Case Note & Summary
The petitioner, Shri A. P. Kamble, challenged an order dated 20 January 2014 passed by the original Application No.730/2011, which allowed the application of respondent No.2 and quashed the transfer order dated 2.08.2011 of respondent No.2, along with the consequential transfer of the petitioner in his place. The High Court of Bombay heard the matter finally by consent. The court noted that there was no dispute regarding the applicability of the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005. Both counsel referred to Sections 4 and 6 of the Act, which deal with the tenure of transfer and the Transferring Authority's power. The court observed that Section 6(b) was applicable, designating the Competent Authority as the 'Minister in charge in consultation with Secretary of the concerned Department'. The procedure under Section 4 normally cannot be overlooked, including the restriction on transferring an employee within a span of three years and the requirement that transfer be made only once a year in April or May. However, employees can be transferred at any time if a case is made out, subject to conditions. Section 4(5) empowers the Competent Authority to transfer after recording reasons in writing and with prior permission of the immediately preceding Competent Transferring Authority. The court found that the impugned order was passed without complying with these requirements, and therefore quashed the transfer order. The court directed that the order be implemented within two weeks. The judgment was delivered on 27 February 2014 by a division bench comprising Justices Anoop V. Mohta and A. A. Sayed.
Headnote
A) Service Law - Transfer - Validity of Transfer Order - Sections 4, 6(b) of Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005 - The impugned transfer order was quashed as it was passed without recording reasons and without prior permission of the immediately preceding Competent Transferring Authority as required under Section 4(5) of the Act - Held that the transfer order was not in compliance with the statutory provisions and therefore unsustainable (Paras 2-3).
Issue of Consideration
Whether the transfer order dated 2.08.2011 and the consequential order of transfer of the petitioner were valid under the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005
Final Decision
The impugned order dated 20 January 2014 is upheld. The transfer order dated 2.08.2011 of respondent No.2 is quashed and set aside, and the consequential order of transfer of the petitioner in his place is also quashed. Directions issued to implement this order within two weeks from the date of the order.
Law Points
- Transfer order must comply with Section 4(5) of the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act
- 2005
- requiring recording of reasons and prior permission of the immediately preceding Competent Transferring Authority
- Transfer within three years is prohibited unless exceptional circumstances exist
- Competent Authority under Section 6(b) is Minister in charge in consultation with Secretary
