1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8116 OF 2008 THE STATE OF MAHARASHTRA ) Through the Secretary ) Water Resources Department ) Mantralaya, MUMBAI 400 032 ) .. PETITIONER VERSUS 1. ASHOK RAMCHANDRA KORE ) Chief Engineer, Mumbai ) Metropolitan Region Dept. ) Authority, Mumbai ) residing at Z-3/5 Himalaya ) Co-op. Housing Society, ) Near Dinanath Mangeshkar ) Hospital, Erandwane, PUNE-4 ) 2. SHRI P. B. SONAWANE ) Chief Engineer, Minor ) Irrigation (Local Sector) ) PUNE. ) .. RESPONDENTS Mr. P. M. Pradhan for the petitioner Mr. A. A. Kumbhakoni for the respondents 2 CORAM:SMT.RANJANA DESAI & J. P. DEVADHAR, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 18TH MARCH, 2009 DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 16TH APRIL, 2009 JUDGMENT:-( Per Smt. Ranjana Desai, J.). . The State of Maharashtra through the Secretary, Water Resources Department, has challenged in this writ petition judgment and order dated 26/9/08 delivered by The Maharashtra Administrative Tribunal, Mumbai Bench ("MAT" for short) in Original Application No. 324 of 2008. 2. The 1st respondent holds B.E. (Civil) degree. In 1976 he joined as Junior Engineer in the Irrigation Department of the State Government. He was recruited directly through the Maharashtra Public Service Commission as Asstt. Executive Engineer Class I in 1982. In due course he was promoted as Chief Engineer. He worked as Chief Engineer Water Resources Development Centre, Aurangabad. In November, 2006 he was transferred as Chief Engineer, Minor Irrigation, Local Sector, 3 Pune. He was working in that post from 4/11/06. Even though he had not completed his normal tenure of three years, he was transferred as Chief Engineer M.M.R.D.A, Mumbai by order dated 10/1/08. By the same order respondent 2, who was posted as Chief Engineer, M.M.R.D.A, Mumbai, was transferred to the post of Chief Engineer, Minor Irrigation (Local Sector) Pune. The said order was challenged by the 1st respondent in the MAT by filing Original Application No. 45 of 2008. The said original application was allowed by the MAT by its order dated 25/2/08. The MAT observed that no special reasons for midterm transfer of the 1st respondent were recorded as required by Section 4 (4)and Section 4 (5) of the Maharashtra Government Servant’s Regulation of Transfers and Prevention of Delay in Discharging of Official Duty Act, 2005 ("the Transfer Act"). After the MAT set aside the 1st respondent’s midterm transfer, the petitioners cancelled the transfer order dated 10/1/08 by order dated 2/5/08 and posted respondents 1 and 2 to their previous posts. 3. On 28/5/08 the petitioners passed another order transferring the 1st respondent to the post of 4 Chief Engineer, M.M.R.D.A., Mumbai and transferring the 2nd respondent to the post of Chief Engineer, Minor Irrigation Department, Pune. The 1st respondent challenged that order before the MAT. By the order dated 26/9/08 the MAT set aside the transfer order dated 28/5/08. Hence the petitioners have challenged the said order in this writ petition. 4. We have heard Mr. Pradhan, learned counsel for the petitioners at some length. Mr. Pradhan submitted that the impugned order is perverse and deserves to be set aside: He submitted that the MAT’s conclusion that the impugned order smacks of favouritism; that there is colourable exercise of power and that it is malafide has no foundation. He submitted that the power to effect midterm transfer is exercised by the petitioners in public interest and on account of administrative exigencies. Mr. Pradhan submitted that the 1st respondent has merely alleged malafides without giving any particulars thereof. He submitted that the order is supported by reasons which are separately recorded. He submitted that it is well settled that reasons need not be elaborate and the transfer order need not contain reasons. They 5 could be separately recorded. He submitted that though the MAT has referred to several judgments of the Supreme Court, it has failed to appreciate the basic principles laid down by the Supreme Court which should guide the court’s while dealing with challenge to a transfer order. Mr. Pradhan submitted that the impugned order rests on conjectures and surmises. The MAT has travelled beyond its jurisdiction and unnecessarily drawn wrong inferences. Mr. Pradhan relied on all the judgments to which MAT has made a reference. In addition to those judgments he referred to S. N. Mukherjee v. Union of India, AIR 1990 SC 1984 and M. Sankaranarayanan, IAS v. State of Karnataka & Ors., AIR 1993 SC 763. He submitted that interference is necessary with the impugned order. 5. Mr. Kumbhakoni, learned counsel for the 1st respondent drew our attention to Section 4(5) of the Transfer Act and submitted that when midterm transfer is effected the said provision is attracted. Mr. Kumbhakoni submitted that a mid term transfer could be effected only in special cases, after recording reasons in writing with prior approval of the immediately Superior Transferring Authority. In this case no reasons at 6 all are given in the transfer order and hence on that ground it must be quashed. Mr. Kumbhakoni submitted that transfer order must contain reasons because that ensures transparency. Reasons enable the aggrieved person to challenge the order. The requirement to give reasons is not an empty formality. In this connection Mr. Kumbhakoni relied on the judgment of this court in Shivaji Jadhav v. The Chief Executive Officer & Ors., 1996 (5) SLR 808. 6. Mr. Kumbhakoni further submitted that the judgments on which reliance is placed by Mr. Pradhan are not applicable to the present case, because here the transfer is effected by a statutory power. Those judgments will apply only in cases of general transfers. Mr. Kumbhakoni submitted that the alleged reasons noted in the correspondence preceding the impugned order dated 28/5/08 for transferring the 1st respondent were an afterthought as there was not even a whisper about such reasons at the time of the first transfer order dated 10/1/08. Relying on the Supreme Court’s judgment in Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi & Ors., (1978) 1 SCC 405, Mr. Kumbhakoni submitted that 7 the order passed by statutory authorities has to be judged by the reasons given in the order itself and if, there are no reasons in the order, they cannot be supplemented by affidavits or other material brought on record subsequent to such order. 7. Mr. Kumbhakoni submitted that the Transfer Act states that the Competent Authority must record its reasons in writing for midterm transfer. Therefore, in any case the Competent Authority itself, i.e. the Chief Minister in absence of any reasons set out in the order, ought to have filed affidavit in reply to the original application placing on record the reasons for his subjective satisfaction. In this connection he placed reliance on Merugu v. State of Andhra Pradesh, AIR 82 SC 1543. Mr. Kumbhakoni submitted that the impugned order transferring the 1st respondent is nothing but a colourable exercise of power and has been passed with a view to accommodating the 2nd respondent in the post of Chief Engineer, Minor Irrigation (Local Sector) Pune. Mr. Kumbhakoni, submitted that in the circumstances no interference is warranted with the impugned order in this court’s extra-ordinary writ jurisdiction. 8 8. Mr. Bandiwadekar, learned counsel appearing for the 2nd respondent adopted the legal submissions of Mr. Pradhan. He submitted that the 1st respondent never raised the contention that the transfer order does not contain reasons and hence it is bad in law. It is not open to him to raise it now. He submitted that reasons need not be stated in the order. They can be separately recorded before passing the order. Mr. Bandiwadekar submitted that in this case reasons are not furnished by affidavit as contended. Reasons were always there even before passing the order. Mr. Bandiwadekar submitted that after the affidavit in reply was filed by the State, the 1st respondent should have amended the original application and challenged those documents. He has not done so. Mr. Bandiwadekar submitted that in such circumstances it was not open to the MAT to make a roaming and general enquiry by going through the files of the State and record a finding. In this connection he relied on judgment of this court dated 28/7/08 in Writ Petition No. 1141 of 2008, (Smt. K. N. Bhoir alias Smt. Pathade v. Shri Mukund Laxman Pawar & Ors.). Mr. Bandiwadekar submitted that it was not open to the MAT to 9 examine the sufficiency of reasons. In support of this submission he relied on judgment of Aurangabad Bench of this court dated 18/12/08 in Writ Petition NO. 4859 of 2008, (The State of Maharashtra & Ors. v. Omprakash Mudiraj & Ors.). Mr. Bandiwadekar also relied upon a judgment of this court (Swatanter Kumar, CJ. & Dr. D. Y. Chandrachud, J.) in Writ Petition (Lodging) No. 1428 of 2007 and companion writ petitions, dated 23/8/07 to contend that the court cannot go behind the order and examine it like an appellate authority to find out whether such order needs to be passed or not. In support of his submission that the transfer order need not contain reasons, Mr. Bandiwadekar relied on the judgment of the Supreme Court in Palanisamy v. General Manager, Tamil Nadu State Transport Corporation Ltd., 2006-I-LLJ 62. Mr. Bandiwadekar submitted that the impugned order which is contrary to the settled principles deserves to be set aside. 9. The Supreme Court has on several occasions outlined the scope of the court’s power to interfere with transfer orders. It would be advantageous to sum up the observations made by the Supreme Court in the judgments to which our 10 attention is drawn by learned counsel. Following are the guiding principles laid down by the Supreme Court. i). The courts should not interfere with the transfer orders which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any statutory rule or on the grounds of malafides. (Mrs. Shilpi Bose & Ors. v. State of Bihar & Ors., 1991 Supp. (2) SCC 659). ii). A Government servant holding a transferable post has no vested right to remain posted at one place or the other. Transfer order issued by a Competent Authority does not violate any of his legal rights. (Shilpi Boses’s case (supra). iii). Who should be transferred where, is a matter for the appropriate authority to decide. Unless the transfer order is vitiated by mala fides and is made in violation of any statutory provisions, the court cannot interfere with it. (Union of India & Ors. v. S. L. Abbas (1993) 4 SCC 357). iv). Transfer of an employee is not only an 11 incidence inherent in the terms of the appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra in the law governing or conditions of service. (State of Uttar Pradesh & Ors. v. Gobardhan Lal (2004) 11 SCC 402). v). Transfer made even in transgression of administrative guidelines cannot also be interfered with, as it does not confer any legally enforceable rights unless it is shown to be vitiated by malafides or made in violation of any statutory provision and so long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments (Gobardhan Lal’s case supra). vi). The courts should not deal with transfer orders as if they are appellate authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. They cannot substitute their own decision in the matter of transfer for that of competent authorities of the State. Even allegations of malafides when made must be such as 12 to inspire confidence in the court or based on concrete materials. (Gobardhan Lal’s case (supra). vii). Allegation of malafides should not be entertained on the mere making of it or on consideration borne out of conjectures or surmises. (Gobardhan Lal’s case (supra). viii). Except for strong & convincing reasons no interference could ordinarily be made with an order of transfer. (Gobardhan Lal’s case (supra). 10. Before we deal with the grievance of the petitioners it is necessary to have a look at Section 4 of the Transfer Act. The said section to the extent to which it is relevant to the present case reads as under: "4. (1). No Government servant shall ordinarily be transferred unless he has completed his tenure of posting as provided in Section 3. (2). ..... (3). ..... (4). ..... (5). Notwithstanding anything contained 13 in Section 3 or this Section, the competent authority may, in special cases, after recording reasons in writing and with the prior approval of the immediately Superior Transferring Authority mentioned in the table of Section 6, transfer a Government Servant before completion of his tenure post." 11. In short this section requires that in special cases there can be midterm transfer but it can be effected only after recording reasons in writing and with the prior approval of the immediately Superior Transferring Authority as mentioned in the table of Section 6. About this interpretation of the section the parties are ad idem. However, whereas the petitioner’s case is that the reasons are very much there and they are recorded, according to the 1st respondent no reasons were recorded before passing the transfer order and the reasons which are now being shown as having been recorded prior to passing of the transfer order are clearly an afterthought and are fabricated. It is, therefore, necessary to go to the facts of the case to ascertain who is in the right. 14 12. The controversy first arose when the 1st respondent who was working as Chief Engineer, Minor Irrigation, Local Sector, Pune from 4/11/06 was transferred to the post of Chief Engineer MMRDA, Mumbai by the State by order dated 10/1/08. By the same order the 2nd respondent who was working as Chief Engineer, MMRDA, Mumbai, was transferred to the post of Minor Irrigation, Local Sector, Pune. This was a midterm transfer. The 1st respondent filed Original Application No. 45 of 2008 in the MAT challenging the said order on the ground that he was transferred under political pressure to accommodate the 2nd respondent. It was urged that there were no special circumstances or special reasons to warrant the transfer. 13. The MAT after perusing the record observed that no special reasons or exceptional circumstances were recorded by the Minister for Water Resources or by the Minister for Agriculture and Water Conservation; that the order of transfer lacks transparency and is in breach of Sections 3 and 4 of the Transfer Act. The MAT by its order dated 25/2/08 quashed the transfer order dated 10/1/08 but granted liberty to the petitioner to take action according to law. In view of this 15 order of the MAT by order dated 2/5/08, the transfer order dated 10/1/08 was cancelled. 14. Pursuant to the liberty granted by the MAT, the State Government issued a fresh transfer order dated 28/5/08 transferring the 1st respondent to the post of Chief Engineer, MMRDA Mumbai and appointing the 2nd respondent to the post of Chief Engineer, Minor Irrigation, Local Sector, Pune on administrative grounds and in public interest. The 1st respondent challenged the said order by filing Original Application No. 324 of 2008 in the MAT. The 1st respondent inter alia averred in the application before the MAT that he has excellent record and the transfer order issued within a short span of time after the MAT set aside the earlier transfer order, is issued in colourable exercise of power. The 1st respondent contended that the mid term transfer order must be supported by reasons recorded in writing and the burden lies on the State to prove that reasons were in fact recorded. The 1st respondent further contended that the impugned transfer order being malafide deserves to be set aside. 15. On behalf of the petitioners Shri Pradeep 16 Gosavi, Under Secretary, Water Resources Department filed a reply denying the allegations made by the 1st respondent. Shri Gosavi stated in the affidavit that the transfer order dated 28/5/08 was passed on administrative grounds and in public interest by resorting to the provisions of Section 4(4 & 5) of the Transfer Act by recording appropriate reasons and the proposal is approved at the highest level. Mr. Gosavi stated that the Minister for Water Conservation, Khar Land and Agriculture has, as the Executive Head of the Water Conservation Department taken a review in various meetings of the various Minor Irrigation (Local Sector) Schemes that are being implemented in the State and during the review several lacunae were seen in the functioning of the Chief Engineer. Shri Gosavi noted the said lacunae in the affidavit. We shall at the appropriate stage refer to those lacunae. Shri Gosavi further stated that the Minister (Water Resources) also opined that the 2nd respondent has experience in the field of implementation of Minor Irrigation Schemes under local sector and hence he is a suitable person to hold the post of Chief Engineer, Minor Irrigation (Local Sector) Pune in place of the 1st respondent. Mr. Gosavi stated that, therefore, special 17 circumstances do exist and after recording the same, the Government has taken the decision by invoking the provisions of Section 4(4) & 4(5) of the Transfer Act and effected the transfer of the 1st respondent. 16. According to the 1st respondent during the hearing of the original application on 2/6/08, the relevant file was produced before the MAT. He was made aware that the impugned order was substantiated by reasons. He therefore, submitted an application under the Right to Information Act and obtained the relevant information from the Water Resources Department. He filed a rejoinder in the MAT annexing copies of the said information to it. His case in the rejoinder was that earlier transfer order dated 10/1/08 was quashed by the MAT by its order dated 25/2/08. The Government, therefore, indulged in manipulation of record. The Government recorded reasons which have no factual foundation. False record was created to establish deficiency in his performance. He tried to explain how the adverse remarks made by the Minister Water Conservation on 15/5/2000 are incorrect and unsubstantiated by record. He contended that adverse findings recorded in the noting of 18 27/5/2000 are without application of mind and resorted only to make him a scapegoat and to favour the 2nd respondent. After perusing the record the MAT upheld the case of the 1st respondent. It is necessary to see how far the MAT’s view is correct. 17. It is true that transfer order dated 10/1/08 was set aside by the MAT because it was in breach of Section 4(5) of the Transfer Act. The MAT noted in its order dated 25/2/08 that no reasons were recorded in support of the midterm transfer order. The MAT, however, left it open to the Government to take action in accordance with law. 18. The Government accepted the MAT’s order dated 25/2/08 obviously because its transfer order was in breach of the provisions of the Transfer Act. The Government acknowledged that reasons were not recorded prior to the issuance of transfer order dated 10/1/08 and on the strength of the liberty granted by the MAT it passed fresh transfer order dated 28/5/08 after reasons were recorded. The Government in our opinion, cannot be faulted for this action provided its case that transfer order dated 10/1/08 is supported by reasons is genuine. We will, therefore, go to the sequence of events 19 and examine whether the Government’s stand is genuine and bonafide. We are aware that we are not sitting in appeal over the order of transfer passed by the Competent Authority but we are required to closely scrutinise the files because of the nature of allegations made in this case. 19. There is no dispute about the fact that the Minister for Water Conservation, Khar Lands and Agriculture is the executive head of the Water Conservation Department. The file produced before us contains letter dated 15/5/08 addressed by him to the Minister for Water Resources stating that in the review taken in various meetings as regards the implementation of the various Minor Irrigation (Local Sector) Schemes it was found that there was no proper coordination at the Chief Engineer’s level about the works undertaken by different divisions of local sector in the State and, therefore, the progress of the said schemes was not satisfactory. The letter further stated that it was noticed that the Chief Engineer Local Sector has not taken care and has not made extra efforts to see that the funds available for Minor Irrigation Schemes were spent properly. The letter further went on to state that the funds made 20 available for implementation of Minor Irrigation Works under the Marathwada Package and the Prime Minister’s package were not spent fully and remained unutilised. The Minister further commented that there was no follow up action from the Chief Engineer as regards the various demands made by the representatives of the people in connection with new schemes of minor irrigation. The Minister opined that, therefore, the 1st respondent should be transferred and the 2nd respondent who has experience in the field of implementation of Minor Irrigation Schemes under the local sector should be brought in place of the 1st respondent as the Chief Engineer Minor Irrigation Local Sector, Pune. This letter was placed before the Minister for Water Resources on the same day. The Minister for Water Resources made a note on the letter recommending that the 2nd respondent be appointed as Chief Engineer, Minor Irrigation Sector, Pune. He signed the note and wrote the date 15/5/08 below his signature. 20. On the basis of this letter and recommendation on 26/5/08 the Desk Officer, Water Resources Department prepared a note/submission incorporating the contents of the letter dated 15/5/08 and the 21 recommendation made thereon. The note stated that the 1st petitioner is working as Chief Engineer (Local Sector) Pune, from 4/11/06. He has completed only 1 year and 7 months in that post and hence he is not eligible for transfer. The note further stated that, however, in a special case after recording reasons and obtaining permission of the immediate superior a government servant can be transferred midterm as per Section 4(5) of the Transfer Act. The note further stated that though the 1st respondent has worked for less than three years in his present posting, the Minister for Water Conservation, Khar lands and Agriculture, who is the head of the Department of Water Conservation has made remarks about his work which amount to special reasons for his transfer and, therefore, the 1st respondent may be transferred to the post of Chief Engineer, MMRDA Mumbai and as recommended by Minister for Water Resources the 2nd respondent may be appointed as Chief Engineer, Minor Irrigation Local Sector, Pune in the place of the 1st respondent. This file shows that this note was processed and placed before four officers on 26/5/08. They signed on the note on the same day in token of approval. 22 21. It appears that this case was discussed with the Chief Secretary of the Water Conservation Department. The Deputy Secretary of that department prepared a note on 27/5/08 which reflected what transpired in the discussion. The note stated the lacunae noticed in the work of the 1st respondent. The lacunae were summarised as under: i). There is a lack of ability about the effective monitoring and execution of the minor irrigation works on the part of the applicant. ii). In the year 2007-08 whatever funds were made available for the minor irrigation works they could spend only 78% of the funds made available. This goes to show the lack of financial management