DR. NAGORAO SHIVAJI CHAVAN versus DR. SUNIL PURUSHOTTAM BHAMRE & ORS. on 15 November 2018

O R D E R

1. Leave granted.

2. It is a case where we find that Respondent No.1 was transferredfrom the post of Civil Surgeon, Jalgaon vide order dated 05.08.2017, asAssistant Director, AIDS Control Society, Wadala, Mumbai. By thesame order, the Appellant had been transferred to the post of DistrictCivil Surgeon, General Hospital, Jalgaon. 67 other doctors were alsotransferred on administrative grounds from one place to another.

3. Respondent No.1 had been appointed as MedicalSuperintendent, Ghoti District, Nasik, in September, 1996 and remainedthere till July, 2002. In July, 2002, he was transferred from Ghoti toNasik as a proper Medical Officer, where he worked till 13.06.2005.Vide order dated 13.06.2005, Respondent No.1 was transferred fromNasik to Jahwar tribal place in Thane District, but he did not join at theplace where he was transferred for five years and 20 days. Again, heobtained his posting back to District Hospital, Nasik vide order dated03.07.2010 and remained posted at Nasik till 03.03.2014. Thereafter, on05.03.2014, Respondent No.1 was transferred from District Hospital,Nasik, to District Civil Hospital, Dhule, as Civil Surgeon.

4. On 16.08.2016, Respondent No.1 was transferred from Dhuleto Jalgaon, and as a Civil Surgeon he joined there.

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5. There are various allegations made as to his functioning.However, what is significant is that Chief Executive Officer, Jalgaon,wrote a letter to the Commissioner, Health Services and Director NationalHealth Mission, Mumbai, pointing out the financial irregularities, acts ofomission and commission committed by Respondent No.1 while he wasBdischarging his duties as Civil Surgeon, Jalgaon. On 05.06.2017, aCommittee was constituted to look into the conduct of Respondent No.1.The Enquiry Committee found a prima facie case against RespondentNo.1 of financial and procedural irregularities and insubordination videreport dated 18.08.2017.

6. It transpires that the appellant and others had questioned theCdecision taken by the Government of non-practicing allowance vide G.R.dated 07.08.2012. There was yet another incident at Beed whenappellant was posted at Beed. He had conducted a cesarean surgeryon Mrs. Vaishali Bansode and it was claimed that she died due to medicalnegligence of the appellant; post-mortem was conducted; a CommitteeDwas formed and the Committee found him guilty of medical negligence,he was found practicing and drawing non-practicing allowance. Thisfact is disputed by the appellant. He had filed a representation which isstated to be pending consideration. There were certain charges levelledon appellant of improperly touching certain women during the course ofNurse selection. For inquiring into the said allegations, a CommitteeEwas also constituted. The Committee exonerated the appellant and thecomplaint was found to be baseless as per report dated 17.09.2018.

7. In the aforesaid backdrop of facts, Respondent No.1 wastransferred from Jalgaon to Mumbai and the appellant was transferredin his place as to take over as Civil Surgeon, Jalgaon. The order wasFsuccessfully assailed by the appellant before the MaharashtraAdministrative Tribunal. The Tribunal allowed the application vide orderdated 01.02.2018. The High Court declined to interfere, as such theappeal is before us. The Government has supported its order of transferdated 05.08.2017. The order has been questioned on the ground ofGviolation of statutory provisions prescribing normal tenure of three years.

8. After hearing learned counsel for the parties at length, we areof the opinion that the High Court as well as the Tribunal have erred inlaw in the facts and circumstances of the case in relying upon theprovisions contained in Section 3 and Section 4 of the MaharashtraHGovernment Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005 (hereinafter referred to as“the Act”). Sections 3 and 4 are extracted hereunder:

“3. Tenure of posting. -

(1) For All India Service Officers and all Groups A, B and CState Government Servants or employees, the normal tenure in apost shall be three years:

Provided that, when such employee is from the non-secretariatservices, in Group C, such employee shall be transferred from thepost held, on his completion of two full tenures at that office ordepartment, to another office or Department:

Provided further that, when such employee belongs tosecretariat services, such employee shall not be continued in thesame post for more than three years and shall not be continued inthe same Department for more than two consecutive tenures.

(2) Employees in Group D shall normally not be subjected to fixedtenure. They shall not be transferred out from the station wherethey are serving except on request when a clear vacancy existsat the station where posting is sought, or on mutual transfer, orwhen a substantiated complaint of serious nature is received againstthem.

4. Tenure of transfer. -

(1) No Government servant shall ordinarily be transferredunless he has completed his tenure of posting as provided insection 3.

(2) The competent authority shall prepare every year in the monthof January, a list of Government servants due for transfer, in themonth of April and May in the year.

(3) Transfer list prepared by the respective competent authorityunder sub-section (2) for Group A Officers specified in entries(a) and (b) of the table under section 6 shall be finalized by theChief Minister or the concerned Minister, as the case may be, inconsultation with the Chief Secretary or concerned Secretary ofthe Department, as the case may be:

Provided that, any dispute in the matter of such transfers shallbe decided by the Chief Minister in consultation with the ChiefSecretary.

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A(4) The transfers of Government servants shall ordinarily bemade only once in a year in the month of April or May:

Provided that, transfer may be made any time in the year inthe circumstances as specified below, namely:—

(i) to the newly created post or to the posts which becomevacant due to retirement, promotion, resignation, reinstatement,consequential vacancy on account of transfer or on return fromleave; B

(ii) where the competent authority is satisfied that the transfer isessential due to exceptional circumstances or special reasons, afterCrecording the same in writing and with the prior approval of thenext higher authority.

(5) Notwithstanding anything contained in section 3 or thissection, the competent authority may, in special cases, afterrecording reasons in writing and with the prior 1 [approval of theDimmediately superior] Transferring Authority mentioned in the tableof Section 6, transfer a Government servant before completion ofhis tenure of post.”

9. Section 3, no doubt, provides that for All India Service Officersand all Groups, A, B and C State Government Servants or employees,Enormal tenure in a post shall be three years. However, it is open inSection 4 to make a departure from the said normal tenure and theexpression used in Section 4 is that no Government servant shall‘ordinarily’ be transferred unless he has completed his tenure of postingas provided in Section 3. Thus, it is apparent from the conjoint readingof Sections 3 and 4 that though the normal tenure is 3 years but in theFadministrative exigencies a transfer is still permissible. There is no totalembargo. No doubt the statutory provision of tenure is required to beobserved unless special exigency arises. In the backdrop of the factsthat complaint had been lodged by Chief Executive Officer, Zila Parishad,inquiry had been made into that and the allegations of financialGirregularities and insubordination have been found to be substantiated. Itwas absolutely proper not to retain Respondent No.1 as Civil Surgeon,Jalgaon. It was not in the interest of the administration to retain him anyfurther at the said place. Though, it was contended by learned counselappearing on behalf of Respondent No.1 that no financial irregularity orinsubordination was committed by Respondent No.1. We cannotH

adjudicate upon this issue at this stage, as it is for the Government todecide it. But there was sufficient administrative ground to transferRespondent no.1 from the post of Civil Surgeon, Jalgaon to AssistantDirector, AIDS Control Society, Wadala, Mumbai.

10. In B. Varadha Rao Vs. State of Karnataka & Ors., (1986) 4SCC 131, this Court has observed with respect to transfer of Class Iofficers, thus -

“4. ……….. That a Government servant is liable to be transferredto a similar post in the same cadre is a normal feature and incidentof Government service and no Government servant can claim toremain in a particular place or in a particular post unless, of course,his appointment itself is to a specified, non-transferable post. Asthe learned Judges rightly observe :

The norms enunciated by Government for the guidance of itsofficers in the matter of regulating transfers are more in thenature of guidelines to the officers who order transfers in theexigencies of administration than vesting of any immunity fromtransfer in the Government servants.

5. It is no doubt true that if the power of transfer is abused, theexercise of the power is vitiated. But it is one thing to say that anorder of transfer which is not made in public interest but forcollateral purposes and with oblique motives is vitiated by abuseof powers, and an altogether different thing to say that such anorder per se made in the exigencies of service varies any conditionof service, express or implied to the disadvantage of the concernedGovernment servant. The petitioner who appeared in person placedreliance, as he did in the High Court, on the decision of the BombayHigh Court in Seshrao Nagorao Umap Vs. State of Maharashtra& Ors. (1985) 2 LLJ 73 (Bom.). We do not see how the decisioncan be of any avail to the question at issue. The learned Judgeswere dealing with a petition under Article 226 of the Constitutionby which a Medical Officer challenged his order of transfer onthe ground that it was not only mala fide but was issued incolourable exercise of power and therefore wholly illegal and void.It was contended by the petitioner that he was being transferredcontrary to the Government policy with a view to accommodateone Dr. R.P. Patil because of the political influence he wielded. In A

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allowing the writ petition, the learned Judges observed that it wasno doubt true that the Government has power to transfer itsemployees employed in a transferable post but this power has tobe exercised bona, fide to meet the exigencies of the administration.If the power is exercised mala fide, then obviously the order oftransfer is liable to be struck down. They relied on the observationsmade by this Court in E.P. Royappa V. State of Tamil Nadu andAnr. for the positivistic view that ‘equality is antithetic toarbitrariness’ and held that the observations equally apply to thepolicy regarding the transfer of public servants. It wasobserved :

It is an accepted principle that in public service transfer is anincident of service. It is also an implied condition of serviceand appointing authority has a wide discretion in the matter.The Government is the best judge to decide how to distributeand utilise the services of its employees. However, this powermust be exercised honestly, bona fide and reasonably. It should

be exercised in public interest. If the exercise of power isbased on extraneous considerations or for achieving an alienpurpose or an oblique motive it would amount to mala fide andcolourable exercise of power. Frequent transfers, withoutsufficient reasons to justify such; transfers, cannot, but be heldas mala fide. A transfer is mala fide when it is made not forprofessed purpose, such as in normal course or in public oradministrative interest or in the exigencies of service but forother purpose, than is to accommodate another person forundisclosed reasons. It is the basic principle of rule of law andgood administration, that even administrative actions shouldbe just and fair.

The observation that transfer is also an implied condition of serviceis just an observation in passing. It certainly cannot be relied uponin support of the contention that an order of transfer ipso factovaries to the disadvantage of a Government service, any of hisconditions of service making the impugned order appealable underRule 19(1)(a) of the Rules.

6. One cannot but deprecate that frequent, unscheduled andunreasonable transfers can uproot a family, cause irreparable harmto a Government servant and drive him to desperation. It disrupts the education of his children and leads to numerous othercomplications and problems and results in hardship anddemoralisation. It therefore follows that the policy of transfer shouldbe reasonable and fair and should apply to everybody equally.But, at the same time, it cannot be forgotten that so far as superioror more responsible posts are concerned, continued posting atone station or in one department of the Government is notconductive to good administration. It creates vested interest andtherefore we find that even from the British times the generalpolicy has been to restrict the period of posting for a definite period.We wish to add that the position of Class III and Class IVemployees stand on a different footing. We trust that theGovernment will keep these considerations in view while makingan order of transfer.”

11. Notwithstanding the provisions contained in Section 3 whichuses the expression that “ordinarily the tenure is three years”, in ouropinion in exceptional circumstances in a given case, or in the case ofadministrative exigencies, transfer is permissible, and no absolute bar ontransfer is created by virtue of the provisions contained in section 3 readwith section 4. In the facts and circumstances of the case and alsoconsidering the past record of respondent No.1 of not joining the placewhere he was transferred for five years, no interference with the orderof transfer is called for.

12. Resultantly, the appeal is allowed. We set aside the orderspassed by the tribunal as well as by the High Court. We observe thatRespondent No.1 has not joined at Mumbai in spite of the fact that nointerim stay had been granted by the Tribunal till the final order waspassed by the Tribunal on 01.02.2018. The aforesaid conduct ofRespondent No.1 is not proper. Now in case he fails to join within 15days at the post he has been transferred at Mumbai, the State Governmentshall initiate appropriate disciplinary proceedings against him. Letcompliance of the order be reported to this Court by Respondent No.1.

Divya Pandey

Appeal allowed.

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