(1) JUD-WP-5198.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5198 OF 2011 Manik S/o Patloba Darade Age : 56 years, Occu.: Service, R/o Dharur, Tq. Dharur, Dist. Beed PETITIONER Versus 1. The State of Maharashtra Through its Secretary, Public Works Department, Mantralaya, Mumbai-32 2. The Chief Engineer, Public Works Department, Public Works Region, Regional Office, Osmanpura, Aurangabad (Copies of respondents no.1 and 2 to be served on Assistant Government Pleader, High Court, Bench at Aurangabad) 3. Sudhir Digambarrao Naik, Age : 46 years, Occu.: Service, R/o Public Works Sub Division, Dharur, Tq. Dharur, Dist. Beed RESPONDENTS ..... Shri N. B. Suryawanshi, Advocate for petitioner. Shri V. D. Rakh, A.G.P. for respondent nos.1 & 2/State Shri R. S. Deshmukh, Advocate for respondent no.3. ..... (2) JUD-WP-5198.2011 CORAM : B. R. GAVAI AND M. T. JOSHI, JJ. DATED : 7TH SEPTEMBER, 2011 JUDGMENT (PER - M.T. JOSHI, J.): 1. Rule. Rule made returnable forthwith. Heard by consent. 2. By the present Petition, the petitioner is seeking quashment of the order of his transfer dated 31.5.2011 from Dharur, Dist. Beed to National Highway, Beed. Respondent no.3 is posted by the impugned order in his place. 3. It is an admitted fact that the petitioner was posted at Dharur vide order dated 30.7.2009. However, mid-term transfer is caused vide the impugned transfer order dated 31.5.2011. Apprehending that such mid-term transfer may occur, the petitioner had earlier made a representation to his superior dated 22.5.2011, that some political pressure is being brought for the transfer. 4. The case of the respondents in short is that though the three years tenure of the petitioner was not completed, for the (3) JUD-WP-5198.2011 administrative reasons, the transfer is effected. The record called by the learned Member of the Maharashtra Administrative Tribunal in the proceedings show that the Hon'ble Minister of State for rehabilitation and Earthquake relief had recommended that the respondent no.3 be posted at the place of the petitioner. In view of the learned Member of the Maharashtra Administrative Tribunal, such recommendation constituted a satisfaction of the competent authority that the transfer was essential and, therefore there was due compliance of the provisions of section 4(4) (ii) of the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005 (hereinafter called as "the Transfer Act" for short). Learned Member, Maharashtra Administrative Tribunal also held that the request of the transfer by the said Hon'ble State Minister is request from "Hon'ble Minister Incharge of such Department" and therefore, the ratio of the judgment delivered by the Maharashtra Administrative Tribunal, Mumbai in another case would not be applicable. In the situation, the Original Application of the petitioner came to be dismissed. Hence, the present Petition. 5. The Transfer Act is enacted in the year 2006 in order to regulate the transfers of Government servants and prevention of (4) JUD-WP-5198.2011 delay in discharge of the official duties. Section 4 generally provides that the Government servant shall not ordinarily be transferred unless he has completed his tenure of posting of three years at the place. There is however proviso to this provision, which is in the nature of sub-section 4(ii), which reads thus:- "4. Tenure of Transfer. ...... ...... (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) .... (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;" 6. The ratio of the judgment delivered by the Maharashtra Administrative Tribunal, Mumbai in Original Application no. 376 of 2007 with Original Application no. 377 of 2007, which is reproduced by the learned Member of the Maharashtra Administrative Tribunal in the judgment is as under:- (5) JUD-WP-5198.2011 "vii) Any representation or request to the competent authority with any recommendations from an outsider, political, big wigs, Hon'ble Minister not in charge of such department, shall be summarily rejected and the Government servant indulging in such activities shall be firmly dealt with in accordance with conduct rules." 7. As regards the ratio of the judgment, the learned Member has observed that since the State Minister is the Guardian Minister of the Beed District, the observations made by the learned Member, Maharashtra Administrative Tribunal, Mumbai that representation or request of "the Hon'ble Minister not Incharge of such Department" shall be summarily rejected, is not applicable. 8. The learned Assistant Government Pleader however, fairly concedes that the Minister of State in the present case was not the Guardian Minister of the Beed District, as being Minister of the State, he could not have been declared as such. Besides this, a Guardian Minister of a particular district cannot be a Minister Incharge of the specific department. Further, the ratio is in negative term and it does not declare that the request from the Minister Incharge of the Department for mid-term transfer of any of the Officer under him is permissible. (6) JUD-WP-5198.2011 9. As regards the second proviso of sub-section 4 of section 4 of the Transfer Act, it is to be noted that it was incumbent upon the competent authority to satisfy itself that "the transfer is essential due to exceptional circumstances or special reasons" and those reasons were required to be recorded in writing. Besides this, a mere request of a Minister of State cannot be an exceptional circumstance or a special reason. If a request from the Minister is termed as an exceptional circumstance, or a special reason, then the very purpose of enacting the Transfer Act would be frustrated. 10. In view of the above matter, the order of the learned Member of the Maharashtra Administrative Tribunal and the order of the respondent-State causing the transfer of the petitioner cannot be sustained. In the circumstances, we quash and set aside the transfer order dated 31.5.2011 and direct the respondent nos.1 & 2 to immediately permit the petitioner to join at his posting at Dharur Dist. Beed as Sub Divisional Engineer, Public Works Sub Division, Dharur Dist. Beed. This direction shall be complied with within a period of 15 days from today. Rule is therefore made absolute in the aforesaid terms. (7) JUD-WP-5198.2011 11. At this stage, Shri R.S. Deshmukh, learned counsel appearing for the respondent no.3, requests for stay to the order passed by us. 12. We have taken a considered view that the impugned transfer order by the respondent-State is in total disregard to the statutory provisions as enacted by the Transfer Act. The protection, which is granted by the said Act to the employees of the State Government that they should not normally be transferred till the completion of period of three years at a place unless special circumstances exist, is frustrated by the impugned order. Ex facie, it can be seen that the transfer order has been issued at the instance of the Hon’ble Minister. The perusal of the order passed by the learned Maharashtra Administrative Tribunal would itself show that it is the Hon’ble Minister of State for Revenue, who, according to the learned Tribunal, happens to be the Guardian Minister for Beed District, has initiated the proposal for transfer of the respondent no.3 at Dharur and the movements have started from Mantralaya downwards to send the proposal for transfer of the respondent no.3 at Dharur. We are of the considered view that the impugned transfer order was made in order to favour the respondent no.3 at the instance of the said Hon’ble Minister. (8) JUD-WP-5198.2011 13. In that view of the matter, we do not find that any case is made out for grant of stay to our order. Hence, the prayer for stay to our order is rejected. Sd/- Sd/- [M. T. JOSHI, J.] [B. R. GAVAI, J.] arp/