Bombay High Court
Kailas Pundlik Pawar vs Divisional Commissioner Nashik ... on 6 May, 2021
Author: G.S.Kulkarni
Bench: Dipankar Datta, G.S. Kulkarni
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PVR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (St) NO.92852 OF 2020
Kailas Pundlik Pawar. )... Petitioner
Vs.
1.Divisional Commissioner Nashik Division)
2. The State of Maharashtra. )
3. Mr.Pankajkumar Suresh Pawar )...Respondents
--
Mr.Girish Godbole i/b. Mr.Avinash Naikwadi and Mr.Drupad Patil with
Ms.Swati M.Jadhav, for the Petitioner.
Smt.Neha Bhide, 'B' Panel Counsel for the State.
Mr.A.Y.Sakhare, Senior Advocate with Mr.Rohan Mirpury with Mr.Viraj
Kadam, for Respondent no.3.
----
CORAM : DIPANKAR DATTA, CJ &
G.S. KULKARNI, J.
RESERVED ON : 1 APRIL 2021
PRONOUNCED ON : 6 MAY 2021
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JUDGMENT:(Per G.S.Kulkarni, J.)
1. It is difficult to fathom that a transfer within the district and that too at a distance of 25 kilometers can lead to such vociferous aggression between the parties, oblivious of the basic jurisprudence that for a Government Servant transfer is an incidence of service. Unknown however, are the realities of the present times and the importance the Government Servants attach to transfers and postings. Such issues have ::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 10:44:25 ::: 2 wp92852_2020.odt flooded the Courts. Sometimes we wonder as to whether transfer assumes more importance to these employees, than the actual service. The present case is quite an eye opener on the approach of the warring parties.
2. The challenge in this petition is to an order dated 25 August 2020, passed by the Maharashtra Administrative Tribunal, Mumbai (for short 'the tribunal') in the proceedings of Original Application (O.A.No.942 of 2020) filed by respondent no.3 - Mr.Pankajkumar Suresh Pawar. By the impugned order, respondent no.3's original application stands allowed whereby the transfer order dated 18 September 2019, transferring respondent no.3, from the post of Tehsildar, Dindori, District Nashik to the post of 'Assistant District Supply Officer, Nashik', was set aside by the tribunal. Consequently, the petitioner's transfer (of the even date) by which he was transferred as Tehsildar, Dindori, replacing respondent no.3, also stood set aside. The petitioner so aggrieved, is before us, in the present proceedings.
3. We note the relevant facts :- Respondent no.3 consequent to his transfer on promotion vide posting/transfer order dated 7 September 2019, was serving on the post of "Tehsildar", Dindori, District Nashik, which is a Group 'A' post. However, within ten days of respondent no.3 taking charge, the Divisional Commissioner, Nashik Division-respondent no.1, by his order dated 18 September 2019 ::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 10:44:25 ::: 3 wp92852_2020.odt purportedly adhering to the '2019 guidelines' issued by the Election Commission of India (for short, "the ECI") in relation to the filling up of the vacant post, transferred respondent no.3 from the post of 'Tehsildar- Dindori' to the post of 'Assistant District Supply Officer, Nashik', and in respondent no.3's place transferred the petitioner, who at the relevant time was holding the post of Tehsildar (Establishment) in the Office of the Divisional Commissioner Nasik.
4. Before the tribunal, in assailing his transfer, respondent no.3 contended that the transfer was a mid-term transfer which was in complete breach of the provisions of the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005 (for short 'the 2005 Act'). He contended that the Divisional Commissioner has no authority of making a mid-term / mid-tenure transfer, for the reason that the posting and transfer order dated 7 September 2019 posting him as Tehsildar, Dindori was issued by the State Government which was being nullified by the Divisional Commissioner illegally and without jurisdiction. Respondent No.3 contended that such transfer as effected by the Divisional Commissioner was also in breach of the statutory mandate of the 2005 Act, even in purported implementation of the guidelines issued by the Election Commission of India. Respondent No. 3 contended that, if at all, it was the State Government which had the authority as per the procedure under the 2005 Act, to transfer him and not otherwise. He contended ::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 10:44:25 ::: 4 wp92852_2020.odt that such transfer was required to have an approval of the designated higher authority as provided under Section 4(2) of the 2005 Act. The next contention of Respondent no.3 relying upon Government Resolution dated 21 February 2014 was to the effect that the composition of Civil Services Board (for short 'CSB') as constituted by the Divisional Commissioner, which recommended the impugned transfer, was not in consonance with the requirements stipulated in the said Government Resolution. He contended that the CSB was constituted only to favour the petitioner, which was clear from the fact that there was no proposal before the CSB to transfer the petitioner hence there was no recommendation by the CSB to transfer the petitioner in place of respondent no.3. Respondent no.3 contended that the petitioner's name came to be subsequently added by an interpolation in the final typed order, which according to respondent no.3 was wholly illegal. Respondent no.3 hence contended that his transfer as also petitioner's transfer in his place as Tehsildar, Dindori was patently illegal.
5. Respondent no.1-Divisional Commissioner filed his reply to respondent no.3's original application, interalia contending that he was empowered and had an authority to effect such transfers, in view of the Orders of the State Government, communicated by the Deputy Secretary, Revenue and Forest Department of the Government of Maharashtra, by his letter dated 16 September 2019 (for short 'the 16 September 2019 Order'), which was issued to give effect to the guidelines issued by the ::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 10:44:25 ::: 5 wp92852_2020.odt Election Commission of India. Respondent no.1 contended that it was noticed that respondent no.3 had worked for more than three years in Nashik district and hence he could not have continued to discharge duties as 'Tehsildar and Assistant Returning Officer, Dindori'. Respondent no.1 stated that, the issue in regard to transfer of respondent no.3 from the post of Tehsildar, Dindori was put up before the CSB which recommended that he be transferred as Assistant District Supply Officer, Nashik. Respondent No. 1 contended that the composition of the CSB was also in accordance with the Rules and order dated 16 September 2019. Respondent no.1 thus contended that transfer of respondent no.3 was effected as per the requirement of the guidelines issued by the Election Commission of India, hence such transfer was in accordance with the Rules. A reference was made to Section 6 of the 2005 Act to contend that relation to the officers falling in Entry 'B' of the table as set out in Section 6, who were working at the Divisional or District level, the Divisional Head was competent to transfer such officers, within the Division and the District Head was competent to transfer such officers within the district. Hence, respondent no.2 [State of Maharashtra through Additional Chief Secretary (Revenue)] although was the competent transferring authority to transfer all officers in the State services Group A and Group B, according to the second proviso to Section 6, respondent no.2 was competent to delegate the powers to any subordinate authority and such authorization was effected by the order dated 16 September 2019. It was contended that according to such ::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 10:44:25 ::: 6 wp92852_2020.odt authorization, respondent no.1 had appropriately issued the impugned transfer order dated 18 September 2019 transferring respondent no.3 from the post of Tehsildar, Dindori, to the post of Assistant District Supply Officer, Nashik and to transfer the petitioner in place of respondent no.3 as Tehsildar Dindori. Respondent no. 1 stated that also there were other officers, who were also transferred alongwith respondent no.3.
6. The Tribunal considering the rival contentions while allowing respondent no3's original application observed that the principal issue was whether respondent no.1-Divisional Commissioner was competent to effect mid-term/mid-tenure transfer of respondent no.3. It is in this context, the contents of the order dated 16 September 2019 issued by the Deputy Secretary (Revenue and Forest Department) addressed to all the Divisional Commissioner, was examined. The Tribunal was of the opinion that when a transfer was effected mid-term/ mid-tenure, Section 4(5) of the 2005 Act was attracted which required that in special cases, the competent authority after recording of the reasons in writing and only with prior approval of the immediate Superior, (in the present case the State Government) can transfer a Government servant before completion of his tenure on the post. The tribunal observed that the Divisional Commissioner however without waiting for the approval of the Government, at his level transferred respondent no.3, by the impugned transfer order dated 18 September ::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 10:44:25 ::: 7 wp92852_2020.odt 2019, as the 'Assistant District Supply Officer, Nashik', from the post of Tehsildar, Dindori. The tribunal observed that as per the provisions of Section 6, for the post of 'tehsildar' being a Group A post, unless there was an approval of the Hon'ble Chief Minister who was the only competent authority to make a mid-term/mid-tenure transfer, and not the Divisional Commissioner the impugned transfer order could not have been issued by respondent no. 1- Divisional Commissioner. The tribunal held that the Divisional Commissioner usurped the powers of the State Government, taking shelter of the order dated 16 September 2019. The tribunal also observed that the order dated 16 September 2019 did not per-se confer any power to transfer, and that it merely provided that vacant posts be filled up. The tribunal also rejected the petitioner's contention that the guidelines of the Election Commission of India would prevail over the statutory provisions namely of the 2005 Act. One of the serious observations as made by the tribunal, was to the effect that the CSB recommended the transfer of respondent no.3 as Tahasildar (General Administration), Collector Office, Nashik and in his place one Smt.Rachana M.Pawar was recommended for posting at Dindori from Nashik, as seen from the minutes of the meeting of the CSB dated September 18, 2019 and also revealing that the petitioner himself was the member of the CSB in his capacity as Tehsildar (Establishment), Divisional Commissioner which recommended the transfer of respondent no.3. It was observed that it was evident from the record that the Divisional Commissioner by interpolation and overwriting over ::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 10:44:25 ::: 8 wp92852_2020.odt proposed recommendations as made by the CSB, changed the recommendation as made by the CSB and posted the petitioner as Tehsildar, Dindori, in place of Smt.Rachana Pawar as also transferred respondent no.3 as Assistant District Supply Officer, Collector Office, Nashik. Referring to the decision of Supreme Court in " T. S. R. Subramanian & Ors. vs. Union of India and Ors. (2013) 15 SCC 732, the tribunal held that placing of transfer proposals before the CSB was a mandatory requirement, which the Divisional Commissioner breached as there was no proposal before the CSB to transfer the petitioner, and by an interpolation as made in the original recommendation of the CSB, the Divisional Commissioner transferred the petitioner as Tehsildar, Dindori. It was held that there is a clear violation of the guidelines issued by the Supreme Court in T. S. R. Subramanian & Ors.(supra). The tribunal accordingly allowed respondent no.3's original application, whereby it quashed the transfer order dated 18 September 2019, transferring respondent no.3 to the post of Assistant District Supply Officer and transferring the petitioner in his place as Tahasildar Dindori, Nashik. A further direction was issued that respondent no.3 be posted on the post from where he was transferred within two weeks from the date of the said order.
7. It is on the above backdrop, the petitioner is before us in the present proceedings, assailing the order passed by the tribunal. It needs to be noted that the present petition was filed on 16 September 2020. ::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 10:44:25 :::
9 wp92852_2020.odt The record would reveal that there was no ad-interim relief of any nature granted in favour of the petitioner and it appears that the order passed by the tribunal is already implemented, whereby, respondent no.3 now continues on the post to which he was holding prior to the impugned transfer order namely as Tehsildar, Dindori, and the petitioner is working on the post of Tehsildar (Establishment) in the Office of the Divisional Commissioner, Nashik. This would also depict that the State Government has accepted in totality the impugned judgment and order passed by the Tribunal, which includes the observations as made by the tribunal of the Divisional Commissioner usurping the powers conferred on the specified authorities under the 2005 Act, by misinterpreting the order dated 16 September 2019 of the Deputy Secretary, Revenue and Forest Department.
8. In our order dated 6 January 2021, we have observed of being informed by the learned Counsel for the parties, of the pleadings on the writ petition being complete and as a narrow issue was involved, the petition be heard finally at the admission stage.
9. We have accordingly heard the parties finally. We have also called for the original record and proceedings of the transfers in question, from the State Government. The learned Special Counsel for the State Government, accordingly, has placed such record before us, which we have perused.
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10. In assailing the impugned orders passed by the tribunal, the principal contention as urged by Mr.Godbole, learned Counsel for the petitioner is on the finding as recorded by the tribunal in relation to the order dated 16 September 2019 issued by the Deputy Secretary, Revenue and Forest Department, in regard to the delegation of the authority to effect transfers. It is his submission that the tribunal has proceeded on a complete misreading of the order dated 16 September 2019, which is clear from paragraph 7 of the impugned order passed by the tribunal, as in extracting the said order, certain portion of the said order is omitted, leading to an erroneous reading of the order, which according to Mr.Godbole, has formed the basis of deciding the original application against the petitioner. Such misreading by the tribunal, according to Mr.Godbole, is fatal, as the tribunal has proceeded on the footing that the Divisional Commissioner was not delegated the powers to effect transfers and the power was only vested with such authorities as specified in Section 4(5) read with Section 6 of the 2005 Act. Mr.Godbole has submitted that the tribunal has also overlooked, that by a Government Resolution dated 22 June 2016 the powers of transfer from the cadre of Tehsildar were delegated to the concerned Divisional Commissioner, including the power to effect mid-term/mid-tenure transfer, which was to be done only after the recommendation of the CSB. According to Mr.Godbole, once the CSB was duly constituted, the tribunal could not have ignored that respondent no.3 had completed more than three years in Nashik district and/or hence that he was ::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 10:44:25 ::: 11 wp92852_2020.odt required to be transferred, hence his transfer, could not be held to be illegal.
11. Mr.Godbole would next contend that the tribunal has completely overlooked the Election Commission of India's mandate, namely that an officer working in the same district for more than three years and connected directly to the election, should not be continued on such posting, if such officer had completed three years in the district, during the last four years. It is submitted that respondent no.3 was clearly not eligible for holding any post which was connected with election duties and more particularly as an Assistant Retaining Officer (ARO). Hence, to implement the directives of the Election Commission of India, the Divisional Commissioner, who was the delegate of the State Government, was competent to transfer respondent no.3. Mr.Godbole would thus contend that the impugned order passed by the tribunal deserves to be set aside on the above counts.
12. Mr.Sakhare, learned Senior Advocate for respondent no.3 in supporting the impugned order would submit that this is a classic case of the Divisional Commissioner acting highhandedly as there was no proposal whatsoever before the CSB to transfer the petitioner as Tahasildar, Dindori, in respondent no.3's place and the same was issued by making interpolations, as observed by the tribunal in paragraph 16 of the impugned order. Mr.Sakhare would submit that indisputedly, the ::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 10:44:25 ::: 12 wp92852_2020.odt transfer of respondent no.3 on the post of Tehsildar was by virtue of his promotion was made on 7 September 2019, and within ten days of such posting on transfer, he was sought to be transferred by the Divisional Commissioner and that too mid-term, contrary to the requirement of Section 4(5) of the 2005 Act, by the Divisional Commissioner, on the ground that it was the requirement of the Election Commission of India on the purported ground that respondent no.3 had completed more than three years in the Nashik District. It is submitted that, however, the real intention to transfer respondent no.3 was to accommodate the petitioner on the post of Tahasildar, Dindori as the record revealed. Mr.Sakhare would submit that the findings as recorded by the tribunal in its detailed order, are clearly borne out by the record, hence, no perversity can be attributed to any of the findings. It is next submitted that, it is now quite some time that the impugned order passed by the tribunal, has already been implemented to the effect that the petitioner as also respondent no.3 are working on their original posts, as directed by the tribunal. Mr.Sakhare submits that the petition deserves to be dismissed.
13. Ms.Neha Bhide, learned Special Counsel for the State Government has made submissions. She has stated that the orders passed by the tribunal have already been effected as the State Government / Divisional Commissioner has not challenged the orders passed by the tribunal. She has made available the original record as desired by us.
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14. We have heard learned Counsel for the parties. We have also perused the record. At the outset, we may observe that the High Court's power of judicial superintendence over the tribunal, is very limited. It is not an appellate jurisdiction which the Court wields. The Court would interfere only in case of patent illegality or perversity and if the decision is founded on no material or is against the principles of natural justice. The Court certainly in exercise of such jurisdiction, would not correct an error of law which is not an error apparent on the face of the record. The jurisdiction can also be exercised, if the Court is of the opinion that the order would result in grave miscarriage of justice. Such jurisdiction is certainly not exercised in a routine manner. These are well settled principles of law in regard to exercise of such jurisdiction which we are called upon to exercise in the present proceedings.
15. Adverting to the above well established principles, we propose to confine the scope of this petition on two basic issues, firstly, whether the Divisional Commissioner had any authority to effect mid- term/mid-tenure transfer de'hors the provisions of the 2005 Act, in purported implementation of the guidelines of the Election Commission of India or under the Government Resolution dated 22 June 2016; and secondly, whether the impugned transfer order transferring respondent no.3 satisfies the requirements of the provisions of the 2005 Act. ::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 10:44:25 :::
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16. It is not in dispute that respondent no.3 was promoted from the post of Naiab Tehsildar to the post of Tehsildar and accordingly on a transfer on promotion he was posted as Tehsildar, Dindori, vide order dated 7 September 2019. Immediately within eleven days of such transfer, respondent no. 3 was sought to be transferred by the impugned transfer order dated 18 September 2019, from the post of Tehsildar Dindori, to the post of Assistant District Supply Officer, Nashik. It is not in dispute that the transfers of the officers belonging to 'cadre A' post are governed by the 2005 Act. The relevant provisions under the definition clause being Section 2 (b), (e) (g) (i) and Sections 3, 4, 5 and 6 read thus:-
"2. Definition.- In this Act, unless the context otherwise requires,-
(b) "Competent authority" means the appointing authority of the Government servant and shall include the transferring authority specified in section 6;
(e) "Group A, B, C, and D posts" means the posts under the Government classified as Group A, B, C, and D posts by Government order, from time to time.
(g) "post" means the job or seat of duty to which a Government servant is assigned or posted;
(i) "Transfer" means posting of a Government servant from on post, office or Department to another post, office or Department;
(j) "Transferring authority" means the authorities mentioned in Section 6.
3. Tenure of posting.- (1) For All India Service Officers and all Groups A, B and C State Government Servants or employees, the normal tenure in a post shall be three years:::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 10:44:25 :::
15 wp92852_2020.odt Provided that, when such employee is from the non-
secretariat services, in Group C, such employee shall be transferred from the post held, on his completion of two full tenures at that office or department, to another office or Department:
Provided further that, when such employee belongs to secretariat services, such employee shall not be continued in the same post for more than three years and shall not be continued in the same Department for more than two consecutive tenures.
(2) Employees in Group D shall normally not be subjected to fixed tenure. They shall not be transferred out from the station where they are serving except on request when a clear vacancy exists at the station where posting is sought, or on mutual transfer, or when a substantiated complaint of serious nature is received against them.
4. Tenure of transfer.- (1) No Government servant shall ordinarily be transferred unless he has completed his tenure of posting as provided in section 3.
(2) They 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.
(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 [approval of the immediately superior] Transferring Authority mentioned in the ::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 10:44:25 ::: 16 wp92852_2020.odt table of section 6, transfer a Government servant before completion of his tenure of post.
5. Extension of tenure.- (1) The tenure of posting of a Government servant or employee laid down in section 3 may be extended in exceptional cases as specified below, namely:-
(a) the employee due for transfer after completion of tenure at a station of posting or post has less than one year for retirement;
(b) the employee possesses special technical qualifications or experience for the particular job and a suitable replacement is not immediately available; and
(c) the employee is working on a project that is in the last stage of completion, and his withdrawal will seriously jeopardise its timely completion.
(2) Notwithstanding anything contained in section 3 or any other provisions of this Act, to ensure that the Government work is not adversely affected on account of large scale transfers of Government servants from one single Department or office, not more than thirty per cent. of the employees shall be transferred from any office or Department at a time, in a year.
6. Transferring Authority.- The Government servants specified in column (1) of the table hereunder may be transferred by the Transferring Authority specified against such Government servants in column (2) of the table.
Table Groups of Government servantsCompetent Transferring (1) Authority (2)
(a) Officers of All India Services,Chief Minister all Officers of State Services in Group "A" having pay-scale of Rs. 10,650-15,850 and above.
(b) All Officers of State Services in Minister-in-charge in Group "A" having pay-scalesconsultation with less than Rs. 10,650-15,850Secretaries of the [and all Gazetted Officers]concerned Departments. Group "B"
(c) All [Non-Gazetted employeesHeads of Departments.
in Group "B" and "C"]
(d) All employees in Group "D" Regional Heads of
Departments:
Provided that, in respect of officers in entry (b) in the table working at the Divisional or District level, the Divisional Head shall be competent to transfer such officers within the Division ; and the District Head shall be competent to transfer such officers within the District:
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17 wp92852_2020.odt Provided further that, the Competent Transferring Authority specified in the table may, by general or special order, delegate its powers under this section to any of its subordinate authority."
17. A plain reading of the above provisions would go to show that ordinarily no Government Servant is to be transferred unless he has completed a tenure of three years as provided in sub-section (1) of Section 3. Sub-section (5) of Section 4 provides that the competent authority may in special cases, after recording reasons in writing and with the prior approval of the 'immediately superior transferring authority' as set out in the table provided in Section 6, transfer a Government servant before completion of his tenure on a post. In the present case, respondent no.3 was admittedly transferred/posted as 'Tehsildar, Dindori' on 7 September 2019. Once he was so posted sub-
section (1) of Section 3 would take effect, for any transfer to be made, which provides that for the Group 'A', 'B', 'C' posts, the normal tenure "in a post" shall be three years. The word 'post' is also defined under Section 2(g) of the Act to mean "the job or seat of duty to which a Government servant is assigned or posted". Section 4(1) provides that no Government servant shall ordinarily be transferred unless he has completed his tenure of posting as provided in Section 3 which is of three years, with an exception as made in sub-section (5) namely that notwithstanding anything contained in Section 3, the competent authority may, in special cases, after recording reasons in writing and with the prior approval of the 'immediately superior' {See: sub section ::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 10:44:25 ::: 18 wp92852_2020.odt (5) of Section 4 read with Section 6 (supra) }, the Transferring Authority as specified in the table of Section 6, transfer a Government servant before completion of his tenure of post. Thus a cumulative reading of these provisions would indicate that the competent authority would be authorised to make a mid-tenure transfer, that is a transfer, prior to the officer/ employee completing three years, in special cases, by recording reasons and with prior approval of the competent authority.
18. The impugned transfer order dated 18 September 2019 issued by the Divisional Commissioner Mr.Rajaram Mane, in paragraph (1) sets out the reason that in regard to the State Assembly Elections, no post should remain vacant or if it is vacant, the same is required to be filled up as per the guidelines of the ECI, from the officers who were not connected with the election duties within the district or division, by the Divisional Commissioner who is a competent officer exercising the powers delegated by the State Government. Hence, applying the provisions of Section 4(4) and Section 4(5) of the 2005 Act, respondent no.3 was transferred from the post of Tahasildar, Dindori, District Nashik to the post of Assistant District Supply Officer, Nashik, by a separate order issued on the same date, by which the petitioner came to be posted as Tahasildar, Dindori, in place of respondent no.3. It is however quite curious, that in the said transfer order petitioner was shown to have been transferred from the post of Special Executive Magistrate, Ahmednagar, to the post of Tehsildar, Dindori, District Nashik, when ::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 10:44:25 ::: 19 wp92852_2020.odt factually he was posted as Tehsildar (Establishment), in the office of the Divisional Commissioner Nashik. As to why the petitioner was not shown to be discharging duties of Tahasildar (Establishment) in the office of the Divisional Commissioner, Nashik when he was working on the said post from 23 August 2018, is quite surprising. This apart, whether the Divisional Commissioner, Nashik Division would at all have any authority to transfer any officiating officer who is outside his jurisdiction i.e. from Ahmednagar to Nashik, is also another issue. We have grave doubt of the Divisional Commissioner having any powers beyond his jurisdiction.
19. Be that as it may, we have perused the original record and what is revealed is something which would certainly shock our conscience, as we presently note. In our opinion, the petitioner clearly has acted as a judge of his own cause (nemo judex in sua causa). This is clear from the reading of the minutes of the CSB dated 18 September 2019, wherein the petitioner himself has become a party to take a decision (as a member of the CSB) to recommend his own transfer as Tehsildar -Dindori and to the impugned transfer of respondent no.3 from the post of Tehsildar, Dindori to the post of Assistant District Supply Officer, District Nashik. This is on the purported ground that respondent no.3 was serving in the Nashik District for more than three years prior to his post as Tehsildar, and as per the guidelines of Election Commission of India, he cannot be posted in Nashik District.
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20. On a perusal of the record it is revealed that the original recommendation as made by the CSB was totally different. The CSB had recommended one Smt.Rachana Murlidhar Pawar, Tehsildar (General Administration) Nashik, to be posted as Tehsildar, Dindori. Such recommendation was signed by the petitioner in his capacity as a member of the CSB being the Tehsildar (Establishment), Office of the Divisional Commissioner, Nashik, alongwith the other members of the CSB and the Chairman of the CSB. If that was to be the case, then certainly the CSB was required to refer the matter to the competent authority defined in Section 6, for respondent no.3 to be posted outside Nashik district. However, the design appeared to be something else namely to accommodate the petitioner on the post held by respondent no.3. This is clear from a document of the same date (18 September 2019), namely the Minutes of the CSB to which the petitioner is signatory. Being such member he became a party to a decision of his own transfer from the post of Tehsildar (Establishment) Nashik as Tehsildar, Dindori. He signed such decision with the co-signatories namely the Deputy Commissioner and the Divisional Commissioner. A perusal of such Minutes of the CSB show that there are interpolations as made against the name of respondent no.3 and of Smt. Rachana Murlidhar Pawar to the original decision taken by the CSB. It is thus difficult to conceive as to how the petitioner can be a signatory to the decision of his own transfer and that too ostensibly from Ahmednagar to ::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 10:44:25 ::: 21 wp92852_2020.odt Nashik District when the situation on record was completely different. The petitioner has failed to give any explanation as to what authority he had to be a party to the decision of his own transfer on the post held by respondent no.3 namely Tahasildar, Dindori.
21. In our opinion the entire edifice that the guidelines of the ECI were being implemented also appears to be quite sham when it came to the transfer of respondent no 3 and to post the petitioner in his place. This, inasmuch as on a perusal of the recommendations of the ECI, it is clear that it would be applicable to those officers who are serving in one 'district' for three years. In the event in respondent no.3's case, the guidelines were to be stricto sensu implemented, then necessarily the matter should have been left to the competent authority for respondent no.3 to be transferred from Nashik district to some other district, for the reason that the transfer was not a general transfer to be effected in April-May of a year so as to be within the purview of Government Resolution dated 22 June 2016 whereby the powers were conferred on the Divisional Commissioner to make such transfer. Thus, in our opinion, the tribunal is correct in observing that the Divisional Commissioner could not have acted in construing any delegation of authority to transfer vide order dated 16 September 2019 to make such transfers contrary to the provisions of the 2005 Act. From the order dated 16 September 2019 it is clear it is the Commissioner alone who has been conferred powers to make transfers within the district, strictly ::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 10:44:25 ::: 22 wp92852_2020.odt in the light of the ECI guidelines, without there being any involvement of the CSB, as in the present case. Further the order dated 16 September 2019 is also not a delegation as contemplated under the second proviso below Section 6 of the 2005 Act. In our considered opinion, even assuming that such a delegation is to be read in the order dated 16 September 2019 and surely, the Divisional Commissioner did not have any authority to usurp and/or act contrary to the statutory provisions of the 2005 Act and more particularly Section 3(1) read with Section 4(5) read with Section 6, which are required to be read as a Code in itself to make a mid term/ mid tenure transfer. This was a clear case where the transfer from the post ['post' defined under Section 2(g)] was sought to be made mid-term/mid-tenure, which required an approval of the immediately superior authority as set out in table of Section 6 namely the 'Chief Minister'. However, without such approval, respondent no.3 was sought to be transferred by the impugned transfer order. Hence, there is nothing illegal in the tribunal observing that the impugned transfer order transferring respondent no.3 was contrary to such statutory provisions as contained in the 2005 Act. We accordingly hold that the Divisional Commissioner had no authority to effect a mid-term/ mid-tenure transfer in purported implementations of the ECI guidelines, under the order dated 16 September 2019. In our opinion, the transfer of respondent no.3 was clearly in breach of the provision of the 2005 Act as noted above. We accordingly answer the questions noted above. ::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 10:44:25 :::
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22. The above discussion would now leave us to examine Mr.Godbole's submission that as CSB was validly constituted and as respondent no.3 has completed three years in Nashik district, it was competent for the CSB to recommend the mid-tenure transfer. In normal circumstances, there would not be any difficulty to accept such proposition as advanced by Mr.Godbole. However, the fallacy in Mr.Godbole's argument is that of a complete neglect and discarding of the fact that the petitioner himself was a member of the CSB and had become a party to a decision to transfer himself and to be posted in place of respondent no.3. This apart, in such decision taken by the CSB, the provisions of Sections 3, 4 and 6 of the 2005 Act, as discussed by us above, have been totally overlooked.
23. In regard to the next submission of Mr.Godbole that the order dated 16 September 2019 as contained in the letter of the Deputy Secretary, Revenue and Forest Department, is not correctly extracted by the tribunal in paragraph seven of the impugned judgment of the tribunal, hence the tribunal has proceeded on a wrong reading of such communication, would not commend us, for the reason that the tribunal in coming to a conclusion to allow respondent no.3's original application, has certainly not proceeded on the sole premise of such order of the State Government as communicated by the Deputy Secretary. The tribunal has proceeded on the fundamental illegality of not only of the breach of the provisions of the 2005 Act, but also on the ::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 10:44:25 ::: 24 wp92852_2020.odt Divisional Commissioner proceeding on a wrong footing in assuming powers, not conferred on him as per the requirement of the second proviso to Section 6 of the 2005 Act under the guise of applying the ECI guidelines. In any case, we do not find that missing of some words in the communication dated 16 September 2019, in the extract, as made by the tribunal, could in any manner, result in a conclusion different from the one as arrived by the tribunal, in regard to the illegality of the impugned transfer as made by the Divisional Commissioner when tested on the application of the 2005 Act. We accordingly reject Mr.Godbole's contention in this regard.
24. In regard to applicability of all the guidelines of the ECI , as we have noted above, if the Divisional Commissioner was of such opinion that respondent no.3 had overstayed his tenure in Nashik district and which was in some manner contrary to the guidelines of the ECI which were to be implemented by the State, in such case the only course available to the Divisional Commissioner, even exercising authority as conferred by him under the order dated dated 16 September 2019, was to make recommendations to the competent authority and seek an approval to transfer him outside Nashik district. It was however, not permissible for the Divisional Commissioner to undertake such exercise to accommodate the petitioner as Tehsildar, Dindori, in assuming such powers under Government Resolution dated 22 June 2016 which operates in a completely different context namely ::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 10:44:25 ::: 25 wp92852_2020.odt in respect of powers delegated to the Divisional Commissioner to make general transfers normally effected in April-May of a year, and then conveniently combining such powers for implementing the orders dated 16 September 2019 which are issued to give effect to the ECI guidelines. As both the said orders operate in different fields and in different situations, it was illegal for the Divisional Commissioner to confer and assume to himself such cumulative powers and to exercise the same contrary to the provisions of the 2005 Act and to confer an illegal benefit of a transfer as Tehsildar, Dindori. Even the CSB had not recommended the transfer of the petitioner by displacing respondent no.3. There was thus certainly an illegality in issuance of the impugned transfer as noted by us.
25. Before we conclude, we may observe that the observations of the gross misuse of the powers by the Divisional Commissioner, and the illegality in relation to the interpolation as made by the Divisional Commissioner, have been accepted by the State Government, as also by the Divisional Commissioner who was a party before the tribunal, as also before us. The impugned order passed by the tribunal has also been implemented.
26. In the above circumstances, when the petitioner was himself posted at Nashik, as Tehsildar (Establishment) in the office of the Divisional Commissioner, we find no justification for the petitioner to ::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 10:44:25 ::: 26 wp92852_2020.odt become a party to a decision of his own transfer from the post he was holding, to the post of Tahasildar, Dindori, which respondent no.3 was holding. Despite such glaring facts being noted by the tribunal, the petitioner for reasons best known to him and in our opinion quite audaciously has filed the present proceedings. The proceedings in our opinion are a patent abuse of the process of law and valuable public time was spent, which the Court otherwise could have devoted to more important, urgent and deserving cases during the present difficult times created by the pandemic. We are certainly pained at such unreasonable approach of the litigants who can endlessly litigate on such petty matters of transfer and that too within the district, only because they have resources to do so. We accordingly dismiss this petition with costs quantified at Rs.25,000/- to be e-deposited by the petitioner with the Maharashtra State Legal Services Authority within four weeks from today, to be utilized for "Manodhairya Scheme".
27. We return the original record and proceedings to Mr. Kakade, the Acting Government Pleader for the State Government.
(G.S. KULKARNI, J.) (CHIEF JUSTICE)
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