1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD WRIT PETITION NO. 6648 OF 2008 1 Dr. Parshuram Kondiba Kamble, age 54 years, occ. Service, r/o C/o Rahul Joshi, Behind Patni Kirana Stores, Labour Colony, Aurangabad. ...Petitioner VERSUS 1 The State of Maharashtra, through its Secretary Higher Education Department, Mantralaya, Mumbai 400 032, 2 The Director of Education (Higher Education), Maharashtra State, Pune, 3 The Director, Vasantrao Naik Government Institute of Arts & Social Sciences, Nagpur, 4 The Principal, Government College & Arts & Science, Aurangabad, 5 Dr. (Smt.) Vaishali Deshmukh, Lecturer in Music, Government College of Arts & Science, Aurangabad, 6 Shri Anil M.Khobragade, Lecturer in Music, Vasantrao Naik Government Institute of Arts & Social Science,Nagpur. ...Respondents 2 ..... Shri N.E.Deshmukh, advocate holding for Shri S.B.Talekar, advocate for the petitioner Shri N.B.Khandare, G.P. for respondent nos. 1 to 4 Shri V.J.Dixit, Senior advocate instructed by Shri S.Y.Mahajan, advocate for respondent no.5 Respondent no.6 served. ..... W I T H CIVIL APPLICATION NO. 11001 OF 2009 IN WRIT PETITION NO. 6648 OF 2008 1 Dr. Sow. Vaishali w/o Santosh Deshmukh, age 33 yrs., occ. Service, Lecturer, Government College of Arts & Science, Aurangabad, R/o “Antara”, Suprabhat Residency, B-2, Near Swaranjali Apartment, Ulkanagari, Aurangabad, Dist. Aurangabad ...Applicant (Original Resp.no 5) VERSUS 1 Dr. Parshuram S/O Kondiba Kamble, age 54 years, occ. Service, Govt. College of Arts & Science, Aurangabad, r/o C/o Rahul Joshi, Behind Patni Kirana Stores, Labour Colony, Aurangabad ...(Orig. Writ Petitioner) 2 The State of Maharashtra, through its Secretary Higher Education Department, Mantralaya, Mumbai 400 032, 3 The Director of Education 3 (Higher Education), Maharashtra State, Pune, 4 The Director, Vasantrao Naik Government Institute of Arts & Social Sciences, Nagpur, 5 The Principal, Government College & Arts & Science, Aurangabad, 6 Shri Anil M.Khobragade, Lecturer in Music, Vasantrao Naik Government Institute of Arts & Social Science,Nagpur. ...Respondents ..... Shri V.J.Dixit, Senior advocate instructed by Shri S.Y.Mahajan, advocate for applicant (orig respondent no.5) Shri N.E.Deshmukh, advocate holding for Shri S.B.Talekar, advocate for respondent no.1 (orig. writ Petitioner) Shri N.B.Khandare, G.P. for respondent nos. 2 to 5 Respondent no.6 served. CORAM : S.B.DESHMUKH AND SHRIHARI P.DAVARE, JJ. DATE OF RESERVING THE JUDGMENT : 17.12.2009 DATE OF PRONOUNCING THE JUDGMENT : 19.12.2009 J U D G M E N T : (Per Shrihari P. Davare, J.) 1 The present petition filed by the petitioner under Articles 14, 16, 226 and 227 of the Constitution of India is directed 4 against the order dated 16.10.2008, passed by the Maharashtra Administrative Tribunal, Bombay, Bench at Aurangabad in Original Application No. 651 of 2008 as well as against the Government Resolution dated 8.10.2008 transferring the petitioner from Government College of Arts and Science, Aurangabad to Vasantrao Naik Government Institute of Arts and Social Sciences, Nagpur, issued by the Under Secretary to Government of Maharashtra, Higher Education, Mantralaya, Mumbai. After filing the present petition, an interim order came to be passed by this court on 20.11.2008 thereby directing respondent nos. 1 to 4 herein to allow the petitioner to continue in his original post until further orders by this court. Respondent no.5 has preferred Civil Application No. 11001 of 2009 requesting to vacate the said interim order dated 20.11.2008. 2 The petitioner was working as Lecturer and Head of Department in Music with respondent no.4 i.e. Government College of Arts and Science at Aurangabad. Respondent no.1 is the State of Maharashtra represented through its Secretary, Higher Education Department, Mantralaya, Mumbai – 32 and respondent no.2 herein is the Director of Education (Higher Education, Maharashtra State, Pune. Respondent no.3 is the Director of Vasantrao Naik Government Institute of Arts and Social 5 Sciences, Nagpur. Respondent no.5 namely Dr. (Smt.) Vaishali Deshmukh was working as Lecturer in Music in Government College of Arts and Science, Aurangabad; whereas respondent no. 6 namely Anil M. Khobragade was working as Lecturer in Music in Vasantrao Naik Government Institute of Arts and Social Sciences, Nagpur. 3 By way of Government Resolution dated 8.10.2008, issued by the Under Secretary, Government of Maharashtra, the petitioner herein was transferred to respondent no.3 and respondent no.6 Mr. Anil M. Khobragade was transferred in place of the petitioner i.e. to respondent no.4 and the said Government Resolution is produced at Exh. ‘V’ at page 97. Accordingly, respondent no.4 issued an order relieving the petitioner 0n 8.10.2008 (A.N.). It is the matter of record that respondent no.6 approached to Maharashtra Administrative Tribunal at Nagpur by preferring Original Application No. 471 of 2008 and thereby challenged the impugned order of transfer dated 8.10.2008. The Maharashtra Administrative Tribunal at Nagpur passed an order as under :- “ The applicant be not relieved if not relieved till further orders. “ 6 Accordingly, it appears that respondent no. 6 Shri Khobragade was allowed to continue at Nagpur by virtue of the said order. 4 It is further the matter of record that the present petitioner also approached to Maharashtra Administrative Tribunal, Bombay, Bench at Aurangabad by preferring Original Application No. 651 of 2008 dated 13.10.2008 and thereby challenged the impugned Government Resolution 8.10.2008, as well as letter dated 8.10.2008 relieving him from 8.10.2008. Moreover, the petitioner herein prayed for stay to the operation of the impugned transfer order dated 8.10.2008 issued by the Under Secretary (Higher Education), Government of Maharashtra, Mantralaya, Mumbai. However, the Maharashtra Administrative Tribunal, Bombay, Bench at Aurangabad rejected the said prayer of grant of stay vide interim order passed on 16.10.2008. 5 Being aggrieved and dissatisfied by the said order passed by the Maharashtra Administrative Tribunal, Bombay, Bench at Aurangabad on 16.10.2008, the petitioner herein has preferred the present petition challenging the said order dated 16.10.2008 passed by the Maharashtra Administrative Tribunal, Bombay, Bench at Aurangabad in Original Application No. 651 of 2008 and also challenging the Government Resolution dated 7 8.10.2008 transferring the petitioner as afore said, and the interim order dated 20.11.2008 came to be passed by this court as mentioned herein above, granting liberty to the petitioner herein to move the Maharashtra Administrative Tribunal, Bombay, Bench at Nagpur for vacation of stay. 6 Thereafter, it appears that the Maharashtra Administrative Tribunal, Bombay, Bench at Nagpur passed an order in Original Application No. 471 of 2008 preferred by respondent no.6 on 23.11.2009 and dismissed the said Original Application. Shri Khandare, learned Government Pleader made available copy of the said order, which is marked at Exh. ‘X’ for reference. In the said order, said Tribunal has observed that, “In the circumstances, I find that there is no merit in the Original Application filed by the applicant (respondent no.6 herein) and same is liable for dismissal. It is accordingly dismissed with no order as to costs. Interim relief order granted by this Tribunal vide its order dated 13.10.2008 stands vacated forthwith.” Shri Khandare, learned Government Pleader pointed out that the said order at Exh. ‘X’ was challenged by respondent no.6 herein by filing Writ Petition No. 5199 of 2007 in this court before Nagpur Bench and the Division Bench of this court at Nagpur was pleased to direct to maintain status quo as of 1.12.2009 by passing order 8 on the said date on noticing that interim relief was operating during the pendency of Original Application before the Maharashtra Administrative Tribunal, Bombay, Bench at Nagpur. The said Writ Petition was adjourned to 15.12.2009 and copy of the said order was tendered before this court and same is taken on record and marked ‘Y’ for identification purpose. 7 On this background, respondent nos. 1 to 3 submitted that after dismissal of Original Application No. 471 of 2008 by the Maharashtra Administrative Tribunal, Bombay, Bench at Nagpur on23.11.2009, respondent no.3 has relieved respondent no.6 herein on 30.11.2009 (A.N.) and since the said date respondent no.6 is not working in the office of respondent no.3. It is further submitted that the order of status quo came to be passed in Writ Petition No. 5199 of 2007 by this court Bench at Nagpur on 1.12.2009 and since respondent no. 6 herein was already relieved on 30.11.2009, respondent nos. 1 to 3 have maintained the position of status quo directed by this court Bench at Nagpur on 1.12.2009. It is also submitted that respondent no. 6 was on medical leave and therefore, relieving order was forwarded to him by R.P.A.D., as well as a Peon of the institute visited the residence of respondent no. 6 for serving the copy thereof, but respondent no. 6 was not present at the residence and his wife refused to 9 accept the said order and as a result, copy of the said order was affixed on the door of his house. 8 Keeping in mind the afore said background and coming to the present petition and Civil Application, the petitioner herein has made the grievance that the petitioner herein has just completed one year and three months on the present post and therefore, impugned transfer order violates statutory provisions of Section 4 (4) (ii) as well as Section 3 of the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005 (hereinafter referred to as ‘the Act’). The petitioner also makes a grievance that the said transfer is mid-term transfer and said transfer order has been issued with mala fides because of the false complaint made against him by respondent no.5 herein. The petitioner also contended that on the allegations of respondent no. 5, no departmental inquiry has been made against him by the authorities and therefore, the impugned transfer order is a penal transfer and said transfer order is bad in law. 9 To counter the submissions of the petitioner, respondent nos. 1 to 3 submitted that the impugned transfer order has been made on the basis of the complaint of respondent 10 no.5, in which serious allegations of misbehaviour and outraging the modesty of respondent no.5 have been made and accordingly the Grievance Committee has inquired into the matter and thereafter impugned transfer order has been issued by following the due procedure of law. It is also submitted that although the petitioner herein has not completed the normal tenure as laid down in Section 3, he can certainly be transferred in accordance with the provisions of Section 4 of the Act. In the said context, it is also pointed out that the provisions of Section 4 have been strictly followed and prior approval of the competent authority as also obtained. It is further submitted that in the exceptional circumstances and for the reasons recoded in writing, the petitioner herein was transferred and there is no violation of any of the provisions of the Act. Learned counsel for respondent nos. 1 to 3 submitted that it is not necessary to conduct the departmental inquiry before taking the action and transfer can be made on prima facie satisfaction of the authorities concerned based on the contemporary reports and accordingly learned counsel for respondent nos. 1 to 3 supported the said transfer order dated 8.,10.2008. 10 Learned counsel for respondent no.5 invited our attention to the fact that although liberty was granted to the 11 petitioner herein vide interim order dated 20.11.2008, the petitioner herein has not moved the Maharashtra Administrative Tribunal, Bombay, Bench at Nagpur for vacation of stay and even learned counsel for respondent no.5 pointed out the observations made by the Maharashtra Administrative Tribunal, Bombay, Bench at Aurangabad in the order passed on 7.9.2009 that, “Now the learned counsel for the applicant again submitted that his client has informed him that his client is not willing to make an application before the M.A.T. Nagpur Bench for compliance of the said submission for vacation the stay.” Hence, learned counsel for respondent no.5 submitted that he made submission before the Maharashtra Administrative Tribunal, Bombay, Bench at Aurangabad that respondent no. 5 would move this court for necessary relief in present Writ Petition. Accordingly, Civil Application No. 11001 of 2009 has been preferred by respondent no. 5 for vacating the interim order dated 20.11.2008. 11 We have perused the present Writ Petition and its annexures, as well as we have perused the Civil Application No. 11001 of 2009 and its annexures. We have also considered the submissions advanced by learned counsel for the parties anxiously. It is admitted that the petitioner herein was working as Head of Department in Music in the college i.e. respondent no.4 12 and it is also not disputed that respondent no.5 has made complaint in writing against him alleging misbehaviour by the petitioner with her and also alleging outraging her modesty and it is apparent that the impugned transfer order dated 8.10.2008 is the outcome of the complaint made by respondent no.5. 12 It is pertinent to note that although this court granted liberty to the petitioner to move the Maharashtra Administrative Tribunal, Bombay, Bench at Nagpur for vacation of stay while passing the interim order on 20.11.2008 in present petition, the petitioner herein has miserably failed to comply with the same and even the petitioner’s advocate went to the extent and submitted before the Maharashtra Administrative Tribunal, Bombay, Bench at Aurangabad that the petitioner was not willing to make application before Nagpur Bench for compliance of the said liberty for vacating the stay as observed in the order dated 7.9.2009 passed by the Maharashtra Administrative Tribunal, Bombay, Bench at Aurangabad and the said inaction on the part of the petitioner for the substantial period of about one year speaks volumes for itself. 12 Considering the facts and circumstances and also considering the position that the petitioner herein has approached 13 this court by way of present Writ Petition challenging the interim order rejecting stay to the operation of transfer order by Government Resolution dated 8.10.2008, passed by the Maharashtra Administrative Tribunal, Bombay, Bench at Aurangabad on 16.10.2008 and further considering the position that the Maharashtra Administrative Tribunal, Bombay, Bench at Aurangabad is very well seized of the said matter i.e. Original Application No. 651 of 2008 which is pending before it, and further considering the position that the petitioner herein has not taken appropriate steps to approach to the Maharashtra Administrative Tribunal, Bombay, Bench at Nagpur to vacate the stay for about one year as per liberty granted by this court while passing interim order on 20.11.2008, we are of the considered view that, without adverting to the merits of the matter, parties be directed to appear before the Maharashtra Administrative Tribunal, Bombay, Bench at Aurangabad in pending Original Application No. 651 of 2008 on a specified date and the Maharashtra Administrative Tribunal, Bombay, Bench at Aurangabad can be requested to decide the said pending Original Application on its own merits, in accordance with law, as expeditiously as possible within a reasonable time frame, and accordingly, present petition deserves to be dismissed and interim relief granted earlier by this court by order dated 14 20.11.2008 is also required to be vacated, and consequently, Civil Application No. 11001 of 2009 is required to be disposed of. 13 In the result, Writ Petition No. 6648 of 2008 stands dismissed. Interim relief earlier granted by order dated 20.11.2008 stands vacated. Parties are directed to appear before the learned Maharashtra Administrative Tribunal, Aurangabad in pending Original Application No. 651 of 2008 on 15th January, 2010 and learned Maharashtra Administrative Tribunal, Aurangabad is requested to decide the said Original Application on its own merits in accordance with law, as expeditiously as possible, preferably within a period of four months from 15th January, 2010. In view of the order passed in Writ Petition, Civil Application No. 11001 of 2009 stands disposed of. (SHRIHARI P. DAVARE, J.) (S.B.DESHMUKH, J.) The operation of the afore said order shall stand suspended for a period of two weeks, at the request of learned counsel for the petitioner. (SHRIHARI P. DAVARE, J.) (S.B.DESHMUKH, J.) dbm/wp6648.08