1 wp-4827-10 mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO.4827 OF 2010 Shri Shankarrao Narayanrao Jadhav ) Age adult, Deputy Collector, Group-A, ) working as Deputy Collector(Revenue) in ) the office of District Collector, Satara, ) r/o. Premvarsha Apartment, Bibwewadigaon) Opp. Datta Mandir, Pune-411 037. )..Petitioner Vs. 1.The State of Maharashtra ) through the Addl. Chief Secretary ) (Revenue), Revenue & Forest Department ) Mantralaya, Mumbai-400 032. ) 2.The Divisional Commissioner, ) Pune Revenue Division, Pune, office at ) Council Hall, Pune-411 001. ) 2 wp-4827-10 3.The Principal Secretary & Chief Electoral ) Officer, 6th Floor, Mantralaya, ) Mumbai-400 032. ) 4.Smt. Jayashree Katare, ) presently working as Probationer, Deputy ) Collector transferred and posted as ) Sub Divisional Officer, Haveli, Dist.Pune )..Respondents Mr. Y.S. Jahagirdar Senior Advocate i/b. Mr. N.V. Bandiwadekar, for the petitioner. Mr. A.V. Anturkar i/b. Mr. G.M. Savagave, for respondent No.4. Mr. S.R. Nargolkar, G.P., for respondent No.1. CORAM: B. H. MARLAPALLE & U.D. SALVI, JJ. DATE: 13th & 14th October, 2010. ORAL JUDGMENT (PER B.H. MARLAPALLE, J.) Heard. Rule. Respondents waive service. Petition is heard finally. 2. This petition filed under Articles 226 and 227 of the Constitution arises from the order dated 30th April, 2010 passed by the Maharashtra 3 wp-4827-10 Administrative Tribunal in O.A. No.214 of 2009. The petitioner was posted as Sub Divisional Officer, Haveli, Pune and on completion of his tenure of more than 3 years was due for transfer. As per the instructions in letter dated 14th November, 2008 from the Chief Electoral Officer proposals were invited from the Divisional Commissioners for transfer of officers who were required to be transferred at the behest of the Commission. On 31st December, 2008 the Divisional Commissioner, Pune, had submitted his list to the State Government of all such officers. The name of the petitioner was included in the said list. The proposal was processed and submitted to the Chief Electoral Officer for his concurrence and such a concurrence was given on 18th February, 2009. The proposal was then placed before the Chief Minister through the Revenue Minister and with some modifications it was approved. Consequently on 2nd March, 2009 by a common order addressed to the Divisional Commissioner, Pune 28 officers under him were sought to be transferred from one station to another and on account of the instructions of the Election Commission of India. However, the authorities realised that the modifications made in the proposal by the Chief Minister were not placed before the Chief Electoral Officer and, therefore, on 3rd March, 2009 the order dated 2nd March, 2009 was stayed/kept in abeyance. On obtaining concurrence of the Chief Electoral 4 wp-4827-10 Officer for the modification as well, the impugned order, in place of the order dated 2nd March, 2009 for transfers was issued. The petitioner who was sought to be transferred from Pune to Satara as Deputy Collector (Revenue) by the order dated 2nd March, 2009 retained his transfer to Satara even in the subsequent order dated 6th March, 2009. Being aggrieved by this order dated 6th March, 2009 the petitioner approached the Tribunal in O.A. No.214 of 2009. At the same time some other officers from the very same transfer order dated 6th March, 2009 and who were from the Pune Revenue Division had also approached the Tribunal in O.A. Nos.202, 212, 213 and 517 of 2009. 3. In all these applications, the Tribunal had passed orders setting aside the transfers. Writ Petition No.7141 of 2009 came to be filed before this Court by Smt. Nilima Dhaigude, who was respondent in O.A. No.202 of 2009 challenging the judgment of the Tribunal rendered on 11th August, 2009. It was submitted by Smt. Nilima Dhaigude before this Court that the Tribunal had allowed the applications on a wrong admission that before issuing the order dated 6th March, 2009 approval of the Chief Minister was not obtained though it was essential and mandatory and she wanted to resile from the said concession. This Court did not consider such a request and left the petitioner therein to approach the Tribunal with a review 5 wp-4827-10 application. The Review Application came to be dismissed and, therefore, Smt. Dhaigude approached this Court in the second round by filing Writ Petition No.9665 of 2009. A Division Bench of this Court was pleased to dismiss the said petition as well on 23rd November, 2009. Thus the four other officers who were transferred by the impugned order dated 6th March, 2009 have succeeded before the Tribunal as well as before this Court in O.A. Nos.202, 212, 213 and 517 of 2009 and on a common ground that before issuance of the transfer order dated 6th March, 2009 the approval of the Chief Minister was not obtained. 4. The petitioner’s O.A., was also allowed initially by the Tribunal on 11th August, 2009 and the same order came to be challenged before this Court in Writ Petition No.7269 of 2009 by Smt. Jayshree Katare, who was respondent No.4 in the O.A. On 18th February, 2010 a Division Bench of this Court disposed off the petition in the following terms:- (a) Order dated 11th August, 2009 passed by the Maharashtra Administrative Tribunal in Original Application No.214 of 2009 is set aside. (b) Original Application No.214 of 2009 is remitted back for denovo consideration and decision in accordance with law. All contentions available to both the sides are kept open to be urged 6 wp-4827-10 before the MAT. Parties to appear before the MAT on 8th March, 2010 along with a copy of this order. (c) The MAT is requested to hear and dispose of the Original Application as expeditiously as possible preferably within a period of six weeks from 8th March, 2010. 5. On remand the Tribunal dismissed the Original Application No.214 of 2009 by the impugned order. The Tribunal has held that though the affidavit filed on behalf of the State Government had conceded that approval of the Chief Minister was not obtained before the order dated 6th March, 2009 was issued, the same failure or deficiency could not in any way affect the petitioner’s transfer as his posting which was in the order dated 2nd March, 2009 was retained in the subsequent order dated 6th March, 2009 as well. In paragraph 11 of the impugned order the Tribunal stated thus:- “I have had an occasion to peruse the record produced by Respondents 1 & 2. It is true that the order dated 2.3.2009 was issued after following due procedure. However, the order dated 6.3.2009, appears to have been issued without approval by the Chief Minister, but only after approval by the Revenue Minister. Here, it is worth nothing that the applicant’s posting from Sub Divisional 7 wp-4827-10 Officer, Haveli to Deputy Collector, Satara was approved by the Chief Minister before the order of 2.3.2009 was issued, and the same remained unchanged in the order of 6.3.2009. Thus, those transfers which have been approved prior to issue of order of 2.3.2009 and remained unchanged in the order of 6.3.2009 did carry the approval of the Chief Minister and to that extent, the provisions of the Act have been complied with. In a nut shell, the applicant was to be transferred as per Election Commission of India guidelines and has been transferred after making out a special case, with the approval of the next higher authority.” 6. Mr. Jahagirdar, the learned Senior Counsel appearing with Mr. Bhandivadekar for the petitioner referred to the orders passed by the Tribunal in O.A. Nos. 202, 212, 213 and 517 of 2009 as well as the orders passed by this Court in Writ Petition No.7141 of 2009 and Writ Petition No.9665 of 2009 and reiterated that the failure to obtain prior approval of the Chief Minister would vitiate the transfer order dated 6th March, 2009 in its entirety. He also relied upon the affidavit in reply filed by Shri Rajendra Surve, Deputy Secretary in the Revenue and Forest Department, Government of Maharashtra in this petition as well It was further urged that the approval of the Revenue Minister in consultation with the 8 wp-4827-10 Additional Chief Secretary,(Revenue) to the transfer order dated 6th March, 2009 would not meet the requirements of the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties, Act, 2005 (for short “the Transfer Act”) and, therefore, the Tribunal was in error in holding that in the petitioner’s case it was not necessary to obtain the Chief Minister’s approval before the fresh order dated 6th March, 2009 was issued. 7. Mr. Anturkar, the learned Counsel for the respondent No.4 by referring to the provisions of the Transfer Act submitted that the Revenue Minister was the Competent Authority to issue the impugned order dated 6th March, 2009 and it was not necessary to seek prior approval of the Chief Minister before the said order was issued and in this regard he has relied upon the Competent Transferring Authorities as mentioned in the Table in Section 6 of the Transfer Act. Mr. Anturkar while supporting the view taken by the Tribunal in the impugned order further tried to persuade us that even if the record indicated that as on 6th March, 2009 the Additional Chief Secretary or the Revenue Minister had not signed the proposal which culminated in the order dated 6th March, 2009 that by itself would not vitiate the transfer orders and more so because the 9 wp-4827-10 Divisional Commissioner himself is a competent transferring authority to issue such orders within his jurisdiction and he pointed out that on the very same day i.e. on 6th March, 2009 the Divisional Commissioner issued a separate order. He also submitted that there was no change so far as the petitioner is concerned in the original posting as well as the revised posting and the concurrence of the Chief Electoral Officer obtained on 18th February, 2009 covered the petitioner’s case. Hence on any count the transfer order dated 6th March, 2009 could not be faulted with. 8. Before we consider the rival contentions of the parties and the reasoning set out by the Tribunal in the impugned order, we must refer to some of the salient features of the Transfer Act, which has been brought into force from 12th May, 2006. The Scheme of Section 3 of the Transfer Act assures minimum tenure of 3 years as far as possible and it is called as normal tenure. Whereas the Scheme of Section 4 of the Transfer Act envisages different forms of transfers as follows:- (a) General transfers or normal transfers. (b) Mid term transfer. (c) Transfers on account of promotions. (d) Transfers on request. 10 wp-4827-10 (e) Transfers on administrative exigencies. Undoubtedly, the transfers on promotion, on request or on administrative exigencies would be mid term transfers as well. The Transfer Act does not contemplate transfers on account of the directions issued by the Election Commission, but they may fall in the category of special transfers/mid term transfers. 9. As per Section 6 of the Transfer Act the competent transferring authorities have been notified in the table therein and they are as under:- Groups of Government servants Competent Transferring Authority (a) Officers of All India Services, all Officers of State Services in Group “A” having pay-scale of Rs.10,650-15,850 and above Chief Minister (b) All Officers of State Services in Group “A” having pay-scales less than pay- scale of Rs.10,650-15,850 and all Gazetted Officers in Group “B”. Minister-in-charge in consultation with Secretaries of the concerned Department. (c) All non-Gazetted employees in Group “B” and “C”. Heads of Departments. (d) All employees in Group “D” Regional Heads of Departments. The proviso below Section 6(1) of the Transfer Act 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 11 wp-4827-10 be competent to transfer such officers within the Division and the District Head shall be competent to transfer such officers within the District: 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.” 10. General transfers are issued between April and May whereas the mid term transfers are issued under the circumstances mentioned in the proviso below Section 4(4) as well as Section 4(5) of the Transfer Act. The orders issued under Section 4(5) are to be issued by recording reasons in writing and in special cases, but with the prior approval of the immediate superior transferring authority as mentioned in the Table to Section 6. The transfer orders to be issued under the instructions of the Election Commission will be the transfers for special reasons and midterm transfers. 11. So far as Competent Transfer Authority is concerned, as noted earlier, the same has been defined in Section 6(1) of the Transfer Act and the proviso below the said Section enables the Competent Transferring Authority to delegate its powers by general or special orders to any of its 12 wp-4827-10 subordinate authority. 12. It is not in dispute that the petitioner is an Officer in the pay scale of less than Rs.10,650-15,850/- (unrevised pay scales) and is in Group “B” and hence the Competent Transferring Authority for the petitioner would the Minister in charge in consultation with the Secretary of the Revenue Department. The Chief Minister is the Competent Transferring Authority only for the officers of All India Services and of State service in Group “A” having pay scale of Rs.10,650-15,850/- and above. The petitioner is not an officer in that category, for which the Competent Transferring Authority is the Chief Minister. Thus the stand maintained before the Tribunal by all the parties and upheld by the Tribunal that the Chief Minister was required to approve the transfer of the petitioner is not supported from the scheme of the Transfer Act. No material has been placed before us to point out that when the transfers are being undertaken as per the instructions of the Election Commission, the same proposal is required to be placed before the Chief Minister for his approval after it is cleared by the Chief Electoral Officer. The orders passed by this Court in Writ Petition No.6503 of 2009 as well as in Writ Petition No.71141 of 2009 and Writ Petition No.9665 of 2009 are based on this premise that the transfer order dated 6th March, 2009 13 wp-4827-10 was not approved by the Chief Minister before it was issued. This Court was undoubtedly misled by all the parties in these petitions. We do not find any material to hold that the impugned transfer order dated 6th March, 2009 was required to be approved in advance by the Chief Minister unless it was contended that some of the officers in the said transfer order were drawing pay scale of Rs.10,650/- to Rs.15,850/- or above and are in Group “A” of the State service. But such a case has not been made out in the affidavit filed by Shri Rajendra Surve, Deputy Secretary, Revenue and Forest Department though he has made a bald statement that such an approval by the Chief Minister was necessary. This affidavit does not find support from the scheme of the Transfer Act. 13. Now in so far as the merits of this case is concerned, Mr. Jahagirdar, the learned Senior Counsel has drawn our attention to the Departmental note which was the basis of the transfer order dated 6th March, 2009. The Section Officer appears to have put up a note on 6th March, 2009 and Shri Game, Deputy Secretary also signed it on the same day. However, the Additional Chief Secretary (Revenue) has seen the note post-facto i.e. after the transfer order dated 6th March, 2009 was already issued. The note does not indicate as to when the Revenue Minister signed it. It was submitted 14 wp-4827-10 by Mr. Jahagirdar, the learned Senior Counsel that unless the Revenue Minister in consultation with the Additional Secretary (Revenue) had signed the proposal on 6th March, 2009 or prior to that date, it could not be an order issued by the Competent Transferring Authority. Such a ground was already raised before the Tribunal and it was not found favour for the reasons that so far as the petitioner is concerned, there was no change in his posting in the transfer order dated 2nd March, 2009 and 6th March, 2009. The Tribunal also observed that in any case the petitioner had stayed at Pune for more than three years and was due for transfer in the general transfers.. As the record does not definitely indicate that the Revenue Minister signed the proposal after 6th March, 2009 it cannot be said that he had not signed it on 6th March, 2009 when the proposal was prepared and submitted and the record does not specifically state that the Revenue Minister has signed the proposal post-facto, more so when such an endorsement appears below the name of the Additional Chief Secretary. However, just because the Additional Chief Secretary has signed the proposal on 7th March, 2009 by itself would not vitiate the transfer order dated 6th March, 2009. We cannot disregard a possibility that the Revenue Minister consulted the 15 wp-4827-10 Additional Chief Secretary even on telephone and if the Additional Chief Secretary was not available in the office, the same was post-facto placed before him on the next day so as to bring the record in order. This view is also supported from the note itself which indicate that the Additional Chief Secretary was not available on 6th March, 2009. The relevant portion of the note could be usefully reproduced as under:- “.....%yaanausaar sa%var kaya-vaahI krNyaacao inado-Sa maa.mau#ya saicava yaaMnaI idlao Aahot. sadr inado-Saacyaa AnauSaMgaanao Apr mau#ya saicava ³mahsaUla´ yaaMnaI %yaaMcao ivaSaoYa kaya- AiQakarI yaaMnaa Aaja id.6À3À2009 raojaI durqvanaIva$na maa.mau#ya saicava yaaMnaI idlaolyaa inado-Saanausaar badlyaacao AadoSa ta%kaL inayaimat krNyaacyaa saUcanaa idlyaa Aahot.....” 14. We must also deal with the issue raised by Mr. Anturkar, the learned Counsel for the respondent No.4 regarding competence of respondent No.2 to issue the impugned transfer orders on the same day. It was contended by Mr. Anturkar that the proviso below Section 6 of the Transfer Act permitted delegation of power and the order issued by Respondent No.2 on 6th March, 2009 is required to be upheld. We do not find substance in this argument. We have already noted that the respondent No.2 was called upon to furnish the names of all the officers who were liable to be transferred under the 16 wp-4827-10 instructions of the Election Commission and all the Revenue Divisional Heads were also issued likewise instructions. The transfers were being contemplated at the State level pursuant to the said directions of the Election Commission. The proposal which has received given concurrence from the Chief Electoral Officer on 18th February, 2009 was not a proposal for a particular division or for transfers within the region, though the impugned order dated 6th March, 2009 confines only to the Pune Revenue Region and it is clear from the record that the respondent No.2 issued a fresh order under his signature based on the order issued from the Revenue Department and addressed to him. 15. We must also add that transfer is an incidence of service and the Courts/Tribunals should not ordinarily interfere in such orders. The petitioner had completed his tenure of three years at Pune and was due to be transferred even otherwise in the general round of transfers in April- May, 2009. Despite this, it is clear that the applicants vigorously contested the transfer order. The Courts/Tribunals must curb such tendencies, lest the public administration may become a casualty. The public servants litigating against such transfer orders is not a healthy sign of good public administration and at the same time it is a manifestation of their oblique 17 wp-4827-10 interests bringing their reputation under the clouds of suspicion. It would be, therefore, in their own interests that they follow the general transfer orders rather than challenging them before the Tribunal/Court. 16. In the premises we do not find any reasons to cause interference in the impugned order and in our considered opinion the Tribunal has dealt with all the issues raised before it and the reasons set out in the impugned order do not suffer from any error. The petition must, therefore, fail and the same is hereby dismissed, however, without any order as to costs. (U.D. SALVI, J.) (B. H. MARLAPALLE, J.)