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 “on
administrative ground” cannot be a compliance to be
considered apt and judicious enough in the face of
mandatory statutory requirements.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5465 OF 2012
Kishor Shridharrao Mhaske
Versus
1. Maharashtra OBC Finance &
Development Corporation,
CORAM: A.S. OKA &
A.P.BHANGALE, JJ.
JUDGMENT PRONOUNCED : 7th MARCH, 2013.
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 & 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 “Act”). 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 ill–motivated 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 finalised
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.
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6/10 Civil W.P no. 5465 of 2012
(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
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7/10 Civil W.P no. 5465 of 2012
of section 6, transfer a Government servant
before completion of his tenure of post."
Section 4 (5) which begins with the nonobstante 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
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8/10 Civil W.P no. 5465 of 2012
9 of the S. B. Bhagwat’s case this Court in
identical situation observed thus;-
“9. 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.” 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 “on
administrative ground” cannot be a compliance to be
considered apt and judicious enough in the face of
mandatory statutory requirements. The impugned order of
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10/10 Civil W.P no. 5465 of 2012
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.
(A.P. BHANGALE, J.) ( A.S. OKA, J.)
Print Page
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 “on
administrative ground” cannot be a compliance to be
considered apt and judicious enough in the face of
mandatory statutory requirements.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5465 OF 2012
Kishor Shridharrao Mhaske
Versus
1. Maharashtra OBC Finance &
Development Corporation,
CORAM: A.S. OKA &
A.P.BHANGALE, JJ.
JUDGMENT PRONOUNCED : 7th MARCH, 2013.
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 & 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 “Act”). 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 ill–motivated 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 finalised
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.
::: Downloaded on - 28/06/2013 20:17:43 :::Bombay High Court
6/10 Civil W.P no. 5465 of 2012
(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
::: Downloaded on - 28/06/2013 20:17:43 :::Bombay High Court
7/10 Civil W.P no. 5465 of 2012
of section 6, transfer a Government servant
before completion of his tenure of post."
Section 4 (5) which begins with the nonobstante 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
::: Downloaded on - 28/06/2013 20:17:43 :::Bombay High Court
8/10 Civil W.P no. 5465 of 2012
9 of the S. B. Bhagwat’s case this Court in
identical situation observed thus;-
“9. 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.” 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 “on
administrative ground” cannot be a compliance to be
considered apt and judicious enough in the face of
mandatory statutory requirements. The impugned order of
::: Downloaded on - 28/06/2013 20:17:43 :::Bombay High Court
10/10 Civil W.P no. 5465 of 2012
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.
(A.P. BHANGALE, J.) ( A.S. OKA, J.)
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