WP 5835/11 - 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5835/2011 Purushottam s/o Govindrao Bhagwat, age 54 yrs., occu.service, Executive Engineer, Public Works Department, Division No.1, Jalna r/o Government Quarters, Durgamata Temple, PWD Campus, Jalna. Dist.Jalna. ...Petitioner.. Versus 1] The State of Maharashtra, through its Secretary, Public Works Department, Maharashtra State, Mantralaya, Mumbai-32. 2] The Chief Engineer, Public Works Department, Public Works Region, Regional Office, Osmanpura, Aurangabad. 3] J.U. Deshpande, age 56 yrs., occu.service, Executive Engineer, c/o Mumbai Metropolitan and Region Development Authority, Mumbai. ...Respondents... WP 5835/11 - 2 - ..... Shri Nitin B. Suryawanshi, Advocate for petitioner. Shri V.H. Dighe, AGP for respondent nos.1 & 2. Shri A.S. Deshpande, Advocate for respondent no.3. ..... CORAM: B.R. GAVAI & M.T. JOSHI, JJ. DATE: 15.09.2011 ORAL JUDGMENT (Per Gavai, J.) : 1] Heard learned counsel for the parties. Rule. Rule made returnable forthwith and taken up for final disposal with the consent of learned counsel for the parties. 2] The petitioner has approached this Court being aggrieved by the judgment and order passed by the learned Maharashtra Administrative Tribunal dated 29.7.2011 thereby dismissing the Original Application No.328/2011, which was filed by the present petitioner challenging the order of transfer dated 31.5.2011 issued by the respondent no.1. WP 5835/11 - 3 - 3] The facts in nut-shell, which give rise to the present petition, are as under: The petitioner was initially appointed as Junior Engineer in the Public Works Department of the respondent no.1 on 1.6.1978. The petitioner came to be promoted in the cadre of Sub Divisional Officer / Deputy Engineer in the year 1987 and subsequently as Executive Engineer in the year 2005. It is the contention of the petitioner that from 2005, he was given non-executive posts and for the first time on 14.6.2010, he came to be transferred and posted as Executive Engineer, Public Works Department, Division No.1, Jalna, which is an executive post. Even before the petitioner could complete one year on the said post, he came to be transferred as Executive Engineer, Zilla Parishad, Yeotmal, on 31.5.2011. By the said order, the respondent no.3 was posted to a post where the petitioner was posted. Being aggrieved thereby, the petitioner approached the learned Maharashtra Administrative Tribunal (hereinafter referred to as the Tribunal) on 6th of June, 2011. By the order passed on the said date, the learned Tribunal granted an order of status quo. However, subsequently, vide order dated 29.7.2011, the learned Tribunal dismissed the Original Application. Being aggrieved thereby, the present petition is filed. 4] From the perusal of the record, it would reveal that when the matter was listed before this Court for the first time on 5.8.2011, this Court granted order of status quo. Since a statement was made on behalf of the petitioner on 29.8.2011 that there are two posts vacant at Aurangabad and the respondent no.3 has WP 5835/11 - 4 - requested for transfer at Aurangabad, we had directed the learned AGP to take instructions as to whether there are any posts vacant at Aurangabad. Accordingly, an affidavit has been filed on behalf of the respondent nos.1 & 2 stating therein that following two posts are vacant at Aurangabad: [1] Executive Engineer, Maharashtra State Road Development Corporation, Aurangabad, and [2] Executive Engineer, Public Works (West), Division, Aurangabad. 5] In this background, we have heard the learned counsel for the parties on merits. 6] Shri N.B. Suryawanshi, learned counsel appearing on behalf of the petitioner, submits that the learned Tribunal has not construed the provisions of the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005 (hereinafter referred to as the Act) in its correct perspective. The learned counsel submits that in view of provisions of Section 3 of the Act, for an employee like the petitioner or the respondent no.3, the normal tenure in a post shall be three years. He submits that in view of Sub- section (1) of Section 4 of the Act, a Government servant shall not ordinarily be transferred unless he has completed his tenure of posting as provided in Section 3. It is submitted that Sub-section (4) of Section 4 provides that the transfers of Government servants shall ordinarily be made only once in a year in the month of April or May. It is further submitted that, however, the proviso thereto is applicable WP 5835/11 - 5 - only if the transfer is not to be made in the month of April or May. It is further submitted that Sub-section (5) of Section 4 requires the reasons to be recorded in special cases where a Government servant is sought to be transferred before completion of his tenure. The learned counsel, therefore, submits that harmonious construction of the said provision would reveal that ordinarily, a Government servant cannot be transferred prior to completion of his tenure. It is further submitted that if a transferring authority desires to transfer an employee prior to completion of tenure, it can be done only in special cases and that too after recording the reasons in writing and with prior approval of the immediately superior Transferring Authority mentioned in the table of Section 6. The learned counsel, therefore, submits that the impugned judgment and order passed by the learned Tribunal is liable to be quashed and set aside. 7] On behalf of the respondent nos.1 & 2, it is submitted by the learned AGP that since the petitioner was being transferred to a post, which is vacant, it will be governed by clause (i) of Proviso to Sub-section (4) of Section 4 of the Act and, therefore, no special reasons are required to be recorded. Shri A.S. Deshpande, the learned counsel appearing on behalf of the respondent no.3, submits that the proviso governs the substantive provisions of the statute and, therefore, is required to be considered as having overriding effect over the substantive provisions. Shri Deshpande further submits that on occurrence of vacancy on account of retirement, promotion, resignation, reversion, reinstatement, consequential WP 5835/11 - 6 - vacancy on account of transfer or on return from leave, a person can be transferred before completion of tenure, without recording the special reasons and such a transfer would not be violative of the provisions of the Act. 8] To appreciate the rival submissions of the parties, it will be necessary to consider some of the provisions of the Act. It is not in dispute that as required u/s 3 of the Act, the tenure of posting of All India Service Officers and all Group A, B and C State Government Servants or employees, the normal tenure in a post shall be three years. Undisputedly, both – the petitioner and the respondent no.3, fall in this category and their normal tenure in a post would be three years. The most relevant provision would be Section 4, which reads thus: “[4] Tenure of transfer : [1] No Government servant shall ordinarily be transferred unless he has completed his tenure of posting as provided in section 3. [2] The competent authority shall prepare every year in the month of January, a list of Government servants due for transfer, in the month of April and May in the year. [3] Transfer list prepared by the respective competent authority under sub-section (2) for Group A Officers specified in entries (a) and (b) of the table under section 6 shall be finalised by the Chief Minister or the concerned Minister, as the case may be, in consultation with the Chief Secretary or concerned Secretary of the Department, as the case may be; Provided that, any dispute in the matter of such transfers shall be decided by the Chief Minister in consultation with the Chief Secretary. [4] The transfers of Government servants shall ordinarily be made only once in a year in the month of April or May; WP 5835/11 - 7 - 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; [5] Notwithstanding anything contained 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 of post.” 9] By now, it is a settled principle of law that all the provisions of the statute are required to be construed in harmony with one another and construction has to be done in such a manner that each provision in the statute will have its play. Construction of the provision cannot be done in a manner, which, while giving effect to one provision of the statute, will make another provision redundant or nugatory. Reliance in this respect can be made on the judgment of the Apex Court in the case of M/s British Airways V/s Union of India & others (AIR 2002 Supreme Court, 391), paragraph 7 of which reads thus: “While interpreting a statute the Court should try to sustain its validity and give such meaning to the provisions which advance the object sought to be achieved by the enactment. The Court cannot approach the enactment with a view to pick holes or to search for defects of drafting which make its working impossible. It is a cardinal principle of construction of a statute that effort should be made in construing the different provisions so that each provision will have its play and in the event of any conflict a harmonious construction should be given. WP 5835/11 - 8 - The well-known principle of harmonious construction is that effect shall be given to all the provisions and for that any provision of the statute should be construed with reference to the other provisions so as to make it workable. A particular provision cannot be picked up and interpreted to defeat another provision made in that behalf under the statute. It is the duty of the Court to make such construction of a statute which shall suppress the mischief and advance the remedy. While interpreting a statute the Courts are required to keep in mind the consequences which are likely to flow upon the intended interpretation.” It is also a cardinal principle of law that the words used in the provisions of the statute must be interpreted in their plain grammatical meaning. Reliance in this respect can be placed on the judgment of the Apex Court in the case of Satheedevi V/s Prasanna & another (AIR 2010 Supreme Court, 2777). 10] Applying these principles, we will have to consider the provisions of Section 4 of the Act. Sub-section (1) emphatically provides that no Government servant shall ordinarily be transferred unless he has completed his tenure of posting as provided in Section 3. Sub-section (2) requires a competent authority to prepare every year in the month of January, a list of Government servants due for transfer, in the month of April and May in the year. Sub-section (3) requires that the transfer list prepared by the respective competent authority under sub-section (2) for Group A Officers specified in entries (a) and (b) of the table under section 6 shall be finalized by the Chief Minister or the concerned Minister, as the case may be, in consultation with the Chief Secretary or concerned Secretary of the Department, as the case may be. Proviso thereto requires that any dispute in the matter of WP 5835/11 - 9 - such transfers shall be decided by the Chief Minister in consultation with the Chief Secretary. Sub-section (4) mandates that the transfers of Government servants shall ordinarily be made only once in a year in the month of April or May. Proviso to Sub-section (4) permits a transfer to be made any time in the year in the circumstances stated therein. Sub-clause (i) thereof permits such a transfer to be made at any time in a year to a newly created posts 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. Sub-clause (ii) thereof permits such a transfer at any time 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. Sub-section (5) of Section 4, which begins with a non obstante clause, permits the competent authority, 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, to transfer a Government servant before completion of his tenure of post. Thus, the distinction between the two Provisos to Sub-section (4) and Sub- section (5) is crystal clear. A transfer due to vacancy of the post is covered by Clause (i) to Proviso of Sub-section (4) while mid-tenure transfer is covered by Sub-section (5). It is thus clear that merely to fill a vacancy, a Government cannot be transferred mid-tenure unless and until the conditions of Sub-section (5) are satisfied. WP 5835/11 - 10 - We are unable to accept the contention of Shri A.S. Deshpande, the learned counsel for the respondent no.3, that the proviso to Sub-section (4) would permit a transfer at any time, without recording reasons, to the post which become vacant due to retirement, promotion, resignation, reversion, reinstatement, consequential vacancy on account of transfer or on return from leave and that the proviso would govern the substantive provision. The function of the proviso has been defined by the Apex Court in the recent judgment of Nagar Palika Nigam V/s Krishi Upaj Mandi Samiti & others (AIR 2009 Supreme Court, 187). The Apex Court observed thus: “8. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As was stated in Mullins V. Treasurer of Survey [1880 (5) QBD 170], (referred to in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha (AIR 1961 SC 1596) and Calcutta Tramways Co.Ltd. v. Corporation of Calcutta (AIR 1965 SC 1728); when one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject-matter of the proviso. The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case. It is a qualification of the preceding enactment which is expressed in terms too general to be quite accurate. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. “If the language of the enacting part of the statute does not contain the provisions which are said to occur in it you cannot derive these provisions by implication from a proviso.” Said Lord Watson in West Derby Union v. Metropolitan Lifei Assurance Co. (1897 AC 647) (HL). Normally, a proviso does not travel beyond the provision to which it is a proviso. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. (See A.N.Sehgal and Ors. v. Raje Ram Sheoram and Ors. (AIR 1991 SC 1406). Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal and Ors. (AIR 1991 SC 1538) WP 5835/11 - 11 - and Kerala State Housing Board and Ors. v. Ramapriya Hotels (P) Ltd. and Ors. (1994 (5) SCC 672). 9. “This word (proviso) hath divers operations. Sometime it worketh a qualification or limitation; sometime a condition; and sometime a covenant” (Coke upon Littleton 18th Edition, 146). 10. “If in a deed an earlier clause is followed by a later clause which destroys altogether the obligation created by the earlier clause, the later clause is to be rejected as repugnant, and the earlier clause prevails....... But if the later clause does not destroy but only qualifies the earlier, then the two are to be read together and effect is to be given to the intention of the parties as disclosed by the deed as a whole” (per Lord Wrenbury in Forbes v. Git [1922] 1 A.C. 256). 11. A statutory proviso “is something engrafted on a preceding enactment” (R. v. Taunton, St.James, 9 B. and C. 836). 12. “The ordinary and proper function of a proviso coming after a general enactment is to limit that general enactment in certain instances”. (per Lord Esher in Re Barker, 25 Q.B.D. 285). 13. A proviso to a section cannot be used to import into the enacting part something which is not there, but where the enacting part is susceptible to several possible meanings it may be controlled by the proviso (See Jennings v. Kelly [1940] A.C. 206). 14. The above position was noted in Ali M.K. and Ors. v. State of Kerala and Ors. (2003 (4) SCALE 197).” 11] It can, thus, be seen that, normal function of a proviso is to except something out of the enactment or to qualify something enacted therein, which, but for the proviso, would be within the purview of the enactment. However, if a proviso destroys altogether the obligation created by the main clause, the later clause is to be rejected as repugnant and the earlier clause prevails. However, if the later clause does not destroy but only qualifies the earlier, then the two are to be read together and effect is to be given to the intention of the legislature as WP 5835/11 - 12 - disclosed by the provision as a whole. The purpose of the proviso is to limit the general enactment in certain instances. Proviso to a section cannot be used to import into the enacting part something which is not there. It is only where the enacting part is susceptible to several possible meanings it may be controlled by the proviso. It can, thus, be clearly seen that in the present case, the substantive provision is very clear that no Government servant shall ordinarily be transferred unless he has completed his tenure of posting, as provided in Section 3. We are, therefore, unable to accept the contention that the proviso would govern the substantive provision. In this context, we may use a proverb as is quoted by the Apex Court in the case of Ghaziabad Zilla Sahkari Bank Ltd. V/s Additional Labour Commissioner & others [ (2007) 11 SCC, 756 ], “it is the dog that wags the tail and not the tail that wags the dog”. Therefore, the submissions of Shri A.S. Deshpande that the Proviso governs the main provision cannot be accepted. 12] There is another angle. It is to be seen that prior to enactment of the said Act, there was no enactment for regulation of transfers of Government servants and the said Act has been enacted with a purpose to regulate the transfers of the Government servants. The Constitution Bench of the Apex Court in the case of Bengal Immunity Co. V/s State of Bihar (AIR 1955 SC 661) has applied the Heydon’s rule of interpretation and observed thus: “It is a sound rule of construction of a statute firmly established in England as far back as 1584 when Heydon’s case ((1584 3 Co.Rep. 7a, p.7b) was decided that for the sure and true interpretation of all Statutes in general (be they penal or beneficial, restrictive or WP 5835/11 - 13 - enlarging of the common law) four things are to be discerned and considered: 1st - What was the common law before the making of the Act. 2nd – What was the mischief and defect for which the common law did not provide. 3rd - What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth, and 4th - The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.” It can thus be seen that while interpreting the aforesaid provision of the said Act, this Court would also have to apply Heydon’s rule or the mischief rule. It will have to be seen as to what was the position before making the enactment of the Act. What was the mischief and defect for which the law did not provide earlier and what remedy the legislature has found to cure the disease and the true reason of the remedy. After applying this, the Courts will have to make such interpretation, which shall suppress the mischief and advance the remedy. This legal principle has been consistently followed by the Apex Court and various High Courts while interpreting the statutes. It can be seen that prior to the aforesaid enactment coming into force, there was no enactment to regulate the transfers of the Government servants and the Government servants were transferred at the sweet will of the authorities concerned. In order to do away with the arbitrary WP 5835/11 - 14 - powers of the authorities, an enactment to regulate such transfers was found necessary. With that purpose, to suppress the mischief of an unguided, un- channalized power to transfer the Government servants, the said Act was enacted. The remedy provided was to regulate the transfers in accordance with the said enactment. 13] It can clearly be seen that the said enactment, particularly Sub-section (1) of Section 4 specifically protects a Government servant from being transferred prior to completion of his ordinary tenure. Sub-section (4) of Section 4 requires such transfers to be done once in a year i.e. in the month of April or May. The proviso thereto, though permits the transfers to be made any time in the year for the eventualities mentioned therein, however, we are of the considered view that the proviso to Sub-section (4) cannot be read in such a manner, which makes the provision of Sub-section (1) of Section 4 redundant or nugatory. Clause (i) of the proviso to Sub-section (4), which permits transfer to be made at any time in a year on the ground of eventualities mentioned therein, will have to be read in a manner that the transfer on the grounds mentioned in clause (i) of proviso to Sub-section (4) would be permissible at any time of the year and not necessarily in April or May when a Government servant has completed his tenure of posting. If it is not read in that manner, the very purpose of the protection, which is granted in Sub-section (1) of Section 4 would become redundant and nugatory. A person, who has not completed even three months in a particular posting, could be transferred to some WP 5835/11 - 15 - post, which has become vacant on account of transfer of another Government servant, who was working on the post. As such, the clause (i) of proviso to Sub- section (4) will have to be read in harmony with Sub-section (1) of Section 4 of the said Act. It will have to be interpreted that a Government servant will not be ordinarily transferred prior