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2021 Supreme(Bom) 913
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Dipankar Datta, G.S. Kulkarni, JJ.
Shri. Anil Pandurang Parkhe - Appellant
Versus
The State Of Maharashtra & Ors. - Respondents
Writ Petition (St.) No. 2856 of 2021
Decided On : 16-03-2021
Mr.Nargolkar I/B. Mr.V.V.Ugle, for the Appellant / Mr.P.P.Kakade, Government Pleader With Smt.R.A.Salunkhe, Smt.G.P.Sonawane, Agp, for the Respondent.
The court emphasized that transfers must adhere to the provisions of the Transfer Act and should not be made to accommodate individuals or influenced by political interference.
Headnote:
Transfer - Government Servants - Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act,2005 - Section 4(4) (ii), Section 4(5)
Fact of the Case:
The petitioner challenges a transfer order from Nashik to Pune, which was set aside by the Maharashtra Administrative Tribunal. The transfer of respondent no.3 from Pune to Pune was made mid-term, allegedly due to complaints against him. The tribunal found the transfer to be without basis and illegal, and ordered respondent no.3 to be reposted in Pune.
Finding of the Court:
The tribunal found the transfer of respondent no.3 to be high-handed and illegal, made solely to accommodate the petitioner. The transfer of the petitioner from Nashik to Pune was found to be dehors the mandate of the Transfer Act and purely at his request. The court rejected the petitioner's arguments and dismissed the petition, upholding the tribunal's decision.
Issues: Validity of mid-term transfer, legality of the reasons for transfer, political influence in transfers
Ratio Decidendi: The court found that the transfer of respondent no.3 was made solely to accommodate the petitioner and was in complete breach of the provisions of the Transfer Act. The transfer of the petitioner from Nashik to Pune was found to be dehors the mandate of the Transfer Act and purely at his request.
Final Decision: The court dismissed the petition and upheld the tribunal's decision, ordering the parties to abide by the tribunal's orders within two weeks.
JUDGMENT
G.S. Kulkarni, J. - The petitioner is aggrieved by a judgment and order dated 28 November 2021 passed by the Maharashtra Administrative Tribunal (for short "the Tribunal") whereby on an original application as filed by respondent no.3, the petitioner's transfer from Nashik to Pune stands upset. The tribunal has set aside the impugned transfer order whereby respondent No.3 was sought to be mid-tenure transferred from the post held by him at Pune.
2. The narrative of events leading to the litigation needs to be noted. Respondent no.3- Gopinath Saheba Kolekar filed Original Application No.530 of 2020 before the tribunal challenging an order dated 30 September 2020, transferring him mid tenure, from the post of Joint District Registrar, Class-I, Pune, to the post of Assistant Inspector General of Registration & Stamps, Desk-7, Pune. Prior to the said posting at Pune, respondent no.3 was posted at Aurangabad. By an order dated 31 May 2018, he was transferred at Pune as Joint District Registrar, Class I, Pune City. It is thus not in dispute that respondent no.3 had not completed a term of three years at Pune so that he could be transferred from his current posting and that too mid-term. The reason being that Section 3 of the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act,2005 (for short 'the Transfer Act') provides that in the normal course unless an employee completes a tenure of three years on a posting, he should not be transferred.
3. However by the impugned transfer order dated 30 September 2020, respondent No.3 was sought to be transferred mid-term and/or mid-tenure invoking Section 4(4) (ii) and Section 4(5) of the Transfer Act. The petitioner who admittedly was not due for transfer, was posted on his request on the vacancy which had arisen on the transfer of respondent no.3. As the transfer of respondent no.3 was made invoking Section 4(4) (ii) and Section 4(5) of the Transfer Act, the same are required to be noted, which reads thus:-
"4. Tenure of transfer. - (1) No Government servant shall ordinarily be transferred unless he has completed his tenure of posting as provided in section 3.
(2) The competent authority shall prepare every year in the month of January, a list of Government servants due for transfer, in the month of April and May in the year.
(3) Transfer list prepared by the respective competent authority under sub-section (2) for Group A Officers specified in entries (a) and (b) of the table under section 6 shall be finalised by the Chief Minister or the concerned Minister, as the case may be, in consultation with the Chief Secretary or concerned Secretary of the Department, as the case may be:
Provided that, any dispute in the matter of such transfers shall be decided by the Chief Minister in consultation with the Chief Secretary.
(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 of the immediately superior] Transferring Authority mentioned in the table of section 6, transfer a Government servant before completion of his tenure of post. (emphasis supplied)
4. The tribunal heard the parties on their respective pleadings. The tribunal also examined the records produced before it.
