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JVS/VSS WP.7699.2012.judgment.doc

5) The petitioner has also assailed the opinion recorded by the Tribunal that in view of order passed in O.A. No. 388/2006, the petitioner could never have been posted in District Pune. According to the petitioner, the Tribunal has completely misinterpreted the observation contained in the said order dated 17th November, 2006, passed in O.A. No. 388/2006. That observation cannot be construed as peremptory direction issued to the Department, not to post the petitioner in Districts Pune and Satara, for the remainder service period of the petitioner. Moreover, the petitioner, after promotion, was posted in District Pune in 2008 and that appointment was not challenged by anyone thus far. Further, that reason cannot be the basis to set aside a valid transfer order issued by the Competent Authority, against the Respondent No. 2. Respondent No. 2, on his own, should have demonstrated that his transfer was midterm transfer and impermissible in law or malafide in fact. In absence of that finding, the Respondent No. 2 could not have succeeded before the Tribunal.

7) The Counsel for Respondent No. 2 has supported the order passed by the Tribunal, in setting aside the impugned transfer order dated 2nd August, 2011. According to Respondent No. 2, the Respondent No. 2 had approached the Tribunal with the grievance that he was being transferred midterm only with a view to favour the petitioner and for no other reason. In other words, the impugned transfer order dated 2nd August, 2011 was malafide and colourable exercise of power. ig The Respondent No. 2 has also placed heavy reliance on the observations in the order passed by the Tribunal, dated 17th November, 2006 in O.A. No. 388/2006 to persuade the Court that the petitioner was unfit to be appointed in District Pune. On these arguments, the conclusion reached by the Tribunal has been supported by Respondent No. 2.