1 wp-8898-10 mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO. 8898 OF 2010 Shri Rajendra Shankar Kalal ....Petitioner Vs. The State of Maharashtra & Ors. ...Respondents Mr. M.S. Karnik i/b.Mr. Harshad M. Inamdar, for the petitioner. Mr.Vijay Patil, AGP for respondent No.1. Mr. N.V. Bandiwadekar, for respondent No.2. CORAM: B. H. MARLAPALLE & U.D.SALVI, JJ. DATE: 30th November, 2010. P.C. This petition is directed against the order passed by the Maharashtra Administrative Tribunal in O.A. No.545 of 2010 on 9th November, 2010 and the said O.A., was filed by the present respondent No.2 challenging the general transfer order dated 1st June, 2010. By the said order of general transfer, respondent No.2 came to be posted in the same office at Nashik (the office of the Divisional Social Welfare Officer), but attached to the Caste Certificate Scrutiny Committee No.1 and the present petitioner on 2 wp-8898-10 completion of his tenure of three years came to be transferred from the post of Deputy Director (Administration) Pune in the place of the respondent No.2 at Nashik. As per the respondent No.2 his shifting from one section to another in the office of the Divisional Social Welfare Office at Nashik was a transfer and it was an illegal transfer in as much as the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005 (the Transfer Act for short) did not permit such midterm transfer. He claimed that on his request and on completion of three years of service at Nagpur he came to be transferred as Divisional Social Welfare Officer, Nashik Division, some time in July, 2009 and within a tenure of about 11 months he came to be shifted and attached to the Caste Certificate Scrutiny Committee in the same office. He, therefore, approached the Tribunal and succeeded by the impugned order. 2. The Tribunal held on perusal of the record produced before it that the transfer was based on the complaints which were not investigated into and, therefore, it was unfair to transfer the applicant (respondent No.2). Unless an enquiry was conducted into the said complaints there could be no valid satisfaction of “exceptional or special reasons” and, therefore, though the 3 wp-8898-10 internal transfer of the applicant was approved by the Chief Minister, the order appeared to have been issued in a haste and without relying on any valid reasons and receipt of such complaints could, by no means, be a sufficient reason to cut short the tenure unless it was enquired and prima facie found to be correct, stated the Tribunal. 3. The petitioner who was the respondent No.2 before the Tribunal in O.A. No.545 of 2010 is aggrieved by the order dated 9th November, 2010 whereby the applicant's internal transfer has been set aside and more so when the petitioner was transferred in the place of the applicant. The petitioner states that he is without any posting as of now and he is not at fault nor did he ask for any transfer at Nashik. 4. The only issue which falls for our consideration is whether the transfer of respondent No.2 within the same office at Nasik by the order dated 1st June, 2010 could be called as unfair, illegal or by way of punishment/stigma. 5. The Government of Maharashtra has enacted the Act which has been brought into force with effect from 12th May, 2006 and it assures minimum 4 wp-8898-10 tenure of posting for a period of three years. It also permits midterm transfers under exceptional circumstances or special reasons or in special cases. As per the said Act such midterm transfers are required to be approved by an authority higher than the competent transferring authority as defined under Section 6 of the said Act. We are informed across the bar that the petitioner as well as the applicant are Group B Officers and, therefore, under Section 6 of the Act the Minister in charge in consultation with the Secretary, Social Justice and Special Assistance Department is the Competent Transferring Authority. Consequently, if the midterm transfer has to be undertaken of such an officer the approval of the Chief Minister is required to be obtained and such an approval has been obtained as has been noted by the Tribunal before the transfer order was issued. 6. Section 4 of the Act deals with the tenure of transfer and it states that no Government servant shall ordinarily be transferred unless he has completed his tenure of posting as provided in Section 3. Sub-section (4) of the said Section states that the transfers of Government servants shall ordinarily be made only once in a year in the month of April or May. The proviso below sub-section (4) of Section 4 is relevant for the present purpose and we reproduce the same as under:- 5 wp-8898-10 “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.” 7. Thus where the Competent Authority is satisfied that the transfer is essential due to exceptional circumstances or special reasons or in special cases the same could be effected after recording reasons in writing and that the prior permission of the higher authority than the Competent Transfer Authority mentioned in Section 6 of the Act. 8. It is pertinent to note that the order dated 1st June, 2010 did not specify any reasons for transfer of in all 9 officers. In case of the officers at Serial Nos.2 to 5, there is a change in Head Quarter, but in case of the 6 wp-8898-10 officers at serial No.1 and 6 to 9 there is no change of Head Quarter and the transfers are at the same station and in the same office as in the case of the applicant. In Writ Petition No. 3301 of 2010 decided on 11/10/2010, we have already held that such internal transfers within the same office or at the same Head Quarter should not be treated as transfers in the normal meaning and these are only internal postings for the convenience of the administration. What has been guaranteed to a Government officer under the Act is a minimum tenure at a particular station/head quarter. By the said judgment we have also suggested to the State Government to examine the issue of amending the Act. 9. In the instant case when the order dated 1st June, 2010 was challenged before the Tribunal it was necessary for the State Government to justify the said transfers and more particularly make out a case under Section 4(4) of the Act for midterm transfer in the case of the applicant. In the affidavit in reply filed before the Tribunal the State Government pointed out that there were some serious complaints against the applicant and though these complaints were anonymous and were not investigated into, the Competent Authority thought it fit to shift the applicant from one section to another in the very same office and, therefore, in his place the 7 wp-8898-10 petitioner was transferred in the office of the Divisional Social Welfare Officer at Nashik. Like before the Tribunal Mr. Bandiwadekar, the learned Counsel for the applicant relied upon the decision of the Supreme Court in the case of Somesh Tiwari vs. Union of India & Ors., (2009) 2 SCC 592 in support of his contentions that unless the complaints are investigated into they cannot be acted upon for transferring a Government servant from one station to another and more particularly on the basis of anonymous complaints. Mr. Bandiwadekar in this regard also placed before us a copy of the Circular dated 29th July, 2003 issued by the Government of Maharashtra through its General Administration Department. This Circular also states that the anonymous complaints unless enquired into cannot be acted upon. 10. Mr. Patil, the learned A.G.P., has supported the challenge to the impugned order passed by the Tribunal, though the State Government has not filed a separate Writ Petition. It was submitted by him that the transfer order does not speak of any malice or any stigma so as to justify the midterm transfer. It was pointed out before the Tribunal that on account of some complaints received against the applicant he was shifted from one section to another in the very same office of the Divisional Social Welfare 8 wp-8898-10 Officer, Nashik and such an internal shifting cannot be termed as stigmatic or by way of punishment. 11. In the case of Somesh Tiwari (supra) the transfer was from Bhopal to Shilong i.e. from Madhya Pradesh to Assam of an officer of the Central Government and it was sought to be supported by the Central Government on the ground that there were anonymous letters received against the officer concerned and the administration thought it fit to shift him from Bhopal to Shilong. It was under these circumstances in para.16 of the said judgment the Supreme Court observed as under:- “16. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds-- one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is 9 wp-8898-10 entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal.” The Supreme Court also observed in paragraph 19 that when the transferred officer desires to challenge the transfer he must first report at the transferred place and then take up the challenge to the transfer order. 12. In our considered opinion, the law laid down by the Supreme Court in the case of Somesh Tiwari (supra) is not applicable in the peculiar facts of this case. As noted earlier, the applicant himself had requested the State Government for a posting at Nashik and accepting the same in the general transfer he came to be posted at Nashik in July, 2009. By the order dated 1st June, 2010 he has not been shifted from Nashik to any other district place or any other city and he remains in the very same office of the Divisional Social Welfare Officer. What has been changed by the order dated 1st June, 2010 is his section and he has been posted and attached to the Caste Scrutiny Committee. In fact in the absence of the order of transfer dated 1st June, 2010, the Secretary, Social Justice and Special Assistance 10 wp-8898-10 Department cold have done this internal change and the provisions of the Act would not come in his way. We reiterate that such an internal transfer cannot be termed as a transfer so as to raise a challenge before the Tribunal. It is only an internal posting within the very same office and in our opinion, the Tribunal/Court should be slow in interfering in such orders. The complaints which were referred to support the transfer order have been perused by us. It was submitted by Shri Bandiwadekar, the learned Counsel for the applicant that either the complaints did not exist or it was an anonymous complaint. The new posting of the applicant entails duties of quasi judicial nature as he would be one of the members of the Caste Scrutiny Committee constituted as per the judgment of the Supreme Court in Madhuri Patil's case. It is, therefore, imperative that a Member of such a Committee has a clean service record and his integrity is beyond doubt. The complaints against him do not make out any case against the applicant either to doubt his integrity or his character and, therefore, such complaints do not come in his way to function as a Member of the Caste Scrutiny Committee. In view of these observations, we have been assured by Mr. Patil, the learned A.G.P., that the said complaints will not be acted upon by the Government against the applicant. 11 wp-8898-10 13. In the premises, we find that the order passed by the Tribunal is unsustainable and more so when the order dated 1st June, 2010 does not cause any prejudice or inconvenience to the applicant or his family members and, hence, the same is required to be quashed and set aside. 14. The petition is allowed and the impugned order is quashed and set aside. (U.D.SALVI, J.) (B. H. MARLAPALLE, J.)