Dismissed

Sou. Poornima W/O Hemant Hajare v. State of Maharashtra Thr Secty and Ors.

Bombay HC28 Jan 2013WP/4736/2012

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a transfer order of a District Guide Organizer. The court declined to interfere, holding no statutory provision was violated and no mala fides were established, though it extended an interim stay by two weeks pending appeal outcomes.

What did the court decide?

Petition dismissed; appeal time extended for two weeks pending final appeal outcome.

Sou. Poornima W/O Hemant Hajare Vs State of Maharashtra… — Landlord and Tenant | Bombay HC (2013)

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W.P. NO. 4736/12

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FARAD CONTINUATION SHEET No . IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR

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WRIT PETITION NO. 4736 OF 2012

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SOU. POORNIMA W/O HEMANT HAJARE

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..VERSUS..

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STATE OF MAH., THRU. SECY., DEPTT OF SCHOOL EDN. & SPORTS, ,UMAI AND OTHERS

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

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Mr. M. P. Kariya, Advocate for the petitioner. Mr. D. P. Thakre, A.G.P. for respondent no.1 Mr. V. A. Dhabe, Advocate for respondent no.2 to 5 Mr. Bangadkar, Advocate for respondent no.5

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CORAM : B. P. DHARMADHIKARI and PRASANNA. B. VARALE, JJ. DATE : JANUARY 28, 2013.

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Heard learned counsel for the respective parties.

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The petitioner, working as a District Guide Organizer with respondent no.5 at Gadchiroli, has questioned the order of transfer dated 09.08.2012 issued by respondent no.4, whereby she is transferred on same post to Buldhana on administrative grounds. This Court has, on 03.10.2012, granted ad-interim stay and because of that stay, she has been permitted to join at Gadchiroli on 06.10.2012.

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Mr. Kariya, learned counsel for the petitioner submits that the impugned order has been issued in the

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W.P. NO. 4736/12

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middle of academic year/session and therefore, it is bad. Similarly, it is prior to completion of normal tenure of five years and therefore, also, it is unsustainable. Lastly, discrimination is pressed into service by alleging that other similarly situated employees, who have put in service of 10 to 15 years, are not disturbed and the petitioner is being shifted.

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The petition is being opposed by learned counsel Mr. Dhabe for respondent nos.2 to 5 and learned counsel Mr. Bangadkar, who has also filed his Vakalatnama for respondent no.5. Learned Assistant Government Pleader appears for respondent no.1.

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Learned respective counsel for the parties point out that the petitioner had unsuccessfully approached the Maharashtra Administrative Tribunal by filing Original Application, which came to be dismissed on 21.09.2012 with an observation that the respondent (petitioner herein) is not a government servant. It is further contended that the respondent-organization of Scouts and Guides is a Non Government Organization (NGO) and not an authority within the meaning of Article 12 of the Constitution of India. Lastly it is pointed out that

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W.P. NO. 4736/12

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entire petition is based upon violation of the provisions of The Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005, but the said Act is not applicable to the NGO. A chart annexed with the petition, showing total service put in by the petitioner, is also relied upon.

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Perusal of the chart shows that the petitioner has worked at Chandrapur from 03.04.2001 to 28.03.2006. From 29.03.2006, the petitioner was at Wardha. On 18.04.2006, her headquarter was again made at Chandrapur and she was given additional charge of Wardha. On 09.05.2008, she was transferred on request to Chandrapur and given additional charge of Gadchiroli. On 24.06.2010, she was transferred to Bhandara, where she worked for three months and was on leave for 201 days. On 01.07.2011, she was transferred on request back to Gadchiroli. Then comes the impugned order of transfer.

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Provisions of above mentioned Act of 2005 show that it defines ‘Government’ or ‘State Government’ to mean Government of Maharashtra in Section 2(d). The ‘Government Servant’ has been defined in Section

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2(f) to mean a government servant or employee as defined in Rule 2(b) of the Maharashtra Civil Services (Conduct) Rules, 1979. The phrase also include the All India Service Officers and employees (other than the judicial officers) under the administrative control of the Judiciary. Section 1 sub-section 3 of the said Act of 2005 itself stipulates that it applies to all Government servants in the State services including the All India Service Officers of the Maharashtra Cadre.

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The effort of Mr. Karia, learned counsel for the petitioner is to read definition in Rule 2(b) of M.C.S. (Conduct) Rules, 1979. That definition does not help the petitioner as it basically contemplates Government servant, who have been placed with the local authority or similar organization.

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We, therefore find that the provisions of the Act of 2005 are not applicable to the petitioner. Not only this, but the Maharashtra Administrative Tribunal has already held that the petitioner is not a government servant and that finding is not questioned in the present petition.

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The challenge as raised and reproduced above

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do not show any specific mala fide or allegation against any particular officer. Discrimination is the only ground alleged, but that too without joining any specific officer as party.

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The law on the point is well settled and reference can be made to the judgments of the Hon’ble Apex Court reported in A.I.R. 1993 Supreme Court 1236 (Rajendra Roy .vs. Union of India and another) ; and A.I.R. 1993 Supreme Court 2444 (Union of India and others .vs. S.L. Abbas) . The Apex Court has held that the transfer can be interfered with by the Courts of law only when it is in violation of any statutory provision or any mala fide are proved.

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Here, there are no allegation of mala fides and no statutory rule regulating the transfer is violated. The details of service put in by the petitioner show that she has been continuing mostly at Chandrapur from 2001 onwards, except for the intervening period when she was either at Bhandara or Wardha.

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The transfer order mentions administrative ground as the reason. The petitioner has not brought on record any material to enable this Court not to accept

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W.P. NO. 4736/12

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that it is incorrect. No case is, therefore, made out warranting interference in the matter.

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At this stage, learned counsel for the petitioner seeks continuation of ad-interim stay for a period of two weeks more. The respective counsel for the respondents have opposed the prayer of extension. However, in the interest of justice, we extend the ad-interim order as prayed for. Needless to state that the said order shall stand vacated automatically after a period of two weeks.

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The Writ Petition is dismissed and disposed of accordingly. No order as to costs.

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JUDGE JUDGE

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Diwale

Sou. Poornima W/O Hemant Hajare v. State of Maharashtra Thr Secty and Ors.

Case brief

What is this about?

What did the court decide?

Sou. Poornima W/O Hemant Hajare v. State of Maharashtra Thr Secty and Ors.

Case brief

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