Judgment:
A.P. Bhangale, J.
1. Rule. Heard by consent finally. Perused affidavits on record.
2. The petitioner has questioned legality of the impugned transfer order dated 30-05-2012 passed by the respondent no. 1, Maharashtra OBC Finance and Development Corporation, a Government Sector Organization established with an object of upliftment of Other Backward Community by promoting the self-employment, having its office at Mumbai.
3. It is case of the Petitioner that he was posted as Clerk with effect from 03-01-2000 with the Respondent no. 1. Initially his services were temporary but due to his good track record the services were made permanent. He was promoted with effect from 01-12-2003 as Accountant and also promoted as District Manager with effect from 01-07-2005. On 30-05-2011 by letter dated 30-05-2012, he was transferred to the office of the District Manager, Mumbai as then District Manager Smt V.V. Kesarkar was retiring and the post was falling vacant. But surprisingly and hastily, when the Petitioner never wanted it, the Petitioner was transferred to District Raigad in contravention of the provisions of the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official duties Act, 2005. (Hereinafter referred as âActâ). It is contention of the Petitioner that no prior approval was obtained from the competent authority as prescribed under section 6 of the Act before decision was taken nor there was any sufficient reason to transfer the Petitioner. The petitioner apprehends that his mid-term transfer was political or illâmotivated partiality to favour the respondent no. 3 Shri Anil Murar, despite the fact that daughter of the Petitioner has appeared in 10th standard examination and require the Petitioner to guide her at crucial stage of her educational career.
4. Learned Advocate Shri Bandiwadekar for the respondent no.1, supported in his submissions by the Learned A.G.P. Ms. Bhende for the State of Maharashtra and Shri Phadnis, learned Advocate on behalf of the respondent no. 3 prayed for dismissal of the Petition. Shri Bandiwadekar referred to Affidavit of Shri Mangesh Shinde, Managing Director of the respondent no. 1 who opposed the Petition and stated that respondent no 3, Shri Anil Murar, had requested for transfer to Mumbai from Raigad, near his native place Thane on the eve of his retirement within next one year and transfer order was an administrative action. He prayed for dismissal of the Writ Petition. Respondent no. 3, Shri Anil Murar also opposed the Petition and prayed for dismissal thereof on the ground that his transfer from Raigad to Mumbai on the post of the District Manager was approved under Section 4(5) of the Act on 05-11-2011 and he joined duty on 11-06-2012.
5. It is submitted on behalf of the Petitioner that he has unblemished, clean service record throughout his career and the impugned transfer order was harsh, unreasonable, unjust, unfair and wholly illogical and was in violation of the fundamental right guaranteed under Article 14 of the Constitution of India, particularly when normal tenure of the Government servant on a particular post is three years under the Act and before that ordinarily no Government servant shall be transferred unless he has completed the tenure of three years of particular post. The petitioner was transferred to Mumbai by letter dated 30-05-2011 and had completed only one year when the respondent no.1 in contravention of the Act, on 30-05-2012 ordered transfer of the Petitioner from Mumbai to Raigad. Learned Counsel for the Petitioner placed reliance upon Section 4 of the Act.
Section 4 reads as under:-
"4. (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 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:
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:
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 permission of the immediately preceding Competent Transferring Authority mentioned in the table of section 6, transfer a Government servant before completion of his tenure of post."
Section 4 (5) which begins with the non-obstante clause obligate the Competent authority to seek prior approval of the competent transferring authority as indicated in Section 6 of the Act and also to record reasons in writing in special case of the midterm or pre-mature transfer of any Government servant who has not completed three years of normal tenure on particular post. Section 6 of the Act lays down the categories of the Government servants in column no (1) of the table who may be transferred by the competent transferring authorities as mentioned in column (2) of the table. Learned Counsel for the Petitioner placed reliance upon the ruling in S.B. Bhagwat vs. State of Maharashtra reported in 2012 (3) Mah. L J. 197 (DB). Division Bench of this Court referred to the settled position in law that when a statutory power is conferred upon a authority to do an particular thing, that exercise has to be carried out in the manner as prescribed by the Statute. In para 9 of the S. B. Bhagwats case this Court in identical situation observed thus;-
â9. In the present case, the Third Respondent with whom the Petitioner was employed, did not even propose to transfer the Petitioner who had not completed his normal tenure. The State Government was requested to grant its approval for transferring six employees. Inexplicably, the State Government granted its approval for transfer of fourteen employees. The Petitioner does not figure in one of those fourteen. The Fourth Respondent was sought to be transferred from Nashik to Sangli at his request. The Petitioner is sought to be displaced. The manner in which the power has been exercised leaves no manner of doubt that the exercise was carried out not in public interest, but with a view to accommodate the request of the Fourth Respondent. The mandatory statutory provision of recording reasons in writing for justifying recourse to the exceptional power conferred by Sub-section (5) of Section 4 has not been fulfilled.â The Division Bench of this Court had found clear breach of the Section 4(5) of the Act and decided to quash and set aside the transfer order in that case.
6. We have considered the submissions at the bar in the light of relevant provisions under the Act, ruling cited and facts of this case.
7. We are satisfied in the case in hand that there was non-observance of the statutory requirements of the Act. The mid-term or pre-mature special transfer has to be strictly according to law, by a reasoned order in writing and after the due and prior approval from the competent transferring authority concerned for effecting such special transfer under the Act. The exercise of exceptional statutory power has to be transparent, reasonable and rational to serve objectives of the Act, as far as possible, in public interest. Mandatory requirements of the provision under Section 4(5) of the Act cannot be ignored or bye-passed. The exceptional reasons for the special mid-term or premature transfer ought to have been stated in writing. Vague, hazy and meager expression such as âon administrative groundâ cannot be a compliance to be considered apt and judicious enough in the face of mandatory statutory requirements. The impugned order of the transfer in the absence of mention of special and exceptional reasons was passed obviously in breach of the statutory obligations and suffers from the vices as above. Impugned order dated 30-05 2012 would ex facie indicate that merely because of request made by the respondent no 3 Shri Murar, the Petitioner was sought to be transferred pre-maturely to Raigad. It is therefore unsustainable for want of evenhandedness or fairness to the Petitioner Government employee concerned and we therefore quash and set aside the impugned order of transfer. This order will not preclude the respondent no.1 passing a fresh reasoned order in writing, of course as prescribed under the Act after prior approval order is obtained from the competent transferring authority and by following the mandatory requirements as prescribed under the Act. The Petition is allowed in above terms. Hence, order:-
Rule is made absolute accordingly. Cost of this Petition quantified at Rs.7500/- shall be paid by the respondent no. 1, to the Petitioner.