Case: DR. NAGORAO SHIVAJI CHAVAN Vs. DR. SUNIL PURUSHOTTAM BHAMRE &amp; ORS

administrative ground to transfer Respondent no.1 from the post of Civil Surgeon, Jalgaon to Assistant Director, AIDS Control Society, Wadala, Mumbai.10. In B. Varadha Rao Vs. State of Karnataka & Ors., (1986) 4 SCC 131 , this Court has observed with respect to transfer of Class I officers, thus -?4. ……….. That a Government servant is liable to be transferred to a similar post in the same cadre is a normal feature and incident of Government service and no Government servant can claim to remain in a particular place or in a particular post unless, of course, his appointment itself is to a specified, nontransferable post. As the learned Judges rightly observe :The norms enunciated by Government for the guidance of its officers in the matter of regulating transfers are more in the nature of guidelines to the officers who order transfers in the exigencies of administration than vesting of any immunity from transfer in the Government servants.5. It is no doubt true that if the power of transfer is abused, the exercise of the power is vitiated. But it is one thing to say that an order of transfer which is not made in public interest but for collateral purposes and with oblique motives is vitiated by abuse of powers, and an altogether different thing to say that such an order per se made in the exigencies of service varies any condition of service, express or implied to the disadvantage of the concerned Government servant. The petitioner who appeared in person placed reliance, as he did in the High Court, on the decision of the Bombay High Court in Seshrao Nagorao Umap Vs. State of Maharashtra & Ors. (1985) 2 LLJ 73 (Bom.). We do not see how the decision can be of any avail to the question at issue. The learned Judges were dealing with a petition under Article 226 of the Constitution by which a Medical Officer challenged his order of transfer on the ground that it was not only mala fide but was issued in colourable exercise of power and therefore wholly illegal and void. It was contended by the petitioner that he was being transferred contrary to the Government policy with a view to accommodate one Dr. R.P. Patil because of the political influence he wielded. In allowing the writ petition, the learned Judges observed that it was no doubt true that the Government has power to transfer its employees employed in a transferable post but this power has to be exercised bona, fide to meet the exigencies of the administration. If the power is exercised mala fide, then obviously the order of transfer is liable to be struck down. They relied on the observations made by this Court in E.P. Royappa V. State of Tamil Nadu and Anr. for the positivistic view that equality is antithetic to arbitrariness and held that the observations equally apply to the policy regarding the transfer of public servants. It was observed :It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in the matter. The Government is the best judge to decide how to distribute and utilise the services of its employees. However, this power must be exercised honestly, bona fide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such; transfers, cannot, but be held as mala fide. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, than is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even administrative actions should be just and fair.The observation that transfer is also an implied condition of service is just an observation in passing. It certainly cannot be relied upon in support of the contention that an order of transfer ipso facto varies to the disadvantage of a Government service, any of his conditions of service making the impugned order appealable under Rule 19(1)(a) of the Rules.6. One cannot but deprecate that frequent, unscheduled and unreasonable transfers can uproot a family, cause irreparable harm to a Government servant and drive him to desperation. It disrupts the education of his children and leads to numerous other complications and problems and results in hardship and demoralisation. It therefore follows that the policy of transfer should be reasonable and fair and should apply to everybody equally. But, at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned, continued posting at one station or in one department of the Government is not conductive to good administration. It creates vested interest and therefore we find that even from the British times the general policy has been to restrict the period of posting for a definite period. We wish to add that the position of Class III and Class IV employees stand on a different footing. We trust that the Government will keep these considerations in view while making an order of transfer.? 11. Notwithstanding the provisions contained in Section 3 which uses the expression that ?ordinarily the tenure is three years?, in our opinion in exceptional circumstances in a given case, or in the case of administrative exigencies, transfer is permissible, and no absolute bar on transfer is created by virtue of the provisions contained in section 3 read with section 4. In the facts and circumstances of the case and also considering the past record of respondent No.1 of not joining the place where he was transferred for five years, no interference with the order of transfer is called for.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. After hearing learned counsel for the parties at length, we are of the opinion that the High Court as well as the Tribunal have erred in law in the facts and circumstances of the case in relying upon the provisions contained in Section 3 and Section 4 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?)Thus, it is apparent from the conjoint reading of Sections 3 and 4 that though the normal tenure is 3 years but in the administrative exigencies a transfer is still permissible. There is no total embargo. No doubt the statutory provision of tenure is required to be observed unless special exigency arises. In the backdrop of the facts that complaint had been lodged by Chief Executive Officer, Zila Parishad, inquiry had been made into that and the allegations of financial irregularities and insubordination have been found to be substantiated. It was absolutely proper not to retain Respondent No.1 as Civil Surgeon, Jalgaon. It was not in the interest of the administration to retain him any further at the said place. Though,it was contended by learned counsel appearing on behalf of Respondent No.1 that no financial irregularity or insubordination was committed by Respondent No.1.We cannot adjudicate upon this issue at this stage, as it is for the Government to decide it. But there was sufficient administrative ground to transfer Respondent no.1 from the post of Civil Surgeon, Jalgaon to Assistant Director, AIDS Control Society, Wadala, Mumbai11. Notwithstanding the provisions contained in Section 3 which uses the expression that ?ordinarily the tenure is three years?, in our opinion in exceptional circumstances in a given case, or in the case of administrative exigencies, transfer is permissible, and no absolute bar on transfer is created by virtue of the provisions contained in section 3 read with section 4. In the facts and circumstances of the case and also considering the past record of respondent No.1 of not joining the place where he was transferred for five years, no interference with the order of transfer is called for.