police Force in 1994. – He came to be transferred to Aurangabad (Rural) Police Force. He was promoted as Head Constable in March, 2014. – He was serving with Local Crime Branch (L.C.B.). – He then came to be transferred to Traffic Branch in June, 2016, whereas in May, 2017, he was transferred to Kannad. – Held, If the terms "place" and "post" defined in the Act are taken in conjunction and interpreted with reference to the term "General Transfer" it may cover the transfer from one post, office or Department to another post, office or Department at same station. – If such an interpretation is resorted to, it may lead to absurd results, as has happened in the case in hand. – The petitioner was first transferred to Aurangabad (Rural) Police Force in the year 2008. In 2014, he was promoted as Head Constable in the very office. – On his request, he was transferred to the Traffic branch, Aurangabad in June, 2016. – With reference to the aforesaid interpretation, the petitioner wanted to contend that his five year tenure envisaged under Section 22N(1)(b) would commence from the day he joined his duties with the Traffic Branch in June, 2016, meaning thereby, he would have become due for transfer in June, 2021. – If the submission advanced by the learned counsel for the petitioner is accepted, it would stymie desire of other police personnel serving in Moffusil, to come to the district headquarters on transfer. The place of posting has, therefore, to mean that a particular town or city, whereat an incumbent is posted irrespective of the fact of he having served with very many branches of the same department at various places in the same town or city. – Division Bench of this Court in the case of Shri Rajendra Shankar Kalal vs. State of Maharashtra and Others, Writ Petition observed that in case of transfers at the same station or in the same office, the Court has already held that such internal transfers within the same office or at the same Headquarter should not be treated as transfers in the normal meaning and these are only internal postings for convenience of the Administration. – What has been guaranteed to a Government officer is a minimum tenure at a particular station/Headquarter. – Court has suggested to the State Government to examine the issue of amending the Act. – Court is of the view that the petitioner had served at Aurangabad beyond his term of five years, was run out. – He was overdue for transfer from Aurangabad. – Moreover, on account of administrative reasons and law and order problem, the petitioner has been transferred. – He was transferred in May, 2017. – The said transfer also takes a colour of general transfer, although the respondent has not come with the said case. – Power under Article 226 of the Constitution of India is discretionary. – In the aforesaid factual backdrop, Court is not inclined to interfere with the impugned order. – Writ Petition Dismissed
JUDGMENT :
R.G. Avachat, J.
1. Assailed in this writ petition is the order dated 22nd December, 2017, passed by the Maharashtra Administrative Tribunal, Mumbai, Bench at Aurangabad ("MAT" for short), dismissing Original Application (O.A.) No. 465 of 2017, filed by the petitioner challenging the order of his transfer from Aurangabad to Kannad.
FACTS OF THE CASE:
2. The petitioner joined as a Constable in police service, namely State Reserve Police Force in 1994. He came to be transferred to Aurangabad (Rural) Police Force. He was promoted as Head Constable in March, 2014. He was serving with Local Crime Branch (L.C.B.). He then came to be transferred to Traffic Branch in June, 2016, whereas in May, 2017, he was transferred to Kannad.
3. Heard Mr. Menezes Joslyn A. the learned counsel for the petitioner and the learned A.G.P. representing the respondents/State.
SUBMISSIONS:
4. Learned counsel for the petitioner would submit that in June, 2016, the petitioner was transferred from L.C.B. to Traffic Branch. Since he was transferred to Kannad within a year thereafter, it is a midterm transfer. Learned counsel took us through relevant provisions of Section 22A of the Maharashtra Police Act, 1951 ("Act" for short) so as to contend that the petitioner's midterm transfer was in breach of the said provisions. The conditions, which were required to be fulfilled before effecting midterm transfer, have not been complied with. Learned counsel also took us through the reply filed by respondent No. 2 to the O.A. According to learned counsel, the averments in the reply would indicate that the petitioner's transfer was effected as there were serious complaints against him that would have led to creation of law and order problem. According to learned counsel, respondent No. 2 usurped the powers, which were not vested in him. According to learned counsel, the reply to the O.A. contained the grounds enumerated in Section 22 (N) of the Act, to effect transfer.
It was further submitted on behalf of the petitioner that it is the Chief Minister and none else, who is competent to effect midterm/ mid-tenure transfer.
The MAT found petitioner's transfer to have been effected for administrative reason. The reply to the O.A. is silent to state "administrative exigency" as a ground for transfer of the petitioner. Learned counsel for the petitioner would ultimately urge for setting aside the impugned orders namely the order dismissing his O.A. and the order of his transfer from Aurangabad to Kannad.
5. Learned A.G.P. per contra, would submit that there were serious complaints against the petitioner, which would have led to creation of law and order problem. Learned A.G.P. also took us through the provisions of Section 22 (N) (1) and (2) of the Act to contend that police personnel, in exceptional cases, in the public interest and on account of administrative exigencies, could be transferred midterm. According to learned A.G.P. the petitioner had been serving at Aurangabad for about ten years immediately before the impugned order of his transfer. As such, the petitioner was overdue for transfer. Learned A.G.P. reiterated the reason given by the MAT for rejection of the O.A.
6. The Apex Court, in the case of Somesh Tiwari vs. Union of India and Others, (2009) 2 SCC 592, observed thus :
"The order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is provide......"
The Apex Court further observed that when the transferred officer desires to challenge the transfer, he must first report at the transferred place and then take up the challenge to the transfer order.
7. Admittedly, the petitioner in the present case, has reported at his transferred place. Undoubtedly, the petitioner had been serving at Aurangabad for little over eight years immediately before the impugned order of transfer. He had se
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