18-wp-269-23.doc Rameshwar Dilwale IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.269 OF 2023 Vishwas Laxman Gadade .. Petitioner Vs. The State of Maharashtra & Ors. .. Respondents ... Mr. Mihir Desai, Senior Advocate a/w Mr. Sachin K. Hande a/w Mr. Sandip Khandekar for the Petitioner. Mr. N. C. Walimbe, Addl. GP a/w Ms. Reena A. Salunkhe, AGP for Respondent-State. ... CORAM : A.S. CHANDURKAR & JITENDRA JAIN, JJ DATE : 8th MARCH 2024. P.C. : 1. The effect of Section 3(1) of the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005 alongwith its first proviso falls for consideration in this writ petition. The petitioner is serving as a Group-C employee of the State Government on a non-secretarial post. As per the first proviso to Section 3(1) of the Act of 2005, the petitioner contends that he is entitled to serve at the office or department for two full tenures of three years each. However, since the services of the petitioner were transfered after completion of one tenure of three years, the said order of transfer was the subject matter of challenge before the Maharashtra Administrative Tribunal. The learned Member of the Tribunal was confronted with two 1/5 RAMESHWAR LAXMAN DILWALE Digitally signed by RAMESHWAR LAXMAN DILWALE Date: 2024.03.12 14:40:34 +0530 18-wp-269-23.doc Rameshwar Dilwale decisions divergent of this Court. In Writ Petition No. 8813 of 2014 (Santosh Nandalal Dalal Vs. State of Maharashtra and Anr.), decided on 06/05/2015 it was held in paragraph 12 as under:- 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 2/5 18-wp-269-23.doc Rameshwar Dilwale 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. 2. The other judgment of Division Bench in Writ Petition No.10330 of 2019 (Sachin Sadashiv Raut Vs. State of Government and Anr.), decided on 08/11/2019 held in paragraphs 9 and 10 as under:- 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 3/5 18-wp-269-23.doc Rameshwar Dilwale another office or Department. 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. 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. 3. From the aforesaid decisions it can be seen that in Sachin Sadashiv Raut (supra), the right of a Group-C employee on a non-secretarial post to enjoy two full tenures prior to transfer has been recognised while in the earlier decision in Santosh Nandalal Dalal (supra), it has been held that the first proviso to Section 3(1) of the Act of 2005 does not give any right to such employee to get two full tenures at that office or department and it only allow the employer to continue the said employee at such office or department for six years. The earlier decision in Santosh Nandalal Dalal (supra) was not brought to the notice of the Division Bench that decided 4/5 18-wp-269-23.doc Rameshwar Dilwale in Sachin Sadashiv Raut (supra). 4. Since we find that the divergent views taken in these decisions cannot be reconciled and the issue with regard to applicability of Section 3(1) of the Act of 2005 arises frequently, it is felt necessary that this issue is resolved by a larger bench. 5. Accordingly, the papers be placed before the Hon’ble the Chief Justice to consider making a reference under Chapter I Rule 7 of the Bombay High Court Appellate Side Rules, 1960 to answer the question “whether the provisions of Section 3(1) read with first proviso of the Maharashtra Government 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?. 6. Order accordingly. [ JITENDRA JAIN, J] [A.S. CHANDURKAR, J. ] 5/5