DR. NAGORAO SHIVAJI CHAVANversusDR. SUNIL PURUSHOTTAM BHAMRE & ORS.

380                SUPREME[2018]
                           COURT 14REPORTS
                                   S.C.R. 380              [2018] 14 S.C.R.


A                    DR. NAGORAO SHIVAJI CHAVAN
                                        v.
              DR. SUNIL PURUSHOTTAM BHAMRE & ORS.
                        (Civil Appeal No. 10991 of 2018)
B                            NOVEMBER 15, 2018
               [ARUN MISHRA AND VINEET SARAN, JJ.]
            Maharashtra Government Servants Regulation of Transfers
      and Prevention of Delay in Discharge of Official Duties Act, 2005
      – ss.3, 4 – Respondent No.1 posted as Civil Surgeon, Jalgaon
C
      transferred as Asstt. Director, AIDS Control Society, Wadala, Mumbai
      – By the same order, the Appellant was transferred in his place to
      take over as Civil Surgeon, Jalgaon – Transfer Order questioned
      on the ground of violation of statutory provisions prescribing normal
      tenure of three years – Held: s.3, 2005 Act provides that for All
D     India Service Officers and all Groups, A, B and C State Government
      Servants or employees, normal tenure in a post shall be three years
      – However, it is open in s.4, 2005 Act to make a departure from the
      said normal tenure and the expression used in the said section is
      that no Government servant shall ‘ordinarily’ be transferred unless
      he has completed his tenure of posting as provided in s.3 – Thus, on
E
      a conjoint reading of ss.3 and 4 it is apparent that though the normal
      tenure is 3 years but in administrative exigencies a transfer is still
      permissible – There is no total embargo – In view of the facts that
      inter alia allegations of financial irregularities were found to be
      substantiated against Respondent No.1, it was absolutely proper
F     not to retain him as Civil Surgeon, Jalgaon – There was sufficient
      administrative ground to transfer him from Jalgaon to Mumbai – In
      the facts and circumstances of the case and also considering the
      past record of Respondent No.1 of not joining the place where he
      was transferred for five years, no interference with the order of
      transfer is called for – Service Law.
G
            B. Varadha Rao v. State of Karnataka & Ors. (1986) 4
            SCC 131 – referred to.



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                                       380
              DR. NAGORAO SHIVAJI CHAVAN v.                                  381
         DR. SUNIL PURUSHOTTAM BHAMRE & ORS.

                        Case Law Reference                                   A
(1986) 4 SCC 131                  referred to                 Para 10
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10991
of 2018.
      From the Judgment and Order dated 05.09.2018 of the High Court         B
of Judicature at Bombay, Bench at Aurangabad in Writ Petition
No. 1554 of 2018.
      Pravin Satale, Rajiv Shankar Dvivedi Advs. for the Appellant.
     Sanjay Kharde, Samrat Shinde, Saju Jakob for Sunil Kumar Verma,
Ms. Deepa M. Kulkarni, Nishant R. Katneshwarkar,, Advs. for the              C
Respondents.
      The following Order of the Court was passed :
                              ORDER
      1. Leave granted.                                                      D
       2. It is a case where we find that Respondent No.1 was transferred
from the post of Civil Surgeon, Jalgaon vide order dated 05.08.2017, as
Assistant Director, AIDS Control Society, Wadala, Mumbai. By the
same order, the Appellant had been transferred to the post of District
Civil Surgeon, General Hospital, Jalgaon. 67 other doctors were also         E
transferred on administrative grounds from one place to another.
       3. Respondent No.1 had been appointed as Medical
Superintendent, Ghoti District, Nasik, in September, 1996 and remained
there till July, 2002. In July, 2002, he was transferred from Ghoti to
Nasik as a proper Medical Officer, where he worked till 13.06.2005.          F
Vide order dated 13.06.2005, Respondent No.1 was transferred from
Nasik to Jahwar tribal place in Thane District, but he did not join at the
place where he was transferred for five years and 20 days. Again, he
obtained his posting back to District Hospital, Nasik vide order dated
03.07.2010 and remained posted at Nasik till 03.03.2014. Thereafter, on
05.03.2014, Respondent No.1 was transferred from District Hospital,          G
Nasik, to District Civil Hospital, Dhule, as Civil Surgeon.
       4. On 16.08.2016, Respondent No.1 was transferred from Dhule
to Jalgaon, and as a Civil Surgeon he joined there.

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382                SUPREME COURT REPORTS                      [2018] 14 S.C.R.


A            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 National
      Health Mission, Mumbai, pointing out the financial irregularities, acts of
      omission and commission committed by Respondent No.1 while he was
B     discharging his duties as Civil Surgeon, Jalgaon. On 05.06.2017, a
      Committee was constituted to look into the conduct of Respondent No.1.
      The Enquiry Committee found a prima facie case against Respondent
      No.1 of financial and procedural irregularities and insubordination vide
      report dated 18.08.2017.
              6. It transpires that the appellant and others had questioned the
C
      decision taken by the Government of non-practicing allowance vide G.R.
      dated 07.08.2012. There was yet another incident at Beed when
      appellant was posted at Beed. He had conducted a cesarean surgery
      on Mrs. Vaishali Bansode and it was claimed that she died due to medical
      negligence of the appellant; post-mortem was conducted; a Committee
D     was formed and the Committee found him guilty of medical negligence,
      he was found practicing and drawing non-practicing allowance. This
      fact is disputed by the appellant. He had filed a representation which is
      stated to be pending consideration. There were certain charges levelled
      on appellant of improperly touching certain women during the course of
      Nurse selection. For inquiring into the said allegations, a Committee
E
      was also constituted. The Committee exonerated the appellant and the
      complaint was found to be baseless as per report dated 17.09.2018.
             7. In the aforesaid backdrop of facts, Respondent No.1 was
      transferred from Jalgaon to Mumbai and the appellant was transferred
      in his place as to take over as Civil Surgeon, Jalgaon. The order was
F     successfully assailed by the appellant before the Maharashtra
      Administrative Tribunal. The Tribunal allowed the application vide order
      dated 01.02.2018. The High Court declined to interfere, as such the
      appeal is before us. The Government has supported its order of transfer
      dated 05.08.2017. The order has been questioned on the ground of
G     violation of statutory provisions prescribing normal tenure of three years.
             8. After hearing learned counsel for the parties at length, we are
      of the opinion that the High Court as well as the Tribunal have erred in
      law in the facts and circumstances of the case in relying upon the
      provisions contained in Section 3 and Section 4 of the Maharashtra
H     Government Servants Regulation of Transfers and Prevention of Delay
             DR. NAGORAO SHIVAJI CHAVAN v.                                   383
        DR. SUNIL PURUSHOTTAM BHAMRE & ORS.

in Discharge of Official Duties Act, 2005 (hereinafter referred to as        A
“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 C
      State Government Servants or employees, the normal tenure in a
      post shall be three years:                                             B

         Provided that, when such employee is from the non-secretariat
      services, in Group C, such employee shall be transferred from the
      post held, on his completion of two full tenures at that office or
      department, to another office or Department:
                                                                             C
         Provided further that, when such employee belongs to
      secretariat services, such employee shall not be continued in the
      same post for more than three years and shall not be continued in
      the same Department for more than two consecutive tenures.
      (2) Employees in Group D shall normally not be subjected to fixed      D
      tenure. They shall not be transferred out from the station where
      they are serving except on request when a clear vacancy exists
      at the station where posting is sought, or on mutual transfer, or
      when a substantiated complaint of serious nature is received against
      them.
                                                                             E
         4. Tenure of transfer. -
         (1) No Government servant shall ordinarily be transferred
      unless he has completed his tenure of posting as provided in
      section 3.
      (2) The competent authority shall prepare every year in the month      F
      of January, a list of Government servants due for transfer, in the
      month of April and May in the year.
      (3) Transfer list prepared by the respective competent authority
      under sub-section (2) for Group A Officers specified in entries
      (a) and (b) of the table under section 6 shall be finalized by the     G
      Chief Minister or the concerned Minister, as the case may be, in
      consultation with the Chief Secretary or concerned Secretary of
      the Department, as the case may be:
         Provided that, any dispute in the matter of such transfers shall
      be decided by the Chief Minister in consultation with the Chief        H
      Secretary.
384                 SUPREME COURT REPORTS                      [2018] 14 S.C.R.


A             (4) The transfers of Government servants shall ordinarily be
            made only once in a year in the month of April or May:
               Provided that, transfer may be made any time in the year in
            the circumstances as specified below, namely:—
               (i) to the newly created post or to the posts which become
B           vacant due to retirement, promotion, resignation, reinstatement,
            consequential vacancy on account of transfer or on return from
            leave;
            (ii) where the competent authority is satisfied that the transfer is
            essential due to exceptional circumstances or special reasons, after
C           recording the same in writing and with the prior approval of the
            next higher authority.
               (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 1 [approval of the
D           immediately superior] Transferring Authority mentioned in the table
            of Section 6, transfer a Government servant before completion of
            his tenure of post.”
             9. Section 3, no doubt, provides that for All India Service Officers
      and all Groups, A, B and C State Government Servants or employees,
E     normal tenure in a post shall be three years. However, it is open in
      Section 4 to make a departure from the said normal tenure and the
      expression used in Section 4 is that no Government servant shall
      ‘ordinarily’ be transferred unless he has completed his tenure of posting
      as provided in Section 3. Thus, it is apparent from the conjoint reading
F     of Sections 3 and 4 that though the normal tenure is 3 years but in the
      administrative exigencies a transfer is still permissible. There is no total
      embargo. No doubt the statutory provision of tenure is required to be
      observed unless special exigency arises. In the backdrop of the facts
      that complaint had been lodged by Chief Executive Officer, Zila Parishad,
      inquiry had been made into that and the allegations of financial
G     irregularities and insubordination have been found to be substantiated. It
      was absolutely proper not to retain Respondent No.1 as Civil Surgeon,
      Jalgaon. It was not in the interest of the administration to retain him any
      further at the said place. Though, it was contended by learned counsel
      appearing on behalf of Respondent No.1 that no financial irregularity or
      insubordination was committed by Respondent No.1. We cannot
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              DR. NAGORAO SHIVAJI CHAVAN v.                                     385
         DR. SUNIL PURUSHOTTAM BHAMRE & ORS.

adjudicate upon this issue at this stage, as it is for the Government to        A
decide it. But there was sufficient administrative ground to transfer
Respondent no.1 from the post of Civil Surgeon, Jalgaon to Assistant
Director, AIDS Control Society, Wadala, Mumbai.
       10. In B. Varadha Rao Vs. State of Karnataka & Ors., (1986) 4
SCC 131, this Court has observed with respect to transfer of Class I            B
officers, thus -
      “4. ……….. That a Government servant is liable to be transferred
      to a similar post in the same cadre is a normal feature and incident
      of Government service and no Government servant can claim to
      remain in a particular place or in a particular post unless, of course,   C
      his appointment itself is to a specified, non-transferable post. As
      the learned Judges rightly observe :
         The norms enunciated by Government for the guidance of its
         officers in the matter of regulating transfers are more in the
         nature of guidelines to the officers who order transfers in the        D
         exigencies of administration than vesting of any immunity from
         transfer in the Government servants.
      5. It is no doubt true that if the power of transfer is abused, the
      exercise of the power is vitiated. But it is one thing to say that an
      order of transfer which is not made in public interest but for            E
      collateral purposes and with oblique motives is vitiated by abuse
      of powers, and an altogether different thing to say that such an
      order per se made in the exigencies of service varies any condition
      of service, express or implied to the disadvantage of the concerned
      Government servant. The petitioner who appeared in person placed
      reliance, as he did in the High Court, on the decision of the Bombay      F
      High Court in Seshrao Nagorao Umap Vs. State of Maharashtra
      & Ors. (1985) 2 LLJ 73 (Bom.). We do not see how the decision
      can be of any avail to the question at issue. The learned Judges
      were dealing with a petition under Article 226 of the Constitution
      by which a Medical Officer challenged his order of transfer on            G
      the ground that it was not only mala fide but was issued in
      colourable exercise of power and therefore wholly illegal and void.
      It was contended by the petitioner that he was being transferred
      contrary to the Government policy with a view to accommodate
      one Dr. R.P. Patil because of the political influence he wielded. In
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386          SUPREME COURT REPORTS                      [2018] 14 S.C.R.


A     allowing the writ petition, the learned Judges observed that it was
      no doubt true that the Government has power to transfer its
      employees employed in a transferable post but this power has to
      be exercised bona, fide to meet the exigencies of the administration.
      If the power is exercised mala fide, then obviously the order of
      transfer is liable to be struck down. They relied on the observations
B
      made by this Court in E.P. Royappa V. State of Tamil Nadu and
      Anr. for the positivistic view that ‘equality is antithetic to
      arbitrariness’ and held that the observations equally apply to the
      policy regarding the transfer of public servants. It was
      observed :
C        It is an accepted principle that in public service transfer is an
         incident of service. It is also an implied condition of service
         and appointing authority has a wide discretion in the matter.
         The Government is the best judge to decide how to distribute
         and utilise the services of its employees. However, this power
D        must be exercised honestly, bona fide and reasonably. It should
         be exercised in public interest. If the exercise of power is
         based on extraneous considerations or for achieving an alien
         purpose or an oblique motive it would amount to mala fide and
         colourable exercise of power. Frequent transfers, without
         sufficient reasons to justify such; transfers, cannot, but be held
E        as mala fide. A transfer is mala fide when it is made not for
         professed purpose, such as in normal course or in public or
         administrative interest or in the exigencies of service but for
         other purpose, than is to accommodate another person for
         undisclosed reasons. It is the basic principle of rule of law and
F        good administration, that even administrative actions should
         be just and fair.
      The observation that transfer is also an implied condition of service
      is just an observation in passing. It certainly cannot be relied upon
      in support of the contention that an order of transfer ipso facto
G     varies to the disadvantage of a Government service, any of his
      conditions of service making the impugned order appealable under
      Rule 19(1)(a) of the Rules.
      6. One cannot but deprecate that frequent, unscheduled and
      unreasonable transfers can uproot a family, cause irreparable harm
H     to a Government servant and drive him to desperation. It disrupts
              DR. NAGORAO SHIVAJI CHAVAN v.                                       387
         DR. SUNIL PURUSHOTTAM BHAMRE & ORS.

      the education of his children and leads to numerous other                   A
      complications and problems and results in hardship and
      demoralisation. It therefore follows that the policy of transfer should
      be reasonable and fair and should apply to everybody equally.
      But, at the same time, it cannot be forgotten that so far as superior
      or more responsible posts are concerned, continued posting at
                                                                                  B
      one station or in one department of the Government is not
      conductive to good administration. It creates vested interest and
      therefore we find that even from the British times the general
      policy has been to restrict the period of posting for a definite period.
      We wish to add that the position of Class III and Class IV
      employees stand on a different footing. We trust that the                   C
      Government will keep these considerations in view while making
      an order of transfer.”
       11. Notwithstanding the provisions contained in Section 3 which
uses the expression that “ordinarily the tenure is three years”, in our
opinion in exceptional circumstances in a given case, or in the case of           D
administrative exigencies, transfer is permissible, and no absolute bar on
transfer is created by virtue of the provisions contained in section 3 read
with section 4. In the facts and circumstances of the case and also
considering the past record of respondent No.1 of not joining the place
where he was transferred for five years, no interference with the order
of transfer is called for.                                                        E

       12. Resultantly, the appeal is allowed. We set aside the orders
passed by the tribunal as well as by the High Court. We observe that
Respondent No.1 has not joined at Mumbai in spite of the fact that no
interim stay had been granted by the Tribunal till the final order was
passed by the Tribunal on 01.02.2018. The aforesaid conduct of                    F
Respondent No.1 is not proper. Now in case he fails to join within 15
days at the post he has been transferred at Mumbai, the State Government
shall initiate appropriate disciplinary proceedings against him. Let
compliance of the order be reported to this Court by Respondent No.1.
                                                                                  G
Divya Pandey                                                    Appeal allowed.




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