Bombay High Court
The Commissioner State Excise Dept vs Dttatray Rekhu Rathod on 22 October, 2020
Author: G.S.Kulkarni
Bench: G.S.Kulkarni
5.WPNo.25622020.doc
IN THE HIGH COURT OF JUDICATURE AT
BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2562 OF 2020
The Commissioner,
State Excise Department ... Petitioner
Versus
Dattatray Rekhu Rathod ... Respondent
.....
Mr.N.K.Rajpurohit, AGP for the Petitioner/State.
Mr.Sunhas S. Deokar, Advocate for the Respondent.
.....
CORAM : DIPANKAR DATTA CJ &
G.S.KULKARNI, J.
DATED : OCTOBER 22, 2020. P.C.:-
1. The respondent (hereafter "Rathod", for short) is a police constable attached to the Jail Department. Rathod has a minor son who, unfortunately, is sufering from a heart ailment. J.J.Hospital, Mumbai has certifed that the child requires clean and pollution-free environment to grow up. In view of such report, Rathod had prayed for transfer from the Jail Department to the Gaikwad RD 1/7
5.WPNo.25622020.doc State Excise Department. The Commissioner, State Excise Department spurned his request by an order dated 16th August 2019.
2. Rathod challenged the said order before the Maharashtra Administrative Tribunal in O.A. No.259 of 2019, being an application under Section 19 of the Administrative Tribunals Act, 1985. The case run in the said application was that Rathod had fulflled the terms and conditions specifed in Government Resolution dated 3rd June 2011 for an inter-departmental transfer and, therefore, was entitled to claim transfer to the State Excise Department. Upon hearing the parties, the Tribunal allowed the application of Rathod by a judgment dated 9 th August 2019. The Commissioner, State Excise Department was directed to accommodate Rathod in the State Excise Department on the post of Constable in terms of Government Resolution dated 3rd June 2011 and to issue appropriate order posting him in either of the three districts, namely Solapur, Osmanabad or Pune, subject to availability of vacancy. If vacancy were not Gaikwad RD 2/7
5.WPNo.25622020.doc available, he could posted anywhere in the State as per the requirement of the department.
3. At paragraph 9 of the judgment of the tribunal, it is recorded as follows :
"9. Today the Applicant is present in the Tribunal with his family and small son who is sufering from heart ailment. When the specifc query was raised to the Applicant by the Tribunal about the choice of his posting he states that he is ready for posting at any place preferably in Solapur, Osmanabad or Pune District subject to availability of the post. He further states that if there is no vacancy in these District named above, in that event, he is ready for posting anywhere in State Excise Department."
4. It is clear from the above extract that in response to a query of the Tribunal, Rathod remaining physically present before it had expressed willingness to be posted preferably in Solapur, Osmanabad or Pune District, subject to availability of post. He also submitted that if there was no vacancy in the aforesaid districts, in that event, he is ready for posting anywhere in the State Excise Department. The suggestion was clear that if Rathod could not be accommodated (in the department to Gaikwad RD 3/7
5.WPNo.25622020.doc which he is attached) either at Solapur, Osmanabad or Pune, he was ready for accepting a posting anywhere in the State Excise Department.
5. We are of the, prima facie, view that the Tribunal failed to apply its mind and directed the Commissioner, State Excise Department to arrange for his posting either in Solapur, Osmanabad or Pune without realizing that such was not the submission of Rathod.
6. In course of hearing, we have noticed that by a letter dated 2nd December 2019, the Jail Department ofered Rathod posting either at Satara, Kolhapur or Sangli apart from the other three districts, i.e., Solapur, Osmanabad and Pune. Mr.Rajpurohit, learned AGP for the petitioner has also agreed that if Rathod chooses to report at any of the aforesaid six districts, he would be accommodated there. However, Mr.Deokar, learned Advocate for Rathod, on instructions, has submitted that he is not inclined to remain attached to the Jail Department and would like the Commissioner, State Gaikwad RD 4/7
5.WPNo.25622020.doc Excise Depart to implement the order of the Tribunal in letter and spirit.
7. When we enquired from Mr. Deokar as to whether Rathod has an absolute right to claim transfer from one department to the other of the Government, our attention has been drawn to the Government Resolution dated 3rd June 2011. According to him, the same is the source of Rathod's right to claim transfer from one department to the other. We have found from paragraph 5 of such Government Resolution that transfer from one department to another department is permissible only when both the departments are in agreement for such transfer and a vacancy is available where the transferee could be accommodated.
8. In the present case, the Commissioner, State Excise Department did not agree to a transfer of Rathod from the Jail Department to the State Excise Department and, therefore, the contention of Rathod that all the conditions of Government Resolution dated 3 rd June 2011 Gaikwad RD 5/7
5.WPNo.25622020.doc were satisfed appears to be one which is factually incorrect, which the Tribunal erroneously failed to notice. We have not found any fnding by the Tribunal that on judicial review, the decision making process leading to the order under challenge before it sufered from any of the vices resting whereon it could be invalidated.
9. It is quite evident that Rathod chooses to give more importance to be transferred to the State Excise Department rather than the health of his minor son. The reasons are not far to seek. We wish to make no further comment on this aspect of the matter. The ofer given by the Jail Department that Rathod can seek posting in any of the aforesaid six districts appears to us to provide a workable solution for taking good care of Rathod's minor son which we expected him to accept, but in vain.
10. It is in such circumstances that we feel constrained to interfere. The writ petition is admitted. There shall be Rule, as prayed for together with order in terms of prayer clause (b).
Gaikwad RD 6/7
5.WPNo.25622020.doc
11. The Rule is made returnable on 11th January 2021. Answer to the Rule on afdavit be fled by Rathod by 17th December 2020; rejoinder thereto, if any, may be fled by 7th January 2021.
12. This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or e-mail of a digitally signed copy of this order.
(G.S.KULKARNI, J.) (CHIEF JUSTICE)
Digitally
signed by Raju
D. Gaikwad
Raju D. Date:
Gaikwad 2020.10.23
15:43:27
+0530
Gaikwad RD 7/7