1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2232 OF 2008 Vishakha Vinayak Ingale, ) age about 48 years, Occ: Service, ) residing at B-6, Alankar Co-op. ) Hsg. Society Ltd., New Tilak Nagar,) Chembur (West), ) Mumbai – 400 089. ).. Petitioner Versus 1. Brihanmumbai Municipal ) Corporation, having their ) office at Mahapalika Marg, ) Bombay – 400 001. ) 2. The Additional Municipal ) Commissioner-Education ) (Eastern Suburbs), ) BMC, 3rd Floor, ) Mahapalika Marg, ) Mumbai – 400 001. ) 3. Education Officer, ) Brihanmumbai Municipal ) Corporation, Lakhamshi ) Nappu Road, Hindu Colony, ) Dadar (East), ) Mumbai – 400 014. ).. Respondents -- Shri Santosh Narawade i/by M/s. M.P. Vashi & Associates for the Petitioner. Ms A.R. Joshi for the BMC. -- CORAM: SWATANTER KUMAR, C.J.& 2 S.A. BOBDE, J JUDGMENT RESERVED ON : 19TH NOVEMBER, 2008 JUDGMENT PRONOUNCED ON : 11TH DECEMBER, 2008 JUDGMENT : ( PER SWATANTER KUMAR, C.J. ) Heard. 2. Rule. Returnable forthwith. By consent of parties, the matter is taken up for hearing and final disposal at the admission stage itself. 3. The Petitioner claims in this Petition that she is a qualified teacher belonging to Reserved Catetory and was appointed in a primary school administered by Brihanmumbai Muncipal Corporation at Govandi from where she was transferred to different schools and was finally transferred to Station Chembur BMC Marathi School No.2 at Chembur. It is her case that she was harassed by the Headmistress of the said Chembur School No.2 and was not allowed to sign the muster roll etc. Vide the order dated 12th/13th February, 2008, the 3 Petitioner was suspended for the alleged misconduct. A preliminary inquiry was held and on 23rd May, 2008, the order of suspension was cancelled and she was informed to resume her duties with effect from 1st June, 2008 at Wadala BMC School No.2 at Nadkarni Park. She made certain representations and was thereafter transferred to the school built by MMRDA at village Anik, Vashi Gaon from 26th June, 2008. The Petitioner was again informed vide office order dated 13th August, 2008 that the order of suspension had been revoked and she was called upon to resume her duties. According to the Petitioner, her transfer is punitive and she was being harassed by the authorities and has not even been paid her salary. 4. In the reply filed on behalf of the Respondents, it has been averred that the Respondents have the power and authority to post and transfer an employee anywhere and such orders are passed after taking into consideration the various factors including need of the teachers in various schools. Vide letter dated 23rd May, 2008, the Petitioner was informed of the revocation of suspension order and she was called upon to 4 resume her duties which she failed to do inspite of receipt of the said letter. She again made a request vide letter dated 4th June, 2008 which was declined and she was directed physically to present in the transferred school, and resume her duties and submit compliance report. Despite intimation vide letter dated 25th June, 2008, she failed to report to her duties and has been placed under suspension for misconduct. After revocation of the suspension order, a preliminary inquiry has been ordered and the Respondents are proposing to serve a chargesheet in accordance with the service rules upon the Petitioner. 5. At the very outset, we may notice that learned Counsel appearing for the Respondents very fairly stated that the order of suspension dated 13th February, 2008 has already been revoked and the Petitioner is in service and she is not resuming her duties despite due notice. In the letter dated 23rd May, 2008, it was stated that she was first asked to resume her duties and attend the training with effect from 2nd June, 2008 and she did not do so vide her letter dated 31st May, 2008. Thereafter, vide office order dated 25th June, 2008 she was 5 transferred on payment of salary at the school where the classes have been started in the school built by MMRDA at Anikgaon, Vashigaon with effect from 26th June, 2008 but till date she has not joined her duties. Keeping in view this conduct of the Petitioner, vide order dated 13th August, 2008 (Exhibit-P to the Petition), the Petitioner was clearly informed that if she failed to join her duties, strict action in accordance with law will be taken against her and she again may face suspension from the service. Despite this, she did not join duties and has filed the present Writ Petition. This conduct of the Petitioner can hardly be justified in law. 6. As we have already noticed, learned Counsel appearing for the Corporation has fairly conceded that the order of suspension dated 13th February, 2008 has been revoked and she will be paid entire salary for the said period but the Respondents reserve their right to serve a chargesheet upon the petitioner in accordance with the service rules in furtherance to the departmental inquiry initiated against her for misconduct. In view of this, we are unable to find merits in this Writ Petition. 6 7. As far as the transfer of the Petitioner to the school at Vashigaon is concerned, we are unable to accept the contention that it is punitive transfer. It is an admitted case of the parties that the Petitioner was being transferred on various occasions and she claims to have joined the school without any protest. Transfer is an incidence of service. A Division Bench of this Court in the case of Ms Darakshan S.A. Shaikh v. State of Maharashtra & Anr. 2008(1) Mh.L. J. 807, held as under: - “It is settled principle that transfer is an essential incidence of service. It is primarily in the domain of the concerned authority. To claim or prevent transfer to a particular place is not for the employee. The guidelines or rules framed in relation to the transfer do not vest any indefeasible right in an employee. Of course the authorities are expected to act fairly and wherever such action of the authority is tainted with patent arbitrariness, mala fides and colourable exercise of power, the courts would step in and examine the merits of the claim of a transferred person.” 8. Keeping in view the above principle and even under common principles of service jurisprudence, the employer has a 7 right to transfer its employee and transfer is also an essential incidence of service. Of course, if the order of transfer is otherwise arbitrary or mala fide then in certain exceptional cases the Court would interfere in the order of transfer. 9. The order of suspension issued against the Petitioner was withdrawn primarily because a chargesheet was not served within the stipulated time and that is so indicated in the letter of the Petitioner itself dated 16th June, 2008. The Respondents also have a right to continue departmental inquiry in accordance with law. 10. In view of the above discussion and particularly the statement made on behalf of the Respondents, we dispose of the Writ Petition with a direction to the Respondents to pay salary to the Petitioner for the period of suspension in accordance with the rules with a further direction to the Petitioner to join the post at the transferred school within one week from the date of pronouncement of this order and upon her joining at the transferred school, in terms of the order of the 8 Respondents, the Petitioner would also be paid salary in accordance with the rules. The Rule is discharged accordingly. 11. In the facts and circumstances of the case, there shall be no order as to costs. CHIEF JUSTICE S.A. BOBDE, J Sep.08/res.js/wp2232.08.sxw