WP No. 5566/2009 1 IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 5566 OF 2009 1. The State of Maharashtra, Through : The Secretary, Water Resources Deptt., Mantralaya, Mumbai. 2. The Executive Director, Godavari Marathwada Development Corporation, Aurangabad. 3. The Chief Engineer and Chief Administrator Command Area Development Authority, Aurangabad. 4. The Superintending Engineer, Jayakwadi Project Circle, Aurangabad. 5. The Executive Engineer, Majalgaon Canal Division No. 10, Parbhani. ....Petitioners. Versus 1. Devidas Gangaram Panchal, Age 54 yrs., Occu. Sub Div. Officer, Manjra Project, (Land Development), Sub Div. No. 2, Sailu, Dist. Parbhani, R/o. Pushpanjali House No. 212, Godavari Nagar, CIDCO, Nanded. 2. Shri. A.G. Puri, Sectional Engineer, Manjra Project (LD), Sub-division No. 2, Selu, Dist. Parbhani. ....Respondents. WP No. 5566/2009 2 Mr. K.J. Ghute-Patil, A.G.P. for petitioner. Mr. S.S. Thombre, Advocate for respondent No. 1. Mr. N.B. Khandare, Advocate for respondent No. 2. CORAM : NARESH H. PATIL & T. V. NALAWADE, JJ. Dated : 5th October, 2011. ORDER : [ PER T. V. NALAWADE, J. ] 1. The petition is filed under Articles 226 and 227 of the Constitution of India to challenge the judgment and order of Maharashtra Administrative Tribunal, Bench at Aurangabad dated 13.7.2009. By the decision given in Original Application No. 720/2008 the Tribunal has allowed the application filed by the present respondent No. 1 - Shri. Panchal and the Tribunal has set aside the order made by the State Government dated 12.11.2008 by which the posting of respondent No. 1 at Sailu was cancelled and he was posted at Kalamnoori. 2. The respondent No. 1 - Shri. Panchal was working as a Sectional Engineer with Irrigation Department of the State Government. By order dated 22.10.2008 the respondent No. 1 came to be promoted to the post of Sub Divisional Officer, Group A and by the same order, he came to be posted on the vacant WP No. 5566/2009 3 post of Sub Divisional Officer at Sailu, Sub Division No. 2. It is the case of respondent No. 1 that on 11.11.2008 he was relieved from his post of Sectional Engineer in Beed Office and so he went to Sailu to take over the charge of the promotional post. It is contended that the respondent No. 2 - Shri. Puri was working as a Sectional Engineer in Sailu Office and he was holding additional charge of the post of Sub Divisional Officer. It is contended that respondent No. 2 - Shri. Puri was not available to prepare the charge report and so the charge was taken exparte by respondent No. 1 - Shri. Panchal of the new post. It is contended that he realized that Shri. Puri and superior officers were not co-operating him and they wanted to see that Shri. Puri continues to hold the additional charge of the post of Sub Divisional Officer at that station. It is contended that due to efforts of Shri. Puri and other officers, another order came to be issued dated 12.11.2008 and the respondent No. 1 was shown to be posted at Kalamnoori [Sub Division No. 46, Upper Penganga Project]. It is the case of respondent No. 1 that the subsequent order was issued with malafied intention and to see that Shri. Puri continues to hold the additional charge of the higher post of Sub Divisional Officer which he was doing for more than two years. With these contentions, the order dated 12.11.2008 was challenged by the respondent No. 1. The said application was contested by the State WP No. 5566/2009 4 Government and also by Shri. Puri before Maharashtra Administrative Tribunal. It was contended that there was no transfer as such from Sailu to Kalamnoori and there was no handing over and taking over of the charge due to the promotion of respondent No. 1 at Beed and Sailu. Both the sides had filed affidavits and counter affidavits. 3. The Tribunal has considered the relevant record which includes a letter of Member of Legislative Assembly of that region and correspondence made by some superior officers in favour of Shri. Puri. The Tribunal has also considered the circumstance that Shri. Puri was not available at Sailu and he was at Mantralaya from 10 to 14th November, 2008 and during this period the new order dated 12.11.2008 came to be issued. The Tribunal has held that by the order dated 22.10.2008 respondent No. 1 - Shri. Panchal was not only promoted, but he was also posted at Sailu and so the subsequent order dated 12.11.2008 amounts to transfer and the order attracts the provisions of section 3 (1) and 4 (1) of the Maharashtra Government Servants Regulation of transfers etc. Act, 2006. By accepting the contentions made by the respondent No. 1 - Shri. Panchal, the Tribunal has set aside the order. WP No. 5566/2009 5 4. Both the sides have advanced arguments in this proceeding and the arguments were on aforesaid line. 5. This Court has gone through the judgment delivered by Maharashtra Administrative Tribunal and the relevant record. The order of Government dated 22.10.2008 shows that by this order Shri. Panchal was not only promoted to the post of Sub Divisional Officer, but he was also posted at Sub Division No. 2, Sailu of Manjra Project. This document shows that the promoted employees were expected to join new posting within one month. The record contains copies of correspondence made by Shri. Panchal to show that he had reached Sailu, District Parbhani on 11.11.2008 and he had taken over the charge exparte as Sectional Engineer was not available. There is a copy of charge report. There is objection of the State Government and the senior officers of Shri. Panchal that the procedure with regard to handing over and taking over of the charge was not followed and so this record cannot be used for proving the taking over and handing over of the charge. 6. The record is sufficient to infer that Shri. Puri avoided to hand over the charge and even the superior officers of Shri. Panchal were helping Shri. Puri in doing so. There are copies of WP No. 5566/2009 6 correspondence of superior officers showing that they had recommended the Government to keep Puri at Sailu and allow him to hold the additional charge of Sub Division Officer which he was doing for more than two years. Thus, the person holding the lower post of Sectional Engineer, was allowed to hold the charge of higher post like Sub Divisional Officer and even when Shri. Panchal, Sub Divisional Officer, was available, an attempt was made to see that Shri. Panchal does not get the charge of the post at Sailu. When query was made in this proceeding, there was no explanation as to why such an attempt was made against Shri. Panchal. The record is sufficient to infer that the higher officers were favouring Shri. Puri for the reasons best known to them. In any case, as the order of the State Government dated 12.11.2008 shows that Shri. Panchal was posted at Sailu and he was expected to take over the charge within one month from the date of the order, it needs to be presumed that an attempt was made to transfer him from Sailu to Kalamnoori. In view of the aforesaid circumstances and the malafied intention, not much weight can be given to some circumstances like absence of signatures of Shri. Puri on charge report. 7. In view of these circumstances, this Court holds that it is not a fit case where the extraordinary writ jurisdiction of this WP No. 5566/2009 7 Court needs to be used in favour of petitioners. So the petition stands dismissed. [ T. V. NALAWADE, J.] [ NARESH H. PATIL, J.] ssc/