Bombay High Court
Shri. Sunil Ashokrao Koli vs The State Of Maharashtra Thru Prin. ... on 4 January, 2019
Author: N. J. Jamadar
Bench: B. R. Gavai, N. J. Jamadar
(909)-WP-91-19.doc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.91 OF 2019
Shri. Sunil Ashokrao Koli ..Petitioner
Versus
The State of Maharashtra and others ..Respondents
Mr. A. Y. Sakhare, Senior Advocate a/w Mr. N. V. Bandiwadekar
I/by Mr. V. R. Kumbhar, Advocate for the Petitioner.
Mr. P. G. Sawant, AGP for Respondent Nos.1 & 2.
Mr. R. S. Apte, Senior Advocate I/by Mr. Kirankumar Phakade,
Advocate for Respondent No.3.
CORAM : B. R. GAVAI &
N. J. JAMADAR, JJ.
DATE : 4th JANUARY, 2019 P.C. 1] The Petition challenges the order dated 20th December 2018, passed by the learned Chairman of the Maharashtra Administrative Tribunal in Original Application No.900 of 2018, thereby allowing the Original Application filed by the Respondent No.3 and quashing and setting aside the impugned transfer order dated 1st October 2018 of the Applicant as well as the Respondent No.3 and directing the Respondent No.3 to be continued to work as BGP. 1 of 7 ::: Uploaded on - 11/01/2019 ::: Downloaded on - 11/01/2019 23:22:20 ::: (909)-WP-91-19.doc.
Tahsildar, Haveli, Pune with all consequential service benefits. 2] The basic ground on which the Original Application has been allowed by the learned Tribunal is that leave aside sufficient reasons for midterm transfer of the Petitioner, no reason at all is given in the proposal for transferring the Respondent No.3 from the post of Tahsildar, Haveli to the post on deputation to PMRDA, Pune and transferring the Petitioner from Mumbai to Pune. 3] Mr. Sakhare, learned Senior Counsel appearing on behalf of the Petitioner submits that as a matter of fact, the transfer of the Respondent No.3 is not a transfer within the meaning of the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005, but a deputation under the provisions of the Maharashtra Civil Services (Joining Time, Foreign Service and Payments during Suspension, Dismissal and Removal) Rules, 1981, and as such, learned Tribunal has erred in invoking its jurisdiction. The learned Senior Counsel further submits that as a matter of fact, the Respondent No.3 has been posted within the same city and as such, the same would not amount to transfer in view of the judgment of the Division Bench of BGP. 2 of 7 ::: Uploaded on - 11/01/2019 ::: Downloaded on - 11/01/2019 23:22:20 ::: (909)-WP-91-19.doc.
this Court in the case of Pradip Balkrushna Lonandkar Vs. State of Maharashtra and others (in Writ Petition No.7554 of 2013 & connected matters) dated 22nd November 2013. 4] The scope of interference by this Court while exercising the power of judicial review of the orders passed by the Tribunal is very limited. If this Court finds that the view taken by the learned Tribunal is either perverse or impossible, only then interference by this Court would be warranted.
5] Apart from that it is to be noted that the learned Tribunal has found that in the present case the proposal for transferring the Petitioner as well as the Respondent No.3 was not considered by the Civil Services Board. The learned Tribunal has found that the Civil Services Board has proposed midterm transfer of 47 officers. However, the proposal for transferring the Petitioner as well as the Respondent No.3 came to be mooted for the first time at the level of Hon'ble Minister. The learned Tribunal has perused the entire file. Upon perusal of the file, the learned Tribunal found that no reasons at all were given for effecting the midterm transfer of the Petitioner as well as the Respondent No.3.
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6] The Division Bench of this Court, to which one of us (B.
R. Gavai, J) is a party, had an occasion to consider the provisions of the said Act in the case of Purushottam Govindrao Bhagwat Vs. State of Maharashtra and others 1. After considering the entire position, the Division Bench has observed thus :-
"12. There is another angle. It is to be seen that prior to enactment of the said Act, there was no enactment for regulation of transfers of Government servants and the said Act has been enacted with a purpose to regulate the transfers of the Government servants. The Constitution Bench of the Apex Court in the case of (Bengal Immunity Co. Vs. State of Bihar), A.I.R. 1955 S.C. 661 has applied the Heydon's rule of interpretation and observed thus:
"It is a sound rule of construction of a statute firmly established in England as far back as 1584 when (Heydon's), case 1584(3) Co.Rep. 7a, p.7b was decided that for the sure and true interpretation of all Statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:
1st - What was the common law before the making of the Act.
2nd - What was the mischief and defect for which the common law did not provide.
3rd - What remedy the Parliament hath resolved and appointed to cure the disease of the 1 2012(3) Bom.C.R. 442.
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commonwealth, and
4th - The true reason of the remedy;
and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico."
It can thus be seen that while interpreting the aforesaid provision of the said Act, this Court would also have to apply Heydon's rule or the mischief rule. It will have to be seen as to what was the position before making the enactment of the Act. What was the mischief and defect for which the law did not provide earlier and what remedy the legislature has found to cure the disease and the true reason of the remedy. After applying this, the courts will have to make such interpretation, which shall suppress the mischief and advance the remedy. This legal principle has been consistently followed by the Apex Court and various High Courts while interpreting the statutes. It can be seen that prior to the aforesaid enactment coming into force, there was no enactment to regulate the transfers of the Government servants and the Government servants were transferred at the sweet will of the authorities concerned. In order to do away with the arbitrary powers of the authorities, an enactment to regular such transfers was found necessary. With that purpose, to suppress the mischief of an unguided, unchannalized power to transfer the Government Servants, the said Act was enacted. The remedy provided was to regular the transfer in accordance with the said enactment."
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7] The Division Bench has clearly held that the legislative
intent is clear, that an employee should not be transferred prior to completion of his tenure. This would be permissible only when the competent authority records the reasons for the same and obtains prior approval of the immediately superior transferring authority. 8] It could thus be seen that recording of reasons is not an empty formality, but a safeguard is provided so that the normal rule is not deviated for an asking. The recording of reasons is also necessary, so that the Tribunals and Courts can exercise their powers of judicial review in an effective manner, so as to assess as to whether the reasons on which the midterm transfer is effected are proper or not 9] Undisputedly, in the present case, though there is approval of Hon'ble Chief Minister, there are no reasons even for namesake, as to why the midterm transfer of the Petitioner and Respondent No.3 is effected.
10] If we accept the contention of Mr. Sakhare that the said Act would not be applicable, if a person is sent on deputation, then BGP. 6 of 7 ::: Uploaded on - 11/01/2019 ::: Downloaded on - 11/01/2019 23:22:20 ::: (909)-WP-91-19.doc.
it will be giving tool in the hands of the Government to misuse the provisions of the Maharashtra Civil Services Rules, so as to go away from the rigors of the Transfer Act. We find that such a contention is to be heard only to be rejected.
11] In that view of the matter, we do not find that the view taken by the learned Tribunal is either perverse or impossible. On the contrary, we find that the view taken by the learned Tribunal is in consonance with the law laid down by the Division Bench of this Court. The Petition is without merit and as such dismissed. 12] At this stage, Mr. Sakhare, learned Senior Counsel appearing on behalf of the Petitioner prays for stay of the order passed by the learned Tribunal.
13] Mr. Apte, learned Senior Counsel vehemently opposes the prayer.
14] In the light of the view we have taken, the said prayer is rejected.
[N. J. JAMADAR, J.] [B. R. GAVAI, J.]
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