1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. WRIT PETITION NO.6108 OF 2009 Suresh s/o Valu Jadhav ..PETITIONER VERSUS The State of Mah. & ors. ..RESPONDENTS Mr V.D. Sapkal, Advocate for the petitioner; Mr N.B. Khandare, Govt. Pleader for respondents no.1 to 3; Mr S.T. Shelke, Advocate for respondent no.4. WITH WRIT PETITION NO.6109 OF 2009 Anil s/o Dharmaraj Thakare ..PETITIONER VERSUS The State of Mah. & ors. ..RESPONDENTS Mr V.D. Sapkal, Advocate for the petitioner; Mr N.B. Khandare, Govt. Pleader for respondents no.1 to 3; Mr S.T. Shelke, Advocate for respondent no.4. WITH WRIT PETITION NO.6111 of 2009 Gajanan s/o Patilba Jaybhay ..PETITIONER VERSUS The State of Mah. & ors. ..RESPONDENTS 2 Mr V.D. Sapkal, Advocate for the petitioner; Mr N.B. Khandare, Govt. Pleader for respondents no.1 to 3 WITH WRIT PETITION NO.6112 OF 2009 Prakash s/o Ganpatrao Hake ..PETITIONER VERSUS The State of Mah. & ors. ..RESPONDENTS Mr V.D. Sapkal, Advocate for the petitioner; Mr N.B. Khandare, Govt. Pleader for respondents no.1 to 3 WITH WRIT PETITION NO.6213 OF 2009 Gopal Nathu Gadhari ..PETITIONER VERSUS The State of Mah. & ors. ..RESPONDENTS Mr P.M. Shah, Senior Advocate with Mr N.B. Suryawanshi for the petitioner; Mr N.B. Khandare, Govt. Pleader for respondents no.1 to 3; Mr S.T. Shelke, Advocate for respondent no.4; Mr M.M. Patil, Advocate for respondent no.5 WITH WRIT PETITION NO.6214 OF 2009 Nathu s/o Sitaram Rane ..PETITIONER VERSUS The State of Mah. & ors. ..RESPONDENTS Mr P.M. Shah, Senior Advocate with Mr N.B. Suryawanshi for the petitioner; Mr N.B. Khandare, Govt. Pleader for respondents no.1 to 3; 3 Mr S.T. Shelke, Advocate for respondent no.4; Mr M.M. Patil, Advocate for respondent no.5 WITH WRIT PETITION NO.6121 OF 2009 Narendra s/o Wasudeo Meghrajani ..PETITIONER VERSUS The State of Mah. & ors. ..RESPONDENTS Mr S.V. Gangapurwala, Advocate for the petitioner; Mr N.B. Khandare, Govt. Pleader for respondents no.1 to 3; Mr S.T. Shelke, Advocate for respondent no.4. WITH WRIT PETITION NO.6280 OF 2009 Bhaurao s/o Ismailji Telang ..PETITIONER VERSUS The State of Mah. & ors. ..RESPONDENTS Mr P.G. Deshmukh, Advocate holding for Mr C.V. Thombre for the petitioner; Mr V.H. Dighe, A.G.P. for respondents. WITH WRIT PETITION NO.6237 OF 2009 Gopinath s/o Narayanrao Patil ..PETITIONER VERSUS The State of Mah. & ors. ..RESPONDENTS Mr P.G. Deshmukh, Advocate holding for Mr C.V. Thombre for the petitioner; Mr V.H. Dighe, A.G.P. for respondents. 4 WITH WRIT PETITION NO.6118 OF 2009 Nanarao Sakharam Ghuge ..PETITIONER VERSUS The State of Mah. & ors. ..RESPONDENTS Mr S.P. Palshikar, Advocate for the petitioner; Mr N.B. Khandare, Govt. Pleader for respondents. WITH WRIT PETITION NO.6119 OF 2009 Bindusar s/o Bajirao Shinde ..PETITIONER VERSUS The State of Mah. & ors. ..RESPONDENTS Mr A.M. Gaikwad, Advocate for the petitioner; Mr N.B. Khandare, Govt. Pleader for respondents. WITH WRIT PETITION NO.6225 OF 2009 Sudhakar s/o Chandrabhan Suradkar ..PETITIONER VERSUS The State of Mah. & ors. ..RESPONDENTS Mr Hemant Surve, Advocate for the petitioner; Mr V.H. Dighe, A.G.P. for respondents. 5 WITH WRIT PETITION NO.6275 OF 2009 Prakash s/o Bhikaji Jadhav ..PETITIONER VERSUS The State of Mah. & ors. ..RESPONDENTS Mrs M.D. Thube-Mhase, Advocate for the petitioner; Mr V.H. Dighe, A.G.P. for respondents no.1 to 3; Mr S.T. Shelke,Advocate for respondent no.4. WITH WRIT PETITION NO.6293 OF 2009 Vyankat s/o Gulabrao Salunke ..PETITIONER VERSUS The State of Mah. & ors. ..RESPONDENTS Mr A.M. Gaikwad, Advocate for the petitioner; Mr V.H. Dighe, A.G.P. for respondents no.1 to 3; Mr S.T. Shelke, Advocate for respondent no.4. CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. (Date of reserving the order : 25.9.2009 Date of pronouncing the order : 16.10.2009) 6 ORDER These petitions have been filed by the petitioners, being aggrieved by the order passed by the Aurangabad Bench of the Maharashtra Administrative Tribunal dated 8.9.2009 dismissing the Original Applications filed by the petitioners. The petitioners accordingly pray for quashing and setting aside of the impugned order passed by the Tribunal and also correspondingly pray for quashing and setting aside the order by which the petitioners have been transferred. 2. Since all these petitions challenge the common order of the Tribunal by which their Original Applications came to be dismissed, we consider it appropriate to decide all these petitions by this common order. 3. The petitioners are Police Officers working at different places and by order dated 28.7.2009 the petitioners have been transferred to various places. Issuance of the aforesaid orders dated 28.7.2009 transferring the petitioners to various places, impelled the petitioners to file individual Original Application Nos.698 to 706, 708 to 710, 717, 732, 733, 734 and 738 of 2009 before the Aurangabad Bench of the Maharashtra Administrative Tribunal. As pointed out by us above, the aforesaid Original Applications came to be dismissed by the Tribunal by its common order dated 8.9.2009 and the petitioners being thus aggrieved by the dismissal of the aforesaid applications have challenged the said order by filing the present petitions. 4. Before dealing with the submissions advanced before us by the learned Counsel for the parties, it would be essential to refer to the provisions of the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005, hereinafter referred to as the "Transfer Act", dealing with the transfer of Government employees. 7 Section 4 (1) reads thus :- "No Government servant shall ordinarily be transferred unless he has completed his tenure of posting as provided in section 3. (2) .. .. .. .. (3) .. .. .. .. (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 permission of the immediately preceding Competent Transferring Authority mentioned in the table of section 6, transfer a Government servant before completion of his tenure of post." Section 3 of the said Act states that ordinarily a Government servant shall not be transferred unless he completes three years of service at the place of his posting. 8 5. The impugned transfer orders dated 28.7.2009 in its preface states that the aforesaid orders have been issued under provisions of section 4 (4) and 4 (5). The aforesaid transfer orders give the reason for transfer on the ground of the ensuing Assembly Elections as well as on administrative grounds. 6. The Tribunal while dealing with the aforesaid Original Applications had called for the record and upon perusal of the record has observed at paragraph 32 of the order has noted that part of the proposal was for transfer of Police Officers who have completed that three years tenure during the period of last four years at a particular place. The proposal also included the proposal for transfer of Police Officers for the compliance of the guidelines of the Election Commission and it also included a proposal for transfer of Police Officers on account of vacancy created because of the compliance of the guidelines of the Election Commission. The Tribunal further notes that the proposal was ultimately signed by the Minister for transfer of 62 Police Officers of the rank of Police Inspectors and was thereafter placed before the Chief Minister for approval and the Chief Minister approved the proposal with a few changes for transfer of the Police Officers. The proposal, as has been observed by the Tribunal, is for the special reason on account of the forthcoming Assembly Elections. The Tribunal thereafter repelled the challenge on behalf of the present petitioners that the forthcoming Assembly Elections could not be termed as a special reason or exceptional circumstance justifying the order of transfer. The Tribunal thereafter examined the provisions of the statute and found that there was compliance and ultimately dismissed the Original Applications. 7. A plain reading of the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005 indicates that the normal tenure of a Government servant shall be three years. Section 4 carves out an exception not only 9 in respect of effecting the mid term transfers but also transferring the Government servant before he completes the tenure of three years. Sub- section (5) of Section 4 in clear terms states that notwithstanding anything contained in section 3 or section 4, a transfer can be effected in special cases after recording reasons in writing and with prior permission of the immediately preceding Competent Transferring Authority. As pointed out by us above, Tribunal perused the record and found that there was compliance with the aforesaid directives. The transfer orders of the petitioners has been passed under Section 4(4) and 4(5) of the Act. The grounds stated in the transfer order as well as in the record is on account of ensuing assembly elections and on administrative grounds. 8. Mr.Sapkal, learned Counsel for the petitioner has referred to the dictionary meaning of the word"Special".The Oxford dictionary defines meaning of the word "Special" as (1) a particularly good, exceptional, out of the ordinary (2) Peculiar, specific, not general (3) for a particular purpose (sent on a special assignment). On the strength of the dictionary meaning of the word "Special" it is contended before us that the assembly elections cannot be considered as a special case or a special/exceptional circumstance to warrant the transfer. Our attention has also been invited to the Law Lexicon which states that "Special" means designed for a particular purpose, exceptional in character, quality or degree, appointed or employed for a particular purpose or occasion, relating to a single thing. Special circumstance has been given the meaning in the Law Lexicon as special circumstance must be something which is being continuously repeated or so often repeated has to be specially liable to cause accident. Mr.Sapkal, learned Counsel for the petitioner further relied upon the judgment of Supreme Court in Meet Singh v. The State of Punjab, AIR 1980 SUPREME COURT 1141, particulary to the observations of the Supreme Court at para 7 wherein the Supreme Court has construed the words "special reasons" to mean special to the accused on whom sentence is being imposed. The Supreme Court 10 further stated that the word "special" has to be understood in contradistinction to the word "general" or "ordinary". On behalf of the learned Counsel for the petitioners, it is also urged before us that a Government servant cannot be transferred before he completes his tenure of three years and sub-section (5) of Section 4 is not an exception to the mandate under Section 3 of the Act. The learned Government Pleader appearing in the petitions on behalf of the respective respondents has urged before us for dismissal of the petitions on the ground that the Tribunal has set out reasons which are well founded and need no interference in the extraordinary jurisdiction of this Court. It is also urged by the learned Government Pleader that transfer is an incident of service and the requirements of the Act have been duly complied by the authorities and in such circumstances the ensuing assembly elections could be considered as a special or the exception case warranting the transfers of the petitioners. The learned Government Pleader has placed reliance on the judgment of the Supreme Court in Mohd.Masood Ahmad versus State of U.P. & Ors., 2007 (6) Supreme 30, Union of India and others versus S.L.Abbas, JT 1993 (3) S.C.678 and to the Division Bench Judgment of this Court presided over by the Honourable the Chief Justice in Darakshan S.A.Shaikh vs. State of Maharashtra & anr. 2007 (6) Bom.C.R. 596. Reliance is also placed on the judgment of Supreme Court in State of Uttar Pradesh Versus Gobardhan Lal with D.K.Shukla, AIR 2004 SC 2165 to urge before us that the order transferring a Government servant would not be vitiated unless mala fides are established or the order has been passed in violation of statutory provisions. 9. As pointed out by us above, sub-section (5) of Section 4 is an exception to Section 3 and Section 4 which states about the tenure of posting and the transfers being effected in the month of April and May. Thus, sub-section 5 of Section 4 carves out an exception in respect of a Government servant being transferred before he completes his tenure as 11 is provided in Section 3 or in respect of mid term transfers. The submission of the learned Counsel for the petitioners, therefore, that sub- section 5 of Section 4 is not an exception either to Section 3 or Section 4(4) (i) and (ii) cannot be sustained. 10. A reference at this juncture may usefully be made to the judgment of the Division Bench of this Court in V.V.Gadekar vs. Maharashtra Housing And Area Development Authority and another, 2008 (2) Mh.L.J.640. The Division Bench at paragraph 7 has held thus: "7. Ordinarily, orders of transfer are made in the exercise of administrative authority to meet the exigencies of service and in public interest. How the Administration has to run its affairs is not a matter which squarely falls in the judicial domain. Unless the orders of transfer were in conflict with Rules and were made for ulterior motives or in patent arbitrary exercise of powers, the Court would decline to interfere in such matter. The transfers could be due to exigencies of service or due to administrative reasons. The petitioners in the present case have failed to demonstrate as to how the order of transfer has been passed for collateral purposes or is a patent arbitrary exercise of power. The authorities concerned have made a class of persons against whom disciplinary action is contemplated. In fact, it has been stated in the reply filed by the respondents in no uncertain terms that they are taking disciplinary action in accordance with the opinion of the Vigilance Department against these Officers for irregularities committed in the special and current repairs in the transit camps all over Mumbai. If the authorities have taken a view that they need to transfer the Officers upon whom show cause notices were served and 12 disciplinary action is contemplated that decision cannot be termed as arbitrary or mala fide. It is a decision obviously taken for administrative reasons and there is no occasion for the Court to go behind the order and examine, like an Appellate Authority, whether or not such order needs to be passed. The expressions "exceptional circumtances" or "special circumstances" have to be read ejusdem generis provided that transfer may be made any time in the year in question under the circumstances stated in those provisions. The expression "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 princiles, 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. In the present case, from the record before us, there are no patent mala fides or arbitrariness in exercise of power by the respondents. The conduct of the petitioners is to be looked into by the authorities and it will neither be just nor 13 fair for the Court to interfere at this stage and hold that the orders of transfer are vitiated on account of mala fide or colourable exervice of power or that they are in violation of the Rules." The Tribunal has noted upon perusal of the record that there has been a necessary compliance of the provisions of the Act and has also come to the conclusion that the ensuing assembly elections were exceptional circumstance/special circumstance warranting transfers of the petitioners. The Division Bench in V.V.Gadekar (supra) has held that the exceptional circumstance or special circumstance have to be understood in the concept of jurisprudence and not in literal sense. Even otherwise, since the Tribunal has perused the record and has noted the compliance of the provisions of the Act and has also found the reasons given in the order of transfer, no interference is called for in the exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India as no perversity in reasoning of the Tribunal has been noticed by us. Judical review in such cases is extremely limited. This Court would not as an appellate authority examine the adequacy of the reason. The existence of reasons which are not shown to be the outcome of mala fides would dissuade the Court from interfering in the order of transfer of a Government servant. 11. Thus, upon consideration of the rival submissions of the parties, in our considered opinion since there is compliance of the provisions of the Act and since there is no perversity in reasoning of the Tribunal, we are not inclined to interfere in the order of transfers of the petitioners. All these petitions, therefore, being sans merit are summarily dismissed. ( A.V. POTDAR, J.) ( P.V. HARDAS, J.) 14 At this stage, learned Counsel for the petitioners seek extension of the interim order passed by this Court. We accordingly extend the interim order by period of six weeks from today. ( A.V. POTDAR, J.) ( P.V. HARDAS, J.) amj/wp6108.09