1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NOS. 4307, 4443, 4491, 4494, 4588 & 4737 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.:4307 OF 2011 *** Dilip Ramakant Dhakne Versus The State Of Mahrashtra And Ors *** Mr. Surve Hemant, Advocate for Petitioner Mr. N.B.Khandare, G.P. for Respondent/State Authorities. *** AND WRIT PETITION NO.:4443 OF 2011 *** C. R. Bedre and others Versus The State of Maharashtra and others. ***Mr. H. D. Deshmukh, Advocate for the Petitioners. Mr. V. H. Dighe, A.G.P. for Respondent/ State Authorities. Mr. N. L. Jadhav, Advocate for Respondent No.3. AND WRIT PETITION NO.:4491 OF 2011 *** Balabhau Vishwanath Pimple and others Versus The State of Maharashtra and others. *** Mr. Girish K. Thigale (Naik), Advocate for the Petitioners. Mr. V. D. Godbharle, A.G.P. for Respondent Nos. 1 to 3 and 5. Mr. N. L. Jadhav, Advocate for Respondent No.4. AND WRIT PETITION NO.:4494 OF 2011 *** Suresh Ramchandra Pawar And Ors Versus The State Of Mah And Ors 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NOS. 4307, 4443, 4491, 4494, 4588 & 4737 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. *** Mr. Thombre S.S., Advocate for Petitioners. Mr. V. D. Godbharle, A.G.P. for Respondent No.1 and 2. *** AND WRIT PETITION NO.:4588 OF 2011 *** Gitaram Yamaji Rathod and others Versus The State of Maharashtra and others. *** Mr. M. S. Bhosale, Advocate for the Petitioners. Mrs. V. A. Shinde, A.G.P. for the Respondent/ State Authorities. AND WRIT PETITION NO.:4737 OF 2011 *** Dilip Namdev Jaybhaye And Ors Versus The State Of Maharshtra And Ors *** Mr. Thombre S.S., Advocate for Petitioners. Mr. V. D. Godbharle, A.G.P. for Respondent/State Authorities. Mr. Jadhav N.L., Advocate for R/3. *** CORAM: D. B. BHOSALE AND S.B.DESHMUKH, JJ. DATED: 5th JULY, 2011. ORAL ORDER: [Per Deshmukh, J.] 1. Heard learned counsel for the respective parties. 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NOS. 4307, 4443, 4491, 4494, 4588 & 4737 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. 2. All these petitions involve common question of law and facts. Therefore, by consent of the parties, through their counsel, they are heard together and are being disposed of by this common order. 3. The petitioners, in all these writ petitions, are working as Teachers with Zilla Parishad, Beed. There is no dispute amongst the parties that Petitioners, at the relevant time, were working at a specific school and have been transferred by the respondent Zilla Parisahd. Copies of transfer orders, in relation to individual petitioner, have been annexed with the writ petitions. 4. There is a common ground raised by all the petitioners that the State Government has issued a Resolution on 6th May, 2010. With the assistance of learned counsel for the parties, we have seen the Government Resolution issued on 6th of May, 2010. This Government Resolution lays down a policy for effecting 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NOS. 4307, 4443, 4491, 4494, 4588 & 4737 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. transfers of Class-III and Class-IV employees of Zilla Parishad. The petitioners admit that they are in Cadre/ Class-III employees of the Zilla Parishad. The counsel appearing for the petitioners took us through this Government Resolution dated 6th May, 2010. It is an elaborate transfer policy laid down by the State Government in this Government Resolution. It seems that various factors have been taken into account by the State Government while laying down this policy. With the assistance of the learned counsel appearing for the Petitioners, we have seen Chapter V (page 49 of writ petition No.4737 of 2011), in relation to transfers of Class III, Class IV employees within the limits of revenue jurisdiction of the district concerned. It seems that Rule 2 Chapter V lays down that employees of the Zilla Parishad ordinarily be transferred once in a year preferably in the month of April/ May. It is further provided that after 31st May 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NOS. 4307, 4443, 4491, 4494, 4588 & 4737 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. employees of the Zilla Parishad should not be transferred. According to the learned counsel for the Petitioners Respondent Zilla Parishad, therefore, is not entitled to effect the transfers of the petitioners after 31st May, 2011. It is contended on behalf of the petitioners, in this group of writ petitions, that the transfers have been effected after 31st May, 2011 and, therefore, they are in breach of the Government Policy laid down in Government Resolution dated 6th May, 2010. It appears that power has been given to the Chief Executive Officer of the Zilla Parishad to effect the transfers beyond 31st May in an exceptional situation or some other grounds mentioned in this Rule 2. 5. Learned counsel appearing for the petitioners took us to communication dated 16th June, 2011 signed by the Deputy Secretary and addressed to Divisional Commissioner, 6 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NOS. 4307, 4443, 4491, 4494, 4588 & 4737 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Aurangabad Division, Aurangabad. This communication shows that transfers of the Class-III and Class-IV employees of the Zilla Parishad to be effected on or before 24th June, 2011 according to the policy of the State Government laid down in Government Resolution dated 6th May, 2010. Petitioners have sought quashment of this communication and another communication dated 17th June, 2010. There is no dispute that communication dated 17th June, 2010 is issued by the Divisional Commissioner, Aurangabad Division, Aurangabad to the Chief Executive Officer of Zilla Parishad. In this communication dated 17th June, 2011 the Divisional Commissioner has given a direction that transfers should be effected in view of Chapter V, Rule 2, Proviso (c) of the Government Resolution dated 6th May, 2010 and this exercise to be complete on or before 24th June, 2011. In other words, process of transfer of Class-III and Class-IV employees, 7 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NOS. 4307, 4443, 4491, 4494, 4588 & 4737 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. i.e. the petitioners teachers, to be completed by the Chief Executive Officer Zilla Parishad, Beed on or before 24th of June, 2011. In this communication, it was further conveyed that proposals of the transfer in view of the Government Resolution dated 6th May, 2010 should be prepared and sent to the office of Divisional Commissioner on or before 22nd June, 2011. 6. Two fold contention is raised on behalf of the petitioners that, transfers effected are not according to the guidelines laid down in the Government Resolution dated 6th May, 2010 and more specifically Rule 2 of Chapter 5. Transfers, according to them, ought to have been effected on or before 31st May, 2011 in the case on hand. Second submission on behalf of the Petitioners is advanced that communication of the State Government, signed by the Deputy Secretary Exhibit-C, page 57, is without jurisdiction. According to learned 8 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NOS. 4307, 4443, 4491, 4494, 4588 & 4737 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. counsel for the petitioners, the Deputy Secretary has no power and jurisdiction to issue such direction to the Divisional Commissioner as has been given by the communication dated 16th of June, 2011. It is further submitted that communication by the Divisional Commissioner dated 17th June, 2011 (page 58) to the Chief Executive Officer of Zilla Parishad concerned is also not legal and proper being based on the communication of Deputy Secretary which, according to the petitioners, is without jurisdiction. Learned counsel for the petitioners also invited our attention to Article 166 of the Constitution of India. 7. The learned A.G.P. supports the communication dated 16th of June, 2011 and 17th of June, 2011. He took us through the communication Exhibit-C, page 57 dated 16th June, 2011 signed by the Deputy Secretary of the Respondent No.1 State. According to him, 9 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NOS. 4307, 4443, 4491, 4494, 4588 & 4737 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. the decision has been taken by the State Government itself. We have considered the communication Exhibit-C, page 57 carefully. This communication shows that Divisional Commissioner, Aurangabad Division, Aurangabad was authorised to initiate and complete the process of transfer of Class III and Class IV employees. Further it was conveyed by this communication that such process of transfer should be completed on 24th June, 2011. Last part of this communication shows that there was exceptional situation erupted in Beed district. 8. At this stage, it is appropriate to make reference to affidavit in reply filed on behalf of Respondent No.3 in Writ Petition NO.4738 of 2011. Learned counsel Mr. Jadhav makes a statement that affidavit filed in Writ Petition No.4738 of 2001 to be read and considered in the writ petitions of this group and other petitions wherein Zilla Parishad is party and 10 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NOS. 4307, 4443, 4491, 4494, 4588 & 4737 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. petitioners are teachers. Counsel appearing for the petitioners have also consented for the same. Thus, by consensus, we shall now refer to the said affidavit. It is sworn in by Mr. Sayyed Gafoor, Education Officer, Zilla Parishad, Beed. A statement is made by the affiant that guidelines laid down in Government Resolution dated 6th of May, 2010 have been followed and except teachers cadre transfers of other cadres/ employees of Zilla Parishad have been made before 31st May, 2011. In relation to transfer of teachers/ petitioners, it is stated by affiant that transfers in Taluka inter-se were to be completed before 10th May, 2011 and out of Taluka were to be completed before 20th of May, 2011. The Zilla Parishad has received a communication dated 29th April, 2011 from the State of Maharashtra, Rural Development and Water Conservation Department. Reference is also made to a letter dated 4th of May, 2011 issued by the Divisional 11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NOS. 4307, 4443, 4491, 4494, 4588 & 4737 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Commissioner, Aurangabad. It is stated that transfer of petitioner/ teachers could not be completed in view of these two communications. Third communication dated 7th of May, 2011 was received from the Divisional Commissioner. The Zilla Parishad, in view of these communications, requested for extension of time, to make transfers of the teachers up till 31st May, 2011 was made. This request was made on behalf of Zilla Parishad on 13th May, 2011. Zilla Parishad during the interregnum prepared the time table for transfers. So far petitioner/ teachers cadre is concerned, it was slated on 28th May, 2011, thus well within the outer limit laid down in Government Resolution dated 6th May, 2011. Zilla Parishad has scheduled transfer of petitioner/ teachers on 28th May, 2011. It is further stated that during the process of transfers, on 28th May, 2011 representative of people took away record and implements regarding transfers. Transfers 12 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NOS. 4307, 4443, 4491, 4494, 4588 & 4737 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. of petitioner/ teachers, therefore, could not be made on 28th May, 2011. Report of the unfortunate incident of obstruction in the process of transfer on 28th May, 2011 had been submitted to the Government. Offence was registered at police station against the concerned. Further statement is made that the State Government had informed the Divisional Commissioner and in turn the Divisional Commissioner by its letter dated 17th June, 2011 extended the time to transfer the teachers/ petitioners up to 24th June, 2011. According to affiant, on 20th of June, 2011 and 21st of June, 2011 the options of the teachers about the place of transfer were called for, they were heard and accordingly proposal was prepared and submitted for sanction to the Divisional Commissioner, Aurangabad on 24th June, 2011. Divisional Commissioner, Aurangabad accorded sanction to the transfers made by Zilla Parishad, Beed. Table has been 13 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NOS. 4307, 4443, 4491, 4494, 4588 & 4737 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. given in this affidavit. It is also stated in this affidavit that employees who have completed more than ten years service in Talukas were considered, list was prepared. 9. We have also considered the affidavit filed on behalf of the State Government. In the affidavit filed on behalf of the State Government alleged incident of obstruction to the process of transfer on 28th May, 2011 by peoples representative has been reiterated. This affidavit is filed on behalf of Respondent Nos.1 and 2. It is sworn in by one Mr. Popat Bansode, Deputy Commissioner (Establishment) in the office of Divisional Commissioner, Aurangabad. Counsel present before the Court have consented for considering this affidavit in this group. Annexure R-1 to this affidavit (Page 49) is a report made by Chief Executive Officer, Zilla Parishad dated 28th May, 2011. It appears that one Mr. Suresh Dhas, Member of Legislative Assembly had requested the Chief 14 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NOS. 4307, 4443, 4491, 4494, 4588 & 4737 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Executive Officer not to effect transfer of teachers. It was informed to him by Chief Executive Officer that in view of the Government Resolution transfers were required to be made. Member of Legislative Assembly was not satisfied. He took away apparatus i.e. files, computer, list of transfers and, therefore, process of transfer could not be completed on that day by the Chief Executive Officer. This report bears date 28th May, 2011. We have also noticed outward number of this report. Based on this report, further statement is made by affiant that communication was addressed to State Government seeking extension, as a special case. It was the letter dated 16th June, 2011. In short, this affidavit supports the contention raised in the affidavit filed on behalf of Zilla Parishad. In para 6 of the affidavit, statement is made that some petitioners have completed more than 21 years of service in one Taluka. An 15 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NOS. 4307, 4443, 4491, 4494, 4588 & 4737 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. important statement is made in para 6 which reads "in the entire State of Maharashtra except Beed district, in all districts, transfers are effected." Further it is stated that reference to judgment of this Court that the transfer is an essential incidence of service, and should not be interfered with unless arbitrariness or malafides are shown against the authorities who have passed the orders. 10. We have considered the submissions made on behalf of the learned counsel for the parties. Our attention was invited to section 78 of The Maharashtra Zilla Parishad and Panchayat Samities Act, 1961. Counsel appearing in Writ Petition No.4491 of 2011 also has invited our attention to the minutes of the proceedings of Zilla Parishad dated 23rd May, 2011 (page 43). Resolution No.268 was specifically pointed out to us by the learned counsel for petitioner Mr. Thigale. According to him, the house has 16 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NOS. 4307, 4443, 4491, 4494, 4588 & 4737 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. decided not to effect transfers on administrative grounds in relation to teachers, transfers, according to request made by teachers only should be considered. 11. After considering the submissions made on behalf of the learned counsel for the parties, in our opinion, there is no substance in these writ petitions. All these writ petitions, being devoid of substance, need to be dismissed. 12. It is not the case of the petitioners that the transfers were effected malafide. Grounds raised before us, are not sufficient for interference under Article 226 of the Constitution. We see no merit in this group of writ petitions. 13. Writ petitions stand dismissed without any order as to costs. 14. All learned counsel for the Petitioners undertake to make good the deficit Court fee stamp, if any, within a period of two weeks 17 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NOS. 4307, 4443, 4491, 4494, 4588 & 4737 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. from today. Oral undertaking is accepted and taken on record. Interim relief, if any, stands vacated. [S. B. DESHMUKH, J.] [D. B. BHOSALE, J. Dated:05/07/2011. ans/4307