1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7452 OF 2008 Dr. Salil Vasantrao Patil ..Petitioner. Vs. Chief Executive Officer, Public Health Department Zilla Parishad, Pune and others ..Respondents. .... Mr. Kiran S. Bapat with Mr. A.H. Fatangare for the Petitioner. Mr. S.R. Ganbavale for Respondent No.1. Mr. R.B. Behere, Addl. GP for the State. Mr. T.D. Deshmukh for Respondent No.4. ..... CORAM: DR. D.Y. CHANDRACHUD, J. 26th November, 2008. P.C. : 1. The Petitioner has been transferred from Pune where he held the post of District Malaria Officer (DMO) to the post of Biologist at Aurangabad. There is no dispute that the post to which the Petitioner has been transferred is an equivalent post. Transfer is a condition of service. 2. Initially on 27th May, 2005 the Petitioner was transferred as 2 DMO, Pune. On 2nd December, 2005 the Petitioner was sought to be transferred as Biologist to the Pune Municipal Corporation. In his place the Fourth Respondent was transferred as DMO, Pune. The Petitioner challenged the order of transfer before the Maharashtra Administrative Tribunal. By an order dated 20th February, 2006 the Tribunal set aside the order transferring the Petitioner from the post of DMO, Pune to the post of Biologist, Pune Municipal Corporation observing that the Fourth Respondent had approached the Minister, Water Resources for a modification of her own transfer dated 20th May, 2005 from Pune to Beed. The Tribunal observed that the Fourth Respondent, instead joining her post at Beed, exerted pressure through political personalities as a result of which her transfer to Beed was modified and she was posted initially as a Biologist at the Pune Municipal Corporation and subsequently on 29th May, 2005 as DMO, Pune. After the order of transfer of the Petitioner was set aside by the Tribunal, he was posted again as DMO, Pune on 13th March, 2006. On 31st May, 2008 the Petitioner was transferred as a part of general transfers, to Aurangabad. The Petitioner instituted a complaint of unfair labour practices in which an application for ad interim and 3 interim relief was made. On 22nd May 2008, the Fourth Respondent was transferred to Pune in the post from which the Petitioner was transferred. An ad interim order was passed on 19th June, 2008. Eventually, the application for interim relief has been rejected by the impugned order. 3. The submissions which have been urged on behalf of the Petitioner are thus : Firstly, it has been submitted that the order of transfer is malafide, and the Industrial Court did not appreciate the observations contained in the earlier order of the Maharashtra Administrative Tribunal to the effect that the Fourth Respondent had exerted political influence to bring about a change in her order of transfer from Beed to Pune. Secondly, it has been submitted that Section 4 (1) of the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005 provides that no government servant shall ordinarily be transferred unless he has completed his tenure of posting of three years. Normal tenure under Section 3(1) is to be three years. Further it was submitted that the Fourth Respondent was transferred despite 4 the ad interim order passed by the Industrial Court. 4. The submission that the Petitioner has been transferred in violation of the prohibition contained in Sections 3 and 4 of the State Act referred to herein above cannot prima facie be accepted. The Petitioner was transferred as DMO, Pune on 27th May, 2005. A period of three years elapsed between that date and the order of transfer dated 31st May, 2008. It emerges from the record that on 2nd December, 2005 the Petitioner was transferred as Biologist at the Municipal Corporation of Pune. The aforesaid order was set aside by the Tribunal on 20th February, 2006, upon which the Petitioner was posted again as DMO, Pune on 13th March, 2006. Even if the aforesaid period, when the proceedings were pending before the Tribunal are to be excluded from the period spent by the Petitioner in the post of DMO at Pune, the Petitioner has as of date completed well over three years in his tenure as DMO, Pune. Hence, the exercise of the extra ordinary jurisdiction under Article 226 of the Constitution is not warranted. The Petitioner does not have a vested right to continue. The Act provides that ordinarily, the tenure in a post shall 5 be of three years in a post. What is ordinary is not inflexible. But that apart, the Petitioner has completed that tenure. The submission that the transfer of the Fourth Respondent is vitiated by malafides could not have been considered by the Industrial Court since the admitted position is that the Fourth Respondent is not impleaded as a party to the proceedings before the Industrial Court. In the complaint of unfair labour practices an apprehension was expressed that the Fourth Respondent might be appointed in place of the Petitioner. Yet the Fourth Respondent was not impleaded as a party to the proceedings before the Industrial Court. Even after the order of 22nd August, 2008 by which the Fourth Respondent was brought to Pune as DMO, no steps were taken by the Petitioner to implead the Fourth Respondent until after the application for interim relief was disposed of. It is an admitted position that after the application for interim relief was rejected, an application has been filed for impleading the Fourth Respondent. The application is still pending. In these circumstances, the application for interim relief was argued in the absence of the Fourth Respondent being impleaded as a party to the proceedings. Hence, at that stage, the allegations of malafides against the Fourth 6 Respondent could not have been and were therefore correctly not considered. 5. The exercise of the writ jurisdiction with regard to a discretionary order passed by the Industrial Court declining to grant an interim stay of an order of transfer is in these circumstances not warranted. The Petitioner has completed his tenure of three years in his post at Pune and cannot be heard to complain that he has been transferred out of Pune. Insofar as the transfer of the Fourth Respondent is concerned, it is not necessary for this Court to express any view thereon particularly having regard to the fact that the Fourth Respondent has yet not been impleaded as a party to the complaint of unfair labour practices. In the event that an order of impleadment is passed by the Industrial Court before which the complaint is pending, it will be open to the Petitioner to canvas all available grounds in accordance with law. The observations contained in this order are confined to the disposal of the application for interim relief and shall not come in the way of the final disposal of the complaint on merits. 7 The complaint of unfair labour practices is expedited. The Petition is dismissed. *****