1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5652 OF 2009 Shriprakash Maruti Waghmare, Age-48 years, Occu-Service, Presently working as Deputy Commissioner for Police, Aurangabad, R/o.Officer Quarters, Mill Corner, Aurangabad PETITIONER VERSUS 1. The State of Maharashtra, Through its Secretary, Home Department, Mantralaya, Mumbai. 2. The Director General of Police, M.S.Sahid Bhagatsingh Road, Coloba, Mumbai. 3. Shri.Navichandra Reddy, Deputy Commissioner, State Intelligence Department, Maharashtra Police Headquarters, Mumbai. RESPONDENTS Mr.S.B.Talekar, learned counsel for the petitioner. Mr.N.B.Khandare, learned Government Pleader for respondent no.1 and 2 Mr.V.J.Dixit, learned Senior Counsel, with Shri.V.D.Gunale, learned counsel for respondent no.3 (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) 2 RESERVED ON : 05/10/2009 PRONOUNCED ON : 16/10/2009 JUDGMENT : (Per A.V.Potdar, J.) 1. Rule. Rule made returnable forthwith. With the consent of learned counsel for the parties, this petition is heard finally at the stage of admission. 2. By the present writ petition under Article 226 of The Constitution of India, the petitioner has questioned the legality of the judgment and order dated 24/08/2009 passed by The Maharashtra Administrative Tribunal, Mumbai, Bench at Aurangabad in original application no.674/2009 by which the application filed by the petitioner challenging the transfer order dated 27/07/2009 was dismissed. 3. At the outset, the facts which gave rise to file the present writ petition can be summarized as - The petitioner is in the services of Maharashtra Police Services as a Deputy Commissioner of Police and was working in the Aurangabad city. According to the petitioner, he was transferred to the post of Deputy Commissioner of Police, Aurangabad City from the post of Superintendent of Police, Highway Safety, Mumbai on 03/07/2007. Due to this transfer, the headquarter of the petitioner was at Aurangabad. It is stated that the 3rd respondent who was also holding the post of Deputy Superintendent of Police came to be transferred from Parbhani on 3 15/09/2004 to the post of Asstt. Commissioner of Police in the Commissionrate of Police, Aurangabad. It is further stated that on 01/08/2006, the 3rd respondent was transferred on promotion as Superintendent of Police in Anti-Naxilite Operation, Nagpur, but the 3rd respondent got this transfer order cancelled. It is further stated that vide transfer order dated 27/10/2006, the 3rd respondent somehow got the transfer order as an Additional Superintendent of Police, Aurangabad Rural. It is alleged that meanwhile on 29/09/2008, the 3rd respondent was transferred to the post of Deputy Commissioner of Police in State Intelligence Department (Headquarter), Mumbai, where he reported on 06/10/2008. It is alleged that to accommodate the 3rd respondent, the petitioner was transferred vide the disputed transfer order dated 27/07/2009 from his present posting which he had challenged before The Maharashtra Administrative Tribunal. Vide judgment and order dated 24/08/2009, in Original Application no.674/2009, the challenge to this transfer order filed by the present petitioner was rejected by the Tribunal which order is impugned in the present writ petition for the grounds alleged in para no.44(I) to (XXIII). 4. Heard respective counsels for the parties. With the assistance of respective counsels for the parties, perused the judgment and order impugned in the present writ petition passed in Original Application No.674/2009, dated 24/08/2009. 5. At the outset to consider the submissions advanced across the 4 bar by respective counsels for the parties, it is necessary to consider the provisions under Chapter II of The Maharashtra Government Servants Regulation of Transfers and Prevention of Delays in Discharge of Official Duties Act, 2005 (hereinafter will be referred as an Act of 2005 wherever required.) The Chapter II deals with the Tenures of Posting and Transfer and Transferring Authority, Section 3 : (1) For All India Service Officers and all Groups A, B and C State Government Servants or employees, the normal tenure in a post shall be three years : Provided that, when such employee is from the non-secretariat services, in Group C, such employee shall be transferred from the post held, on his completion of two full tenures at that office or department, to another office or Department : Provided further that, when such employee belongs to secretariat services, such employee shall not be continued in the same post for more than three years and shall not be continued in the same Department for more than two consecutive tenures. (2) Employees in Group D shall normally not be subjected to fixed tenure. They shall not be transferred out from the station where they are serving except on request when a clear vacancy exists at the station where posting is sought, or on mutual transfer, or when a substantiated complaint of serious nature is received against them. Section 4 : (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 ................. in the year. (3) Transfer list ....................... with the Chief Secretary. 5 (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 if 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. 6. During the course of submissions across the bar, our attention is drawn by the learned counsels for the parties towards the above quoted provisions in Chapter II of the Act of 2005. At the outset, it can be considered that Section 3 of The Act of 2005 deals with the transfer in regular course of the Government Employees while Section 4 Sub section 4 and 5 of Chapter II of The Act of 2005 deals with the transfers other than the regular transfers. It is pertinent to note the phraseology used in Section 4 Sub Section 4(i) which deals with the transfer under the specific circumstances arises in the event provided under Section 4 Sub Section (i) while Section 4 Sub Section 6 (ii) deals with the transfer in exceptional circumstances while section 4 Sub section (5) deals with the transfer in special cases. 7. Division Bench of this Court had an occasion to deal with what is exceptional circumstances and what are special circumstances as understood in the concept of service jurisprudence and is discussed in the judgment of V.B.Gadekar versus Maharashtra Housing and Area Development Authority (MHADA) and another, reported in 2008(1) All M R 45. The relevant observations in para no.7 of the judgment read as follows : The expressions “exceptional circumstances” or “special circumstances” have to be readejusdem generis provided that transfer may be made any time in the year in question under the circumstances stated in those provisions. The expressions “exceptional circumstances” has been explained in Black’s Law Dictionary, Sixth Edition, as conditions which are out of the ordinary course of events, unusual or extraordinary circumstances. The Shorter Oxford English Dictionary on historical principles, Vol.1 A- Markworthy explains the word “exceptional” - of the nature of or forming an exception, unusual. The discretion is vested in the authorities to make an exception of tenure of two and three years wherever special circumstances exist. Special circumstances should be understood in the concept of service jurisprudence and not in its literal sense. Conditions of service make transfer as a necessary incidence of service. The Rules give protection to an employee to stay at the place of posting for three years but this is subject to the exception that, where in the wisdom of the authority concerned, he should, for administrative and exceptional circumstances, even be transferred during that period. We do not see any fault in exercise of such power. 7 8. During the course of arguments across the bar, learned Senior Counsel appearing for the petitioner drawn our attention towards the disputed transfer order dated 27/07/2009 wherein it is specifically mentioned that this transfer order was made by the concerned authority under section 4(4) r/w. 4(5) of The Act of 2005. At the same time, our attention is drawn towards the contents of para no.14 of the impugned order passed by the Maharashtra Administrative Tribunal wherein it is observed by the Member of the Tribunal that to find out whether the reasons are recorded by the competent authority before passing the disputed transfer order, whether any reasons are recorded for that transfer in the file maintained by the Department was called for as according to the Learned Member of the Tribunal also, the impugned disputed transfer order dated 27/07/2009 do not disclose any reasons recorded by the competent authorities who had passed the transfer order of the petitioner. It is observed by the Member of the Tribunal in the impugned order under challenge by way of this writ petition that inspite of number of opportunities were given to the Presenting Officer, representing the respondent no.1 and 2 before the Administrative Tribunal, the Presenting Officer failed to produce the file for the observation of the Member of The Maharashtra Administrative Tribunal. Our attention is also drawn towards the observations in para no.15 of the judgment of the Tribunal wherein it is observed that, “the failure on the part of respondent nos. 1 and 2 of making available the concerned file, it is not possible to confirm as to whether reasons are recorded in the file for approval of Hon’ble Chief Minister, though the fact remains on 8 record that the order in dispute, is with specific reasons for passing the said order which can be termed as special reasons” and in this light, our attention is drawn towards the observations of the Tribunal in para no.28 wherein it is observed by the Tribunal that “for the entire discussion, the disputed order of transfer do not cover under section 4(4)(ii) and also under section 4(5) of the Transfer Act, there is failure on the part of respondent Nos. 1 and 2 to place on record the relevant material/record for establishing that such reasons are recorded in the file.” At the same time, it is observed in the later part of the same paragraph that, “thus for last more than a year the said post is vacant. In view of section 4(4)(i) of the Transfer Act, referred and discussed, an employee can certainly be transferred on vacant post and such order can be a mid-term transfer order” which is not the case made out by respondent no.1 and 2 in their affidavit in reply. 9. Considering these observations in the judgment of the Tribunal, which is under challenge by way of present writ petition before this Court, at the earliest, we have given directions to the Learned Government Pleader who is appearing for respondent no.1 and 2 to make available the said record for our perusal to find out as to whether any reasons are recorded in the said file showing the special case for transfer of the petitioner from his present posting to the posting after transfer. Accordingly the file was made available to us for our perusal. On careful perusal of the said file, we do not find any reasons recorded by the competent authorities, competent to transfer the petitioner, under section 4 Sub Section 5 of the Act of 9 2005 in any exceptional circumstances as contemplated u/s. 4 Sub Section 4(ii) of The Act of 2005. Thus we are satisfied that neither any reasons are recorded to effect the mid-term transfer of the petitioner as required to be recorded as contemplated u/s. 4 Sub Section 4(ii), as well as section 4 Sub Section 5 of The act of 2005. 10. During the course of submissions across the bar advanced on behalf of respondent no.1 and 2 by the Learned Government Pleader as well as during the course of submissions advanced across the bar by Learned Senior Counsel Shri.V.J.Dixit appearing for the 3rd respondent, they have drawn our attention towards the disputed order dated 27/07/2009, towards reference no.1 and reference no.2 of the said order in which it is mentioned that reference to general transfer dated 27/07/2009 and the letter received from Inspector General of Police, Maharashtra State and it was urged that even though in the transfer order dated 27/07/2009, reference is given about Section 4(4) and Section 4(5) of the Act of 2005, in fact these are the general transfers and not the mid-term transfers. 11. We are unable to accept those submissions advanced on behalf of the learned Government Pleader appearing for the 1st and 2nd respondent as well as submitted on behalf of the 3rd respondent by Learned Senior Counsel Mr.V.J.Dixit as it is not the case made out by way of affidavit in reply before the Tribunal by these respondents that the disputed transfer order dated 27/07/2009 is in fact a general transfer order and not a mid-term transfer order. Even though by the 10 same transfer order, near-about 56 police officers were transferred in the State of Maharashtra from one place to other, as in the file made available to us for our observations, these 56 police officers are divided in number of groups, but the name of the petitioner was included in the group for which no specific reasons were quoted to effect the transfer under the transfer order dated 27/07/2009. As against this, against the different groups, reasons are quoted about the transfer of the police officers whose names appeared in those specific groups. 12. There is an occasion to the Division Bench of this Court in the matter of State of Maharashtra versus Ashok Ramchandra Kore and another, reported in 2009(4) Mh.L.J. 163 wherein it is observed in paragraph no.31 and 32 by the Division Bench that in the matter of transfer u/s. 4(5) of The Act of 2005, in the matter of mid-term transfer of exceptional cases recording of reasons is a mandate. As we have already observed that on perusal of the disputed transfer order dated 27/07/2009 as well as the file made available to us, we do not find that any reasons are recorded to effect the transfer of the petitioner which is under challenge. According to us, the transfer order is not in compliance with the provisions u/s. 4(5) of the Act of 2005 and this aspect is totally overlooked by the Tribunal while dismissing the Original Application filed by the petitioner. 13. Before parting with our judgment, we have taken a note of the 11 fact that when the Learned Member of the Tribunal has instructed the Presenting Officer representing respondent no.1 and 2 to produce the file, which file was not produced before the Tribunal, what was an occasion to the Tribunal to decide the application hurriedly in absence of production of the file which is a material piece of document required for the just decision and to pass the judgment and order in the Original Application pending before the Tribunal, i.e. also in the light of the letter received in the office of Additional Chief Secretary, Maharashtra State, Home Department of State of Maharashtra from Special Inspector General of Police, (Administration), received in the Office of Commissioner of Police At Aurangabad on 08/08/2009 wherein it is specifically mentioned in para no.2 that no proposal is forwarded from the office of Special Inspector General of Police ( Establishment) to the office of Additional Chief Secretary, Home Department, Government of Maharashtra about the transfer of the petitioner from Aurangabad inspite of he was transferred from Aurangabad. 14. In the result, the impugned order in the present writ petition passed by the Maharashtra Administrative Tribunal dated 24/08/2009 require to be interfered with. Hence we quash and set aside the order dated 24/08/2009 passed by the Member, Maharashtra Administrative Tribunal, dismissing the Original Application No.674/2009 by which the transfer order of the petitioner dated 27/07/2009 was upheld. Hence, the writ petition to be allowed by setting aside the impugned order dated 24/08/2009 12 passed by the Maharashtra Administrative Tribunal and the transfer order of the petitioner dated 27/07/2009 is hereby stands cancelled. 15. Thus the writ petition succeeds. Rule is made absolute as indicated above. The writ petition stands disposed of accordingly with no order as to costs. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/OCT 2009/wp5652-09