1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
WRIT PETITION NO. 5398 OF 2009
1 Kishor s/o Mallayya Sandry,
age 43 years, occ. Dy. Engineer,
Abhiyanta Pani Purwatha, Nagar Parishad,
Jalna. ...Petitioner
VERSUS
1 The State of Maharashtra,
through Secretary, Rural Water
Supply, Mantralaya, Mumbai,
2 Chief Administrative Officer,
Maharashtra Jeevan Pradhikaran Mandal,
Mumbai,
3 Chief Officer,
Nagar Parishad, Jalna,
4 Shri V.B.Sable,
age 40 years, occ. Engineer,
Maharashtra Jeevan Pradhikaram
Mandal, Nagpur Division ...Respondents
.....
Shri Prashant S.Shinde, advocate
h/f Shri S.G.Shinde, advocate for the petitioner
Shri S.K.Kadam, A.G.P. for respondent no.1
Shri D.P.Bakshi, advocate for respondent no.2
Shri H.K.Munde, advocate for respondent no.3
Respondent no.4 deleted as per order dated 16.9.2009.
.....
::: Downloaded on - 09/06/2013 16:34:02 :::
2
CORAM : S.B.DESHUMKH
AND
SHRIHARI P. DAVARE, JJ.
DATE OF RESERVING
THE JUDGMENT : 12.10.2010
DATE OF PRONOUNCING
THE JUDGMENT : 21.10.2010
J U D G M E N T : (Per Shrihari P. Davare, J.)
1 Rule. Rule made returnable forthwith. With the consent of
the learned counsel for the parties, the petition is taken up for final
hearing at the admission stage.
2 The petitioner has assailed the order of his transfer dated
15.6.2009 (Exh. ‘B’), issued by respondent no.2, transferring him
from Nagar Parishad, Jalna to Chief Engineer Divisional Department,
Aurangabad, by present petition filed under Article 226 of the
Constitution of India.
3 The petitioner was working as Dept. Engineer at
Maharashtra Jeevan Pradhikaran Division, Aurangabad i.e.
respondent no.2. By communication dated 30.8.2008, he was
::: Downloaded on – 09/06/2013 16:34:02 :::
3
transferred on deputation to Nagar Parishad, Jalna by respondent
no.2 for the period of three years and copy thereof is annexed at
Exh. ‘A’. Accordingly, the petitioner was relieved before 15.9.2008
and joined his services at Jalna on 1.10.2008.
4 However, according to the petitioner, respondent no.2
again on 15.6.2009 issued transfer order, thereby re-transferring the
petitioner to Aurangabad. Hence, being aggrieved by the said
transfer dated 15.6.2009, by which the petitioner came to be re-
transferred within the period of three years, the petitioner has
challenged the said order in the present petition and prayed for
quashment thereof.
5 Learned counsel for the petitioner canvassed that after
transfer order dated 15.6.2009, the petitioner submitted
representation on 8.7.2009 to respondent no.2 seeking cancellation
thereof, but same was not decided by the concerned authority.
Hence, the petitioner again submitted representation on 21.7.2009,
but same also was not decided by respondent no.2 and copies of the
said representations are produced at Exh. ‘F’ collectively.
6 Learned counsel for the petitioner also submitted that by
the initial order dated 30.8.2008 (Exh. ‘A’), the petitioner was
::: Downloaded on – 09/06/2013 16:34:02 :::
4
transferred from Aurangabad to Nagar Parishad, Jalna on deputation
for the period of three years. However, by order dated 15.6.2009
(Exh. ‘B’) he was re-transferred from Nagar Parishad, Jalna to
Auranabad by respondent no.2 within the period of thee years,
which is contrary to Section 3 (1) of the Maharashtra Government
Servants Regulation of Transfers and Prevention of Delay in
Discharge of Official Duties Act, 2005 (hereinafter referred to as, ‘the
Transfer Act of 2005’) and Circular dated 2.6.2001.
7 It is further canvassed by learned counsel for the
petitioner that the President, Nagar Parishad, Jalna has also
recommended that the petitioner has not completed his term of
tenure of three years and it is necessary that the petitioner should
be allowed to continue with his deputation at Jalna and copy of the
said letter dated 16.6.2009 is annexed at Exh. ‘C’. Moreover,
learned counsel for the petitioner also invited our attention to the
communication dated 15.7.2009, issued by the President, Nagar
Parishad, Jalna, whereby the order of transfer dated 15.6.2009 i.e.
impugned order was stayed, since the petitioner had not completed
his tenure of three years and copy thereof is produced at Exh. ‘E’.
8 Learned counsel for the petitioner further submitted that
one Mr. V.B.Sable, who was transferred to Jalna by order dated
::: Downloaded on – 09/06/2013 16:34:02 :::
5
5.8.2009 had taken the charge, but now again he has been
transferred to Yeotmal by order dated 31.5.2010. Accordingly, it is
submitted that both the posts are vacant at Nagar Parishad, Jalna,
and hence, it is urged that there is no impediment in retaining the
petitioner at Nagar Parishad, Jalna and prayed that the impugned
order dated 15.6.2009, being arbitrary and illegal, be quashed and
set aside.
9 Learned A.G.P. appearing for the respondents
vehemently opposed the present petition and countered the
arguments advanced by learned counsel for the petitioner and
submitted that by letter dated 21.11.2008 the President of Nagar
Parishad, Jalna requested the Chief Engineer, Maharashtra Jeevan
Pradhikaran, Aurangabad Region, Aurangabad that the petitioner,
who was transferred to Nagar Parishad, Jalna on deputation has
joined on 1.10.2008, but thereafter due to some domestic reason, he
never turned up to the office since then. In the said letter, the
President also requested to Chief Engineer, Maharashtra Jeevan
Pradhikaran Division, Aurangabad i.e. respondent no.2, that
experienced Deputy Engineer may be sent on deputation for two
years to Nagar Parishad, Jalna, to regulate the water supply to city of
Jalna, and copy of the said letter dated 21.11.2008 is annexed at
Exh. ‘R-1’ to the affidavit in reply filed by respondent no.2. It is also
::: Downloaded on – 09/06/2013 16:34:02 :::
6
submitted that in view of the request letter of the President, Nagar
Parishad, Jalna dated 21.11.2008, respondent no.2 re-transferred
the petitioner from Nagar Parishad, Jalna and posted him at
Maharashtra Jeevan Pradhikaran Division, Aurangabad, and the said
action of re-transfer of the petitioner from Nagar Parishad, Jalna to
Maharashtra Jeevan Pradhikaran Division, Aurangabad is in
accordance with Section 4(4)(ii) of the Transfer Act of 2005.
10 It is further submitted that after re-transfer of the petitioner
from Nagar Parishad, Jalna to Maharashtra Jeevan Pradhikaran
Division, Aurangabad, one Deputy Engineer, namely Shri V.B.Sable
was transferred from Maharashtra Jeevan Pradhikaran Division,
Nagpur to Nagar Parishad, Jalna and he joined at said Nagar
Parishad, Jalna in place of the petitioner.
11 Moreover, learned counsel for the respondents also
invited our attention to the relieving letter dated 9.7.2009, which
discloses that the petitioner has been relieved from Nagar Parishad,
Jalna from 10.7.2009, in pursuance of the order dated 15.6.2009,
and hence, it is urged that the transfer order dated 15.6.2009 has
been already acted upon, and therefore, nothing survives in the
present petition and same deserves to be dismissed. It is also
pointed out by learned counsel for respondent no.2 that the so-called
::: Downloaded on – 09/06/2013 16:34:02 :::
7
stay order issued by the President, Nagar Parishad, Jalna on
15.7.2009 bears no substance, since the impugned order dated
15.6.2009 was already acted upon, as the petitioner was relieved as
afore said, and it is submitted that there is no substance in the
argument canvassed by the learned counsel for the petitioner in that
respect.
12
We have perused the contents of the present petition as
well as affidavit in replies filed by respondent no.2 and respondent
no.3, and annexures thereto, and also affidavit in rejoinder filed by
the petitioner and the annexures thereto as well as considered the
submissions advanced by learned respective counsel for the parties
anxiously, and at the out set, it is seen that the initial order dated
30.8.2008 (Exh. ‘A’) is the order, by which the petitioner was posted
at Nagar Parishad, Jalna on deputation for the period of three years,
and accordingly, he was relieved on 15.9.2008 and joined the
services at Jalna on 1.10.2008. Thereafter by the impugned order
dated 15.6.2009 (Exh. ‘B’) he was repatriated from Nagar Parishad,
Jalna to Maharashtra Jeevan Pradhikaran Division, Aurangabad in
public interest and for administrative reasons, in accordance with
Section 4(4)(ii) of the Transfer Act of 2005, and therefore apparently,
there is no impediment of Section 3(1) of the Transfer Act of 2005, as
canvassed by learned counsel for the petitioner. Moreover, since the
::: Downloaded on – 09/06/2013 16:34:02 :::
8
petitioner was relieved from Nagar Parishad, Jalna on 10.7.2009
itself in pursuance of the impugned order dated 15.6.2009, the very
impugned order dated 15.6.2009 has been already acted upon, and
hence, there is no substance in the subsequent so-called stay order
dated 15.7.2009 issued by the President, Nagar Parishad, Jalna, and
consequently, there is no substance in the present petition also.
13
Moreover, the contents of the letter dated 21.11.2008
(Exh. ‘R-1’), issued by the President, Nagar Parishad, Jalna to the
Chief Engineer, Maharashtra Jeevan Pradhikaran, Aurangabad
Region, wherein it is stated that although the petitioner joined
services at Nagar Parishad, Jalna on 1.10.2008, thereafter he never
turned up to the office, and the said fact cannot be ignored. So also,
during the course of arguments, learned counsel for respondent no.
2 tendered the copy of the letter dated 21/25.11.2008, issued by
Chief Executive Officer to respondent no.2, which is marked at
document ‘X’ for identification purpose, wherein it is stated that the
petitioner herein has not worked for a single day after resumption of
duties at Nagar Parishad, Jalna, and therefore, requested to appoint
another substitute Deputy Engineer in his place and sight cannot be
lost of said material aspect. Accordingly, it is evident from both the
said letters i.e. letter dated 21.11.2008 (Exh. ‘R-1’) and letter dated
21/25.11.2008 (document marked ‘X’ for identification) that petitioner
::: Downloaded on – 09/06/2013 16:34:02 :::
9
never worked at Nagar Parishad, Jalna, after resumption of duty, and
hence, there is substance in the argument canvassed by learned
counsel for the respondents that the action of re-transfer of the
petitioner from Nagar Parishad, Jalna to Maharashtra Jeevan
Pradhikaran Division, Aurangabad is in accordance with Section
4(4)(ii) of the Transfer Act of 2005.
14
Besides that, as canvassed by learned counsel for the
respondents that one Shri V.B.Sable, Sub-Divisional Engineer was
transferred from Maharashtra Jeevan Pradhikaran, Nagpur to Nagar
Parishad, Jalna and he joined said Nagar Parishad, Jalna in place of
the petitioner, and therefore, also nothing survives in the present
petition, and further, transfer of said Shri Sable to Yeotmal by order
dated 31.5.2010, as canvassed by learned counsel for the petitioner,
is of no consequence, and cannot be of any aid and assistance to
the petitioner.
15 It is also material to note that although the petitioner was
relieved on 10.7.2009 by order dated 9.7.2009 by Nagar Parishad,
Jalna (Exh. ‘D’), in pursuance of the impugned order dated 15.6.2009
(Exh. ‘B’), it is submitted that the petitioner has not resumed his
duties so far at his repatriated place i.e. Maharashtra Jeevan
Pradhikaran Division, Aurangabad and the said conduct of the
::: Downloaded on – 09/06/2013 16:34:02 :::
10
petitioner speaks volumes for itself.
16 In the circumstances, considering the legal and factual
position, we are not inclined to accept the submissions advanced by
the learned counsel for the petitioner and we are of the considered
view that this is not a fit case to exercise extra ordinary writ
jurisdiction, and hence, no interference is warranted in the impugned
order dated 15.6.2009, issued by respondent no.2, and accordingly,
present petition deserves to be dismissed.
17 In the result, present petition which is sans merits stands
dismissed. Rule stands discharged accordingly. In the facts and
circumstances, there shall be no order as to costs.
(SHRIHARI P. DAVARE, J.) (S.B.DESHMUKH, J.)
18 After pronouncement of this judgment, learned counsel for
the petitioner Shri Shinde made a request that representations filed
by the petitioner on 8.7.2009 and 21.7.2009 be considered by
respondent No.2 employer. We have heard learned AGP for
respondent No.1, Shri Bakshi, learned Advocate for respondent No.2
::: Downloaded on – 09/06/2013 16:34:02 :::
11
and Shri Munde, learned Advocate for respondent No.3. Learned
counsel for respondent nos. 2 and 3 submit that now the judgment
has been pronounced and such request could have been
considered by them before pronouncement of the judgment, if so
made by the petitioner. In our view, representations which are made
by the petitioners can be considered by respondent No.2 – employer
in accordance with the provisions of law and decision thereof be
communicated to the petitioner within two months from today.
(SHRIHARI P. DAVARE, J.) (S.B.DESHMUKH, J.)
dbm/wp5398.09
::: Downloaded on - 09/06/2013 16:34:02 :::