High Court of Judicature at Bombay Quashes Transfer Order of Deputy Collector for Violating Mandatory Mid-Tenure Transfer Procedure under Section 4(5) of Maharashtra Government Servants Regulation of Transfer Act. Transfer held illegal as competent authority did not initiate proposal, record reasons, or obtain clear prior approval.

Writ petition under Article 226 of the Constitution of India challenging the order of the Maharashtra Administrative Tribunal which dismissed the petitioner's original application against his mid-tenure transfer order.

Petitioner sought quashing of the Tribunal's order dated 7 August 2018 and the transfer order dated 7 June 2018, and a direction to continue at his original posting.

The transfer order violated the mandatory requirements of Section 4(5) of the Maharashtra Government Servants Regulation of Transfer and Prevention of Delay in Discharge of Official Duties Act, 2005, as the competent authority did not initiate the proposal, no special reasons were recorded, and the prior approval of the immediately superior transferring authority was not properly obtained.

The Maharashtra Administrative Tribunal dismissed the petitioner's Original Application No.515 of 2018 on 7 August 2018, holding that the transfer was approved by the Revenue Minister and Chief Minister and special reasons existed.

Whether the mid-tenure transfer of the petitioner under Section 4(5) of the Maharashtra Government Servants Regulation of Transfer and Prevention of Delay in Discharge of Official Duties Act, 2005 was in compliance with the mandatory procedure, particularly the requirement that the competent authority must initiate the proposal, record special reasons in writing, and obtain prior approval of the immediately superior transferring authority under Section 6.

Petitioner argued that the transfer order was a mid-tenure transfer and the mandatory procedure under Section 4(5) was not followed; the competent authority did not initiate the transfer, no special reasons were recorded by the competent authority, and the Chief Minister’s approval was ambiguous and not in terms of the Section. Respondent State contended that the Revenue Minister made modifications to the Civil Services Board proposal in public interest for the Samruddhi project, and the Chief Minister approved the proposal, thereby complying with the Act. Respondent No.2 submitted that the provisions of the Transfer Act are regulatory, not prohibitory, and discretion exists for exceptions. Respondent No.3 relied on the decision in V.B. Gadekar v. Maharashtra Housing and Area Development Authority.

For a valid mid-tenure transfer under Section 4(5) of the Maharashtra Government Servants Regulation of Transfer and Prevention of Delay in Discharge of Official Duties Act, 2005, the competent authority must itself initiate the proposal, record specific special reasons in writing, and obtain the prior approval of the immediately superior transferring authority as per the table under Section 6. Non-compliance with any of these mandatory requirements renders the transfer order illegal and void.

Subsection (5) of Section 4 of the said Act, 2005 reads thus: “(5) Notwithstanding anything contained in section 3 or this section, the competent authority may, in special cases, after recording reasons in writing and with the prior [approval of the immediately superior] Transferring Authority mentioned in the table of section 6, transfer a Government Servant before completion of his tenure of post.” It is the case of the first respondent that the order of the transfer of the petitioner is under Subsection (5) of Section 4 of the said Act, 2005. Firstly, it is not the case of the first respondent that Hon'ble Minister of Revenue is the competent authority. The specific stand taken before the Tribunal is that the proposal for transfer of petitioner and second and third respondent was inserted in the proposal prepared by the Civil Services Board by the Hon'ble Minister. The transfer under SubSection (5) of Section 4 has been initiated by the competent authority by recording reasons in writing. The actual transfer is to be effected with the prior approval of the immediately superior transferring authority mentioned in the table of Section 6. We find that the mandatory provision of Section 4(5) has been completely breached. The object of the Act is to insulate the transfers from extraneous considerations and to provide stability of tenure. The machinery under Section 4(5) has to be strictly followed. The learned Member of the Tribunal completely misdirected himself.

1. On 7 June 2018, the State Government issued a transfer order transferring the petitioner mid-tenure from Sub-Divisional Officer, Bhiwandi to Deputy Collector (Land Acquisition No.4), Mumbai Suburban District. 2. The petitioner filed Original Application No.515 of 2018 before the Maharashtra Administrative Tribunal challenging the transfer. 3. The Tribunal dismissed the application on 7 August 2018, upholding the transfer. 4. The petitioner filed Writ Petition No.9844 of 2018 before the Bombay High Court under Article 226 of the Constitution. 5. By an order dated 11 September 2018, a Division Bench of the High Court recorded a prima facie finding that the transfer was illegal and called for the original file. 6. After hearing by a subsequent Bench, the High Court pronounced the final judgment on 4 February 2019, quashing the Tribunal’s order and the transfer order, and directing the State to pass fresh orders in accordance with law.

• Maharashtra Government Servants Regulation of Transfer and Prevention of Delay in Discharge of Official Duties Act, 2005: 4(5), 6
• Constitution of India: 226