Skip to content


Hareshwar Hiraji Desai and ors. Vs. State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 1574 of 1983
Judge
Reported in1984(1)BomCR290
ActsConstitution of India - Article 226
AppellantHareshwar Hiraji Desai and ors.
RespondentState of Maharashtra and ors.
Appellant AdvocateR.J. Joshi and ;M.K. Joshi, Advs.
Respondent AdvocateN.B. Jagad, Adv. for respondents Nos. 1 and 2 and ;N.B. Shetye and ;P.S. Warke, Advs. for respondents Nos. 3 to 5
Excerpt:
.....interlocutory applications, in appeal, as well as in this petition, the respondents 1 and 2 have not set out in any of their affidavits any reasons for transferring respondents nos. fda/1079/258 (ii) ph-12 the government accepted the recommendations made by the bhole commission and directed that the post of 'chief inspector''should be redesignated as 'assistant commissioner''it seems that under the bhole commission appointed by the government to consider rescission of pay scales, the commission examined the duties and responsibilities attached to the post of chief inspectors and assistant commissioners and after due consideration recommended a uniform scale of pay for both these posts. they cannot, therefore, complain about the conduct of respondents nos......a letter dated 30-5-1983 was issued by the desk officer, department of medical education and drugs, government of maharashtra directing the commissioner, food and drugs administration, to transfer respondents nos. 3 and 4 to bombay. paragraph 1 of that letter is as follows :''you are hereby directed by the government to transfer shri s.m. mali, assistant commissioner, aurangabad and shri s.d. patil, assistant commissioner, pen to bombay. for that purpose such of the assistant commissioner as have worked as assistant commissioners in bombay for more than 3 years be transferred to aurangabad and pen.''a similar directive appears to have been issued regarding respondent no. 5 also. thereafter an order dated 18-6-1983 was issued by the commissioner, food and drugs administration, which.....
Judgment:

Sujata V. Manohar, J.

1. The petitioners are Assistant Commissioners in the Food and Drugs Administration, Government of Maharashtra. The 1st petitioner Hareshwar Hiraji Desai joined the Food and Drugs Administration in 1962. Prior to 30th April, 1982 he was designated as a Chief Inspector. Under an order dated 30-4-1982 the 1st petitioner was posted as Assistant Commissioner in Greater Bombay.

2. The 2nd petitioner Sudhakar Gangadhar Pathak joined the Food and Drugs Administration in 1968. Prior to 30-4-1982 he was posted in Thane as a Chief Inspector. Under an order of 30-4-1982 the 2nd petitioner was transferred to Bombay and posted as an Assistant Commissioner. The 3rd petitioner Anil Shantaram Dani joined the Food and Drugs Administration in the year 1970. Prior to 30-4-1982 he was posted as a Chief Inspector in Bombay. Under an order to 30-4-1982 he was transferred to Bombay head quarters and posted as an Assistant Commissioner. Thereafter the petitioners were working as Assistant Commissioners in Food and Drugs Administration in Bombay. Respondents Nos. 3, 4 and 5 are also Assistant Commissioners in the Food and Drugs Administration. The 3rd respondent S.D. Patil was promoted as Assistant Commissioner some time in the year 1977. Prior to the order dated 30-4-1982 he was working as Assistant Commissioner in Bombay. Under the order dated 30-4-1982 he was transferred to Sangli as Assistant Commissioner. Respondent No. 3 however, did not report at Sangli, but made representations to the Government for being continued at Bombay or in any event for being transferred to a place in the vicinity of Bombay. His plea was accepted and he was transferred to Pen instead of Sangli. Respondent No. 4 S.M. Mali was transferred to Bombay as Assistant Commissioner in April 1977 and he was occupying the said post in Bombay prior to the Order dated 30-4-1982. Under the Order dated 30-4-1982 he was transferred to Aurangabad as Assistant Commissioner.

3. Respondent No. 5 P.R. Deshpande was promoted as Assistant Commissioner in June 1977 and was posted in Bombay. Prior to the Order dated 30-4-1982 he was working as Assistant Commissioner in Bombay. Under the order dated 30-4-1982 he was transferred to Yeotmal as Assistant Commissioner. He also made representations to the Government for being retained in Bombay or for a transfer to a place in the vicinity of Bombay or his native place. Accordingly his transfer to Yeotmal was cancelled and he was instead transferred to Jalgaon.

4. Thus, under order dated 30-4-1982 the petitioners were posted in Bombay as Assistant Commissioners while respondents Nos. 3, 4 and 5 were transferred outside Bombay as Assistant Commissioners. After their transfers, respondents Nos. 3, 4 and 5 started making representations for being transferred to Bombay. It seems that the 3rd respondent made representations though a Member of Legislative Assembly, Shri Bhakarao Shingne to the Minister of State concerned for being transferred to Bombay. On this representation the Hon'ble Minister made a noting that as and when the Commissioner decided on general transfers, he should take into consideration the transfer of 3rd respondent from Pen to Bombay. His representation for transfer to Bombay along with the letter dated 24th March, 1983 from the Member of the Legislative Assembly was then forwarded to the Commissioner, Food and Drugs Administration, for his comments. The Commissioner, Food and Drugs Administration, in his note dated 18th April, 1983, pointed out that the 3rd respondent had been in Bombay since December 1977. He had been transferred from Bombay to Pen only in May 1982. His transfer was effected after obtaining the sanction and approval of the Hon'ble Health Minister. Since he had remained in Pen only for one year he was eligible for transfer to Bombay. It was also pointed out that there was no vacant office of an Assistant Commissioner in Bombay. The Commissioner also pointed out that the 3rd respondent assumed office at Pen in May 1982. In July 1982 he requested the Hon'ble Minister through a Member of the Legislative Assembly for retransfer to Bombay. In reply to this request (unofficial reference), comments had already been sent on 24th August, 1982. Thus, even since his transfer to Pen, the 3rd respondent was attempting to get re-transferred to Bombay. The Commissioner observed that such an attitude and such efforts made by officers who had been transferred out of Bombay to get re-transferred were extremely detrimental to the efficient functioning of the department and he urged that such individual applications for retransfer to Bombay should not normally be considered.

5. In this connection there is a circular issued by the General Administration Department, Government of Maharashtra, dated 18-3-1977, which is Ex. B to the petition. In this circular guidelines have been forwarded for effecting transfers. It has been provided that as far as possible, transfers in the middle of an academic year should be avoided so as to avoid disturbing the education of the children of the Government servants concerned. It also lays down that ordinarily proposals relating to periodical transfers should be finalised before the end of March every year and formal orders should be issued in the beginning of April. It further provides that a transferable Gazetted Officer should ordinarily be transferred as soon as he completes three years in one district and he should not be continued in the same district for more than 4 years. It was on the basis of this circular that the Commissioner pointed out that since the 3rd respondent had completed only one year at Pen, he was ineligible for retransfer to Bombay, and he should complete 3 years at Pen. Thereafter a letter dated 14th April, 1983 from the Hon'ble Minister (Medical Education & Drugs) regarding the same subject was also forwarded to the Commissioner for his opinion. In his note dated 3rd May, 1983 the Commissioner reiterated his views expressed in the earlier note.

6. The 4th respondent, S.M. Mali also started making representations for his transfer to Bombay immediately after he was transferred out of Bombay under the order on 30th April, 1982. It seems that in June 1982 he made a representation to the Chief Minister through the Member of the Legislative Assembly, Shri Shivchand Chudiwalla for cancellation of the order of transfer to Aurangabad. Prior to this also he had made efforts through Hon'ble Minister, Public Works Department for his retention at Bombay. This was sometime in March 1982. But this representation was not accepted and in April 1982 he was transferred to Aurangabad. Thereafter he again made a representation for being retransferred to Bombay as aforesaid. The application of the 4th respondent was also sent to the Commissioner, Food and Drugs Administration for his comments and the Commissioner in strong language expressed his opposition to such retransfers in his note dated 7th May, 1983. He also pointed out that if all such representations were acceded to, it will be impossible for his office to effect any transfers. He also pointed out that usually such applications and representations mention personal difficulties either on medical grounds or on the ground of education of the children of the officers concerned. The Commissioner pointed out that since these difficulties were common to all the officers, such applications should not be acceded to unless there were some exceptional circumstances, otherwise it would result in injustice to other officers. He pointed out that medical complaints of the 4th respondent's family member could be attended to at the Government Hospital at Aurangabad. He also stated that the 4th respondent's insistence on transfer to Bombay would suggest that he had a vested interest in Bombay.

7. The 5th respondent had made similar representation for his retention in Bombay with the help of two Members of Legislative Assembly-Shri Narayan Gaikwad and Shri Arun Divekar. The Government had earlier, under their letter U.D. & P.H.D. No. FDS/1282/1032/PH-11-B dated 30th April, 1982 forwarded to the Commission a letter of Dr. Narayanrao Gaikwad, M.L.A. and a representation dated 9th April, 1982 from the 5th respondent for cancellation of his transfer to Yeotmal. As a result, his transfer to Yeotmal was cancelled and he was transferred to Jalgaon, as it was nearer his home town. The Government had also forwarded a letter dated 3rd May, 1982 from Shri Arun Divekar, M.L.A. in this connection to the Commissioner. Thereafter the 5th respondent made a representation dated 12th April, 1983 to the Ministry concerned, for his transfer to Bombay which was forwarded to the Commissioner. The Commissioner made similar comments relating to the transfer of the 5th respondent also by his note dated 7-5-1983.

8. The Commissioner had also expressed, in these notes, his view that Assistant Commissioners are required to have adequate knowledge and information in regard to the enforcement of the Rules and Regulations under the Drugs and Cosmetics Act. Complaints in this behalf are rampant in the city of Bombay as the total sales of drugs and allied products in Bombay are very large as compared to the corresponding figures in the districts. In his view, therefore, it is necessary that only such officers with unassailable integrity and who are capable of functioning independently within the framework of law and rules should be appointed in Bombay.

9. By a Circular dated 30-8-1982 issued by the General Administration Department bearing No. GDR-1082-2567-25-11 directions have been issued to the effect that Government servants should not enlist the support or intervention of Members of Parliament, Members of Legislative Assembly, leaders of political parties and other non-governmental influential persons in matters relating to their service, service conditions or personal problems. It was also stated therein that in the event of such efforts being brought to the notice of the Government, it would take a serious view of the same and such defaulting officer would render himself liable for disciplinary action. It seems that despite this circular, respondents Nos. 3, 4 and 5 who were Class 1 Officers, made representations through Members of Legislative Assembly for their transfer.

10. Inspite of the objections raised by the Commissioner, a letter dated 4th May, 1983 was addressed by the Desk Officer, Medical Education & Drugs Department to the Commissioner to the effect that it had been decided to post the 3rd respondent in Bombay in the place of one Shri Gune, an Assistant Commissioner who had retired, as also to transfer the 4th respondent to Bombay. By his reply dated 10-5-1983, the Commissioner inter alia pointed out that the vacancy caused by the retirement of Gune had already been filled. Thereafter, a letter dated 30-5-1983 was issued by the Desk Officer, Department of Medical Education and Drugs, Government of Maharashtra directing the Commissioner, Food and Drugs Administration, to transfer respondents Nos. 3 and 4 to Bombay. Paragraph 1 of that letter is as follows :

''You are hereby directed by the Government to transfer Shri S.M. Mali, Assistant Commissioner, Aurangabad and Shri S.D. Patil, Assistant Commissioner, Pen to Bombay. For that purpose such of the Assistant Commissioner as have worked as Assistant Commissioners in Bombay for more than 3 years be transferred to Aurangabad and Pen.''

A similar directive appears to have been issued regarding respondent No. 5 also. Thereafter an order dated 18-6-1983 was issued by the Commissioner, Food and Drugs Administration, which was with reference to two letters of Government dated 30-5-1983 and under the powers red legated to the Commissioner, under the said order, the 3rd petitioner was transferred from Bombay to Pen in place of 3rd respondent. The respondent was transferred from Pen to Bombay. The 2nd petitioner was transferred from Bombay to Aurangabad in place of respondent No. 4 and respondent No. 4 was transferred from Aurangabad to Bombay. The 1st petitioner was transferred from Bombay to Jalgaon in place of the 5th respondent and the 5th respondent was transferred to Bombay. In short respondents Nos. 3, 4 and 5 were transferred to Bombay at their own request and the petitioners were transferred out of Bombay. The present petition challenges order of 18th June, 1983.

11. Ordinarily orders of transfer are made in the exercise of administrative authority to meet the exigencies of service and in public interest. These orders are made for the purpose of proper administration. Ordinarily courts do not interfere with such orders of transfer. The Government Circular of 18th March, 1977 gives directions as to how such transfers are to be effected. Compliance or non-compliance with such directions are not normally investigated in a Court of law. These directions lay down norms which should ordinarily be followed. Thus in the case of Shanti Kumari v. Regional Deputy Director, Health Services, Patna Division, Patna, reported in : (1981)IILLJ312SC , the Supreme Court observed that transfer of a Government servant may be due to exigencies of service or due to administrative reasons. The courts cannot interfere in such matters.

12. But if such transfers are made as a result of an arbitrary exercise of power or as a result of exercising the power of transfer for collateral purposes, then it is open to the Court to examine such transfers. In law such an exercise of power would be a mala fide exercise of power. In the case of E.P. Royappa v. State of Tamil Nadu, reported in : (1974)ILLJ172SC the Supreme Court observed that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. These observations were cited with approval by the Supreme Court in the case of S.P. Gupta v. President of India, reported in : [1982]2SCR365 . In the present case I am concerned not with any actual mala fides, but with mala fides in law. In the present case, in the light of circumstances set out, can it be said that the power of transfer has been exercised for a collateral purpose and not for the purpose of any administrative exigency or in public interest The correspondence, which is relied upon by the petitioners in support of their case and which has been referred to hereinbefore, is admitted correspondence. From this correspondence it is apparent that after respondents Nos. 3, 4 and 5 were transferred out of Bombay in April 1982, they have been agitating for their re-transfer to Bombay. It is also apparent that respondents Nos. 3, 4 and 5 made their representations for this purpose to the Ministry with the help of Members of Legislative Assembly. Since respondents Nos. 3, 4 and 5 had been transferred out of Bombay for only one year, it is quite clear that they were not required to be retransferred to Bombay for any administrative reasons. They have been admittedly re-transferred to Bombay at their own request. Thus, the re-transfers of respondents Nos. 3, 4 and 5 to Bombay are not routine transfers. Although several affidavits have been filed on behalf of the respondents in the course of proceedings for interlocutory applications, in appeal, as well as in this petition, the respondents 1 and 2 have not set out in any of their affidavits any reasons for transferring respondents Nos. 3, 4 and 5 to Bombay. They have merely stated that they were transferred back to Bombay at their own request. Respondents Nos. 1 and 2 therefore, have not given any reasons for the transfer of respondents Nos. 3, 4 and 5 back to Bombay within one year of their transfer out of Bombay, although they themselves have prescribed that transfers should be effected only after three years. I will however, assume in favour of the respondents that respondents Nos. 3, 4 and 5 had asked for their re-transfer to Bombay for medical reasons or for reasons connected with the education of their children. But if such factors have to be taken into account in case of respondents Nos. 3, 4 and 5, they will have to be taken into account in respect of the petitioners also. There is no material put before me which would indicate any special circumstances, even pertaining to medical requirements or education of the children of respondents Nos. 3, 4 and 5 which would necessitate their transfer to Bombay. In this connection in the case of Dr. P. Damodaran v. State of Kerala, reported in (1982)1 S L R 563, the Kerala High Court observed that, 'The State cannot take a sympathetic attitude to one which might result in creating difficulties for other persons unless for very positive reasons, the Court would have been convinced that it was necessary in the interests of justice that such an attitude should have been taken'. In that case also nothing had been brought on record to establish any such overwhelming necessity. The Court further observed that the admittedly discriminatory treatment in favour of the third respondent in that case was not justified by any factors brought to the notice of the Court; and the Court came to the conclusion that the transfer in question was an abuse or misuse of power. In the present case also no special circumstances relating to respondents Nos. 3, 4 and 5 have been brought on record which would justify favourable consideration of their request for retransfer to Bombay. The only conclusion, therefore, which is left open, is that they were re-transferred to Bombay because of a request made by them through the Members of Legislative Assembly.

13. Respondents Nos. 1 and 2, however, have submitted that even if it is held that respondents Nos. 3, 4 and 5 have been re-transferred to Bombay merely in order to accommodate them, that cannot help the petitioners because the petitioners have been transferred out of Bombay in the ordinary course of administration. According to respondents Nos. 1 and 2, the 1st petitioner has been in Bombay since 1976. He was promoted in that year as Chief Inspector. Under the order of April 1982 he was designated as an Assistant Commissioner. The 2nd petitioner has been in Bombay since 1973. He was promoted as Chief Inspector in 1977. He was designated as an Assistant Commissioner in April 1982. The 3rd petitioner has been in Bombay since 1977 as Chief Inspector. He was designated as an Assistant Commissioner under the Order of April 1982. According to respondents Nos. 1 and 2, the post of Chief Inspector has been redesignated as the post of Assistant Commissioner. It seems that under a Government Resolution dated 22-1-1982 issued by the Government of Maharashtra, Urban Development and Public Health Department bearing No. FDA/1079/258 (II) PH-12 the Government accepted the recommendations made by the Bhole Commission and directed that the post of ''Chief Inspector'' should be redesignated as ''Assistant Commissioner''. It seems that under the Bhole Commission appointed by the Government to consider rescission of pay scales, the Commission examined the duties and responsibilities attached to the post of Chief Inspectors and Assistant Commissioners and after due consideration recommended a uniform scale of pay for both these posts. This recommendation was accepted and the pay-scales were revised. As a result, since both the posts carried the same pay scales, under the resolution of 22nd January, 1982 they were integrated and Chief Inspectors were redesignated as Assistant Commissioners. According to respondents Nos. 1 and 2 the new pay scales have been brought into effect from 1st April, 1976. Re-designation has, however, taken place under the resolution of 22nd January, 1982. Prior to these changes which took place, the post of an Assistant Commissioner was a promotional post from the post of Chief Inspector. The petitioners were Chief Inspectors prior to April 1982. The petitioners have relied upon the Government Resolution dated 17th June, 1977 issued by the Food and Drugs Administration in which some persons mentioned therein are shown to have been promoted from the post of Chief Inspector to officiate as Assistant Commissioners. This would indicate that until the Government Resolution of January 1982, a distinction was maintained between the posts of Chief Inspector and Assistant Commissioner. The petitioners came to be designated as Assistant Commissioners only in April 1982. It would not be correct to say that they were working as Assistant Commissioners in Bombay for several years, when they were in fact Chief Inspectors. Their transfers, therefore, within one year of their appointment as Assistant Commissioners do not appear to be routine administrative transfers. On the contrary, the letter of 30th May, 1982 pursuant to which the impugned transfer order of 18th June, 1983 has been issued makes it quite clear that for the purpose of transferring respondents Nos. 3 and 4 to Bombay such of the Assistant Commissioners as have worked as Assistant Commissioners in Bombay for more than 3 years are to be transferred to Aurangabad and Pen. Even this directive is not complied with. Moreover, the letter makes it clear that other Assistant Commissioners are required to be transferred out of Bombay only in order to make room for respondents Nos. 3 and 4 in Bombay. The office order dated 18th June, 1983 also confines itself only to transfers necessary for the purpose of accommodating respondents Nos. 3, 4 and 5 in Bombay. Thus, the petitioners have been transferred out of Bombay merely in order to accommodate respondents Nos. 3, 4 and 5 in Bombay. In the view of this matter, the question whether the petitioners' transfer out of Bombay complies with the administrative directions relating to such transfers also becomes irrelevant.

14. It was urged by respondents Nos. 1 and 2 that there is no victimisation of the petitioners. It was also urged that the petitioners have, in the past, made similar representations for their transfer through Members of Legislative Assembly. They cannot, therefore, complain about the conduct of respondents Nos. 3, 4 and 5. If this is so, it reveals a very unfortunate state of affairs. It was conceded by learned Advocate for respondents 1 and 2 that it is very common for Gazetted Officers who seek favourable orders of transfer etc., to make representations to the Government through M.Ps., M.L.As. and other influential persons in order to influence or pressurise the administration into passing favourable orders. Apparently, the Government, in order to curb this undesirable practice, has itself issued a directive to the effect that disciplinary proceeding can be taken against Government officers who seek to make such representations through Members of Legislative Assembly, members of political parties and so on. It is a pity that in spite of this directive, no action is taken against the officers who resort to such representations. It is stated by learned Advocate for respondents 1 and 2 that through the Government receives such representations, it takes its decisions on an objective basis. The only result of making representations through Members of Parliament and Members of Legislative Assembly is, that consideration of the application is expedited. Even so, such conduct on the part of Gazetted Officer is not conclusive either to discipline or to administrative efficiency. Be that as it may, the petitioners past conduct is not at issue in the present petition. Their transfers are not routine administrative transfers but are transfers effected in order to accommodate respondents Nos. 3, 4 and 5 in Bombay, as admittedly there were no vacant posts of Assistant Commissioners available in Bombay where respondents Nos. 3, 4 and 5 could have been transferred. The transfers of respondents Nos. 3, 4 and 5 to Bombay under the order of 18th June, 1983 are under an arbitrary exercise of power. If they were made on any objective basis, that basis is at least not explained by the respondents in their affidavits, nor is it apparent from the record. Their re-transfers also appear to be contrary to public interest since such frequent re-transfers are bound to lead to disruption of administrative machinery. The order of 18-6-1983, therefore, is an order made in exercise of power for a collateral purpose and is wholly arbitrary. It cannot therefore be sustained.

In the premises, Rule is made absolute in terms of prayer (a).

Respondents will pay to the petitioners the costs of the petition,

On the application of respondents Nos. 1 and 2 operation of the order is stayed for a period of two weeks from today.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //