Geeta vs The State of Maharashtra and Others

B.R. Gavai, J.—Heard.

Rule. Rule made returnable forthwith. By consent of the parties, the petition is taken up for hearing finally.

Though the respondent No. 4 is duly served, none appears for him.

By way of the present petition, the petitioner challenges the order dated 2nd September, 2014, vide which, the petitioner is transferred from Ayurvedic Dispensary Shivapur to Primary Health Centre, Titur.

The petitioner was initially transferred to Shivapur from Musewadi vide order dated 28th June, 2014. However, within a period of 2 1/2 months, the petitioner is again transferred to Titur from Shivapur. Being aggrieved thereby the petitioner has approached this court.

Heard Mr. Walthare, learned counsel for the petitioner, Mrs. Maldhure, learned counsel for the respondents 2 and 3 and Mrs. N.P. Mehta, learned AGP for respondent No. 1.

The learned counsel for the petitioner submits that the transfer of the petitioner within 2 1/2 months was effected only in order to favour the respondent No. 4. He, therefore, submits that the impugned order deserves to be quashed and set aside.

Mrs. Maldhure, the learned counsel appearing for the Zilla Parishad, on the contrary, submits that the transfer order of the respondent No. 4 was effected as was sanctioned by the State Government on his own request. She, therefore, submits that the impugned order warrants no interference.

Rule 4 of the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005, fell for consideration before the Division Bench of this court to which one of us (i.e. B.R. Gavai, J.) was a party, in the case of Ramakant Baburao Kendre Vs. The State of Maharashtra and Vishwanath Babunath Nath, . After considering the provisions of Rule 4 of the said Act, the Division Bench has observed thus:--

"15. In the said case i.e. Writ Petition No. 5835/2011, decided by us on 15th September, 2011, the learned counsel for Respondent No. 3 therein, had raised a contention that the Proviso governs the main provision. The said contention was rejected. After considering the principle of harmonious construction which is also popularly known as ''Heydon''s Rule of Interpretation'', this Court observed thus :

"12] There is another angle. It is to be seen that prior to enactment of the said Act, there was no enactment for regulation of transfers of Government servants and the said Act has been enacted with a purpose to regulate the transfers of the Government servants. The Constitution Bench of the Apex Court in the case of The Bengal Immunity Company Limited Vs. The State of Bihar and Others, has applied the Heydon''s rule of interpretation and observed thus:

"It is a sound rule of construction of a statute firmly established in England as far back as 1584 when Heydon''s case ((1584 3 Co.Rep. 7a, p. 7b) was decided that for the sure and true interpretation of all Statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:

1st - What was the common law before the making of the Act.

2nd - What was the mischief and defect for which the common law did not provide.

3rd - What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth, and

4th - The true reason of the remedy;

and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico."

It can thus be seen that while interpreting the aforesaid provision of the said Act, this Court would also have to apply Heydon''s rule or the mischief rule. It will have to be seen as to what was the position before making the enactment of the Act. What was the mischief and defect for which the law did not provide earlier and what remedy the legislature has found to cure the disease and the true reason of the remedy. After applying this, the Courts will have to make such interpretation, which shall suppress the mischief and advance the remedy. This legal principle has been consistently followed by the Apex Court and various High Courts while interpreting the statutes. It can be seen that prior to the aforesaid enactment coming into force, there was no enactment to regulate the transfers of the Government servants and the Government servants were transferred at the sweet will of the authorities concerned. In order to do away with the arbitrary powers of the authorities, an enactment to regulate such transfers was found necessary. With that purpose, to suppress the mischief of an unguided, unchannalized power to transfer the Government servants, the said Act was enacted. The remedy provided was to regulate the transfers in accordance with the said enactment.

13] It can clearly be seen that the said enactment, particularly Sub-section (1) of Section 4 specifically protects a Government servant from being transferred prior to completion of his ordinary tenure. Sub-section (4) of Section 4 requires such transfers to be done once in a year i.e. in the month of April or May. The proviso thereto, though permits the transfers to be made any time in the year for the eventualities mentioned therein, however, we are of the considered view that the proviso to Sub-section (4) cannot be read in such a manner, which makes the provision of Sub-section (1) of Section 4 redundant or nugatory. Clause (i) of the proviso to Sub-section (4), which permits transfer to be made at any time in a year on the ground of eventualities mentioned therein, will have to be read in a manner that the transfer on the grounds mentioned in clause (i) of proviso to Sub-section (4) would be permissible at any time of the year and not necessarily in April or May when a Government servant has completed his tenure of posting. If it is not read in that manner, the very purpose of the protection, which is granted in Sub-section (1) of Section 4 would become redundant and nugatory. A person, who has not completed even three months in a particular posting, could be transferred to some post, which has become vacant on account of transfer of another Government servant, who was working on the post. As such, the clause (i) of proviso to Sub- section (4) will have to be read in harmony with Sub-section (1) of Section 4 of the said Act. It will have to be interpreted that a Government servant will not be ordinarily transferred prior to completion of his tenure, and the transfers will have to be made only in the month of April or May. However, if transfer is necessitated on account of any of eventualities stated in clause (i) to proviso of Sub-section (4), it can be made at any time of the year and not necessarily in April or May, however, only on completion of tenure of the Government servant. No doubt, that clause (ii) of proviso to Sub-section (4) would permit transfer to be made at any time of the year and not necessarily in April or May, where the competent authority is satisfied that the transfer is essential due to exceptional circumstances or special reasons. However, when this is being done, the reasons and the circumstances will have to be recorded in writing and the same cannot be done without prior approval of the next higher authority. Undisputedly, Sub-section (5) of Section 4 carves out an exception to the general protection granted in Sub-section (1) of Section 4 . No doubt, by taking recourse to Sub-section (5), a Government servant can be transferred even prior to completion of his tenure and even at any time of the year and not necessarily in the month of April or May, in special cases. However, while doing so, the competent authority will be required to record the reasons in writing and would also be required to obtain prior approval of the immediately superior Transferring Authority as mentioned in the table of Section 6 . As already discussed, the provision of Sub-section (5) of Section 4 carves out an exception to the protection granted in favour of an employee in Subsection (1) of the said section. It is to be noted that for that reason, the legislature has made an inbuilt safeguard in Sub-section (5) by requiring the reasons to be recorded for making transfer as a special case and obtaining approval of the immediately superior Transferring Authority. It is, thus, clear that the legislative intent is clear that ordinarily an employee should not be transferred prior to completion of his tenure. However, this would be permissible in special cases when the competent authority records the reasons for the same and obtains prior approval of the immediately superior Transferring Authority. "

It can, thus, be clearly seen that the Division Bench has held that the legislative intent is clear that ordinarily an employee should not be transferred prior to completion of his tenure. However, this would be permissible in special cases when the competent authority records the reasons for the same and obtains prior approval of the immediately superior transferring authority.

In the present case, it can clearly be seen that the transfer of respondent No. 4 was on his own request. However, no special reasons are produced on record to show that any exceptional case is made out for transferring the petitioner within a period of three years. It is a settled principle of law that when the law requires a particular thing to be done in a particular manner, then it has to be done in that manner alone or not. In the present case, we find that the transfer of the petitioner within 2 1/2 months i.e. much prior to completion of her tenure, was not permissible in the absence of any exceptional reason which shows.

Hence, the petition is allowed. The order dated 28th August, 2014 issued by the State of Maharashtra and the order dated 2nd September, 2014 issued transferring the petitioner from Shivapur to Titur are quashed and set aside. The respondent Zilla Parishad is directed to permit the petitioner to join at Shivapur within a period of one week from today.

Rule is made absolute in the aforesaid terms. No order as to costs.