Full Judgment
Oral Judgment (Per Anoop V. Mohta, J.):
1. Heard finally by consent.
2. The Petitioner/original Respondent No.2 in Original Application No.730/2011 has challenged impugned order dated 20 January 2014, thereby original Applicant/Respondent No.2's Application is allowed and transfer order dated 2.08.2011 of Respondent No.2 is quashed and set aside and as a consequence, order of transfer of Petitioner in his place is also quashed. The directions were issued to implement this order within two weeks from the date of the order.
3. There is no dispute with regard to the applicability of The Maharahstra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005 (for short, Act of 2005). Both the learned counsel appearing for the parties read and referred the provisions specially Sections 4 and 6 of the Act of 2005 which deals with the tenure of transfer and the Transferring Authority and its power. In the present case, Section 6 (b) is applicable. The Competent Authority is œMinister in charge in consultation with Secretary of the concerned Department?. The procedure so prescribed in Section 4 normally cannot be overlooked including not to transfer an employee within a span of three years and so also the transfer be made only once in a year in the month of April or May. There is no issue that employees can be transferred at any time, if case is made out, but subject to certain conditions so prescribed and not otherwise. Section 4(5) provides and empowers the Competent Authority, after recording the reasons in writing and with prior permission of the immediately preceding Competent Transferring Authority to transfer a Government before completion of his tenure of post, but it must be œin a special case?.
4. After hearing both the parties and considering the reason so given by the learned Tribunal, we have also noted that this is not a special case and exceptional circumstances by supporting material on record to show and or to pass such impugned transfer order against Respondent No.2. This is not even a case for want of reason of œpremature? transfer. The usual case of alleged complaints/unsatisfactory performance, though sought to be contended, but there is no supporting material placed on record to justify the case. The proposal for transfer was also not submitted and/or no prior consultation obtained as required under the Act of 2005. The alleged case is of accommodating other than Respondent No.2. There was no proposal forwarded to transfer both these employees.
5. Respondent No.2 admittedly had not completed his tenure of three years when the transfer order was issued. Even no prior approval of statutory Authority for such midterm transfer was obtained at the relevant time. The submission that Minister being the higher Authority, without any consultation and/or without following the procedure so prescribed, can initiate the action of such mid-term transfer on the basis of the alleged complaint received in the year 2010, is unacceptable. Impugned order of transfer is dated 02.08.2011. There is no dispute with regard to the requirement of prior consultation which is missing in the matter. After taking the note of the basic provisions of law and the material so placed by the parties, we see no reason to interfere with the impugned order.
6. Normally, the transfer policy does not require any interference, but once the statutory provisions which are required to be followed by all concerned and as case is made out of breach of those provisions, we see that there is no reason to interfere with the order so passed.
7. In the result, the Writ Petition is dismissed. No costs.
8. The learned counsel appearing for the Petitioner seeks stay of this order. However, considering the reasons so recorded above and as directions were in fact given by the learned Judge to implement the order within two weeks, we see there is no reason to further stay the impugned action/implementation of the order. The oral request for stay is accordingly rejected.