A.P. Kamble Vs. the State of Maharashtra, Through the Principal Secretary, Department of Social Justice and Special Assistance and Another - Court Judgment

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maharashtra government servant regulations and transfers and prevention of delay in discharge of official duties act, 2005 – section 4(5), section 6 – petition filed against tribunal order allowing 2nd respondent’s application challenging transfer order passed against him – provisions in act enables competent transferring authority in special cases, after recording reasons in writing and with prior approval of immediately superior transferring authority, to transfer government servant, even before completion of tenure of his post – court held that - competent authority, having exercised those enabling powers under provisions of act, it was not open to tribunal to sit over subjective satisfaction of authority in that behalf – tribunal has not even adverted to enabling provisions contained in section 4(5) r/w section 6 of act - transfer order in question was issued by competent authority mentioned for transferring 2nd respondent and by same order to post petitioner against post occupied by 2nd respondent at relevant time - tribunal has proceeded on assumption that it is not open to competent transferring authority to issue such transfer order against government servant on his own notwithstanding provisions in section 4(5) r/w 6 of act – appropriate course, will be to set aside impugned decision and relegate parties before tribunal for reconsideration of all aspects of matter in accordance with law - observations made by tribunal appropriate that petitioner be reinstated but in some other district, on same post, from which he was suspended in reason of pending criminal case against him which is not challenged - that therefore, will be of no avail and cannot be used to hold that transfer order against 2nd respondent is illegal and is vitiated – complaint regarding misbehaviour of 2nd respondent appears to be vague and that mid-term transfer order was founded on incidents against 2nd respondent - unless court were to find that mid-term transfer order could not have been issued in law, observation will be of no avail – petition disposed of. paras (4, 9, 12) comparative citations: 2013 (1) mah.l.j 574, 2013 (2) all mr 327oral judgment:- (a.m. khanwilkar, j.) heard counsel for the parties. 2) rule. mr.gokhale, learned agp, waives service for respondent no.1 and mr.kumbhakoni waives service for respondent no.2. by consent, rule is made returnable forthwith and heard finally. 3) this petition takes exception to the decision of the maharashtra administrative tribunal, in original application no. 730 of 2012, dated 2nd august, 2012. by that order, the tribunal allowed the original application filed by respondent no. 2 challenging the transfer order passed against him, dated 2nd august, 2011. the tribunal has recorded the following reasons in support of its decision, which reads thus:- “8. after hearing shri. bandiwadekar, the learned counsel for the applicant, shri d. b. khaire, the learned c.p.o. for respondent no. 1 and shri k.r.jagdale, the learned counsel for respondent no. 2, it is clear from the record of the transfer file that there was no proposal to transfer either the applicant or respondent no.2 by the social justice department. the record clearly indicates that a chart was prepared in the office of the hon'ble minister. such a proposal is totally not contemplated as per the provisions of the transfer act. over and above, in view of our order passed in o.a. no. 388/2006 respondent no. 2 could never have been posted in district pune. even the so called complaint, misbehavior of the applicant appears to be totally vague and the transfer order cannot be issued with regard to the incidents of 2009 and 2010, and the veracity of the same was not even verified.” 4) the petitioner has assailed the aforesaid view taken by the tribunal, on the argument that the same is not in consonance with the provisions of the maharashtra government servant regulations and transfers and prevention of delay in discharge of official duties act, 2005. the provisions in the act enables the competent transferring authority in special cases, after recording reasons in writing and with the prior approval of the immediately superior transferring authority mentioned in table of section 6, to transfer the government servant, even before completion of the tenure of his post. the competent authority, in the present case, having exercised those enabling powers under the provisions of the act, it was not open to the tribunal to sit over the subjective satisfaction of the authority in that behalf. in substance, the argument proceeds that the opinion recorded by the tribunal that the impugned transfer order was vitiated because the chart was prepared in the office of the minister and the names of the petitioner and respondent no. 2 were not mentioned in the proposal to transfer by the social justice department, would be of no avail and cannot whittle down the powers of the competent transferring authority, if the authority were to follow the formalities specified in section 4(5) read with section 6 of the act. 5) the petitioner has also assailed the opinion recorded by the tribunal that in view of order passed in o.a. no. 388/2006, the petitioner could never have been posted in district pune. according to the petitioner, the tribunal has completely misinterpreted the observation contained in the said order dated 17th november, 2006, passed in o.a. no. 388/2006. that observation cannot be construed as peremptory direction issued to the department, not to post the petitioner in districts pune and satara, for the remainder service period of the petitioner. moreover, the petitioner, after promotion, was posted in district pune in 2008 and that appointment was not challenged by anyone thus far. further, that reason cannot be the basis to set aside a valid transfer order issued by the competent authority, against the respondent no. 2. respondent no. 2, on his own, should have demonstrated that his transfer was midterm transfer and impermissible in law or malafide in fact. in absence of that finding, the respondent no. 2 could not have succeeded before the tribunal. 6) the petitioner has also assailed the opinion recorded by the tribunal that the complaint made against the respondent no. 2, about his misbehaviour, was vague and the respondent no. 2 could not have been transferred on the basis of incidents of 2009 and 2010. that too without verification of the allegations against him. 7) the counsel for respondent no. 2 has supported the order passed by the tribunal, in setting aside the impugned transfer order dated 2nd august, 2011. according to respondent no. 2, the respondent no. 2 had approached the tribunal with the grievance that he was being transferred midterm only with a view to favour the petitioner and for no other reason. in other words, the impugned transfer order dated 2nd august, 2011 was malafide and colourable exercise of power. the respondent no. 2 has also placed heavy reliance on the observations in the order passed by the tribunal, dated 17th november, 2006 in o.a. no. 388/2006 to persuade the court that the petitioner was unfit to be appointed in district pune. on these arguments, the conclusion reached by the tribunal has been supported by respondent no. 2. 8) mr.gokhale, learned agp appearing for the state, has supported the argument of the petitioner. he further submits that the transfer order in question is valid and legal. 9) although diverse arguments have been canvassed before us, we would dispose of this petition without examining the matters in issue, as those issues, in our considered opinion, ought to be addressed by the tribunal in the first instance. from the reasons recorded by the tribunal, which are reproduced hitherto, it is noticed that the tribunal has not even adverted to the enabling provisions contained in section 4(5) r/w section 6 of the act. there may be substance in the argument of the petitioner and as supported by respondent no.1 that in exercise of powers under the said enabling provision, the competent transferring authority, in special cases, can transfer a government servant before completion of his tenure on post and including if such proposal has not been submitted by the concerned department. in that case, the only safeguard to be taken by the competent authority is to record reasons in writing and issue transfer order with the prior approval of the immediate superior transferring authority mentioned in the table of section 6. indisputably, in the present case, the transfer order in question was issued by the competent authority mentioned in the table of section 6 for transferring the respondent no.2 and by the same order to post the petitioner against the post occupied by respondent no.2 at the relevant time. the question raised by the petitioner and which argument is supported by respondent no.1 in this behalf, has not been answered by the tribunal at all. in fact, no reference is made to the said provisions or purport and efficacy thereof. the tribunal on the other hand, has proceeded on the assumption that it is not open to the competent transferring authority to issue such transfer order against the government servant on his own notwithstanding the provisions in section 4(5) r/w 6 of the act. the tribunal has not adverted to any provisions which even remotely suggest that it was not open to the competent transferring authority on its own to initiate proposal against the government servant except observing that such a proposal is not contemplated as per the provisions of the act. counsel for respondent no.2 submitted that assuming that it was not open to the competent transferring authority to pass mid-term transfer order against respondent no.2, however, that could be done as a special case only after recording reasons in writing and with the prior approval of the immediate superior transferring authority mentioned in the table of section 6. these requirements have not been complied with. however, this argument has not been considered by the tribunal nor such finding has been recorded. 10) the counsel for respondent no.2 would then argue that the petitioner was transferred to the post which was held by respondent no.2 only with a view to accommodate the petitioner, albeit by resorting to mid-term transfer of respondent no.2, which action was nothing short of colourable exercise of power. once again, the tribunal has not answered the controversy on the basis of this argument. in paragraph 8 of the impugned decision, no reference is found with regard to this argument. in this view of the matter, the appropriate course, in our opinion, will be to set aside the impugned decision and relegate the parties before the tribunal for reconsideration of all aspects of the matter in accordance with law. 11) we may now revert to the observations made by the tribunal to the effect that in view of the order passed in o.a. no.388 of 2006, the petitioner could never have been posted in district pune. we have perused the judgement of the tribunal dated 17.11.2006 in o.a. no.388 of 2006. this observation is found in paragraph 12 of the said decision. the same reads thus: “12. thus, for the reasons stated supra, in my judgment the order of suspension is required to be interfered with and accordingly the order-dated 3.10.2005 is quashed and set aside. the original application is allowed. the respondents are directed to reinstate the applicant in any other district other that pune and satara on the same post from which he was suspended. the order of reinstatement to be issued on or before 15.12.2006.” 12) on reading the said decision as a whole, it is obvious that the said observation was made in the context of the fact that fir was registered against the petitioner for some serious penal offence and the petitioner was released on bail but the chargesheet in that criminal case was pending. obviously, when the investigation of the criminal case naming the petitioner, as an accused, for a serious penal offence was pending and chargesheet was yet to be filed, the tribunal thought it appropriate to observe that the petitioner be reinstated but in some other district than the districts pune and satara, on the same post, from which he was suspended. that, however, does not mean that the tribunal intended to even remotely suggest that the petitioner can never be posted in districts pune and satara during his remainder service period. no such inference can be drawn or can be sustained considering the fact that the investigation of the said criminal case is already completed and chargesheet has been filed long back. furthermore, the petitioner has been posted on promotion in pune since year 2008 and has been working in district pune since then. no one has come forward to challenge the appointment of the petitioner in district pune since 2008 after his promotion. the observations made by the tribunal in o.a. no.388 of 2006, therefore, will be of no avail and in any case, cannot be used to hold that the transfer order against respondent no.2 is illegal and is vitiated. as a matter of fact, the said circumstance was not germane to answer the matter in issue in the context of challenge to the mid-term transfer order against respondent no.2. 13) the last observation made by the tribunal is that the complaint regarding misbehaviour of respondent no.2 appears to be vague and that the mid-term transfer order was founded on incidents of 2009 and 2010 reported against respondent no.2. as regards this observation, unless the court were to find that the mid-term transfer order in question could not have been issued in law, the said observation will be of no avail. moreover, as we are relegating the parties before the tribunal for reconsideration of the matter, we would not express any final opinion on the correctness of the said finding of the tribunal. we leave all questions in that behalf open. 14) for the reasons mentioned hitherto, we quash and set aside the impugned decision of the maharashtra administrative tribunal dated 2.8.2012 passed in o.a. no.730 of 2011 and instead, relegate the parties before the tribunal for reconsideration of the matter de novo without being influenced by any of the observations made in the impugned decision. the parties shall appear before the tribunal on 5.10.2012 when the tribunal may assign suitable date for hearing of the original application. we are informed that the pleadings in the original application are already competed and the parties would proceed straightaway with the arguments of the restored original application. if it is so, we have no manner of doubt that the tribunal would be able to dispose of the original application expeditiously, keeping in mind the observations made in this judgment. 15) in the circumstances, rule is made absolute on the above terms with no order as to costs.