1 wp-3301-10 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3301 OF 2010 Shri Ramesh Pandurang Shivdas .. Petitioner Vs. The State of Maharashtra and ors. .. Respondents Mr. P. K. Dhakephalkar, Senior Advocate i/by Mr. A. R. Pitale for petitioner. Mr. S.R. Nargolkar, Addl. GP for respondent nos.1 to 4. Mr. Y. S. Jahagirdar, Senior Advocate i/by Mr. N. V. Bandiwadekar for respondent no.5. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. OCTOBER 11, 2010. P.C. 1. This petition, filed under Articles 226 and 227 of the Constitution, though seeks to challenge the order passed by the Maharashtra Administrative Tribunal (MAT) on 17/3/2010, it appears to be a manifestation of a fight between two police officers to occupy the post of Assistant Commissioner of Police (Detection), Crime Branch under the Thane Police Commissionerate and both of them have demonstrated that 2 wp-3301-10 the said post is more lucrative than any other post for ACP. Brief facts, leading to this petition, could be stated as under:- Respondent No. 5 came to be transferred on promotion from the post of PI at Ahmednagar to the post of Assistant Commissioner of Police (ACP) under the Thane Police Commissionerate by an order dated 25/2/2009 and he reported at Thane on 26/2/2009 and was given his posting as ACP (Administration) so as to relieve Shri Waghmare who was holding an additional charge of the said post. Shri S. V. Jawadwar, who was ACP (detection) Crime Branch under the same Commissionerate was due for transfer on completion of more than three years of tenure at Thane as per the instructions of the Election Commission of India and, therefore, he was, by an order dated 26/3/2009, posted as ACP (Headquarters) under the very same Police Commissionerate. In turn, the petitioner, who was at Alibag was transferred under the Thane Police Commissionerate by an order dated 26/3/2009 and he was relieved on 27/3/2009 from Alibag. He reported at the Thane Police Commissionerate on 28/3/2009 and was given the posting of ACP (Prevention) in place of Smt. Lata Shirsat, ACP (Prevention), Crime Branch, who was transferred. At the same time, the petitioner was given the additional charge of ACP (Detection), Crime 3 wp-3301-10 Branch as Shri Jawadwar was transferred from the said post. On 17/4/2009, the DGP called for information of the available vacancies as well as the officers due for transfers from the Police Commissionerate, Thane and in the meanwhile, Shri. Jawadwar filed O.A. No. 805 of 2009 before the MAT and prayed for directions for his retention as ACP (Detection), Crime Branch till his superannuation i.e. 31/7/2009. The petitioner was impleaded as one of the respondents in the said O.A. and the affidavit-in-reply was filed to oppose the prayer of Shri. Jawadwar. After hearing all the parties concerned, O.A. No. 805 of 2009 was dismissed on 10/7/2009. On 16/6/2009 the Commissioner of Police, Thane changed the posting of the petitioner and appointed him as ACP (Detection), Crime Branch. On 20/7/2009, the State Government approved the orders of transfer of the officers in the post of ACP/Dy.S.P. and respondent no.5 came to be transferred as ACP (Detection), Crime Branch, Thane City, the post which was held by the petitioner and hence the petitioner approached the MAT in O.A. No. 896 of 2009 and mainly contended that, (a) he had not completed the tenure of three years as ACP (Detection), Crime Branch and, therefore, the transfer was against the scheme of Section 3 of the Maharashtra Government Servants Regulation of 4 wp-3301-10 Transfer and Prevention of Delay in Discharge of Official Duties Act, 2005 (for short the Transfer Act); (b) the petitioner was dislodged without giving him any new posting; and (c) there were no circumstances to invoke the powers under Sections 4(4) and 4(5) of the Transfer Act for a mid-term transfer. 2. Initially an order of status was passed by the Tribunal on 21/7/2009 itself i.e. on the day the application was presented and the notice was made returnable on 23/7/2009 on which day a copy of the letter dated 22/7/2009 addressed from the Home Department to the DGP was placed before the Tribunal and consequently the status quo order came to be vacated. Against the said order, the petitioner approached this court in Writ Petition No. 6503 of 2009 and it was dismissed on 5/8/2009 with further observations that the pending O.A. could be decided on its own merits and without being influenced by any observations made in the dismissal order. After hearing all the parties concerned, by the impugned order, the Tribunal 5 wp-3301-10 considered the scheme of Section 4(1) and Section 6 of the Transfer Act and by placing reliance on the letter dated 22/7/2009 and the GR dated 30/4/2007, the O.A. came to be dismissed. The Tribunal also noted that the impugned transfer orders were approved by the Government on 18/7/2009 and the record placed before the State Government indicated that the post of ACP (Detection), Crime Branch was vacant on account of the transfer of Shri. Jawadwar and, therefore, the State Government decided to fill in that vacant post. It is pertinent to note, at this stage itself, that O.A. No. 896 of 2009 was moved on 21/7/2009 and on the same day the Commissioner of Police, Thane submitted a letter to the DGP pointing out that the petitioner was already given charge of ACP (Detection), Crime Branch and that he should be retained in the said post. The posting of respondent no.5 as ACP (Detection), Crime Branch was opposed by the Police Commissioner. This communication appears to have been forwarded by the DGP to the State Government and that is how the letter dated 22/7/2009 seems to have been sent to the DGP, pointing out that when the Commissioner of Police had passed the order dated 16/6/2009, he had not obtained prior approval of the State Government and, therefore, the posting of the petitioner as ACP (Detection), Crime Branch made by the Commissioner of Police would not come in the way of the transfer of 6 wp-3301-10 respondent no.5. During the pendency of the O.A. before the Tribunal, the petitioner was given his posting as ACP, EOW, Crime Branch and thereafter as ACP (Prevention), Crime Branch, under the Thane Police Commissionerate. 3. The learned Senior Counsel for the petitioner urged before us that once the competent authority i.e. the Commissioner of Police, Thane had invoked his powers and posted the petitioner as ACP (Detection), Crime Branch on 16/6/2009, he could not have been transferred from the said post unless he had completed a tenure of three years and in any case the said order dated 16/6/2009 was passed by the competent authority. The learned counsel also relied upon the affidavit-in-reply filed on behalf of the DGP in O.A. No. 805 of 2009 and submitted that once the posting of the petitioner was supported in the said O.A., it was not permissible for the State Government to justify the impugned transfer orders, posting respondent no.5 in the very same post. 4. The learned AGP for the respondent nos.1 to 4 and the learned senior counsel for the respondent no.5 have supported the impugned order passed by the Tribunal and urged before us that the said order does not 7 wp-3301-10 suffer from any errors so as to call for interference under the jurisdiction of certiorari. Respondent No. 5 has also filed affidavit-in-reply so as to oppose the petition. 5. Section 3(1) of the Transfer Act assures a normal tenure of three years in a post to the State Government servants/employees and as per Section 4(1) of the said Act, no Government servant shall ordinarily be transferred unless he has completed the tenure of posting as provided in Section 3. As per Section 4(4), the transfers of the Government servant would, ordinarily, be made only once in a year in the month of April or May with a further proviso that the transfers may be made at any time in the year in the circumstances specified thereunder. As per Section 4(5) of the Transfer Act, notwithstanding anything contained in Section 3 or Section 4, the competent authority may, in special cases, after recording reasons in writing and with the prior approval of the immediate superior transferring authority mentioned in the table of Section 6, transfer a Government servant before completion of tenure of his post. Section 6 specifies the transferring authorities and they are as under:- 8 wp-3301-10 Groups of Government Competent Transferring servant Authority (1) (2) (a) Officers of All India Services, all Officers Chief Minister of State Services in Group “A” having pay-scale of Rs.10,650-15,850 and above. (b) All Officers of State Services in Minister-in-charge Group “A” having pay-scales less in consultation with than Rs.10,650-15,850 and all Secretaries of the Gazetted Officers in Group “B” concerned Department. Non-Gazetted employee in Group B & Heads of Departments. (c) All employees in Group “D” Regional Heads of Departments. There are two provisos below Section 6 and they read as under: “Provided that, in respect of officers in entry (b) in the table working at the Divisional or District level, the Divisional Head shall be competent to transfer such officers within the Division and the District Head shall be competent to transfer such officers within the District: 9 wp-3301-10 Provided further that, the Competent Transferring Authority specified in the table may, by general or special order, delegate its powers under this section to any of its subordinate authority.” 6. On 30/4/2007, the Government of Maharashtra, through its Home Department, published a notification setting out the list of competent authorities for transfers under the second proviso below Section 6 of the Transfer Act and as per the same notification, the powers of transfer which were available to the Director General of Police (DGP) came to be delegated to the Commissioner of Police of the respective cities and the said notification indicates that the Commissioner of Police, Thane was competent to issue posting order dated 16/6/2009 issued in favour of the petitioner. This transfer order issued by the Commissioner of Police, Thane, would not in any way and as has been rightly held by the Tribunal, affect the order dated 20/7/2009 by which the respondent no.5 came to be posted in place of the petitioner and more so because of the proviso below Section 4(4) of the Transfer Act which reads as under:- 10 wp-3301-10 “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. The terms “transfer” and “post” have been defined under Section 2 of the Transfer Act as under:- (g) “post” means the job or seat of duty to which a Government servant is assigned or posted; (i) “transfer” means posting of a Government servant from one post, office or Department to another post, office or Department. 11 wp-3301-10 Thus the meaning of the term “transfer” read with the meaning of the term “post” is so wide that even a change from one table to another table may also amount to transfer in the very same office and, therefore, it appears that the posting orders issued by the Police Commissioner also fell within the ambit of the term “transfer” as defined under the Transfer Act. The power of the State Government to issue transfer orders, even under the scheme of the Transfer Act, do not overlap with the delegated powers under Section 4 of the said Act. The delegation made pursuant to the notification dated 30/4/2007 would not limit the State Government’s powers to issue general transfer orders. In the instant case, there are reasonable circumstances to believe that in response to the communication received from the DGP’s office on 17/4/2009, the Police Commissioner, Thane forwarded the list of vacant posts under him and when on 16/6/2009 he issued the posting order in favour of the petitioner as ACP (Detection), Crime Branch, the same does not appear to have been communicated to the office of DGP or the Home Ministry and for a moment we presume that for issuing this order dated 16/6/2009 the Police Commissioner was not required to seek approval of his next higher authority, this failure to submit the information that the post of ACP (Detection), Crime Branch, was filled on 16/6/2009 indicated in the 12 wp-3301-10 information furnished by the DGP to the State Government that the said post was vacant and that is how respondent no.5 appears to have been posted in place of the petitioner. Prior to the impugned order, both of them were part of the Crime Branch and there has been no change of station as such. The sole reason the petitioner approached the Tribunal was that he was not given any posting and this was a mid-term transfer. He also relied upon the letter of the Commissioner of Police dated 21/7/2009 addressed to the DGP. In our opinion, the posting of respondent no.5 has not caused any prejudice to the petitioner, it cannot be said that he was sought to be transferred mid way as he was not going beyond Thane City and in any case the State Government has sufficient powers to issue transfer orders at any time depending upon the exigency of administration. We, therefore, do not find any error in the impugned order passed by the Tribunal and, hence, this petition must fail. 8. However, before we part with the petition, we deem it appropriate to record some observations in respect of the Transfer Act which, in our opinion, has posed more problems than solving them before the State Government. The term “transfer” must have its limited meaning. The dictionary meaning of “transfer” shows that it is a posting from one 13 wp-3301-10 place to another or a change from one station to another and it cannot be limited to a posting in the same department or in the same office or under the same Police Commissionerate Branch. The term “posting” would indicate place of duty. In the instant case when the petitioner and respondent no.5 came to be transferred from Alibag and Ahmednagar respectively under the Police Commissionerate, Thane, the Commissioner of Police was competent enough to give them postings and these postings cannot be termed as transfers. The term “transfer” in general parlance would indicate change of station/headquarter/city or town. For example, if an Additional Sessions Judge from Mumbai is transferred to the Family Court or Co-operative Court or the Industrial Court at Mumbai, it would amount to a transfer, but if the Additional Sessions Judge from Sewree is transferred to Dindoshi, it may not amount to a transfer. If a Secretary from Revenue Department in Mantralaya is transferred to Home Department, it is a transfer, but inter se departmental postings should not fall within the ambit of the term “transfer”. The ambit of the term “transfer” as defined under the Act, we are afraid, is likely to lead to a very dangerous situation and if literally interpreted, it is possible that a police officer may safely retire from Mumbai without going out of Mumbai at any time during his entire tenure. In our opinion, therefore, it would be appropriate for the State Government 14 wp-3301-10 to revisit the Transfer Act and more particularly to amend the definition of the term “transfer”. As per the directions of the Election Commission of India, police officers (a) who have completed a tenure of three years in that district or (b) posted in their home district, are required to be transferred. If that be so, Shri Jawadwar was required to be transferred out of Thane City. The directions of the Election Commission could not be interpreted so narrowly so as to transfer him from ACP (Detection) to ACP (Headquarters) within the Thane Police Commissionerate itself. The letter dated 21/7/2009 by the Police Commissioner, Thane and addressed to the DGP, reached the Home Ministry and surprisingly reply thereto on 22/7/2009 addressed to the DGP is under the signature of a Section Officer and it virtually conveys as if no higher authority like the Principal Secretary in the Department of Home has passed an order to reply accordingly to the DGP. Such replies to the DGP should, in the interest of administration, be under the signature of either the Principal Secretary or any other higher authority. We hope that the Additional Chief Secretary in the Department of Home would address to this issue as well. 15 wp-3301-10 9. Petition is rejected. 10. A copy of this order be forwarded to the Chief Secretary as well as the Additional Chief Secretary (Home) and DGP, Government of Maharashtra, forthwith. (U.D. SALVI, J.) (B. H. MARLAPALLE, J.)