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CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7677 OF 2023
Shri. Rajendra s/o. Maruti Najan ….Petitioner
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Mr. S.B. Talekar i/by. Talekar & Talekar Associates, Advocate for the Petitioner.
Mr. B.V. Samant, AGP for State-Respondent no.1.
Mr. Gaurav Bandiwadekar, Advocate for Respondent no.2.
JUDGMENT
1. Petitioner has filed this petition challenging interim order passed by the Maharashtra Administrative Tribunal (Tribunal) on 19 June 2023 in Original Application No.699/2023, by which the Tribunal has directed Respondent no. 2 to start working on the post of Tahsildar (Revenue), Collector Office, Pune from 20 June 2023. Petitioner was posted on that post vide order dated 16 June 2023 and claims to have taken over charge of post on 19 June 2016. It is Petitioner’s Rane 2/14 WP-7677-2023(Resd.)(fc) grouse that since he had already taken over charge of the post, the Tribunal could not have directed Respondent no.2 to function on that post, that too without hearing him.
2. Petitioner was posted as Tahsildar (Revenue) in Collector Office, Nashik since 23 April 2020. By order dated 12 April 2023, one Shri. Parmeshwar Ankushrao Kasule came to be transferred and posted on the post of Tahsildar (Revenue) Collector Office, Nashik which was occupied by. Petitioner. He was not given any other posting and was made to wait for a posting.
3. Order dated 16 June 2023 was issued by which Petitioner, who was waiting for posting, was transferred and posted as Tahsildar (Revenue), Collector Office, Pune. Respondent no.2 was functioning on that post since 10 February
2020. Though Petitioner was transferred in place of Respondent no.2, no posting was granted to Respondent no.2, who was rendered as ‘waiting for posting’.
4. Petitioner reported for duty and took over charge of the post of Tahsildar (Revenue), Collector Office, Pune on 19 June 2023. The Resident Collector, Pune communicated the factum of Petitioner taking over charge of the post to the Divisional Commissioner by letter dated 19 June 2023. Rane 3/14 WP-7677-2023(Resd.)(fc)
4. Respondent no.2 filed O.A. No.691/2023 before the Tribunal on 19 June 2023. It was moved before the Tribunal on the same day. The Tribunal proceeded to grant interim relief in favour of Respondent no. 2 on 19 June 2023. The interim order granted by the Tribunal reads thus: “9. In such circumstances, prima facie, the case is made out by the learned Advocate to grant Interim Relief. Applicant is hereby directed to start working from tomorrow on her post.”
5. The Original Application is now posted for hearing on 17 July 2023.
6. We have heard Mr. Talekar, the learned Counsel appearing for the Petitioner, Mr. Bandiwadekar, the learned Counsel appearing for Respondent no.2 and Mr. Samant the learned AGP appearing for the State Government.
7. Since the Original Application questioning the validity of the transfer order is already pending before the Tribunal, it would not be appropriate for this Court to record any finding on that issue in the present petition. The only issue that can be gone into at this stage is whether the Tribunal was justified in passing the interim order in favour of Respondent no.2.
8. When the Original Application was heard by the Tribunal on 19 June 2023 (we are informed that it was heard in Rane 4/14 WP-7677-2023(Resd.)(fc) the afternoon session), an Advocate appeared on behalf of the Petitioner stating that he had received instructions to so appear. The learned Counsel for the Petitioner would submit that the said Advocate informed the Tribunal the factum of Petitioner taking over charge of the post. Though this aspect is not specifically recorded by the Tribunal in its order, the fact that the Tribunal directed Respondent no[2] to start working on the post from ‘tomorrow’, would show that the Tribunal was made aware of the fact that the Petitioner had taken over charge of the post on 19 June 2023.
9. The issue that therefore arises for our consideration is whether the Tribunal could have directed restoration of statusquo ante, by way of an interim order which would have the effect of removing Petitioner from the post and reinstating Respondent no. 2 on that post.
10. We have already reproduced the interim order passed by the Tribunal. It has ‘directed’ Respondent No. 2 to start working on the post from 20 June 2023. The order is thus in the nature of interim mandatory injunction.
11. The principles governing grant of interim mandatory injunction have been discussed by the Apex Court in Dorab Cawasji Warden v. Coomi Sorab Warden, (1990) 2 SCC 117 at page 126 Rane 5/14 WP-7677-2023(Resd.)(fc) “16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are: (1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief.
17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion. (emphasis supplied)
12. The judgment in Dorab Kawasji Warden (supra) is followed by the Apex Court in its decision in Mohd. Mehtab Rane 6/14 WP-7677-2023(Resd.)(fc) Khan v. Khushnuma Ibrahim Khan, (2013) 9 SCC 221, in which it is held:
18. There is yet another dimension to the issues arising in the present appeal. The interim relief granted to the plaintiffs by the appellate Bench of the High Court in the present case is a mandatory direction to hand over possession to the plaintiffs. Grant of mandatory interim relief requires the highest degree of satisfaction of the court; much higher than a case involving grant of prohibitory injunction. It is, indeed, a rare power, the governing principles whereof would hardly require a reiteration inasmuch as the same which had been evolved by this Court in Dorab Cawasji Warden v. Coomi Sorab Warden [(1990) 2 SCC 117] has come to be firmly embedded in our jurisprudence.
13. In Kishore Kumar Khaitan v. Praveen Kumar Singh, (2006) 3 SCC 312 the Apex Court once again dealt with the aspect of issuance of mandatory interim injunction and has held as under: “6. An interim mandatory injunction is not a remedy that is easily granted. It is an order that is passed only in circumstances which are clear and the prima facie materials clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interests of justice demanded that the status quo ante be restored by way of an interim mandatory injunction. Keeping this principle in mind, it is necessary to see whether in the case on hand, the Additional District Judge was justified in passing the interim order of injunction.
14. In Samir Narain Bhojwani v. Aurora Properties & Investments, (2018) 17 SCC 203, the Apex Court has reierated the principle expounded in Dorab Kawasji Warden (supra) and has held: Rane 7/14 WP-7677-2023(Resd.)(fc) “24. ……… The nature of order passed against the appellant is undeniably a mandatory order at an interlocutory stage. There is marked distinction between moulding of relief and granting mandatory relief at an interlocutory stage. As regards the latter, that can be granted only to restore the status quo and not to establish a new set of things differing from the state which existed at the date when the suit was instituted. This Court in Dorab Cawasji Warden v. Coomi Sorab Warden, has had occasion to consider the circumstances warranting grant of interlocutory mandatory injunction. ……..
25. The Court, amongst others, rested its exposition on the dictum in Halsbury's Laws of England, 4th Edn., Vol. 24, Para 948, which reads thus:
26. The principle expounded in this decision has been consistently followed by this Court. It is well established that an interim mandatory injunction is not a remedy that is easily granted. It is an order that is passed only in circumstances which are clear and the prima facie material clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interests of justice demanded that the Rane 8/14 WP-7677-2023(Resd.)(fc) status quo ante be restored by way of an interim mandatory injunction. [See Metro Marins v. Bonus Watch Co. (P) Ltd., Kishore Kumar Khaitan v. Praveen Kumar Singh and Purshottam Vishandas Rahejav. Shrichand Vishandas Raheja]”
15. Having considered the sound exposition of law by the Apex Court on powers of Courts to grant interim mandatory injunction, we now proceed to examine whether any case was made out by Respondent No. 2 in his Original Application for grant of interim mandatory injunction in the form of a ‘direction’ to him to ‘start working from tomorrow on his post’.
16. It must be borne in mind that Respondent No. 2 has not been transferred to any particular post. Until 16 June 2023, he continued to be posted as Tahsildar (Revenue), Collector Office, Pune. On account of Order dated 16 June 2023 posting Petitioner on that post, Respondent No. 2 has been rendered without any post. Though in ordinary course of things, such a course of action in keeping an officer without posting ought to have been avoided by the State Government, this is something which need not be gone into at this stage. Suffice it to observe that Respondent No. 2 has not been transferred out of Pune. He is now without posting, but will be entitled to draw salary and allowances. At this juncture atleast, he is not required to move out of Pune causing any inconvenience to himself or to his family members. Since Respondent No. 2 has not been transferred to any post or station, there would ideally not be any reason for him feel aggrieved. Rane 9/14 WP-7677-2023(Resd.)(fc)
17. However Respondent No. 2 is aggrieved by posting of Petitioner on his post. This essentially means that Respondent No. 2 wishes hold the post of Tahsildar (Revenue), Collector Office, Pune. He also challenges Petitioner’s transfer contending that Petitioner was not due for being transferred or posted as Tahsildar (Revenue), Collector Office, Pune. It is well settled law that a Government Official cannot demand posting against a particular post. True it is that under the provisions of Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005 (Transfer Act), a tenure of 3 years on a post is ordinarily provided to State Government Officers. There are however exceptions under which the normal tenure can be curtailed. Whether reasons existed for curtailment of tenure of Respondent No. 2 and whether curtailment of his tenure by just about 6 months (having completed tenure two and half years) are the issued which the Tribunal would consider at the time of final disposal of the OA.
18. However, considering the facts and circumstances of the case and after applying the principles expounded by the Apex Court for grant of interim mandatory injunction, we are of the view that this is not a case where a strong case (higher than a prima facie case) has been made out or any serious/irreparable injury would be caused to Respondent No. 2 or that the balance Rane 10/14 WP-7677-2023(Resd.)(fc) of convenience is so strongly tilted in favour of Respondent NO. 2 that the Tribunal could have granted interim mandatory injunction. The discretion vested in the Tribunal for grant of interim mandatory injunction is required to be exercised in rare cases and not in routine manner in which it is exercised in the present case. Petitioner had taken over charge of the post on 19 June 2023 by the time Tribunal took up OA of Respondent NO. 2 for hearing, the last non-contested status was that Petitioner was functioning on the transferred post. The Tribunal was aware that the transfer/posting order was already acted upon. In such circumstances, the Tribunal could have called for responses from Respondents before it and proceeded to decide the OA in an expeditious manner rather than embarking upon exercise of removal of Petitioner and restoration of Respondent No. 2 on the post, which relief could only be granted at final hearing of the case.
19. Apart from impermissibility of grating interim mandatory injunction, the Tribunal appears to have interfered in the order of transfer in a routine manner, that too at an interim stage and has virtually decided who should work where, during pendency of the OA. The Apex Court has expressed anguish over grant of interim order against orders of transfer by Tribunals in Union of India v. Deepak Niranjan Nath Pandit, (2020) 3 SCC
404. The Order of the Apex Court reads thus: Rane 11/14 WP-7677-2023(Resd.)(fc) “1. Leave granted. The respondent, who is an Assistant Commissioner of Customs, GST and Central Excise was transferred from Mumbai to Bhubaneshwar on 5-9-2019. Challenging the order of transfer, the respondent moved the Central Administrative Tribunal (CAT) in OA No. 627 of 2019. By an order dated 17-9- 2019, CAT granted an ad interim stay of the order of transfer. Eventually, after the OA was heard, it was dismissed by CAT by an order dated 5-11-2019. Aggrieved by the order of CAT, the respondent moved the High Court of Judicature at Bombay. On 11-11- 2019, at the production stage, the High Court continued the ad interim order. By the impugned judgment and order of the High Court dated 2-12-2019, the writ petition under Article 226 of the Constitution was admitted and by way of an interim order, the ad interim direction granted on 11-11-2019 was continued. The Union of India is in appeal.
2. The services of the respondent are transferable. The order of transfer was issued by the Government of India in the Ministry of Finance (Central Board of Indirect Taxes and Customs) on 5-9-
2019. By the order, five officials were transferred from their respective places of posting. The respondent has, however, chosen to contest the order of transfer and as a result of the ad interim order of CAT and the interim order of the High Court, has not joined at the place of posting. In the meantime, the respondent has been suspended.
3. The High Court, in interfering with the order of transfer, has relied on two circumstances. Firstly, the High Court has noted that as a result of the stay on the order of transfer, the headquarters of the respondent will remain at Mumbai and even if he is to be suspended, his headquarters will continue to remain at Mumbai. The second reason, which has weighed with the High Court, is that the spouse of the respondent suffers from a cardiac ailment and is obtaining medical treatment in Mumbai. In our view, neither of these reasons can furnish a valid justification for the High Court to take recourse to its extraordinary jurisdiction under Article 226 of the Constitution in passing an order of injunction of this nature. Significantly, the High Court has not even found a prima facie case to Rane 12/14 WP-7677-2023(Resd.)(fc) the effect that the order of transfer was either mala fide or in breach of law. The High Court could not have dictated to the employer as to where the respondent should be posted during the period of suspension. Individual hardships are matters for the Union of India, as an employer, to take a dispassionate view.
4. However, we are categorically of the view that the impugned order of the High Court interfering with the order of transfer was in excess of jurisdiction and an improper exercise of judicial power. We are constrained to observe that the impugned order has been passed in breach of the settled principles and precedents which have consistently been enunciated and followed by this Court. The manner in which judicial power has been exercised by the High Court to stall a lawful order of transfer is disquieting. We express our disapproval.
5. Mr Manan Kumar Mishra, learned Senior Counsel urged that during the course of an earlier hearing, the Union Government expressed its readiness to post the respondent at three alternative places instead of Bhubaneshwar and hence the order of transfer may be modified. We decline to allow this jurisdiction to be utilised in terrorem to compel the Union Government to post the respondent to a place which he may be prefer. There is no lawful reason for the respondent to cling on to a posting at Mumbai. He cannot claim a posting as of right to a place of his choice.
6. We accordingly allow the appeal and set aside the interim order of the High Court dated 2-12-2019 staying the transfer. The interim order passed by the High Court shall accordingly stand vacated. Conditional on the respondent reporting at Bhubaneshwar within a period of one week from today, he will be at liberty to make a representation to the Union of India in regard to his transfer. We make it clear that we are not making any observations in this regard. Rane 13/14 WP-7677-2023(Resd.)(fc)
20. Therefore the ‘direction’ issued by the Tribunal to Respondent No. 2 to ‘work from tomorrow’ as an interim order would clearly be in excess of its jurisdiction.
21. We are conscious of the fact that by unilateral and exparte taking over charge of the post by a transferred officer, the remedy of previously posted officer to seek interim order from Court/Tribunal can get hampered. Mr. Bandiwadekar has sought to rely on provisions of the Rules prescribing the procedure by which an officer can be relieved on transfer. It is his contention that Petitioner has taken over charge of the post in an illegal manner, to prevent Respondent No. 2 from seeking is remedy against the posting order. He has submitted that merely because charge of the post is taken over exparte in an illegal manner, the same cannot stand in the way of the Tribunal in granting interim relief of status quo ante. The fact that Petitioner took over charge of the post exparte may have weighed with the Tribunal for grating the interim order of status quo ante. However, the Tribunal was not faced with an irreversible situation. While granting final relief, it can always set the clock back. In the interregnum, Respondent No. 2 can wait for posting by remaining at Pune and draw full salary and allowances till decision of his OA.
22. We also do not propose to lay down an absolute proposition that in every case where charge of the post is taken Rane 14/14 WP-7677-2023(Resd.)(fc) over by transferred officer, the Courts or Tribunals are rendered powerless to grant any interim relief. It would depend on facts and circumstances of each case. In the present case however, Respondent No. 2 has not yet been directed to move to another station and will be paid full salary and allowances while waiting for posting during pendency of his OA. Therefore, the Tribunal could have avoided grant of interim directions which are impugned in the present petition.
23. We therefore set aside the interim order dated 19 June 2023 passed by the Tribunal. Petitioner has taken over charge of the post on 19 June 2023 and shall continue to function on the post till decision of the Original Application. The Original Application is posted by the Tribunal for hearing on 17 July 2023. Parties shall complete the pleadings in the OA well in advance before the next date of hearing. Petitioner and the State Government may file their Affidavits-in-reply opposing the OA within one week and shall cooperate with the Tribunal for its early decision. With the above directions, Writ Petition is disposed of. (SANDEEP V. MARNE, J.) (DHIRAJ SINGH THAKUR, J.)