Bombay High Court
Vishwas Laxman Gadade vs The State Of Maharashtra Thr The … on 16 January, 2025
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
2025:BHC-AS:2172-DB
Neeta Sawant WP-269-2023-FB-FC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 269 OF 2023
ALONGWITH
INTERIM APPLICATION NO. 8261 OF 2024
Mr. Vishwas Laxman Gadade,
Age : 44 yrs, (DOB : 13.03.1977),
Occ : Circle Officer, R/at :
Ashiyana Village, Katrang-
Khopoli, Tal. Khalapur, Dist.-
Raigad, Mob : 9561647934. emal,
adv.kjagdale @ gmail.com .....Petitioner
: Versus :
1. The State of Maharashtra,
Through the Principal Secretary,
Revenue Department,
Mantralaya, Mumbai-400 032.
2. The District Collector, Collector
Office at Raigad.
3. Mr. C.S. Khot, Age-53, Occ.
Service, Circle Officer, Khopoli,
Tahasil Offic, Khalapur, Dist.
Raigad.
4. Mr. Tushar M. Kamat, Age : 39
yrs, Occ. Service, Circle Officer,
Wawoshi, Tahasil Office,
Khalapur, Dist. Raigad.
5. Mr. Kiran G. Patil, Age- 49 yrs,
Occ. Service, Circle Officer
Chowk, Tahasil Office, ....Respondents
Khalapur, Dist. Raigad
Page No.1 of 52
16 January 2025
::: Uploaded on - 17/01/2025 ::: Downloaded on - 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
______________
Mr. Mihir Desai, Senior Advocate with Mr. Sachin K. Hande, Ms.
Poonam Pal, Ms. Tanvi Pathak and Ms. Sankruti Yagnik, for the
Petitioner.
Dr. Birendra Saraf, Advocate General with Mr. N.C. Walimbe, Addl.
Govt.Pleader, Smt. Reena A. Salukhe, AGP, Mr. Jay Sanklecha 'B' Panel
Advocate, Ms. Malaika Castellino and Mr. Anshuman Sambre, for State-
Respondent Nos.1 and 2.
Mr. C.T. Chandratre, for Respondent Nos.3 and 4.
__________________
CORAM : A. S. CHANDURKAR,
SANDEEP V. MARNE &
JITENDRA S. JAIN, JJ.
Reserved On : 4 January 2025.
Pronounced On : 16 January 2025.
JUDGMENT:
(Per : Sandeep V. Marne, J.)
A. PROLOGUE
1) The issue of transfer of employees, particularly of
government servants, often attracts attention of Courts and Tribunals
and has contributed to a large section 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
Page No.2 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
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 others1, Abani
Kanta Ray Versus. State of Orissa & Others 2, Union of India Versus. N.P.
Thomas3, Union of India Versus. S.L. Abbas4 and State of U.P. and
others Versus. Gobardhan Lal5. The principles are reiterated by the
Apex Court in recent decision in Sri Pubi Lombi Versus. State of
Arunachal Pradesh & Ors.6
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
1
1991 Supp (2) SCC 659
2
1995 Supp (4) SCC 169
3
1993 Supp (1) SCC 704
4
(1993) 4 SCC 357
5
(2004) 11 SCC 402
6
SLP (C) No. 4129 of 2024 decided on 13 March 2024.
Page No.3 of 52 16 January 2025 ::: Uploaded on - 17/01/2025 ::: Downloaded on - 18/01/2025 09:12:44 ::: Neeta Sawant WP-269-2023-FB-FC
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
India7, 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 :
35. We notice, at present the civil servants are not having stability of
tenure, particularly in the State Governments where transfers and
postings are made frequently, at the whims and fancies of the
executive head for political and other considerations and not in
public interest. The necessity of minimum tenure has been endorsed
and implemented by the Union Government. In fact, we notice,
almost 13 States have accepted the necessity of a minimum tenure
for civil servants. Fixed minimum tenure would not only enable the
civil servants to achieve their professional targets, but also help
them to function as effective instruments of public policy. Repeated
shuffling/transfer of the officers is deleterious to good governance.
Minimum assured service tenure ensures efficient service delivery
and also increased efficiency. They can also prioritise various social
and economic measures intended to implement for the poor and
marginalised sections of the society.
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
7
(2013) 15 SCC 732
Page No.4 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
first promulgated Maharashtra Government Servants Regulation of
Transfers and Prevention of Delay in Discharge of Official Duties
Ordinance, 2003 on 25 August 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 July 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.
4) Ever since enactment of the Transfer Act, the litigation
relating to transfer of State Government has, by and large, centered
around challenges to transfers effected in breach of prescribed tenure
by resorting to exceptional power by the transferring authorities.
Excepting once class of state government servants, there has been no
debate about the length of tenure prescribed by the Transfer Act for
which the employees can serve on a post. The class of employees in
respect of whom disputes have arisen about the exact tenure
Page No.5 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
prescribed by the Transfer Act are those in Group C of the State
Government service. Such Group-C employees are divided in two
categories under the Transfer Act – employees in secretariat services
and employees in non-secretariat services.
5) By interpreting the provisions of the Transfer Act, the
Group C employees in non-secretariat services started demanding
posting on the same post for two full tenures and this is where
divergent views have been expressed in two Division Bench judgments
of this Court, necessitating the present reference to the Larger Bench.
B. QUESTION FORMULATED FOR DECISION IN REFERENCE
6) During the course of hearing of this Petition, the Division
Bench noticed divergent views expressed in two previous judgments of
the Division Benches of this Court in Santosh Nandalal Dalal Versus.
State of Maharashtra and Others8 and Sachin Sadashiv Raut Versus. The
State of Maharashtra and Anr.9 with regard to interpretation of
provisions of Sections 3 and 4 of Transfer Act. Since the divergent
views could not be reconciled and since the issue of interpretation of
provisions of Section 3(1) of the Transfer Act frequently arises, the
Division Bench felt it necessary that the issue is resolved by the larger
Bench. Accordingly, by order dated 8 March 2024, the Division Bench
formulated the following question for answer by the Larger Bench :
8
Writ Petition No. 8813 of 2014 decided on 6 May 2015
9
Writ Petition No.10330 of 2019 decided on 8 November 2019Page No.6 of 52
16 January 2025::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC“Whether the provisions of section 3(1) read with first proviso of
the Maharashtra Servants Regulation of Transfers and Prevention
of Delay in Discharge of Official Duties Act, 2005 confers a right
on a Group-C employee holding a non-secretarial post to complete
two full tenures, each tenure consisting of three years or whether
the said proviso to Section 3(1) merely permits the State to continue
such employee at the office or department for a period of six years
without there being any corresponding right with such employee to
complete two full tenures ?”
C. FACTUAL BACKGROUND 7) Facts of the case are referred in brief for understanding of
the background in which the above question arises for our
consideration. Petitioner was initially recruited as Talathi on 23 April
1998 and was promoted to the post of Circle Officer. On his
promotion as Circle Officer, he was posted at Karjat on 26 March
2013 and worked as such till 2 June 2014. He was thereafter
transferred and posted as Circle Officer, Mhasala, Tehsil-Mhasala and
worked as such from 3 June 2014 to 2 June 2016. He opted for mutual
transfer and was posted as Tenancy Awwal Karkoon in the office of
Sub-Divisional Officer, Shrivardhan on 6 June 2016 and worked as
such till 1 June 2018. Petitioner was thereafter transferred and posted
as Circle Officer, Khopoli, Tehsil-Khalapur by order dated 31 June
2018 and joined the said post on 4 June 2018. On completion of
tenure of 3 years as Circle Officer, Khopoli, Order dated 9 August
2021 was issued transferring him from Khopoli and posting him as
Circle Officer, Indapur, Tehsil-Mangaon. In place of the Petitioner,
Respondent No.3 came to be transferred and posted as Circle Officer,Page No.7 of 52
16 January 2025::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FCKhopoli by a separate order passed on 9 August 2021. Petitioner
submitted representation against the transfer order.
8) Petitioner instituted Original Application No. 616/2021
before the Maharashtra Administrative Tribunal, Mumbai (the
Tribunal) challenging the transfer order dated 9 August 2021, inter-
alia on the ground that he was entitled to tenure of 6 years as per the
first Proviso to Sub-section (1) of Section 3 of the Transfer Act. It
appears that various other Original Applications were also filed
claiming tenure of 6 years by non-secretariat Group-C employees. The
Tribunal clubbed Original Application filed by the Petitioner with
other Original Applications raising same issue and by judgment and
order dated 13 January 2022, dismissed the same. Aggrieved by the
judgment and order dated 13 January 2022 passed by the Tribunal,
the Petitioner has filed the present petition.
9) During the course of hearing of the present petition on 8
March 2024, the Division Bench of this Court noticed divergent views
expressed in two previous Division Bench judgments in Santosh
Nandalal Dalal (supra) and Sachin Sadashiv Raut (supra) and
accordingly we are tasked upon to answer the question formulated by
the Division Bench in order dated 8 March 2024.
D. SUBMISSIONS D.1 SUBMISSIONS ON BEHALF OF PETITIONER-EMPLOYEE 10) Mr. Mihir Desai, the learned Senior Advocate appearing
for the Petitioner would submit that the view taken by the Division
Page No.8 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
Bench in Sachin Sadashiv Raut, about employees in Non-Secretariat
service in Group-C being entitled to two full tenures of 3 years each, is
the correct view and that the view earlier taken by the Division Bench
in Santosh Nandalal Dalal is not in consonance with the provisions of
Sections 3 and 4 of the Transfer Act. He would submit that the first
proviso to sub-section (1) of Section 3 creates a right in favour of
employees in Non-Secretariat services in Group-C to remain on a post
for two full tenures and such employees can be transferred out from
the post occupied by them only after completion of two full tenures of
3 years each. He would submit that the true purport of sub-section (1)
of Section 3 is to declare a normal tenure in respect of Group-C
employees and the two provisos to the said sub-section create a further
right in favour of employees specified therein (Non-Secretariat
Services in Group-C and Secretariat Services) to enjoy the tenures
specified therein. That in respect of employees in Non-Secretariat
services in Group-C, they are assured two full tenures under the first
proviso and that therefore it is impermissible to transfer them before
completion of two full tenures on the same post unless any eventuality
specified under Section 4 of the Act takes place. Mr. Desai would
submit that the first proviso to Section 3(1) carves out an exception to
the normal rule of tenure of 3 years specified in sub-section (1) of
Section 3. He would also rely upon judgment of the Apex Court in
Laxminarayan R. Bhattad and others Versus. State of Maharashtra and
another10 in support of his contention that a proviso can serve the
purpose of qualifying or excepting certain provisions for the main
enactment. He would therefore submit that the first proviso is thus an
exception to the normal tenure of 3 years specified in sub-section (1) of
Section 3. He would therefore submit that the Legislature has
10
(2003) 5 SCC 413
Page No.9 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
consciously provided for two full tenures to employees in Non-
Secretariat services in Group-C by inserting first proviso to Section
3(1) of the Transfer Act and that the legislative intent of permitting
tenure of 6 years to such employees cannot be frustrated by
interpreting provisions of the Act in any other manner.
11) Mr. Desai would then submit that the very objective
behind enactment of Transfer Act is to arrest the mischief of unguided
and unbridled power of transfer of Government Servants and that
therefore transfer must be effected strictly in accordance with the
provisions of the Act. To bring home the point of objective behind
enactment of Transfer Act, he would rely upon judgment of Division
Bench of this Court in Purushottam Govindrao Bhagwat Versus. State of
Maharashtra and others11. He would submit that the legislative intent of
the provision is to ensure that employees do not face arbitrary transfers
before the completion of their full tenure, thus contributing to
administrative continuity and the employee’s professional
development.
12) Alternatively, Mr. Desai would submit that in the event of
first proviso to sub-section (1) of Section 3 being interpreted to mean
vesting of power in the State Government rather than creation of right
in favour of the employee, the employee would still have legitimate
expectation to serve on a post for two full tenures. He would submit
that even if first proviso to sub-section (1) of Section 3 is read to mean
that the same empowers the State Government to effect transfers on
completion of two full tenures, the Government is expected not to
transfer an employee before he/she completes the tenure of 6 years. In
11
(2013) 3 Bom C.R. 442
Page No.10 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
support of his contention of legitimate expectation, Mr. Desai would
reply upon judgment of the Apex Court in Ms. X Versus. Registrar
General, High Court of Madhya Pradesh and another12. He would also
place reliance on judgment of the Apex Court in Dr. Nagorao Shivaji
Chavan Versus. Dr. Sunil Purushottam Bhambre and others 13 in support
of his contention that statutory provision of tenure is required to be
observed unless special exigencies enumerated in Section 4 of the Act
arises. He would also rely upon judgment of Division Bench of this
Court in V.B. Gadekar Versus. Maharashtra Housing and Area
Development Authority and another14 in support of his contention that
in absence of any administrative exigency referable to the provisions
of Section 4 of the Act, a Government Servant in Group-C (Non-
Secretariat) must be permitted to serve for two full tenures on a post.
Mr. Desai would further submit that the first proviso to sub-section (1)
of Section 3 cannot be read to mean the maximum tenure for which
employee in Non-Secretariat Group-C can be retained on a post as the
tenure provided for in Section 3 is both minimum as well as
maximum. He would submit that the fact that Section 5(1) of the Act
provides for extension of tenure would itself mean that the tenure
prescribed under Section 3(1), as well as under the two provisos, is not
just minimum but also maximum tenure. He would therefore submit
that the tenure of full two terms (six years) under the first proviso to
Section 3(1) is both minimum as well as maximum tenure for
employees in Non-Secretariat services Group-C. Mr. Desai would
therefore urge that the provisions of Section 3(1) of the Transfer Act
be interpreted to mean that the first proviso confers right on employees
12
(2022) 14 SCC 187
13
(2019) 13 SCC 788
14
(2008) 2 Mh.L.J. 640
Page No.11 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
of Non-Secretariat services in Group-C to enjoy two full tenures (six
years) on the post held by them.
D.2 SUBMISSIONS ON BEHALF OF RESPONDENT NOS. 1 AND 2-
STATE
13) Dr. Birendra Saraf, the learned Advocate General would
appear on behalf of Respondent Nos.1 and 2. He would submit that
provisions of Section 3(1) of the Transfer Act would mean that the
employees in Non-Secretariat services in Group-C would be entitled to
maximum tenure of 3 years on a post, subject to the provisions of
Section 4 of the Act. He would submit that the Court must bear in
mind the objects of the enactment while interpreting the provisions
thereof. Inviting our attention to the Preamble of the Act, he would
submit that the same is enacted with a view to inter-alia regulate
transfers of Government Servants as there was no enactment earlier
and the Act has been enacted with the objective of doing away the
arbitrary power of authorities to transfer the Government Servants.
Relying on judgment of Division Bench of this Court in Ku. Geeta and
another Versus. State of Maharashtra, through Dy.Secretary, Public
Health Department, Mumbai G.T. Rugnalays Building Complex and
others15, he would submit that the remedy of regulating transfers in
accordance with the Act is provided for to suppress the mischief of
any unguided, unchanneled power to transfer the Government
servants or employees. He would also rely upon judgments of the
Apex Court in State of U.P. Versus. Gobardhan Lal (supra) and Gujarat
Electricity Board and another Versus. Atmaram Sungomal Poshani16 and
15
2015 SCC Online Bom 2955
16
(1989) 2 SCC 602
Page No.12 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
of this Court in V.B. Gadekar (supra), in support of his contention that
transfer is an essential incident of service and transfer from one place
to another is necessary in public interest and efficiency in public
administration.
14) Dr. Saraf would submit that the main provision under
Section 3(1) of the Transfer Act is in furtherance of public interest
principle that frequent transfer of an employee is contrary to efficient
administration and prone to abuse. That the provisos are in
furtherance of public interest principle that transfer of employees at
regular intervals is necessary for efficient administration. Dr. Saraf
would submit that the correct interpretation of the first proviso to
Section 3(1) of the Transfer Act is to mean that at the end of the term
of 3 years, it is open for the transferring authority to transfer the
Group-C Non-secretariat employee to another post, whether in the
same office or Department or outside. That thus such employees can
be continued in the same office or department for a period of 6 years
but cannot be so continued in the same office or department for more
than two terms. That therefore a Non-Secretariat employee in Group-
C can be continued in the same post or on a different post in a
department or office for a maximum of two terms i.e. 6 years. That the
second proviso to Section 3(1) relates to employees in Group-C from
Secretariat services who cannot be continued even on the same post
for more than 3 years, and in any case cannot be continued in the same
department for more than 6 years. Dr. Saraf would therefore submit
that the main provision under Section 3(1) provides for tenure of a
post, whereas the provisos set out the location/department to which
an employee must be transferred at the end of completion of two
Page No.13 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
consecutive three-year tenures in a particular office/department.
Relying on provisions of Section 4(2) of the Act, Dr. Saraf would
submit that though the Government is mandated to prepare a list of
Government Servants due for transfer in the months of April and May,
the same would merely mean that the employees included therein are
to be considered for transfer but in the light of provisions of Section
3(1) read with Section 5, it is open for the State Government to
continue such employee whose name is included in such list beyond
the normal tenure. That therefore the second proviso sets out merely
an outer limit for which an employee would continue on post or in any
office or department. That the main provision under Section 3(1)
confers right on the employee to continue on a post for 3 years (subject
to the provisions of Section 4) whereas the proviso casts an obligation
on the State Government to transfer the employee from one post to
another or from one department or another at the expiry of the
periods and in the manner set out therein. He would submit that this is
a most holistic reading of provisions of Section 3 of the Transfer Act.
15) Dr. Saraf would then rely upon judgment of the Apex
Court in Dwarka Prasad Versus. Dwarka Das Saraf17 in support of his
contention that a proviso must be limited to a subject matter of
enacting clause and construction of a proviso must be read and
considered by having regard to the principal matter dealt with in the
main section. That the proviso by itself does not and cannot mean a
separate and independent enactment. He would also rely upon
judgment of the Apex Court in Commissioner of Commercial Taxes and
others Versus. Ramkishan Shrikisan Jhaver and others18, Commissioner of
17
(1976) 1 SCC 128
18
1967 SCC OnLine SC 3
Page No.14 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
Income Tax, Kerela and Coimbatore (in all the appeals) Versus. P.
Krishna Warriar (in all the appeals)19, Delhi Metro Rail Corporation
Limited Versus. Tarun Pal Singh and others 20 and of this Court in
Broach Co-operative Bank, Ltd. Broach Versus. Commissioner of Income-
tax, Bombay Mofussil21 in support of his contention that ordinarily a
proviso is not interpreted as citing a general rule and it is only in
exceptional circumstances that proviso can be unrelated to the subject
matter of preceding section. He would therefore submit that the
second proviso to Section 3(1) must be construed with reference to a
preceding part of the main Section to which it is been appended. Dr.
Saraf would therefore submit that the when the two provisos are read
in conjunction with the main provisions of Section 3(1) of the Transfer
Act, it cannot be construed that the provisos create any independent
right in favour of any Government Servant, but merely deals with the
outer limit for which the Government Servants enumerated therein
can be continued on a particular post in a particular office or
department. That the provisos are qualifications/ exceptions to
continue the employee beyond the normal tenure and that a holistic
reading of the entire provision implies that while Section 3(1) provides
for a minimum tenure on any post, the provisos incorporate the
maximum tenure in an office or department.
16) Dr. Saraf would conclude by submitting that reading the
main provision alongwith provisos harmoniously would imply that all
employees can be transferred after completion of 3 years in a
particular post and in case of Group-C Non-Secretariat employees,
though they need not necessarily be transferred from their post on
19
1964 SCC Online SC 49
20
(2018) 14 SCC 161
21
1949 SCC Online Bom 29
Page No.15 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
completion of 3 years, but can be continued on such post for
maximum of 6 years. However, once such employee is continued in
the same office/department for a period of 6 years, he must be
transferred to another office or department. That in case of employees
belonging to Secretariat Services, they cannot be continued even on
same post for more than 3 years and have to be transferred to some
other post either in the same department or outside the department
subject to a caveat that on completion of 6 years of service in the same
department, they must be transferred out of that department as well.
He would submit that it is not the legislative intent to confer two full
tenures to Group-C employees in Non-Secretariat services. Had there
been such legislative intent, the same could have been easily stated in
Section 3 itself. Dr. Saraf would therefore urge that the question
framed is answered by holding that the first proviso to Section 3(1)
does not confer vested right on Group-C employees holding Non-
Secretariat posts to complete two tenures (6 years) but merely enables
the State Government to continue such employee at the office or
department for a period of 6 years.
D.3 SUBMISSIONS ON BEHALF OF RESPONDENT NOS. 3 AND 4
17) Mr. Chandratre, the learned counsel appearing for
Respondent Nos. 3 and 4 would adopt the submissions of Dr. Saraf
and would take us through the Reply filed by his clients before the
Tribunal on interpretation of provisions of Section 3 of the Transfer
Act. He would submit that if the intention of the Legislature was to
provide two tenures of 3 years, it would have clearly stated so. That
several posts falling under Group-C are executive and sensitive posts
Page No.16 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
such as Talathi, Circle Officer, Excise Inspectors etc. and the
Legislature has consciously capped the entitled tenure to Group-C
Non-Secretariat employees to only 3 years. He would therefore urge
that the interpretation made by the Division Bench in Santosh
Nandalal Dalal be upheld by rejecting the interpretation in Sachin
Sadashiv Raut. He would additionally submit that the judgment in
Sachin Sadashiv Raut is rendered in the peculiar facts of that case
where the Petitioner therein was sought to be transferred even before
completion of normal tenure of 3 years.
E. REASONS AND ANALYSIS 18) Since the question referred to the larger Bench for
resolution relates to interpretation of provisions of Section 3(1) of the
Transfer Act, it would be necessary to take stalk of various provisions
of the Act, which are relevant for our purposes.
E.1. PROVISIONS OF THE TRANSFER ACT
19) For regulating the transfers and postings of Government
Servants and for preventing delay in discharge of official duties,
Transfer Act has been enacted, which came into effect on 1 July 2006.
Section 3 of the Transfer Act deals with tenure of posting and
provides thus :
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 :
Page No.17 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FCProvided 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:
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
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.
20) Section 4 of the Transfer Act deals with tenure of transfer
and provides thus :
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
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 finalised by the 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
Secretary.
(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 :–
Page No.18 of 52 16 January 2025 ::: Uploaded on - 17/01/2025 ::: Downloaded on - 18/01/2025 09:12:44 ::: Neeta Sawant WP-269-2023-FB-FC
(i) to the newly created post or to the posts which become
vacant due to retirement, promotion, resignation, reversion,
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 recording the same in writing and with the prior approval
of the next higher authority.
(5) Notwithstanding anything contained in section 3 of this section,
the competent authority may, in special cases, after recording
reasons in writing and with the prior approval of the immediately
superior transferring authority mentioned in the table of section 6,
transfer a Government servant before completion of his tenure of
post.
21) Section 5 of the Transfer Act deals with extension of
tenure and provides thus :
5. Extension of tenure.
(1) The tenure of posting of a Government servant or employee laid
down in section 3 may be extended in exceptional cases as specified
below, namely:
(a) the employee due for transfer after completion of tenure at a
station of posting or post has less than one year for retirement ;
(b) the employee possesses special technical qualifications or
experience for the particular job and a suitable replacement is not
immediately available ; and
(c) the employee is working on a project that is in the last stage
of completion, and his withdrawal will seriously jeopardise its
timely completion.
(2) Notwithstanding anything contained in section 3 or any other
provisions of this Act, to ensure that the Government work is not
adversely affected on account of large scale transfers of
Government servants from one single Department or office, not
more than thirty per cent. of the employees shall be transferred
from any office or Department at a time, in a year.
Page No.19 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
22) Thus, tenure for All India Service officers and state
government servants in Groups A, B and C is provided for in Section
3 of the Transfer Act. Section 4(1) of the Act imposes a prohibition
on the transferring authority from transferring a government servant
before completion of tenure prescribed in Section 3. Sub-Sections (2),
(3) and (4) of Section 4 prescribe the manner in which the transfers of
employees, who have completed their tenures as prescribed in Section
3, are to be effected. Sub-Section (5) of Section 4 confers special
power on the competent authority to effect transfers in special cases
before completion of tenure by the government servant.
23) Turning to provisions of Section 3 of the Transfer Act
prescribing the tenure of posting, the normal tenure for All India
Service officers as well as Groups-A, B and C state government
servants or employees is prescribed as 3 years under the provisions of
sub-section (1) of Section 3. The two Provisos to sub-section (1) of
Section 3 deal with Group-C employees in non-secretariat services
and employees in secretariat services. Secretariat services mean and
include the State services belonging to Mantralaya Departments. The
first proviso to sub-section (1) of Section 3 provides for transfer of
employee belonging to non-secretariat services on the post held by
him/her on completion of two full tenures at the office or department
to another office or department. The second proviso to sub-section (1)
of Section 3 deals with employees belonging to secretariat services
and provides that such employees cannot be continued on same post
for more than 3 years and shall not, in any case, be continued in the
same department for more than two consecutive tenures. By
interpreting the provisions of the first proviso to sub-section (1) of
Section 3, the employees belonging to non-secretariat services in
Page No.20 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
Group-C started demanding two full tenures of three years (total six
years) on a post and while deciding the issue as to whether a right
exists in favour of such employees to demand two full tenures,
divergent views are expressed by the Division Benches in Santosh
Nandalal Dalal and Sachin Sadashiv Raut.
24) It would therefore be apposite to first consider the views
expressed by the Division Benches in Santosh Nandalal Dalal and
Sachin Sadashiv Raut.
E.2 VIEW EXPRESSED BY THE DIVISION BENCH IN SANTOSH
NANDALAL DALAL
25) The issue as to whether employees belonging to Non-
Secretariat services in Group-C are entitled to two tenures fell for
consideration of the Division Bench in Santosh Nandalal Dalal
(supra). The case involved transfers of Inspectors of Weights and
Measure in Legal Meteorology Department of the State Government,
who had completed three years of tenure on their posts. The
Respondent No. 3 therein, who was transferred from Chalisgaon
(Jalgaon) to Shirpur (Dhule District), approached the Tribunal
contending inter alia that being a Non-secretariat Group-C employee,
he was entitled to enjoy two full tenures of three years at Chalisgaon.
A Single Judge of the Tribunal proceeded to accept the contention of
Respondent No. 3 therein by referring to judgment of its Division
Bench, which had in fact held to the contrary. Petitioner therein, who
was transferred at the original place of posting of Respondent No. 3
i.e. Chalisgaon, got affected by the Order passed by the Single Judge
Page No.21 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
of the Tribunal and petitioned this Court. In its judgment delivered on
6 May 2015, the Division Bench of this Court (T.V. Nalawade and
Indira K. Jain, JJ.) interpreted provisions of Sections 3 and 4 of the
Transfer Act and held in para-12 as under :
12. The combined reading of provisions of sections 3(1) and 4(1)
shows that the normal tenure in a post of a government servant
shall be 3 years. The first proviso to section 3(1) of the Act shows
that an employee of Group ‘C’ from non secretariat service may be
retained at that office or department for two full tenures (one full
tenure consists of 3 years). The proviso does not give right to the
employee to get two full tenures at that office or department but it
only allows the employer, competent authority, to continue the
Group ‘C’, non secretariat employee to continue at the office or
department for six years. The second proviso shows that if the
employee of Group ‘C’ is from secretariat service he cannot be
continued in the same post for more than 3 years and he shall not be
continued in the same department for more than two consecutive
tenures. The plain reading of section 3(1) and both the provisos
shows that Group ‘C’ employee who is not from secretariat service
can be kept at that office or department for six years but if he
belongs to secretariat service he cannot be kept in the same post for
more than three years though he can be kept in the same
department for two consecutive tenures. These restrictions are in
public interests. These provisions on one hand, show that the State,
competent authority can use these provisions for keeping one
employee at the same station for two full tenures but the State is not
expected to continue him after completion of two full tenures. Thus,
the provision of section 3(1) with the two provisos, does not show
that any right in conferred on Group ‘C’ employee from non
secretariat service to work at one station for six years.
26) Thus, in Santosh Nandalal Dalal, the Division Bench held
that the first proviso to sub-section (1) of Section 3 did not create any
right in favour of employees in non-secretariat services in Group-C to
claim two full tenures on any post but merely permitted the employer
to continue them for a maximum tenure of 6 years in the same office
Page No.22 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
or department. The Division Bench therefore accepted the contention
of the Petitioner therein that employee in non-secretariat service in
Group-C is entitled to only one tenure of 3 years under the provisions
of sub-section (1) of Section 3 and became liable to transfer on
completion of normal tenure of 3 years. The Division Bench
accordingly set aside the order passed by the Tribunal and dismissed
the Original Application filed by Respondent No.3 therein.
E.3 VIEW EXPRESSED BY THE DIVISION BENCH IN SACHIN SADASHIV
RAUT
27) Interpretation of provisions of Section 3 of the Transfer
Act once again fell for consideration before another Division Bench of
this Court (S.V. Gangapurwala, J. as he then was, and Anil S. Kilor, J.) in
Sachin Sadashiv Raut (supra). In that case, the Petitioner therein was a
Clerk working in Mahatma Phule Krishi Vidyapeeth, Rahuri and was
transferred from Rahuri to Dhule within about 1 year of his posting
on a particular post. The transfer order was questioned before the
Division Bench, inter-alia on the ground that being a Group-C
employee, he was entitled to two tenures of 3 years as per the
provisions of Section 3 of the Transfer Act. In the above factual
background, the Division Bench held in paras-9 and 10 as under :
9. Section 3 of the Act 2005 provides the tenure of posting. Sub
Section 1 of Section 3 of the Act 2005 provides that for a Group A,
B and C State Government Servants or employees, the normal
tenure in a post shall be three years. Proviso to sub section 1 of
Section 3 of the Act 2005 further clarifies that, if an employee is in
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.
Page No.23 of 52 16 January 2025 ::: Uploaded on - 17/01/2025 ::: Downloaded on - 18/01/2025 09:12:44 ::: Neeta Sawant WP-269-2023-FB-FC
Section 4 of the Act 2005 requires that, no Government servant
shall ordinarily be transferred unless he has completed his tenure of
posting as provided in Section 3.
10. In the present case, admittedly, the petitioner is a Class – III
(Group – C) employee. He is in a non secretariat service. As such,
he has right to complete two full tenures at the office. The
petitioner, it appears is transferred on 01.07.2015 from Savali Vihir,
Tq. Rahata to M.P.K.V. Rahuri. His two full terms would be
completed on 30th June, 2021. We may not consider at this stage
the transfer order dated 17.07.2018 from one department to another
at M.P.K.V. Rahuri.
28) It appears that judgment of the Division Bench in Santosh
Nandalal Dalal was not brought to the notice of the Division Bench
which decided the case of Sachin Sadashiv Raut. As observed above,
the Division Bench in Santosh Nandalal Dalal had held that the first
proviso to sub-section (1) of Section 3 did not create right in favour of
employees in Non-Secretariat service in Group-C to claim two tenures
of 3 years, whereas the Division Bench in Sachin Sadashiv Raut
interpreted the provisions of sub-section (1) of Section (3) of the
Transfer Act to mean that an employee in non-secretariat service of
Group-C can be transferred on a post only on completion of two full
tenures.
29) After going through the findings recorded by the
judgments in Santosh Nandalal Dalal and Sachin Sadashiv Raut it
appears that the issue which we are tasked upon to answer was clearly
involved before the Division Bench in Santosh Nandalal Dalal. In that
case, the Division Bench has considered and answered the issue as to
whether the first proviso to Section 3(1) creates any right in favour of
employees in non-secretariat services in Group-C to continue on the
Page No.24 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
same post for 6 years. As against this in Sachin Sadashiv Raut, the
Petitioner therein was not only an employee of Mahatma Phule Krishi
Vidyapeeth (though governed by provisions of Transfer Act) but was
sought to be transferred before completion of even normal tenure of 3
years. While deciding the case in Sachin Sadashiv Raut, the attention
of the Division Bench was not invited to the view taken by the
coordinate Bench in Santosh Nandalal Dalal. Factually in Sachin
Sadashiv Raut, the Division Bench was not even required to consider
the issue as to whether an employee in non-secretariat services
(Group-C) is entitled to two full tenures under the first proviso to
Section 3(1) of the Act, as the employee concerned came to be posted
on the post concerned on 17 July 2018 and he was sought to be
transferred on 1 August 2019. The Division Bench in Sachin Sadashiv
Raut, has possibly dealt with the right of the Petitioner therein to serve
for two full tenures at Rahuri possibly on account of the fact that he
came to be transferred to Rahuri on 1 July 2015 and if his previous
transfer within Rahuri (effected on 17 July 2018 from Fruit Research
Project, MKVP, Rahuri to the office of University Engineering
MKVP, Rahuri) is ignored, he had completed 3 years of posting at
Rahuri, by the time his transfer to Dhule was effected by order dated 1
August 2019. This appears to be the reason why the Division Bench
has gone into the issue as to whether the Petitioner therein was
entitled to serve at Rahuri for two full tenures in accordance with first
proviso to Section 3(1) of the Transfer Act. However, while doing so,
neither any argument was raised nor the Division Bench was tasked
upon to decide the issue of interplay between the main provision in
Section 3(1) and the effect of the first proviso thereto. Therefore, in
Sachin Sadashiv Raut, there is no discussion by the Division Bench
Page No.25 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
about effect of the first proviso on the main provision of Section 3(1)
of the Transfer Act. In that sense, one may well contend (and it is
actually contended so by Respondent Nos. 3 and 4 before us) that
there is no actual divergence of views by the two Division Benches on
the effect of the first proviso on main provision under Section 3(1) of
the Transfer Act. However the Division Bench did set aside the
transfer of employee therein by holding that he was entitled to serve
for two full tenures at Rahuri. Also, the judgment in Sachin Sadashiv
Raut is often quoted by Non-secretariat Group-C employees to claim
two tenures on a post. Therefore the Division Bench in the present
case felt it to appropriate that the controversy is more advantageously
resolved by the Larger Bench.
E.4 FUNCTION OF PROVISO IN RELATION TO THE MAIN PROVISION
30) As observed above, the main provision prescribing tenure
is under sub-section (1) of Section 3 of the Transfer Act.
Interpretation of the two provisos to Section 3(1) is the hotbed of
controversy amongst the rival parties. Before proceeding further to
determine the exact interpretation of the two provisos and their effect
on the main provision under Section 3(1) of the Act, it would be
necessary to understand the exact use and function of a proviso in an
enactment.
31) Both the sides have relied upon judgments in support of
their respective claims about the effect of the two provisos appended
to sub-section (1) of Section 3 of the Transfer Act. According to Mr.
Desai, the provisos carve out an exception to the normal tenure
Page No.26 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
provided for in Section 3(1) and that therefore, the provisos also create
a right in favour of employees covered by it. On the contrary, it is the
contention of Dr. Saraf that the provisos are mere qualifications/
exceptions on the entitlement of the State Government to continue an
employee on a post, or in an office or department beyond the periods
specified therein.
32) By now it is well-settled position that a proviso must be
read in context of the subject matter of the enacting clause and it must
be construed in relation to the principal matter to which it is a proviso.
In an ordinary course, proviso by itself does not constitute a separate
or independent enactment. However, in exceptional circumstances,
proviso can be read to incorporate a substantive provision so long as it
deals with the subject of the main provision. It would be apposite to
refer to the decisions relied upon by the learned counsel appearing for
the rival parties for understanding the nature and function of a
proviso.
33) In Laxminarayan R. Bhattad (supra) relied upon by Mr.
Desai, the Apex Court by referring to its judgment in S. Sundaram
Pillai Versus. V. R. Pattabiraman22 has held as under:
55. A proviso, as is well known, may serve different purposes:
(i) qualifying or excepting certain provisions from the main
enactment;
(ii) it may entirely change the very concept or the intendment of the
enactment by insisting on certain mandatory conditions to be
fulfilled in order to make the enactment workable;
(iii) it may be so embedded in the Act itself as to become an integral
part of the enactment and thus acquire the tenor and colour of the
substantive enactment itself; and
22
(1985) 1 SCC 591Page No.27 of 52
16 January 2025::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
(iv) it may be used merely to act as an optional addendum to the
enactment with the sole object of explaining the real intendment of
the statutory provision.
(See S. Sundaram Pillai v. V.R. Pattabiraman [(1985) 1 SCC 591 :
AIR 1985 SC 582] .)
34) It is relying on ratio of the judgment in Laxminarayan R.
Bhattad that Mr. Desai has contended that since one of the purposes
which a proviso serves is qualifying or excepting certain provisions
from the main enactment, the purpose of inserting the two provisos to
Section 3(1) is to carve out an exception to the normal tenure
provided in the main Section 3(1).
35) In Dwarka Prasad (supra), the Apex Court has held in
paras-16, 17 and 18 as under :
16. There is some validity in this submission but if, on a fair
construction, the principal provision is clear, a proviso cannot
expand or limit it. Sometimes a proviso is engrafted by an
apprehensive draftsman to remove possible doubts, to make matters
plain, to light up ambiguous edges. Here, such is the case. In a
country where factories and industries may still be in the
developmental stage, it is not unusual to come across several such
units which may not have costly machinery or plant or fittings and
superficially consist of bare buildings plus minor fixtures. For
example, a beedi factory or handicraft or carpentry unit — a few
tools, some small contrivances or collection of materials housed in
a building, will superficially look like a mere “accommodation” but
actually be a humming factory or business with a goodwill as
business, with a prosperous reputation and a name among the
business community and customers. Its value is qua business,
although it has a habitation or building to accommodate it. The
personality of the thing let out is a going concern or enterprise, not
a lifeless edifice. The Legislature, quite conceivably, thought that a
marginal, yet substantial, class of buildings, with minimal
equipments may still be good businesses and did not require
protection as in the case of ordinary building tenancies. So, toPage No.28 of 52
16 January 2025::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FCdispel confusion from this region and to exclude what seemingly
might be leases only of buildings but in truth might be leases of
businesses, the Legislature introduced the exclusionary proviso.
17. While rulings and text books bearing on statutory construction
have assigned many functions for provisos, we have to be selective,
having regard to the text and context of a statute. Nothing is gained
by extensive references to luminous classics or supportive case-law.
Having explained the approach we make to the specific “proviso”
situation in Section 2(a) of the Act, what strikes us as meaningful
here is that the Legislature by the amending Act clarified what was
implicit earlier and expressly carved out what otherwise might be
mistakenly covered by the main definition. The proviso does not, in
this case, expand, by implication, the protected area of building
tenancies to embrace “business” leases.
18. We may mention in fairness to Counsel that the following,
among other decisions, were cited at the Bar bearing on the uses of
provisos in statutes: CIT v. Indo-Mercantile Bank Ltd, [AIR 1959
SC 713 : 1959 Supp (2) SCR 256, 266 : (1959) 36 ITR 1] ; Ram
Narain Sons Ltd. v. Asstt. CST [AIR 1955 SC 765 : (1955) 2 SCR
483, 493 : (1955) 6 STC 627] ; Thompson v. Dibdin [(1912) AC 533,
541 : 81 LJKB 918 : 28 TLR 490] ; Rex v. Dibdin [1910 Pro Div 57,
119, 125] and Tahsildar Singh v. State of U.P. [AIR 1959 SC 1012 :
1959 Supp (2) SCR 875, 893 : 1959 Cri LJ 1231] . The law is trite. A
proviso must be limited to the subject-matter of the enacting clause.
It is a settled rule of construction that a proviso must prima facie be
read and considered in relation to the principal matter to which it is
a proviso. It is not a separate or independent enactment. “Words are
dependent on the principal enacting words to which they are tacked
as a proviso. They cannot be read as divorced from their context”
(Thompson v. Dibdin, 1912 AC 533). If the rule of construction is
that prima facie a proviso should be limited in its operation to the
subject-matter of the enacting clause, the stand we have taken is
sound. To expand the enacting clause, inflated by the proviso, sins
against the fundamental rule of construction that a proviso must be
considered in relation to the principal matter to which it stands as a
proviso. A proviso ordinarily is but a proviso, although the golden
rule is to read the whole section, inclusive of the proviso, in such
manner that they mutually throw light on each other and result in a
harmonious construction.
Page No.29 of 52 16 January 2025 ::: Uploaded on - 17/01/2025 ::: Downloaded on - 18/01/2025 09:12:44 ::: Neeta Sawant WP-269-2023-FB-FC
The proper course is to apply the broad general Rule of
construction which is that a section or enactment must be construed
as a whole, each portion throwing light if need be on the rest.
(emphasis added)
36) In Commissioner of Commercial Taxes (supra), the Apex
Court has held that though a proviso is an exception to the main part
of the Section but in exceptional cases, a proviso may be a substantive
provision itself. The Apex Court has held as under :
Generally speaking, it is true that the proviso is an exception to the
main part of the section; but it is recognised that in exceptional
cases a proviso may be substantive provision itself. We may in this
connection refer to Rhondda Urban District Council v. Taff Vale
Railway Co.*, where section 51 of the Act there under
consideration was framed as a proviso to preceding sections. The
Lord Chancellor however pointed out that “though section 51 was
framed as a proviso upon preceding sections, but it is true that the
latter half of it though in form a proviso, is in substance a fresh
enactment, adding to and not merely qualifying that which goes
before.”
* L.R. [1909] A.C. 253.
Again in Commissioner of Income-tax v. Nandlal Bhandari &
Sons*, it was observed that “though ordinarily a proviso restricts
rather than enlarges the meaning of the provision to which it is
appended, at times the legislature embodies a substantive provision
in a proviso. The question whether a proviso is by way of an
exception or a condition to the substantive provision, or whether it
is in itself a substantive provision, must be determined on the
substance of the proviso and not its form.”
Finally, in State of Rajasthan v. Leela Jain**, the question arose
whether the proviso in the Act under consideration there was a
limiting provision to the main provision or was a substantive
provision in itself. This court observed that “so far as a general
principle of construction of a proviso is concerned, it has been
broadly stated that the function of a proviso is to limit the main part
of the section and carve out something which but for the proviso
would have been within the operative part.” But it was further
observed that the proviso in that particular case was really not a
proviso in the accepted sense but an independent legislativePage No.30 of 52
16 January 2025::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FCprovision by which to a remedy which was prohibited by the main
part of the section, an alternative was provided.
These three cases show that in exceptional circumstances a proviso
may not be really a proviso in the accepted sense but may be a
substantive provision itself. It seems to us that the proviso under
consideration now is of this exceptional nature. As we have already
held, there is no provision in the main part of the sub-section for
searching purely residential premises. Therefore when the proviso
provides for such search it is providing for something independent
of the main part of the sub-section. Further the second part of the
proviso which talks of searches made under this sub-section shows
that the power of inspection provided in the main part of the sub-
section is tantamount to a power of search. We have already come
to the conclusion independent of the proviso. All that we need say
here is that the proviso also shows that that interpretation is correct.
We may add that we are not precluded from looking at the proviso
in interpreting the main part of the sub-section. We may in this
connection refer to the following passage in Maxwell on
Interpretation of Statutes, eleventh edition, at page 155, where it is
observed:
“There is no rule that the first or enacting part is to be construed
without reference to the proviso.
The proper course is to apply the broad general rule of
construction, which is that a section or enactment must be
construed as a whole, each portion throwing light, if need be, on
the rest.
*[1963] 47 I.T.R. 803 .**(1965) 1 S.C.R. 276; A.I.R. 1965 S.C. 1296,
1300.
The true principle undoubtedly is that the sound interpretation and
meaning of the statute, on a view of the enacting clause, saving
clause and proviso, taken and construed together is to prevail.”
(emphasis added)
37) In Commissioner of Income Tax, Kerala and Coimbatore
(supra), the Apex Court has held in para-5 as under :
5. ….. Presumably on the basis of this suggestion the amending Act
of 1953 substituted clause (i-a) by clause (b) of the proviso. But it is
not an inflexible rule of construction that a proviso in a statute
should always be read as a limitation upon the effect of the main
enactment. Generally the natural presumption is that but for thePage No.31 of 52
16 January 2025::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FCproviso the enacting part of the section would have included the
subject-matter of the proviso; but the clear language of the
substantive provision as well as the proviso may establish that the
proviso is not a qualifying clause of the main provisions, but is in
itself a substantive provision. In the words of Maxwell, “the true
principle is that the sound view of the enacting clause, the saving
clause and the proviso taken and construed together is to prevail”.
So construed we find no difficulty, as we will indicate later in our
judgment, in holding that the said clause ( b) of the proviso deals
with a case of business which is not vested in trust for religious or
charitable purposes within the meaning of the substantive clause of
Section 4(3)(i).
(emphasis added)
38) In Delhi Metro Rail Corporation Limited (supra), the Apex
Court has discussed several of its decisions rendered in the past on the
issue of construction of proviso and has held in para-21 as under :
21. What follows from the aforesaid enunciation is that effect of a
proviso is to except all preceding portion of the enactment. It is
only occasionally that proviso is unrelated to the subject-matter of
the preceding section, it may have to be interpreted as a substantive
provision. Ordinarily, a proviso is not interpreted as stating a
general rule. Provisos are often added as saving clauses. A proviso
must be construed with reference to the preceding parts of the
clause to which it is appended. The proviso is ordinarily
subordinate to the main section. A construction placed on proviso
which brings general harmony to the terms of the section should
prevail. A proviso may sometime contain substantive provision.
Ordinarily, proviso to a section is intended to take out a part of the
main section for special treatment. Normally, a proviso does not
travel beyond the main provision to which it is a proviso. A proviso
is not interpreted as stating a general rule, it is an exception to the
main provision to which it is carved out as a proviso. Proviso
cannot be construed as enlarging the scope of enactment when it
can be fairly and properly constructed without attributing that
effect. It is not open to read in the words of enactment which are
not to be found there and which would alter its operative effect.
(emphasis added)
Page No.32 of 52
16 January 2025
::: Uploaded on - 17/01/2025 ::: Downloaded on - 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
39) In Broach Co-operative Bank, Ltd. Broach (supra), Chief
Justice M. C. Chagla, speaking for the Division Bench, has held as
under :
2. …. But to my mind the proper canon of construing a section
which has several provisos is to read the section and the provisos as
a whole, try and reconcile them and give a meaning to the whole of
the section along with the provisos which is a comprehensive and
logical meaning.
40) The conspectus of the above discussion on the nature and
function of a proviso is that in ordinary circumstances, a proviso is
not a separate or independent enactment and it must be read and
considered in relation to the principle that it is usually an exception or
condition to the substantive provision. It is equally recognised that in
exceptional circumstances, a proviso may be a substantive provision
itself. What is therefore required to be done is to read the whole
Section inclusive of the proviso in such a manner that the main
enactment, together with proviso, mutually throw light on each other
and result in a harmonious construction.
E.5 WHETHER TWO PROVISOS TO SECTION 3(1) CREATE
RIGHT IN FAVOUR OF EMPLOYEES?
41) We now proceed to examine whether the first proviso to
Section 3(1) of the Transfer Act creates any right in favour of
employees in non-secretariat services Group-C, to serve for two full
tenures of 3 years each (total six years) on a particular post.
Page No.33 of 52 16 January 2025 ::: Uploaded on - 17/01/2025 ::: Downloaded on - 18/01/2025 09:12:44 ::: Neeta Sawant WP-269-2023-FB-FC 42) Section 3 of the Transfer Act uses the words 'post', 'office'
and ‘department’ in different contexts. The word ‘post’ and
‘department’ are defined under Section 2 of the Act, whereas the
word ‘office’ has not been so defined. Under Section 2(c) of the Act,
the word ‘department’ has been defined as under :
(c) “Department” or “Administrative Department” means the
Department of the Government of Maharashtra as specified in the
First Schedule to the Maharashtra Government Rules of Business;
43) Similarly, the word ‘post’ has been defined under Section
2(g) of the Act as under :
(g) “post” means the job or seat of duty to which a Government
servant is assigned or posted;
44) Section 2(h) of the Act defines the term ‘Secretariat
Services’ as under :
(h) “secretariat services” means the State services belonging to the
Mantralaya Departments;
45) Section 2(i) of the Act defines the term ‘transfer’ to mean
posting of a Government Servant from one post, office or department
to another office, post or department. Section 2(i) provides thus :
(i) “Transfer” means posting of a Government servant from one
post, office or Department to another post, office or Department;
46) Thus, all three types of movements of an employee from
one post to another or from one office to another or from one
department to another constitutes a transfer within the meaning of
Page No.34 of 52
16 January 2025::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FCSection 2(i) of the Transfer Act. As observed above, the words, post,
office and department are used in section 3(1) and in the two provisos
for different purposes. This is clear from the following :
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 :
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’:
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.
47) An ‘office’ or ‘department’ may have multiple ‘posts’ on
which an employee can be posted. Movement of an employee from
one post to another within the same office or department also
constitutes transfer within the meaning of Section 3(1) of the Transfer
Act. Section 3(1) provides for ‘normal tenure’ on a ‘post’ and not in
an ‘office’ or ‘department’. As against this, completion of two full
tenures in the first Proviso is at an ‘office’ or ‘department’.
48) Under sub-section (1) of Section 3 of the Transfer Act, the
normal tenure for All India Service Officers and all Group-A, B and
Government Servants or employees is provided as 3 years. Sub-section
(1) of Section 4 provides that no Government Servant shall ordinarily
be transferred unless he has completed his tenure of posting as
provided under Section 3. Therefore, Section 3(1) read in conjunction
with Section 4(1) creates a right in favour of a government servant toPage No.35 of 52
16 January 2025::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FCcontinue on a post for a period of 3 years in ordinary circumstances.
There are exceptions to this minimum tenure of 3 years. Under sub-
section (5) of Section 4, the Competent Authority can effect transfer
of government servants before completion of their tenure on a post by
following the procedure laid down under Section 4. Thus, subject to
the provisions of Section 4, every IAS officer, as well as employees in
Groups-A, B and C have a right to remain on a post for a period of 3
years. Thus, Section 3(1) of the Act, when read in conjunction with
Section 4, creates a qualified right in favour of all IAS officers and
Group A, B and C employees to remain on the same post for 3 years.
49) It is the contention of the Petitioner that the two provisos
to Section 3(1) carve out an exception to the ‘normal tenure’ in a post
and while carving out such exception, the provisos also create a right
in favour of a government servants covered by those provisos to
continue on a post for a period specified therein. As against this, it is
the contention of the State Government that while Section 3(1)
creates a right in favour of a government servant to serve for normal
tenure of 3 years on a post, the two provisos merely create a mandate
for a Government to retain such government servants for a maximum
period specified in the provisos.
50) The first proviso deals with an employee in non-secretariat
services in Group-C whereas the second proviso deals with all
employees belonging to secretariat services. As observed above,
Section 2(h) of the Act defines secretariat services to mean state
services belonging to Mantralaya Department. Therefore, every
government servant or employee belonging to secretariat services
Page No.36 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
irrespective of the group to which he/she may belong, is covered by
second proviso to Section 3(1) of the Act. Thus, while the first
proviso is limited to only Group-C employees in non-secretariat
services, the second proviso applies to all employees in secretariat
services. So far as the employees in non-secretariat services, Group-C
are concerned, the first proviso provides that such employees ‘shall be
transferred from the post’ held by him/her on completion of two full
tenures in that ‘office’ or ‘department’, to another ‘office’ or
‘Department’. Similarly, in respect of the employees belonging to
secretariat services, they cannot be ‘continued’ in the same ‘post’ for
more than 3 years and shall not be continued in the same
‘Department’ for more than two consecutive tenures. What must
immediately be noticed is the conscious use of different
words/expressions under Section 3(1) and the expressions in the two
provisos. While sub-section (1) of Section 3 uses the expression
‘normal tenure in a post’, the first proviso uses the expression ‘shall be
transferred from the post’. Similarly, the second proviso uses the words
‘shall not be continued in the same post’. Thus, the legislative intent is
quite apparent from conscious use of distinct words/expressions in
the main Section and two provisos. The main provision under Section
3(1) seeks to create a right in favour of Government Servant by
providing for his ‘normal tenure’ in a post, whereas the two provisos
either create a mandate for transfer (first proviso) or prohibition on
continuance (second proviso) for the State Government. Therefore,
while Section 3(1) seeks to create a right in favour of a government
servant to continue on a post for a normal tenure of 3 years, the two
provisos do not create any such right to continue on a post, but merely
outlines the maximum period for which either the employees in non-
Page No.37 of 52 16 January 2025 ::: Uploaded on - 17/01/2025 ::: Downloaded on - 18/01/2025 09:12:44 ::: Neeta Sawant WP-269-2023-FB-FC
secretariat services in Group-C or the employees in secretariat services
can be continued on a post, office or department.
E.6 CONSTRUCTION OF FIRST PROVISO TO SECTION 3(1)
51) Harmonious reading of the entire Section 3 together with
the provisions of Sections 4 and 5 of the Transfer Act makes the
position clear that the two provisos to sub-section (1) of Section 3 do
not create any exception in favour of employees qua the normal
tenure provided for in sub-section (1) of Section 3. Sub-section (1) of
Section 3 applies to All India Service officers, as well as to ‘all Groups
A, B and C State Government Servants or employees’. The two provisos
to sub-section (1) of Section 3 cover all Group-C State Government
servants and employees. While the first proviso deals with employees
in Non-secretariat Group-C service, the second proviso covers
employees belonging to secretariat services. Thus, except those
Group-C employees who happen to be a part of Secretariat services
(belonging to Mantralaya Department), all other Group-C employees
in service of the State Government are covered by the first proviso. If
the two provisos were inserted with the objective of providing a
different tenure than the normal tenure provided for under Section
3(1), the Legislature would not have included ‘all Group-C employees’
in Section 3(1). The fact that Section 3(1) includes all Group-C
employees would essentially mean that the normal tenure for every
Group-C employee (whether he belongs to secretariat services or non-
secretariat services) is 3 years. Since the normal tenure of every
Group-C employee is dealt with by Section 3(1), which is the main
Page No.38 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
enactment, it cannot be contended that the two provisos also provide
a different normal tenure for the employees who are already covered
by Section 3(1).
52) Thus, the purpose behind enacting Section 3(1) and the
purpose behind inserting the two provisos is entirely different.
Therefore, it cannot be construed that the two provisos carve out
exception to the normal tenure provided for Group-C employees
(whether secretariat or non-secretariat) provided for in Section 3(1).
The two provisos deal with a different subject matter, which is not
dealt with by Section 3(1). The subject matter, which the two provisos
deal with, is the maximum period for which an employee in Group-C
(secretariat or non-secretariat) can be retained in a post, office or
department.
53) The first proviso to Section 3(1), which applies to an
employee in non-secretariat services in Group-C provides that such
employee must be transferred from the post held by him on
completion of two full tenures in an office or department to another
office or department. This would essentially mean that while the
normal tenure for Group-C non-secretariat employee in respect of a
post continues to be 3 years under Section 3(1), the moment he
completes two such full tenures in an ‘office’ or ‘department’, he is to
be necessarily moved out of such office or department. To illustrate, a
Junior Clerk who is posted in a particular Collector Office in a
particular Section will have a normal tenure of 3 years on the ‘post’
occupied by him and subject to the provisions of Section 4, he cannot
be transferred out from that ‘post’ till he completes the normal tenure
Page No.39 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
of 3 years. However, it may happen that provisions of Section 3(1) are
misused by the transferring authority of such employee for retaining
him in the same office for indefinite period of time by rotating him
from one table to another or from one section to another. To prevent
such mischief, the Legislature has mandated that such a Junior Clerk
cannot be retained in the same office or department for a period more
than 6 years and the moment he completes two full tenures in the
same office or department, he must be transferred out of such office
or department. This is true purport of Section 3(1) of the Transfer Act
read together with the first proviso.
54) Coming to the second proviso to Section 3(1) of the Act,
the same deals with employees belonging to secretariat services (from
Mantralaya Department). In respect of all secretariat employees in
Mantralaya, regardless of whether they are Group-A, B or C, they
cannot be continued in the same ‘post’ for more than 3 years and must
be moved out to another ‘post’ in the same department upon
completion of posting of 3 years. However, once such employee
completes two consecutive tenures in the same department, he has to
be transferred to another department on completion of 6 years of
posting. To illustrate, a Clerk posted in the Home Department on a
particular post cannot be allowed to hold same ‘post’ for more than 3
years. However, he can be continued in the same department on
different posts upto 6 years. However, the moment such Clerk
completes 6 years of posting in a department, he has to be necessarily
transferred to another department. This is the true meaning and
construction of second proviso to Section 3(1) of the Act.
Page No.40 of 52 16 January 2025 ::: Uploaded on - 17/01/2025 ::: Downloaded on - 18/01/2025 09:12:44 ::: Neeta Sawant WP-269-2023-FB-FC 55) Thus, the fine distinction between the first and the second
proviso is that there is no embargo in the first proviso in respect of
non-secretariat Group-C employees from being retained in the same
post even after completion of 3 years and in a given case, the
Government may decide to continue non-secretariat Group-C
employee in the same post even after completion of 3 years of tenure.
However, when it comes to an employee in secretariat services
(whether he belongs to Group-A, B or C), he cannot be continued
even on same post for more than 3 years. Otherwise, both the provisos
seek to impose an outer limit of two tenures (6 years) in respect of
Group-C non-secretariat employees as well as of secretariat employees
for being continued in the same office or department.
56) Interpretation of the two provisos to Section 3(1) to mean
extension of ‘normal tenure’ would also render provisions of Section
5(1) otiose. The power of extension of tenure in exceptional
circumstances is to be found in Section 5(1) and the same cannot be
read under the two provisos. The normal tenure of all Group-C
employees (secretariat and non-secretariat) under Section 3(1) is three
years, which can be extended only under Section 5(1), that too under
the exceptional circumstances enumerated under Section 5. Accepting
the interpretation sought to be placed by Petitioner about the two
provisos constituting exception to normal tenure prescribed under
Section 3(1), would fall foul of provisions of Section 5, which alone
recognises and enumerates exceptions to normal tenure.
57) Mr. Desai has contended that the two provisos cannot be
read to mean imposing mere outer limit for retention of an employee
Page No.41 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
in a post, office or department, since Section 5 otherwise provides for
extension of tenure laid down under Section 3 in exceptional cases.
He therefore contends that the two provisos must be read to mean
carving out an exception to the normal tenure provided for under
Section 3(1) of the Act. We are unable to agree. Section 5 is an
exceptional provision which applies to an employee who has
completed normal tenure on a ‘post’ or posting of two tenures in an
‘office’ or ‘department’. Therefore, under Section 5(1) of the Act, the
maximum permissible time limit for retention of secretariat and non-
secretariat employees on a ‘post’ or at an ‘office’ or ‘department’ can
be extended in exceptional circumstances as enumerated under
Clauses-(a) to (c), as well as in accordance with the provisions of sub-
section (2) of Section 5. Thus, an employee on the verge of
retirement, who is due for transfer from a ‘post’ on account of
completing 3 years’ tenure or out of the ‘department’ or ‘office’ on
account of completion of two full tenures thereat, the Government
may treat this as an exceptional circumstance and continue him in the
same post or department or office by exercising power under Section
5(1) of the Act. Similarly, if the Government is of the opinion that
large number of employees in Group-C non-secretariat services or in
secretariat services have become due for transfer out of an office or
department on completion of 6 years of posting, it may exercise
special powers under the provisions of sub-section (2) of Section (5)
and ensure that not more than 30% of such employees due for transfer
are actually transferred out from that office or department at the same
time in a year.
Page No.42 of 52 16 January 2025 ::: Uploaded on - 17/01/2025 ::: Downloaded on - 18/01/2025 09:12:44 ::: Neeta Sawant WP-269-2023-FB-FC 58) What must also be appreciated is the fact that Group-C
employees in non-secretariat services occupy several key and sensitive
posts such as Talathi and Circle Officer dealing with effecting and
certifying mutation entries in Revenue Department, Dy. Inspectors in
State Excise Department dealing with regulation of liquor businesses,
Police Constables, Tax Assistant in Finance Department, etc. Several
such Group C non-secretariat employees occupy sensitive posts,
which in common parlance are termed as ‘Executive Postings’. The
objective of the Transfer Act inter alia is to ensure that no employee
shall be permitted to develop vested interest on a particular post by
continuing him on that post for a long time. It is therefore
inconceivable that the Legislature has intended any special
dispensation for Group-C non-secretariat employees (which class
comprise of every Group C employee in state service except those
posted in Mantralaya departments) to have longer than 3 years (6
years) tenure on a post.
59) As observed above, the normal tenure for every Group
employee is 3 years and employees covered by the two provisos leave
no other Group C employee in State Government service. Therefore
construing the two provisos to mean an exception to the normal
tenure prescribed in Section 3(1) of the Act would result in
incongruous situation and would lead to absurdity. It is well
recognised principle that the interpretation of a statute which results
in absurdity or ambiguity should be avoided. It is also well settled
principle of harmonious construction that effect shall be given to all
the provisions and a particular provision of the statute should be
construed with reference to the other provisions so as to make it
workable. A particular provision cannot be picked up and interpreted
Page No.43 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
to defeat another provision made in that behalf under the statute. It is
the duty of the Court to make such construction of a statute which
shall suppress the mischief and advance the remedy. Useful reference
in this regard can be made to the judgment of the Apex Court in
British Airways Plc. Versus. Union of India23, which finds reference in
judgment of Division Bench of this Court in Purshottam Govindrao
Bhagwat (supra). Therefore the first proviso cannot be picked up in
isolation and read in violence to and without reference to provisions
of Sub-section (1) of Section 3 of the Act.
60) The plain reading of Section 3(1) together with the two
provisos does not result in absurdity or ambiguity and therefore it is
not necessary to invoke the principle of purposive interpretation.
However even if the principle of purposive interpretation was to be
invoked, the interpretation that we have made on plain reading of
Section 3(1) together with the two provisos fully meets the purpose for
which the Act is enacted. In fact interpreting the provisions of Section
3 in the manner suggested by the Petitioner would defeat the purpose
behind enacting the Act.
61) In our view therefore, the above interpretation of Section
3(1) and its two provisos makes harmonious reading of the entire
statutory scheme of provisions of Sections 3, 4 and 5 of the Transfer
Act and upholds the purpose behind enactment of the Act.
E.7 PRINCIPLE OF LEGITIMATE EXPECTATION 62) Alternate submission of Mr. Desai is that if the two
provisos are interpreted to mean absence of right in employee’s
23
(2002) 2 SCC 95
Page No.44 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
favour, but mere mandate for the Government not to continue the
employee in same office or department for more than 6 years, there
exists legitimate expectation in favour of an employee that he would
not be disturbed from a post before completion of 6 years term. We
fail to understand as to how the two provisos can possibly create any
reasonable or legitimate expectation in favour of either Group-C non-
secretariat employee or secretariat employees. We have already held
that both the provisos do not create any right in favour of any
employees governed by the provisos nor carve out an exception to the
normal tenure prescribed under Section 3(1). The two provisos are in
the nature of a mandate for the State Government not to continue the
employees covered by the provisos beyond the maximum time limit
prescribed in the provisos. Merely because the maximum time limit is
prescribed in the proviso for retention of an employee in an office or
department, the same cannot create any legitimate expectation that
the employee can be continued on a post for period of 6 years. Under
the first proviso to Section 3(1), it may happen that the Appointing
Authority may continue as Non-Secretariat Group-C employee in the
same office or department for a period of 6 years either in the same
post or on different posts. However, the same would not mean that
any legitimate or reasonable expectation is created in favour of such
Group-C non-secretariat employees for being retained on the same
post despite completion of normal tenure of 3 years. The
interpretation as sought to be suggested by Mr. Desai would in fact
defeat the very objective of the Act. The present petition deals with
the case of Circle Officer in Revenue Department. If Mr. Desai’s
contention is accepted, though the objective of the Act is to ensure
that no employee is continued on a post for more than 3 years so as to
Page No.45 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
avoid creation of vested interests, the employee would still continue
on that post for upto 6 years under legitimate expectation. A Circle
Officer posted in a particular circle (group of villages) definitely
develops vested interests over a period of time in relation to
maintenance of revenue records of those group of villages. He has
power to certify mutation entries effected by the Tehsildar. Therefore,
once it is held that such Circle Officer does not have a right to remain
on a post occupied by him for more than 3 years, it is inconceivable
that he could continue on the same post by invoking the principle of
legitimate or reasonable expectation.
63) Reliance by Mr. Desai on the judgment of the Apex Court
in Ms. X Versus. Registrar General, High Court of Madhya Pradesh
(supra) is inapposite. In case before the Apex Court, a transfer policy
was formulated by the Madhya Pradesh High Court and the policy
guidelines were not enforceable in law. The transfer policy was for
providing guidance to the transferring authority in the matter of
effecting of transfers and inter alia provided for a tenure at a particular
posting. The Apex Court however held that the Madhya Pradesh High
Court, being a State within the meaning of Article 12 of the
Constitution of India, the judicial officers governed by the provisions
of transfer policy had reasonable and legitimate expectation to have
the transfers effected strictly in accordance with such policy. In the
present case, transfers are effected by the provisions of the Transfer
Act which are enforceable in law. Once such transfers are governed by
the provisions of the Act, the transfers must be effected strictly in
accordance with the provisions of the Act and there is no room for
any legitimate expectation for any employee governed by the Act,
Page No.46 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
based on conduct or precedence. In our view, therefore the judgment
of the Apex Court in Ms. X Versus. Registrar General, High Court of
Madhya Pradesh would have no application for resolution of the issue
at hand.
E.8 JUDGMENTS RELIED UPON BY PETITIONER 64) What remains now is to deal with the judgments relied on
by Mr. Desai. Dr. Nagorao Shivaji Chavan (supra), according to Mr.
Desai, is the only possible judgment rendered by the Apex Court
dealing with interpretation of provisions of the Transfer Act. The
issue before the Apex Court was whether the provisions of Section 3
of the Act impose a total embargo on the Government from effecting
transfer before completion of the normal tenure. The employee
therein was facing allegations of financial irregularities and
insubordination, which was held to be substantiated after conduct of
enquiry and therefore it was decided not to retain him as Civil
Surgeon, Jalgaon for completion of 3 years of normal tenure and
accordingly his transfer was effected to Mumbai after one year of his
posting as Civil Surgeon, Jalgaon. The Apex Court considered the
provisions of Sections 3 and 4 of the Transfer Act and held in paras-9
and 12 as under :
9. Section 3, no doubt, provides that for All 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 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 fromPage No.47 of 52
16 January 2025::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FCthe conjoint reading 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.
12. 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 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 1 of not
joining the place where he was transferred for five years, no
interference with the order of transfer is called for.
65) In our view, the judgment of the Apex Court in Dr.
Nagorao Shivaji Chavan does not provide any assistance for resolution
of the issue at hand. The judgment merely expounds the law that
there is no total embargo on transfer of Government Servant before
completion of normal tenure of 3 years provided for under Section
3(1) of the Act and that for administrative exigencies, transfer can be
effected in breach of the normal tenure by exercising power under
Section 4 of the Act.
66) The judgment of Division Bench of this Court in
Purushottam Govindrao Bhagwat (supra) is cited by Mr. Desai mainly
to highlight the objectives behind the enactment of the Transfer Act.
The Division Bench held in para-15 of the judgment as under:
Page No.48 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
15. It can thus be seen that while interpreting the aforesaid
provision of the said Act, this Court would also have to
apply Heydon’s rule or the mischief rule. It will have to be seen as
to what was the position before making the enactment of the Act.
What was the mischief and defect for which the law did not provide
earlier and what remedy the legislature has found to cure the
disease and the true reason of the remedy. After applying this, the
courts will have to make such interpretation, which shall suppress
the mischief and advance the remedy. This legal principle has been
consistently followed by the Apex Court and various High Courts
while interpreting the statutes. It can be seen that prior to the
aforesaid enactment coming into force, there was no enactment to
regulate the transfers of the Government servants and the
Government servants were transferred at the sweet will of the
authorities concerned. In order to do away with the arbitrary
powers of the authorities, an enactment to regulate such transfers
was found necessary. With that purpose, to suppress the mischief of
an unguided, unchannalized power to transfer the Government
servants, the said Act was enacted. The remedy provided was to
regulate the transfers in accordance with the said enactment.
67) The Division Bench further held in para-16 as under :
It is, thus, clear that the legislative intent is clear that ordinarily an
employee should not be transferred prior to completion of his
tenure. However, this would be permissible in special cases when
the competent authority records the reasons for the same and
obtains prior approval of the immediately superior Transferring
Authority.
68) The judgment of the Division Bench in Purushottam
Govindrao Bhagwat merely seeks to highlight the objective behind
enactment of the Transfer Act and the Division Bench held that the
Transfer Act is enacted to prevent the mischief of arbitrary exercise of
power of transfer. The judgment therefore does not provide anyPage No.49 of 52
16 January 2025::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FCassistance for deciding the issue of interpretation of the two provisos
to Section 3(1) of the Act. The issue in the present case is not whether
transfer of Government Servant can be effected in breach of normal
tenure prescribed under Section 3(1). The issue is about the exact
normal tenure applicable for employees in Non-Secretariat services in
Group-C.
69) Both, Mr. Desai as well as Dr. Saraf have relied upon
judgment of Division Bench of this Court in V.B. Gadekar (supra) in
which this Court held that transfer is an essential incident of service
and the provisions of the Act are regulatory and not prohibitory in
their application. This Court recognized the discretion vested in the
transferring authority to make exception to the normal tenure of 3
years wherever special circumstances exist. Thus, the judgment once
again deals with the issue of permissibility to transfer a Government
Servant before completion of normal tenure of 3 years on account of
existence of exceptional circumstances and the judgment does not
really provide any assistance for deciding the question referred to us.
F. CONCLUSION 70) The conspectus of the above discussion is that the two
provisos to sub-section (1) of Section 3 do not create any right in
favour of employees in non-secretariat services in Group-C to claim
two full tenures on the same post and the normal tenure of such non-
secretariat Group-C employees is only 3 years as provided for in
Section 3(1) of the Act. It is for the transferring authority to decide
Page No.50 of 52
16 January 2025
::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
Neeta Sawant WP-269-2023-FB-FC
whether such Group-C non-secretariat employee is to be transferred
from the post held by him on completion of 3 years of service on that
post or not. However, the moment such Group-C non-secretariat
employee completes posting of 6 years on the same post, or on
different posts in same office or department, the transferring authority
is under a mandate under the first proviso to Section 3(1) to transfer
him to another office or department. In case of employees belonging
to secretariat services, the transferring authority is under mandate not
to continue any employee or officer on the same post for more than 3
years and he/she must be transferred to another post either in the
same department or outside the said department on completion of
tenure of 3 years. However, on completion of two consecutive tenures
(6 years) in the same department, such employee in secretariat
services must be transferred to another department.
71) In our view, therefore the interpretation of provisions of
Section 3 of the Transfer Act by Division Bench in Santosh Nandalal
Dalal lays down correct position of law. As observed above, the
Division Bench in Sachin Sadashiv Raut has not in fact made any
detailed discussion on interpretation of the provisions of Sections 3, 4
and 5 and in any case, the view expressed by the Division Bench in
Sachin Sadashiv Raut that every Group-C employee in non-secretariat
services has a right to complete two full tenures of office, does not lay
down correct law.
G. ANSWER TO THE QUESTION FORMULATED FOR REFERENCE Page No.51 of 52 16 January 2025 ::: Uploaded on - 17/01/2025 ::: Downloaded on - 18/01/2025 09:12:44 ::: Neeta Sawant WP-269-2023-FB-FC 72) We accordingly proceed to answer the question referred to us as under :
The first proviso to sub-section (1) of Section 3 of the Transfer
Act does not confer a right on employees in non-secretariat
services in Group-C to complete two full tenures, each tenure
consisting of 3 years. The first proviso to sub-section (1) of
Section 3 of the Transfer Act merely permits the transferring
authority to continue such employee in non-secretariat services
in Group-C at the same office or department or even in the
same post for a maximum period of 6 years, without there being
any corresponding right with such employee to complete two
full tenures.
73) Having answered the question referred to us, we direct
that the Writ Petition alongwith Interim Application be placed before
the Division Bench for deciding the petition in accordance with
answer to the Reference. We place on record our appreciation for the
cooperation extended by the learned counsel appearing for parties for
hearing of the Reference on a non-court working day.
[JITENDRA JAIN, J.] [SANDEEP V. MARNE, J.] [A.S.CHANDURKAR, J.]
Digitally
signed by
NEETA
NEETA SHAILESH
SHAILESH SAWANT
SAWANT Date:
2025.01.17
15:24:46
+0530 Page No.52 of 52
16 January 2025::: Uploaded on – 17/01/2025 ::: Downloaded on – 18/01/2025 09:12:44 :::
[ad_1]
Source link