Writ Petition No. 2665 of 2011

25th July, 2011

Petitioner Counsel: Shri P. C. MADKHOLKAR,S. P. HEDAOO
Respondent Counsel: Shri J. B. JAISWAL,Shri D. M. KAKANI,Shri MAJID SHEIKH,Shri ANAND PARCHURE

Cases Cited:
E.P. Royappa Vs. State of Tamil Nadu and another, AIR 1974 SC 555 [Para 9,24]
State of Maharashtra Vs. Ashok Ramchandra Kore and another, 2009(4) Mh.L.J. 163 [Para 9,24]
Union of India and others Vs. S.L. Abbas, AIR 1993 SC 2444 [Para 22]

JUDGMENT

B. P. DHARMADHIKARI, J. :- Rule, returnable forthwith. Heard finally with the consent of the parties.

2. The petitioner, employee of respondent no.2, Government of Maharashtra undertaking, has challenged his transfer by order dated 31.5.2011 from Rural Water Supply, Sub-Division, Nagpur to the establishment of respondent no.2 at Narkhed. It is not in dispute that presently he is on deputation with respondent no.4 where he was working as Deputy Engineer. The petitioner, who was earlier working with respondent no.4 only at Parsheoni, has come to Nagpur in the year 2009 as per order dated 15.6.2009. That order issued by respondent no.2 stipulates that his deputation is for a period of three years.

3. This court issued notice for final disposal on 10.6.2011 and granted status-quo. The person, who has to join in place of the petitioner at Nagpur, is respondent no.5 before this court.

4. In this background, we have heard Shri P.C. Madkholkar, learned counsel with Shri S.P. Hedaoo, learned counsel for the petitioner, Shri J.B. Jaiswal, learned AGP for respondent no.1/State, Shri D.M. Kakani, learned counsel for respondent nos.2 and 3, Shri Majid Sheikh, learned counsel for respondent no.4 and Shri Anand Parchure, learned counsel for respondent no.5.

5. Shri Madkholkar, after inviting attention to order dated 15.6.2009 and terms and conditions of deputation accompanying it, has urged that deputation of the petitioner with Zilla Parishad has to continue for a period of three years and it can be terminated before that if respondent no.2 was called back the petitioner in public interest or then Zilla Parishad sent him back to respondent no.2. He points out that if Zilla Parishad desires to send the petitioner back to respondent no.2, that can be done by previous notice of three months. According to him, such notice is missing in the matter. He has further contended that in impugned transfer order initially the petitioner was shown to have been transferred on his own request and hence the petition was drafted accordingly pointing out absence thereof. In reply filed by respondent no.2, the corrigendum later issued came to be pointed out and in that corrigendum the transfer has been shown on administrative ground. Therefore, by filing rejoinder and additional affidavit, necessary challenges about the premature transfer and cancellation of deputation of the petitioner have been raised. He has urged that transfer appears to be only because of influence of the President of respondent no.4 Zilla Parishad and that President was, in fact, interested in respondent no. 5. Hence, to accommodate respondent no.5, the transfer has been brought into effect. Thus, according to him, transfer is not in the interest of administration and also in violation of the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005 (hereinafter referred to as '2005 Act').

6. Shri Madkholkar contends that respondent no.4 Chief Executive Officer of Zilla Parishad, Nagpur has not made any grievance about the working of the petitioner. He points out that the petitioner has been punished by withholding of one increment temporarily for a minor misconduct in the year 2010 and same is the position of respondent no. 5 also. He, therefore, urged that the transfer which is against legal provision and shows total nonapplication of mind, therefore, needs to be quashed and set aside.

7. Shri Sheikh, learned counsel appearing for respondent no. 4 - Chief Executive Officer, Zilla Parishad, Nagpur has pointed out that the petitioner was not due for transfer and after the receipt of status-quo order passed by this Court, respondent no.5 has not reported for joining and hence the petitioner still continues to work as Deputy Engineer.

8. Shri Anand Parchure, learned counsel appearing for respondent no.5 states that because of his parents health and domestic difficulties, respondent no.5 had sought transfer from Chandrapur to Nagpur, but he was accommodated at Narkhed in absence of vacancy at Nagpur. As transfer of the petitioner out of Nagpur became necessary, respondent no.5 has been accommodated against that vacancy. He, therefore, contends that respondent no.5 has nothing to do with the transfer of the petitioner out of Nagpur.

9. Shri Kakani, learned counsel for respondent nos.2 and 3, has supported the transfer order. He points that in the petition there are no allegation of mala fides against the transferring authority. He relies upon the observations made by Hon'ble Apex Court in paragraph 92 of its judgment reported in the case of E.P. Royappa Vs. State of Tamil Nadu and another, AIR 1974 SC 555. Without prejudice to this, he states that respondent nos.2 and 3 had received the complaint of the President of Zilla Parishad about unsatisfactory performance of the petitioner and hence that complaint was looked into. He states that the service record of the petitioner also shows that he was punished earlier on 15.11.2010 and in 2007 there was similar complaint about his working. In view of this position, respondent nos.2 and 3 found it proper to recall him and accordingly that right has been exercised. His contention is that there was need of exercising that right. In this background, he invites attention to provisions of Section 4 (5) of above mentioned 2005 Act to state that as proposed recall and transfer of the petitioner was before completion of period of three years, the proposal of transfer was placed before the competent authority and it has approved the same. He invites attention to the provisions of Section 6 of the same Act and table below it to urge that accordingly the Hon'ble Ministers approved the said approval in consultation with the Secretary of respondent no.1-Department and then transfer order has been given effect to. He has relied upon the Division Bench judgment of this court in the case of State of Maharashtra Vs. Ashok Ramchandra Kore and another, 2009(4) Mh.L.J. 163 to show how the Court in exercise of its extra-ordinary jurisdiction, has to approach in this situation. He further points out that though the President of respondent no.4 Zilla Parishad has praised the working of respondent no.5, the transfer of respondent no.5 has not been ordered because of that communication. His contention is vacancy became available on establishment of the Zilla Parishad because of transfer of the petitioner and in that situation, it was felt appropriate to provide a man against whom respondent no.4 had no complaint. Because of this, respondent no.5 has been posted against vacancy caused by transfer of the petitioner. He, therefore, prays for dismissal of the petition.

10. Shri Jaiswal, learned AGP appearing for respondent no. 1/State, has adopted the argument of Advocate Shri Kakani for respondent nos.2 and 3..

11. The facts, looked into above, show that the present petitioner has come to Nagpur because of transfer order dated 15.6.2009. It appears that prior to that he was on establishment of Zilla Parishad only but at Parsheoni. He was transferred to his present posting with stipulation that his deputation will be without deputation allowance and as per terms and conditions accompanying that documents for a period of three years. The terms and conditions show that he can be recalled even before expiry period of three years by respondent no.2, if it finds it necessary in public interest. The Zilla Parishad has also right to send him back but in that contingency it has to give him three months notice. The petitioner also has option to go back but then after giving previous notice of minimum three months. Here, the material on record shows that the petitioner was not due for transfer as he had not completed his normal tenure as provided in Section 3 of 2005 Act. It is also not the case of respondent no.2 that it independently had found it necessary to recall the petitioner. The communication dated 18.5.2011 sent by the President of Zilla Parishad is being pressed into service by respondent no.2. That communication is not addressed to the present respondent no.2. It is forwarded to Hon'ble State Minister Shri Ranjit Kamble in-charge of the affairs of respondent no.2 Board. The communication has got outward number which is dated 19.5.2011 and at the bottom there is endorsement also dated 19.5.2011, Deputy Secretary, "put up file". By the side of said endorsement, there is seal of Hon'ble Minister. At this stage, it is to be noted that outward number of the Zilla Parishad President is appearing at the top of the letter while number appearing below it as 641/201/20.5.2011 is the inward number of the concern department at Mumbai. Thus this communication has not reached the concerned authority through proper course.

12. This communication dated 18.5.2011 reveals the demand to transfer the petitioner elsewhere and to post respondent no.5 in his place. In the body, it is mentioned that the petitioner is not working at all and he has no experience in the field of Engineering and hence he is unable to competently handle the schemes for Rural Water Supply. It is then mentioned that he is constantly remaining absent in the meetings held to remove water scarcity and many projects have remained pending. He has been issued show cause notice by the Executive Engineer and the Chief Executive Officer on many occasions. He was also sent on leave compulsorily but there was no change in his working. Thereafter, there is mention of name of respondent no.5 and it is urged that at that time he was working under respondent no.2 at Narkhed. It is further stated that prior to that he had worked at Chimur for about four years under Zilla Parishad, Chandrapur where he successfully completed various water supply schemes. Considering that experience with respondent no.5, the President of Zilla Parishad expressed that he would definitely work hard to accomplish the works of various schemes in Nagpur also. Hence, ultimately request was made to transfer the petitioner and to post respondent no.5 in his place.

13. Respondent nos.2 and 3 have stated that the petitioner was earlier punished for his improper working. Perusal of only document on the record reveals that there were three charges against him. The first charge was about loss to government funds and it was found not established. Third charge was about constant absence and it was also found not established. Charge No.2 was about disobeying of superiors' orders was found established and for that he was punished by withholding his one increment for one year temporarily. The earlier document is dated 26.7.2007 when the petitioner was working at Parsheoni on deputation and then Chief Executive Officer had complained that he was remaining absent and was constantly proceeding on medical leave. However, after this complaint and remarks, two years thereafter, the petitioner was transferred to Nagpur on 15.6.2009. It is, therefore, obvious that the said document is not very relevant. Moreover, Chief Executive Officer of Zilla Parishad has not supported the governance made in letter dated 18.5.2011.

14. Our attention has also been drawn to specific assertion by the petitioner on affidavit that respondent no.5 was also punished on 24.9.2010 and his one increment was also withhold for a period of one year. It is, therefore, obvious that in so far as material on record is concerned, respondent no.2 to 5 have not produced anything to show that respondent no.5 was better placed than the petitioner. In fact, it is not the contention of respondent nos.2 and 3 that they have selected respondent no.5 because he was better placed. They have only contended that respondent no.5 is the person against whom the Zilla Parishad had no grudge and, therefore, they thought it fit to transfer him to Zilla Parishad. They are primarily pointing out need to shift the petitioner.

15. The petitioner has, however, produced in this court a certificate of appreciation issued by the Executive Engineer of Rural Water Supply Department and Zilla Parishad, Nagpur. It is dated 13.6.2011 and the certificate shows that in two prior years he had completed the works of the schemes in best possible manner and there were no complaints against him.

16. Perusal of communication sent by the President of Zilla Parishad on 18.5.2011 further shows that the said President has pressed Respondent no.5 about his work under Zilla Parishad, Chandrapur. The emphasis in said communication is, therefore, to procure posting for said respondent no.5 at Nagpur and for that purpose to sent the petitioner back to respondent no.2. Respondent nos.2 and 3 have not even supported the alleged need to post respondent no.5 with Zilla Parishad.

17. The provisions of 2005 Act particularly Section 4(5), permit respondent nos.2 and 3 to transfer the petitioner even before completion of period of three years. Such transfers are treated as special cases and for that respondent nos.2 and 3 have to record reasons in writing and then with prior approval of immediate superior transferring authority mentioned in table of Section 6, the transfer can be effected. As per table in Section 6, for the petitioner in such circumstances, competent transferring authority is Hon'ble Minister and he has to act in consultation with the Secretary of respondent no.1 department.

18. As directed by this Court, Shri Kakani has made available original file in which this procedure has been complied with respondent no.2. He has invited attention to page 165 of that record to show their the approval of Hon'ble Minister has been obtained. He has then pointed out that the name of the present petitioner and respondent no.5 appear at page 323, therein at Sr. No.14 and 15. Perusal of page 165 reveals that it is a note dated 27.5.2011 prepared by First Clerk in the office of Hon'ble Minister. It mentions that proposal of annual transfers for the year 2011 was earlier submitted to Hon'ble Minister and some queries were made by his office. Hence with relevant explanation modified proposal at pages 167 to 331 in Schedule A, B, C, D & E was placed for approval. These page numbers are written in handwriting though entire note is prepared in Marathi on computer. In next paragraph, one name of Deputy Engineer is mentioned with further comment that the Hon'ble Minister had recommended his transfer to a particular place but then office of Hon'ble Chief Minister had recommended some other name for posting at that place and, therefore, orders were sought from Hon'ble Minister about Deputy Engineer to be posted at that place. In paragraph, thereafter, another name is mentioned and it is pointed that because of recommendation in his favour by Hon'ble Minister, the transfer inter se between two other Deputy Engineers would not be possible. Thus, except for these two specific instances, no other instances are mentioned in the said communication dated 27.5.2011. All other proposals are mentioned as at page nos.167 to 331. These proposals or so called proposals are then approved by the various officers in order of their hierarchy and at the end Hon'ble Minister has placed his signature where he has accepted the recommendation of Hon'ble Chief Minister and has also given order to transfer third person whose name does not appear in note written above to a particular place. All this is on page which is placed at number 165 on record and all page numbers are written in pencil. After this page, next page is given Sr. No.167 where the names of persons due for transfer but then not decided to be transferred have been mentioned. We are not concerned with the entire chart but then it is noticed that the last page of such proposal/chart is 337 and not 331 as indicated in the note dated 27.5.2011.

19. The name of the petitioner and respondent no.5 appear at Sr. No.14 and 15 at page 323 in this chart. The relevant portion of this chart begin at page no. 301 where it is specifically mentioned that it is in accordance with the Rule 4 (2) of 2005 Act i.e. list of persons not due for transfer but then for whose transfer, there was a request. The special cases are mentioned in this part of chart which is marked as 'E'. At page 221 its part 'C' where list of employees due for transfer, the proposals for transfer is also submitted. It is, therefore, obvious that these charts from page nos.167 to 337 do not contain the list of employees to be transferred as a special cases but all transfer proposals have been submitted to the Hon'ble Minister.

20. Perusal of page 323 shows that name of respondent no.5 appears at Sr. No.14 and it is mentioned that President of Zilla Parishad has asked for his transfer at Nagpur and the Hon'ble State Minister has made endorsement upon that request which reads "Put up file". In remark column it is mentioned that he was not due for transfer but then as per recommendation of Hon'ble Minister, the transfer to the post held by the petitioner has been suggested. The name of the petitioner is then appear at Sr. No.15 where again it is mentioned that President of Zilla Parishad has requested for transfer of the petitioner and for posting respondent no.5 in his place. Again it is mentioned that the petitioner is also not due for transfer but then because of recommendation of Hon'ble Minister proposal to transfer him to a place where respondent no.5 works was made. It is, therefore, obvious that in note as prepared and put up before Hon'ble Minister, there is no mention of complaints against the petitioner. It is only stipulated that the President of Zilla Parishad has sought his transfer. Again it is specifically mentioned that he was not due for transfer and recommendations of Hon'ble Minister is given as the only reason. This note prepared by the office of respondent nos.1 to 3 and submitted to the Hon'ble Minister, therefore, does not show that respondent nos.2 and 3 accepted the complaints made by the President of Zilla Parishad as a valid ground for recalling or transferring the petitioner out of Nagpur. The proposal put-forth is only for simple mutual transfer between the petitioner and respondent no.5 because of the request made by the President of Zilla Parishad and its recommendation by Hon'ble Minister. The justification for transfer of the petitioner therefore being pressed into service by respondent nos.1 to 3 before this court is not in existence in the file as put up before Hon'ble Minister. Reason necessitating transfer of the petitioner pressed into service by respondent nos.2 and 3 are not even put by them as special reasons before Hon'ble Minister.

21. Perusal of note, as approved by Hon'ble Minister at page 165, again does not show any specific application of mind in so far as the transfer inter se of the petitioner and respondent no.5 is concerned. The specific cases which can be said to be looked into by the Hon'ble Minister are already mentioned by us above. Whether this fact which we have noticed is looked into by Hon'ble Minister or not is not very clear. Section 4 (5) permit competent authority in special cases to transfer the petitioner after recording reasons in writing and that too with prior approval of Hon'ble Minister. Thus, Section 4(5) of the 2005 Act contemplates such premature transfers only in exceptional cases. The facts above show that request made by the President of Zilla Parishad and recommendation of Hon'ble Minister has been the only reason for treating the proposal as special case. This is not contemplated by Section 4(5) of 2005 Act and reasons to be recorded for permitting such transfers must be spelt out and must be found to be in the interest of administration. Those reasons cannot be only the wish or whim of any particular individual and such transfers cannot be ordered as special case to please the particular individual for mere asking. On the contrary, records show that respondent nos.2 and 3 have not recorded any special reasons at all. These respondents are not satisfied with relevance of reasons placed before Hon'ble Minister. Hence, they have developed a new story in an attempt to justify that transfer before this Court. We, therefore, do not find compliance of provisions of Section 4(5) r/w Sec. 6 of 2005 Act in the present matter.

22. The immediate superior of the petitioner is Chief Executive Officer of Zilla Parishad, therefore, Chief Executive Officer has filed affidavit before this Court and it has not attempted to justify the said transfer at all. It is to be noted that it has also not opposed that transfer. It is settled law that transfers cannot be interfered with by court of law unless and until the transfers are shown to be either mala fide or in violation of statutory provision. The judgment of Hon'ble Apex Court in the case of Union of India and others Vs. S.L. Abbas, AIR 1993 SC 2444 can be safely stated to be a binding President in this respect. Here, though the petitioner has not pleaded any specific mala fide against transferring authority, when he approached this Court on 9.6.2011, the only grievance was he had not requested for transfer at all. It is obvious that, at that juncture, he was not aware of corrigendum issued in that connection lateron by which that portion was removed and he was given travelling allowance as also joining time. The corrigendum is dated 15.6.2011 i.e. after filing of this petition. However, in the petition, as filed, the petitioner has pleaded that the transfer has been effected with a view to favour respondent no.2 for extraneous reasons and without application of mind. It is further stated that the transfer is not in good-faith or in administrative exigency but the said is mala fide and contrary to the rules and in violation of Articles 14 and 21 of the Constitution of India. Records of transfer lend support to his challenge.

23. In rejoinder as filed, the petitioner has commented upon letter dated 18.5.2011 written by the President of Zilla Parishad and urged that said statements in relation to the petitioner are wrong. He has further questioned link between said President and respondent no.5. He has pointed out that in January 2011 when cases of total nine employees were considered for routine transfer, the case of either the petitioner or respondent no.5 was not looked into.

24. In this situation, we find that the transfer of the petitioner is not in the interest of administration and not by respondent nos.2 or 3 but because of interference of the President of Zilla Parishad, It is not after obtaining requisite prior approval as contemplated by Section 4 (5) of the above mentioned 2005 Act. In view of this, it is necessary for us to consider the judgment of the Hon'ble Apex Court reported in the case of E.P. Royappa Vs. State of Tamil Nadu, AIR 1974 SC 555 relied upon by the learned counsel for respondent nos.2 and 3 to demonstrate what is legally understood to be mala fide. The Division Bench judgment of this Court reported in the case of State of Maharashtra Vs. Ashok Ramchandra Kore and another, 2009 (4) Mh.L.J. 163 takes a view that High Court cannot substitute its opinion for that of the competent authorities of the State Government. It appears that it was the case of midterm transfer treated as special case u/s 4 (5) of 2005 Act and lacunae noticed in the work of first respondent by the Secretary and remarks made by the concerned Hon'ble Minister provided sufficient reasons to Division Bench of this Court to accept it as special case. Here, as we have noticed above, the note put up for consultation and for approval before Hon'ble Minister itself is defective and does not make out any legal ground for treating it as special case.

25. In this situation, impugned transfer order dated 31.5.2011 transferring the petitioner to Sub-Division of respondent no.2 at Narkhed against respondent no.5 is hereby quashed and set aside. Writ Petition is thus allowed. However, there shall be no order as to costs. Rule made absolute accordingly. Original file produced for perusal of Court by Advocate Shri Kakani is returned to him.

Ordered accordingly.