Bombay High Court
The State Of Maharashtra Through vs Shri Deepak Babudas Vaishnav on 5 October, 2010
Author: B.H. Marlapalle
Bench: B. H. Marlapalle, U.D. Salvi
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mgn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, CIVIL JURISDICTION
WRIT PETITION NO.7614 OF 2010
1.The State of Maharashtra through )
the Principal Secretary, Government)
of Maharashtra,Finance Department)
Mantralaya, Mumbai-400 032. )
2.The Commissioner of Sales-Tax, )
Mazgaon, Mumbai-400 010 )
3.The Additional Commissioner )
(Establishment), Sales Tax, )
Mazgaon, Mumbai-400 010 )..PETITIONERS
Versus
Shri Deepak Babudas Vaishnav, )
Deputy Commissioner (Legal) )
818, Vikrikar Bhavan, Mazgaon, )
Mumbai-400 010. )..RESPONDENTS
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Mr. Samir Patil, AGP for the petitioners.
Mr.Sudhir Talsania i/b. Mr. Anilkumar Joshi, for the respondent.
CORAM: B. H. MARLAPALLE &
U.D. SALVI, JJ.
5th October, 2010.
DATE:
ORAL JUDGMENT (PER B.H. MARLAPALLE, J.):
1. Heard Mr. Patil, the learned AGP for the petitioners. Mr. Talsania, the learned Senior Counsel with Mr. Joshi appears for the respondent.
2. Rule. Mr. Joshi waives service. Affidavit filed by respondent is taken on record. Petition is heard finally.
3. This petition filed under Articles 226 and 227 of the Constitution impugns the order dated 29th July, 2010 and modified subsequently on 6th September, 2010 passed in O.A. No.309 of 2010 by the Maharashtra Administrative Tribunal. The respondent who was holding the post of Deputy Commissioner (Legal) in the office of the Commissioner, Sales-tax at Mumbai had approached the Tribunal in O.A. No.1275 of 2009 and the same application came to be allowed by the Tribunal by its order dated 13th ::: Downloaded on - 09/06/2013 16:30:26 ::: 3 wp-7614-10 January, 2010 in terms of the following terms:-
"8. Under these circumstances, the Respondents are directed to grant an appropriate posting in Group B, within a period of two weeks, especially in the light of the laudable scheme as per G.R. dated 5.1.2007, and the provisions of Transfer Act, 2005."
4. It appears that this order dated 13th January, 2010 was not implemented for some time and, therefore, Contempt Application No.30 of 2010 was moved before the Tribunal and finally on 31st March, 2010 the respondent was served with a transfer order which posted him in Group post as Deputy Commissioner DHU-VAT-E-004. We are informed that this posting was at Dhule. The respondent was not satisfied with this posting order dated 31st March, 2010 and, therefore, he approached the Tribunal in the second round by filing O.A. No.309 of 2010 on 6th April, 2010. In support of his challenge to the transfer order dated 31 st March, 2010 he set out the following averments:-
"(i) The Applicant states and submits that the respondents have decided to any how torture and harass the Applicant and the best way to achieve this aim is to remove him from Mumbai and throw at a remote place so that he may not raise his voice ::: Downloaded on - 09/06/2013 16:30:26 ::: 4 wp-7614-10 and also will become an example to whoever tries to curb the activities of the Respondents. The malafide actions of the respondents can be seen from the proposal of the Respondent No.3 dated 4.3.2010 by which it is proposed to transfer Applicant to Gondia to a non existent place. Since the border check posts are still not operative, posting of Applicant there is a futile exercise. Hereto annexed and marked as 'Exhibit C' is a copy of the said transfer proposal dated 4/3/2010. It is further pertinent to note that when the matter of Misc.
Application No.66 of 2010 was heard by the Hon'ble Tribunal, the Advocate for the Applicant brought this malafide action to the notice of the Hon'ble Tribunal.
(j) The Applicant states that not satisfied with the result with which the perverse and arbitrary proposal of Applicant's transfer to Gondia met before the Hon'ble Tribunal, the respondents have issued fresh orders of transfer thereby transferring the Applicant to Dhule. It is pertinent to note that this Hon'ble Tribunal has hammered the action of the illegal transfers of 34 Dy. Commissioners of Sales Tax in O.A. No. 1255 of 2009 decided on 6-1-2010 filed by Shri Khedkar.
::: Downloaded on - 09/06/2013 16:30:26 ::: 5wp-7614-10 Hereto annexed and marked Exhibit 'D' is a copy of the said judgment and Order dated 6.1.2010.
It is pertinent to note that in these transfer orders, many officers who were not due were transferred. Not only this, but in executive fiat and arbitrarily, the Respondents have chosen to not transfer many favoured officers who are kept in one place for years together. There is no need to transfer the Applicant andig could have been easily accommodated in Mumbai.
It is further pertinent to note and an episode of pain and sorrow for all honest Govt. servants that inspite of the fact that the Hon'ble Tribunal held all the transfers in the transfer order dated 31.8.2009 as illegal, the Respondents neither cancelled the said transfer orders nor issued fresh transfer order for extraneous reasons.
(k) The Applicant further states that the Applicant is aware that transfer is an incidence of service and that is why he had accepted and obeyed the transfer orders so far issued to him.
The Applicant further states that he does not mind his transfer to any post anywhere but the manner and the reasons for his ::: Downloaded on - 09/06/2013 16:30:26 ::: 6 wp-7614-10 sudden and illegal transfer are humiliating and cast a stigma on his otherwise clean career. If this is a reward for his clean, honest and sincere service of last 17 years, he feels as if he wasted a whole life time in Govt. service for absolutely nothing. The Applicant humbly submits that he has a throughout clean and meritorious career and was always granted the A or A+ as outstanding confidential reports. Hereto annexed and marked as Exhibit "E" is a copy of the said ACR for the said ACR is still not communicated to the Applicant for last more than 2 months with malafide intention."
5. In the said O.A. he also raised the following grounds::-
"A) That the Government of Maharashtra has enacted Maharashtra Act No.XXI namely Maharashtra Government Employees Regulation of Transfers and Prevention of Delay In Discharge of Official Duties Act, 2005 which came into force on and from 1st July, 2006. The said Act mandates that ordinarily the tenure of Government servant at a place shall be 3 years and shall be transferred thereafter, as provided in S.3 of the said Act. The Applicant was stagnated in a post for more than 3 years and when he was to be transferred as orders ::: Downloaded on - 09/06/2013 16:30:26 ::: 7 wp-7614-10 of the Hon'ble Tribunal, he is first transferred to a non existent post at Gondia and then within 25 days, to Dhule. On the other hand, the transfers of Officers on 31/8/2009 are termed as illegal and not maintainable in the eyes of law by the Hon'ble Tribunal and the Respondents have still not set aside/cancelled these illegal orders. The action of Respondents is therefore perverse and malafide and in violation of the Transfer Act.
B) The Applicant had legitimate expectation that he would be posted in Investigation Branch after his tenure in Legal Branch vide clause 24 of the G.R. dated 5/1/2007 and would have an opportunity to learn new skills and knowledge of the VAT system in the laudable scheme of the Commissioner.
However, the Respondents are hell bent upon removing the Applicant from Mumbai so that he is taught a lesson and Respondents would be free to act as they wish, illegally and arbitrarily.
C) The Respondents have with malafide intention transferred Applicant first to Gondia and then to Dhule which amply proves the malafide intention of the Respondents.
::: Downloaded on - 09/06/2013 16:30:26 ::: 8wp-7614-10 Respondents have transferred the Applicant to a non existent post where there is no vacancy for his post and this amply proves the malafide action of the Respondents.
D) The transfer of the Applicant on the background of the verdict of the Hon'ble Tribunal in O.A. 1275 of 2009 and O.A. 1255 of 2009 is absolutely illegal and deserves to be quashed and set aside. The impugned transfer order is stigmatic and by way of punishment to an innocent and clean officer and therefore it is malafide and in violation of Art.
311."
6. It appears that while the O.A. No.309 of 2010 was pending a meeting of the senior officers from the office of the respondent No.2 was held on 11th May, 2010 and the minutes of the said meeting were recorded. One of the recommendations in the said meeting of the senior officers which appears to have been relied upon by the respondent in support of his challenge to the transfer order dated 31st March, 2010 reads as under:-
"(d) Acknowledgment of posting in the Court Matter/Legal Division as "Non Executive" and hence the subsequent posting to be given in "Executive Branch" and may be considered for such posting after completion of 2 years in this division, incentive in the form of 'no posting ::: Downloaded on - 09/06/2013 16:30:26 ::: 9 wp-7614-10 outside Mumbai" should also be considered."
7. Mr. Patil, the learned A.G.P., invited our attention to the operative part of the impugned order and submitted that the transfer order was quashed and set aside only on the basis of the minutes of the meeting held on 11th May, 2010 and more particularly the above quoted recommendation. We reproduce paragraphs 12 and 13 of the impugned order dated 29th July, 2010:-
"12. After hearing both the learned Counsels, and having regard to the G.R. dated 5.1.2007 as the applicant has already completed two years in Legal Branch and, in fact, has completed more than three and half years now, he is liable to be transferred out of the same. Now, having regard to the decision taken by the very senior officers of Sales Tax Department on 11.5.2010, especially Clause 1(d), the applicant's posting should not be outside Mumbai. Over and above, the applicant is suffering from coccyx bone fracture which is very painful and it is very restricted for movement and travel and is undergoing treatment in Mumbai.
13. Having regard to the aforesaid facts and circumstances of the case, the impugned transfer order dated 31.3.2010 cannot be sustained hence the same is quashed and set aside and the Respondents are directed to give an ::: Downloaded on - 09/06/2013 16:30:26 ::: 10 wp-7614-10 appropriate posting in Group B within the city of Mumbai within a period of two weeks from today."
8. The order dated 13th January, 2010 passed in O.A. No.1275 of 2009 in clear terms directed the petitioners to give posting to the respondent in Group B and specially in the light of the laudable scheme as per G.R. dated 5th January, 2007 and the provisions of the Transfer Act, 2005. We have noted that as per the said G.R., the Group B posts are as under:-
1. Investigation
2. Border Check Post
3. Large Taxpayer Unit
4. Business Audit
5. Refund & Refund Audit.
6. Survey.
By the transfer order dated 31st March, 2010 the respondent has been transferred to business audit which is undoubtedly a Group B post and he has been posted at Dhule Division.
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9. In our opinion, therefore, the transfer order dated 31st March, 2010 was not against the directions issued on 13th January, 2010 by the Tribunal in O.A. No.1275 of 2009.
10. Let us now consider whether the recommendations made in the meeting held on 11th May, 2010 would vitiate the transfer order dated 31st March, 2010 and whether the Tribunal was justified in relying upon the said recommendations and set aside the transfer order solely on that ground.
11. A copy of the minutes of the meeting dated 11th May, 2010 has been brought on record by the respondent along with his affidavit in reply. It is clear that the Commissioner of Sales Tax had convened in his Chamber a meeting of all the officers of the Court Matter Division and it was attended by him and Shri Prakash Gangmwar, Joint Commissioner of Sales Tax, Shri Jayant Dipte, Deputy Commissioner, Shri David Alvares, Deputy Commissioner, Shri Kiran Kakad, Assistant Deputy Commissioner and Shri Santosh Shanane, Assistant Commissioner. The Committee appears to have deliberated on 10 different issues and against every recommendation the last column indicated the action to be taken.
The last column read " Time frame for accomplishing the task". So far as the recommendation as relied upon by respondent and quoted hereinabove, is ::: Downloaded on - 09/06/2013 16:30:26 ::: 12 wp-7614-10 concerned, in the last column the remark was " as per Rules". It is thus clear that this recommendation relied upon by the Tribunal was a suggestion and to be implemented in keeping with the Rules. It was not pointed out by the respondent before the Tribunal that the order dated 31st March, 2010 was against any Rules and in fact as was clear from the record the said order was issued as per the directions of the Tribunal issued at the behest of the respondent. There is no other reason set out by the Tribunal in the impugned order while interfering with the transfer order dated 31st March, 2010 and in our considered opinion the indulgence in the transfer order is not justified on any count.
12. The respondent holds a transferable post. He approached the Tribunal in O.A. No.1275 of 2009 contending that after he completed 3 years in the Legal Division he was entitled for a posting either in the Executive Cadre or the Tribunal Section and he relied upon the G.R. dated 5th January, 2007. The Tribunal directed to issue a posting in Group B and the transfer order dated 31st March, 2010 gives the posting in Group B but at Dhule. The respondent cannot as a matter of right ask for a posting in Mumbai alone based on the purported recommendations made on 11th May, 2010 by the Committee. The transfer orders issued should not be interfered lightly and unless they suffer from any breach of the set out guidelines or Rules or reducing the minimum assured tenure or on the ground of malice. We ::: Downloaded on - 09/06/2013 16:30:26 ::: 13 wp-7614-10 are, therefore, satisfied that the order passed by the Tribunal directing the petitioners to give a posting to the respondent at Mumbai is unsustainable in law.
13. Hence the petition is allowed and the order dated 31st March, 2010 is quashed and set aside.
(U.D. SALVI, J.) ig (B. H. MARLAPALLE, J.)
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