Allowed

Giridhar Namdeorao Khapekar v. the State of Mah. Thr. Its Secty. and Ors.

Bombay HC2 Aug 2012WP/3444/2012

Case brief

AI extract

What is this about?

The High Court of Bombay (Nagpur Bench) allowed a writ petition challenging the dismissal of an original application regarding the petitioner's frequent transfers. The court set aside the lower tribunal's order for failing to address allegations of statutory violation and lack of reasoned findings, restoring the matter for fresh decision.

What did the court decide?

The impugned order dismissing Original Application No. 384/2012 is set aside and the application restored to the Tribunal for fresh decision.

Giridhar Namdeorao Khapekar Vs the State of Mah. Thr… — Service and Employment | Bombay HC (2012)

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

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Writ Petition No. 3444 of 2012

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Giridhar Namdeorao Khapekar vs. The State of Maharashtra, through its Secretary, Department of Revenue and Forests, Mantralaya, Mumbai 32 and others.

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Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders.

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Mr. Uday Dastane, Advocate for petitioner. Mr. A.D.Sonak, AGP for R-1 to 3. Mr. S.K.Tambde, Advocate for R-4.

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CORAM : S. C. DHARMADHIKARI & M. T. JOSHI, JJ. DATE : 2.8.2012

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The petitioner is an original applicant in Original Application No. 384 of 2012.

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That Original Application has been dismissed by the impugned Order dated 20th July, 2012. Hence, this Writ Petition under Articles 226 and 227 of the Constitution of India.

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The petitioner, in the Original Application, had

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contended that he is aggrieved and dis-satisfied with the order of transfer dated 31st May, 2012 and the order is contrary to the statute and law viz. The Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005. The petitioner had stated in the Original Application very clearly and by raising appropriate grounds that he came to be appointed in the Revenue Department as a Jr. Clerk in the year 1981 and that he was promoted to the post of Awal Karkoon in the year 1988. He was promoted as Naib Tahsildar in the year 1994 and thereafter as a Tahsildar in the year 2004 and was posted at Tahsil Office, Amgaon, District: Gondia. The petitioner worked there till May, 2006 and he was transferred to Collector's Office at Bhandara, where he was discharging the duty as a Superintendent. He came to be transferred to Tahsil Office, Ramtek and he remained there till 2.3.2007. Thereafter, he came to be transferred to Wardha as Assistant Rehabilitation Officer. He joined at Wardha and shortly thereafter by an order dated 29th April, 2010, he was transferred from Wardha to Tahsil Office, Umred, District: Nagpur.

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In para no. 7.4 to his Original Application, the petitioner/ applicant has set out as to how he is a victim of frequent transfers and that such frequent transfers violate the mandate of the Act of 2005 and Articles 14 and 16 of the Constitution of India. While raising such grounds to challenge the impugned transfer, he has pointed out as to how the proposals have been moved and when the the applicant was proposed to be transferred at a particular place, due to intervention of the local M.L.A., the posting has been changed and eventually he has been transferred to Nagpur. He has alleged that allmost in every posting he has not been allowed to complete three years period stipulated at one place and that there are no reasons assigned as to why he has been transferred frequently and without allowing him to complete the statutory period.

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Upon such an application, detailed affidavit in reply has been filed and equally a re-joinder. Even a person, who has replaced the petitioner at his present posting viz. Mr. G.G.Nishankar, was joined as respondent in the Original Application.

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When this Original Application was placed before the Maharashtra Administrative Tribunal, what the Tribunal observes in para no.2 of the order, is that the petitioner has been transferred under the order of transfer dated 31st May, 2012 to the post of Deputy Registrar in the Maharashtra Revenue Tribunal, Nagpur. There was an ad interim ex parte stay to the transfer as the reasons that the petitioner's transfer was premature and the Tribunal noted that he has been posted at Umred only for a period of 1 year and 10 months. However, thereafter the Tribunal refers to the affidavit in reply wherein respondents 1 and 2 stated that the transfer has been effected after obtaining approval of the immediate superior transferring authority i.e. the concerned Minister of State. In the light of some special case the petitioner had to be transferred and reference is made to a Criminal Case alleging offence punishable under Section 3, 13(b) r/w 13(2) of the Prevention of Corruption Act being Special Case No. 3021/06. While he was serving as Tahsildar, he was placed under suspension. Surprisingly, the Tribunal itself refers to the revocation of the order of suspension by the State Government on 30th March, 2007. The petitioner, according to the Tribunal, should not be posted in a sensitive and in executive post but in

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non executive post. Having perused the order of the Tribunal, we do not find that it has adverted to any of the allegations in the Original Application and the principal contention namely, that every action in the case of the applicant/petitioner before us, is contrary to the Act of the State Legislature and particularly one referred above. If the reasons for Transfer are spelled out in the affidavit in reply, whether these reasons in the affidavit would meet the requirements stipulated by the Act or not, has not been clarified in the order of the Tribunal. We are of the opinion that the Tribunal should have assigned complete, detailed proper reasons while dealing with the Original Application. Merely, recording the petitioner's request that he wants to make a representation and, therefore, that liberty is granted, does not mean that the petitioner was not pressing the Original application or seeking relief in terms thereof.

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For the above reasons, the order dismissing the Original Application No. 384/12 is set aside and that Original Application shall stand restored to the file of the Maharashtra Administrative Tribunal, Nagpur Bench, Nagpur for decision afresh on merits and in accordance with law uninfluenced by

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the conclusions rendered earlier. Let this be done with a period of 2 months. All contentions of the parties are kept open. We have only noted some of the contentions so as to emphasise that the Tribunal should have dealt with them and answered the same in accordance with law. Beyond that, we have not expressed any opinion on the rival contentions. It would be open for the petitioner/applicant to seek such interim reliefs as are permissible in law during the pendency of the Original Application.

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The petition is allowed accordingly. No costs.

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JUDGE JUDGE

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Giridhar Namdeorao Khapekar v. the State of Mah. Thr. Its Secty. and Ors.

Case brief

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Giridhar Namdeorao Khapekar v. the State of Mah. Thr. Its Secty. and Ors.

Case brief

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What did the court decide?

What the court decided

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