Swatanter Kumar, C.J.
1. By this judgment, we shall dispose of the above three writ petitions as common issues arise for determination in all the writ petitions on somewhat similar facts. For the purpose of convenience, we would refer to the facts of Writ Petition (Lodging) No. 1430 of 2007.
2. The petitioner joined the services of Maharashtra Housing and Area Development Authority, for short 'MHADA', on 21st April, 1980. He was promoted to the rank of Deputy Engineer in the year 1989. He was then posted in the Vigilance Laboratory under the authority in Mumbai since 9th October, 2006, where he continues to work. Vide order dated 30th June, 2007, the petitioner has been transferred and posted at Nagpur in the office of the authority. The said order is at Exhibit-C which reads as under:
By taking into consideration administrative interest, your transfer is being made in vacant post of Deputy Engineer in Nagpur Housing and Area Development Board in view of Government's above referred letter dated 30.06.2007. You immediately resume at the place of appointment. On your relieving, if you avoid resuming at the place of new appointment within prescribed period or proceeding on leave, disciplinary action will be taken against you, which may be noted.
The said orders will come into effect forthwith.
With approval of the Deputy Chairman & CEO/Authority.
Sd/-
(Kailas Jadhav)
Secretary/Authority.
3. This order of transfer is questioned by the petitioner in the present case and other petitioners in the connected writ petitions, who are also similarly situated, on the ground that the authority has framed an Act called 'the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005' (hereinafter referred to as 'the Act') under the provisions of which a person cannot be posted out unless he has completed his tenure of posting for a period of three years and he could only be transferred for exceptional circumstances or special reasons, and that too with the approval of the next highest authority. The order of transfer does not indicate any reason, much less special reasons, and as such the order is liable to be set aside. Secondly, it is stated that the petitioner was working from the year 2001 to 2006 in the Transit Camp Division, Sub Division No. II, Pratiksha Nagar, Sion-Koliwada, Mumbai 400 022, under the Mumbai Building Repair & Reconstruction Board, as a Deputy Engineer. While he was working in the said Transit Camp, he was served with a show cause notice dated 26th May, 2006 and was directed to explain his conduct. Though, according to the petitioner, the show cause notice was served upon him and 22 other officers, it was due to personal grudge of some officers against him on account of differences in trade union activities and which was based upon an alleged report by the Vigilance Department in the year 2004 wherein it was pointed out that certain irregularities in the special and current repairs in the transit camps were found. The petitioner filed a reply to the show cause notice on 31st August, 2006. According to the petitioner, the explanation was found to be satisfactory and the respondents accepted the same.
3. The petitioner's work was being supervised by Executive Engineer and Deputy Chief Engineer and finally the Chief Engineer or by the superiors. Under him, there were Junior Engineers and other persons who initiated the proposed sanctions for the repair work. Certain actions were contemplated but only the petitioner was singled out, while nothing was done to the seniors or juniors of the petitioner. In these circumstances, the order of transfer is arbitrary and in violation of the statutory provisions.
4. The petitioner also questions the correctness of this order on the ground that the order is in violation of Section 5(2) of the Act which mandates that not more than thirty per cent of the employees should be transferred from any office or Department at a time in a year. This contention is raised without prejudice to the other contentions. According to the respondents, it is averred that the transfer is a necessary incidence of service and the petitioner has been transferred in public interest. The provisions of the Act are stated to be regulatory and, in fact, there has been no violation. The reply to the show cause received by the petitioner was sent to the Vigilance Cell and they have recommended disciplinary action against the petitioner and the stand of the respondents is concisely stated in paragraphs 4 and 5 of the reply as under:
4. I say that the Petitioner submitted his reply dated 31st August, 2006 to the aforesaid show cause notice. The reply of the petitioner was sent to the Vigilance and Quality Control Department of the 1st Respondent for comments in the month of September, 2006. The 1st Respondent received the comments accordingly on 11th April, 2007. Hereto annexed and marked as Exhibit-B is a copy of the comments received dated 11th April, 2007. I say that thereafter a report was submitted to the 2nd respondent herein for taking punitive action against the erring Officers on 13th June, 2007. I crave leave of this Hon'ble Court to refer to and rely upon all these documents, as and when required. I say that these documents may not be material for the purpose of consideration of the issue of transfer of the Petitioner involved in the present matter and, therefore, so as not to overburden the record of this Hon'ble Court at this juncture, I am not annexing all these documents to the present affidavit.
5. Suffice it to say that in view of the aforesaid developments that have taken place, it has become clear that prima facie the report in respect of allegations of irregularities in the special and current repairs allegedly made to the transit camps, by Vigilance & Quality Control Department of the 1st Respondent is prima facie found with substance. It clearly appears prima facie that technical lapses have been committed by the Petitioner and others, resulting into misappropriation of large funds of the 1st Respondent as also siphoning of huge amounts of the funds on the pretext of non-existent expenditure claimed to have been carried out for repairs of the transit camps. The most crucial aspect o0f the matter that such repairs alleged to have been carried out in the transit camps, which claimed to have been carried out for transit tenements, which were decided to be demolished. It appears that an indecent attempt has been made by all concerned including the Petitioner by showing imaginary and fabricated expenditure carried out in respect of transit camps, which will go undetected once the transit camps are demolished. At this stage, in the humble submission of the Respondents, these gross facts warrant minimum transfer of the petitioner as effected by the impugned order, as it was found undesirable by the Respondents to continue to retain the Petitioner in Mumbai and especially in the Vigilance & Quality Control Department itself where the Petitioner was working at the time of issuance of transfer order.
It is further stated in the reply, to which various documents have been annexed, that the Officers against whom the disciplinary action was contemplated and enquiry was proposed to be held had been transferred, including the three petitioners. Six names have been given in Exhibit-D of the Officers who have been transferred in this process.
5. No doubt, Chapter II relates to tenures of posting and transfer of officers and powers vested in the authority. Sub-section (1) of Section 3 describes that Group A, B and C Officers would normally have tenure of three years. Sub-Section (1) of Section 4 says that no government servant shall ordinarily be transferred unless he has completed his tenure of posting as provided in Section 3 of the Act. Transfers would ordinarily be made in April or May. Proviso (ii) to Sub-section (4) of Section 4 contemplates that the transfer may be made 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. The transfer could be made in exception to the Rules.
According to the petitioner, these provisions are mandatory and no leave no option with the authority to exercise any discretion. In other words, once an Officer is posted at a place, he has to continue at that place for a period of three years whatever be the cause. The exceptional circumstances or reasons is an extraordinary feature and it is for the respondents to establish compliance to this provision. It is a settled principle of law that transfer is an essential incidence of service.
These provisions are regulatory and not prohibitory in their application. Provisions of Section 4 of the Act clearly contemplates vesting of discretion in the authority to make an exception to the normal tenure of three years of posting. Every provision should be construed so as to achieve the object of the Act and certainly the larger public interest. Government is the biggest employer and to regulate conditions of service, such provisions are made either by virtue of guidelines or by Rules. Once a discretion is vested in the authority, it has to be exercised uniformly and fairly. There is nothing on record before us which could indicate that the discretion has been exercised for mala fide reasons or is arbitrary. In the case of Harbans Singh v. Union of India and Ors. CWP No. 12929 of 1997 decided on 10th September, 1997, the Punjab and Haryana High Court was concerned with a question raised that under the Rules, Chief Booking Supervisor working at Railway Station at Amritsar could not be transferred outside the Division and thus the transfer of the railway employee was contrary to the transfer rules. While rejecting this contention, the Court held as under:
Ministry of Railways have by letter No. (NG)/87/TR/34/NRIR/JCM of September, 1989 prepared a list of sensitive posts identified for the purpose of periodical transfers. Three categories of staff come under Category C therein, namely, Commercial Department. The second category is Enquiry/Reservation/Booking Clerk and the third category took in Ticket Collectors/TTEs/Conductors. From this, it can be seen that Booking Clerks and Ticket Collectors are in one category in so far as it relates to periodical transfers. Petitioners being Booking Clerks are Officers, who frequently come into contact with public. Railway Board on coming to know of the mode of operation of these petitioners came to the conclusion that they are to be transferred out of the division.
Learned Counsel representing the petitioner brought to our notice a decision of the Division Bench of this Court in K.C. Agnihotri v. State of Punjab 1996 (3) RSJ 850, in support of his argument that Railways cannot transfer petitioners from one division to another. Such a transfer, without their consent, is illegal. In that case an officer of the Treasuries Department was transferred to the office of Director of Evaluation, a separate department. The transfer was from one department to another department without the officer's consent. Therefore, the Bench came to the conclusion that the transfer outside the cadre in a different department without the officer's consent is patently arbitrary and against the principles of natural justice. This decision, according to us, can have no application to the facts on hand. The rules governing the service conditions of the petitioners permit the authorities to transfer a member of the non-gazetted cadre to another division. Policy decisions taken by the Railways permit the authorities to transfer officers holding sensitive posts, where they come into contact with the public, out of the division. When the statutory rule permits the transfer, a Court should not interfere with the same. Especially so is the case when from the files perused, the Tribunal came to the conclusion that it was on account of the malpractices resorted to by the petitioners that they are transferred.
According to Their Lordships of the Supreme Court, even if a transfer order is passed in violation of Executive instructions, the Courts, ordinarily should not interfere with the same and affected party's remedy is to approach the higher authorities in the department. Their Lordships observed, 'if the Courts continue to interfere with day to day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. Mrs. Shilpi Bose and Ors. v. State of Bihar and Ors. : (1991)IILLJ591SC .
In Union of India v. N.P. Thomas : (1993)ILLJ1063SC , their Lordships had considered whether an officer belonging to the Kerala circle of the Department of Telecommunication is liable to be transferred out of that circle. While upholding the transfer outside Kerala Circle, it was observed that since the officer was holding a transferable post, he has no vested right to remain in the Kerala circle. This statement of law applies on all force to the facts on hand. Petitioners before us are holding transferable posts. They have been transferred out of the division in the exigencies of service to improve the working of the Railways and to benefit the travelling public. The petitioners holding transferable posts have no vested right to remain posted at a place of their choice. They are liable to be transferred from one place to the other.
6. In the case of Union of India v. N.P. Thomas : (1993)ILLJ1063SC , the Supreme Court while rejecting the contention of the persons transferred as a consequence of promotion, held that the employees holding transferable post have no vested right to remain in original circles and there was no violation of Rules. Similar view was taken by the Supreme Court in the case of Union of India v. S.L. Abbas : (1993)IILLJ626SC , where the Court held that the guidelines issued by the Government do not confer upon employees legally enforceable right unless there was violation of the guidelines with ulterior motives or mala fides were attributed to the authorities. Further, the legal principle was enunciated by the Court that the Central Administrative Tribunal cannot substitute its view for the Competent Authority's view even in matters of transfer.
7. Ordinarily, orders of transfer are made in the exercise of administrative authority to meet the exigencies of service and in public interest. How the Administration has to run its affairs is not a matter which squarely falls in the judicial domain. Unless the orders of transfer were in conflict with Rules and were made for ulterior motives or in patent arbitrary exercise of powers, the Court would decline to interfere in such matter. The transfers could be due to exigencies of service or due to administrative reasons. The petitioners in the present case have failed to demonstrate as to how the order of transfer has been passed for collateral purposes or is a patent arbitrary exercise of power. The authorities concerned have made a class of persons against whom disciplinary action is contemplated. In fact, it has been stated in the reply filed by the respondents in no uncertain terms that they are taking disciplinary action in accordance with the opinion of the Vigilance Department against these Officers for irregularities committed in the special and current repairs in the transit camps all over Mumbai. If the authorities have taken a view that they need to transfer the Officers upon whom show cause notices were served and disciplinary action is contemplated that decision cannot be termed as arbitrary or mala fide. It is a decision obviously taken for administrative reasons and there is no occasion for the Court to go behind the order and examine, like an Appellate Authority, whether or not such order needs to be passed. The expressions 'exceptional circumstances' or 'special circumstances' have to be read ejusdem generis provided that transfer may be made any time in the year in question under the circumstances stated in those provisions. The expression 'exceptional circumstances' has been explained in Black's Law Dictionary, Sixth Edition, as conditions which are out of the ordinary course of events, unusual or extraordinary circumstances. The Shorter Oxford English Dictionary on historical principles, Vol. 1 A-Mark worthy explains the word 'exceptional' - of the nature of or forming an exception, unusual. The discretion is vested in the authorities to make an exception of tenure of two and three years wherever special circumstances exist. Special circumstances should be understood in the concept of service jurisprudence and not in its literal sense. Conditions of service make transfer as a necessary incidence of service. The Rules give protection to an employee to stay at the place of posting for three years but this is subject to the exception that, where in the wisdom of the authority concerned, he should, for administrative and exceptional circumstances, even be transferred during that period. We do not see any fault in exercise of such power. In the present case, from the record before us, there are no patent mala fides or arbitrariness in exercise of power by the respondents. The conduct of the petitioners is to be looked into by the authorities and it will neither be just nor fair for the Court to interfere at this stage and hold that the orders of transfer are vitiated on account of mala fide or colourable exercise of power or that they are in violation of the Rules.
8. All these writ petitions are thus dismissed, while leaving the parties to bear their own costs.