Dismissed

Kishor S/O. Mallayya Sandray v. the State of Maharashtra and Ors.

Bombay HC21 Oct 2010WP/5398/2009

Case brief

AI extract

What is this about?

In this writ petition, the petitioner challenged his re-transfer from Nagar Parishad, Jalna to Aurangabad, alleging violation of the Transfer Act. The High Court examined the facts, including the petitioner's non-joining of the post, and held that the transfer was in the public interest and discharged the petition.

What did the court decide?

Petition dismissed. Rule discharged. No order as to costs.

Kishor S/O. Mallayya Sandray Vs the State of… — Pension and Retirement Benefits | Bombay HC (2010)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD

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WRIT PETITION NO. 5398 OF 2009

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1 Kishor s/o Mallayya Sandry, age 43 years, occ. Dy. Engineer, Abhiyanta Pani Purwatha, Nagar Parishad, Jalna. ...Petitioner

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VERSUS

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1 The State of Maharashtra, through Secretary, Rural Water Supply, Mantralaya, Mumbai,

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2 Chief Administrative Officer, Maharashtra Jeevan Pradhikaran Mandal, Mumbai,

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3 Chief Officer, Nagar Parishad, Jalna,

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4 Shri V.B.Sable, age 40 years, occ. Engineer, Maharashtra Jeevan Pradhikaram Mandal, Nagpur Division

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...Respondents

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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.

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CORAM : S.B.DESHUMKH

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AND

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SHRIHARI P. DAVARE, JJ.

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DATE OF RESERVING THE JUDGMENT : 12.10.2010 DATE OF PRONOUNCING THE JUDGMENT : 21.10.2010

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J U D G M E N T : (Per Shrihari P. Davare, J.)

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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.

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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.

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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

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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.

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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 retransferred within the period of three years, the petitioner has challenged the said order in the present petition and prayed for quashment thereof.

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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.

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6 Learned counsel for the petitioner also submitted that by the initial order dated 30.8.2008 (Exh. 'A'), the petitioner was

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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.

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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'.

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8 Learned counsel for the petitioner further submitted that one Mr. V.B.Sable, who was transferred to Jalna by order dated

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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.

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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

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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.

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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.

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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

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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.

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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

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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.

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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

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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.

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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.

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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

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petitioner speaks volumes for itself.

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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.

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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.

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(SHRIHARI P. DAVARE, J.) (S.B.DESHMUKH, J.)

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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

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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.

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(SHRIHARI P. DAVARE, J.) (S.B.DESHMUKH, J.) dbm/wp5398.09

Kishor S/O. Mallayya Sandray v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

Kishor S/O. Mallayya Sandray v. the State of Maharashtra and Ors.

Case brief

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