VISHWAS LAXMAN GADADE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The issue of transfer of employees, particularly of government servants, often attracts attention of Courts and Tribunals and has contributed to a large Sec. of jurisprudence on service law. Expectation of an employee to retain his/her posting, or to have a desired posting, contributes to large volume of litigation on issues of transfer and postings. Courts and Tribunals in India are therefore flooded with petitions filed by employees, who feel wronged by their transfers. The Supreme Court has time and again reiterated that transfer is an incident of service and that the appointing authority has wide discretion in the matter of deciding posting of employees. If a Government servant is appointed on a transferable post, it is for the Government to decide where he/she is to be transferred and posted and Courts and Tribunals cannot interfere with the discretion exercised by the transferring authority. Transfers are deemed to have been effected in public interest and towards efficiency of public administration. Since transfer is an incident of service, an order of transfer cannot be interfered with by Courts unless it is shown to be clearly arbitrary or vitiated by maladies or against the professed norms. The scope of judicial review in challenge to transfer orders lies in extremely narrow compass. There is no dearth of decisions of the Supreme Court where the above principles are repeatedly enunciated. See Shilpi Bose and others Versus. State of Bihar and others,1991 Supp (2) SCC 659. Abani Kanta Ray Versus. State of Orissa & Others,1995 Supp (4) SCC 169. Union of India Versus. N.P. Thomas,1993 Supp (1) SCC 704. Union of India Versus. S.L. Abbas,(1993) 4 SCC 357. and State of U.P. and others Versus. Gobardhan Lal,(2004) 11 SCC 402. The principles are reiterated by the Apex Court in recent decision in Sri Pubi Lombi Versus. State of Arunachal Pradesh & Ors.[ SLP (C) No. 4129 of 2024 decided on 13/3/2024.]

(2.) On account of recognition of virtually unbridled and unguided power of the transferring authority to transfer and post employees as per its discretion, cases of abuse of such power and arbitrary transfers were on rise and therefore to regulate the same, Governments and its departments came out with guidelines and polices broadly regulating the power of transfer. However, such policies and guidelines, which the transferring authorities are supposed to follow while effecting transfers, have been repeatedly held to be unenforceable in Courts, on account of lack of statutory support. The Apex Court in T.S.R. Subramanian Versus. Union of India,(2013) 15 SCC 732. while dealing with the issue of administrative reforms for preservation of integrity, fearlessness and independence of civil servants at the Centre and State levels, directed the Central and State Governments to issue appropriate directions to secure providing of minimum tenure of service to various civil servants. The Apex Court held :

(3.) However long before delivery of the judgment by the Apex Court in T.S.R. Subramanian, several State Governments had already started enacting Acts governing transfers of its employees and providing for fixed tenure of posting. The Governor of Maharashtra first promulgated Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Ordinance, 2003 on 25/8/2003. The Ordinance was replaced by the State Legislature by enacting the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005 (Transfer Act) which came into effect from 1/7/2006. The Transfer Act deals with twin aspects of regulating transfer of government servants and prevention of delay in discharge of official duties. The Transfer Act inter alia provides for minimum tenure for state government employees but also preserves right of the Government to issue premature and midterm transfers in administrative exigencies in exceptional circumstances after following the prescribed procedure. Thus, in the State of Maharashtra, a right got created in favour of government employees to serve on a post for prescribed tenure. Transfer Act thus brought in transparency in public administration in the State of Maharashtra and has largely suppressed the earlier mischief of unguided and unchannelled discretion to transfer Government servants at the discretion of the transferring authorities.