1
wp-7614-10
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
::: Downloaded on - 09/06/2013 16:30:26 :::
2
wp-7614-10
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-7614-10and 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 :::
5
wp-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-7614-10of 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 :::
8
wp-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-7614-10outside 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-7614-10appropriate 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.
::: Downloaded on – 09/06/2013 16:30:26 :::
11
wp-7614-10
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.)
::: Downloaded on - 09/06/2013 16:30:26 :::