IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 14.09.2010 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.No.4776 of 2010 and M.P.No.1 of 2010 R.Jayabal .. Petitioner ..Vs.. 1.The Director of Public Health and Preventive Medicine, DMS Campus, 359, Anna Salai, Teynampet, Chennai – 600 006. 2.Dr.R.Meera, Deputy Director of Health Services, Beach Road, Cuddalore – 607 001. 3.Abdul Ajeem, Superintendent, O/o.the Deputy Director of Health Services, Beach Road, Cuddalore – 607 001. Respondents Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, seeking for a writ of Certiorarified Mandamus, calling for the records relating to the order dated 26.02.2010 issued by the 1st respondent herein in R.No.12214/DA/09/S1-4; to quash the same; and to consequently direct the 1st respondent herein to give effect to his order dated 12.02.2010 in R.No.12214/DA/09/S1-03 by reinstating the petitioner in service as Superintendent in the office of the 2nd respondent herein at Cuddalore. For Petitioner : Mr.G.Chamki Raj For Respondents : Mr.R.Murali Government Advocate for R1 No Appearance - for R2 & 3 O R D E R Earlier the petitioner was placed under suspension on 10.12.2009 by the Director of Public Health and Preventive Medicine, Chennai, the 1st respondent herein, pending enquiry into certain complaints and that disciplinary action was contemplated. Subsequently, the petitioner, made a representation dated 17.12.2009 and sought for revocation of suspension. By proceedings dated 19.01.2010, the Joint Director of Public Health and Preventive Medicine (Epidemics), called upon the petitioner to appear on 28.01.2010 and conducted an enquiry in connection with the disciplinary action contemplated against the petitioner. 2. Thereafter by order dated 12.02.2010, the Director of Public Health and Preventive Medicine, Chennai the 1st respondent herein has revoked the order of suspension and reinstated the petitioner in service and posted him to the office of the Deputy Director of Health Services, Cuddalore. The order of revocation was not served on the petitioner. Within a period of two weeks, by another order dated 26.02.2010, the place of posting of the petitioner has been modified and that he was directed to report before the Medical Officer, Government Primary Health Centre, Ayangudi. Being aggrieved by the order of transfer of the petitioner, from the office of the Deputy Director of Health Services, Cuddalore, to the office of the Medical Officer, Government Primary Health Centre, Ayangudi, the petitioner has come forward with the present writ petition. 3. Assailing, the correctness of the order of transfer, Mrs.G.Chamki Raj, learned counsel for petitioner submitted that primarily the impugned order of transfer is a reflection of sheer malafide at the instance of the 2nd respondent who has been impleaded in her personal capacity. She further submitted that for two instances, set out in paragraph Nos.6 and 7 of the supporting affidavit, the 2nd respondent was not satisfied with the action of the writ petitioner and therefore, there was ill-motive behind the order of transfer. 4. According to the learned counsel for the petitioner, one incident related to preparation of bills, when the petitioner refused to acknowledge the expenditure incurred for electrical repair works, which usually is approved by Public Works Department. In yet another case, finding that the bills prepared by the office contained certain irregularities, the petitioner refused to sign and approve the same. 5. Taking this Court through the explanation dated 17.12.2009, submitted to the Director of Public Health and Preventive Medicine, Chennai, learned counsel for the petitioner submitted that the lawful protest made against the Deputy Director of Health Services, Cuddalore, after getting permission from the police condemning his discriminate and vindictive action against the staff working in the office of the Deputy Director of Health Services, Cuddalore, has been construed as a misconduct committed by the petitioner. She further submitted that 250 staff members participated in the protest and that they have not criticised either the Government or the schemes, but, the protest was only an expression of displeasure made against the conduct of the 2nd respondent. 6. Learned counsel for the petitioner, further submitted that, in this factual background, the 2nd respondent, seemed to have sent complaints to Director of Public Health and Preventive Medicine, Chennai alleging that the petitioner had instigated other office staff working in the office of the Deputy Director of Health Services, Cuddalore, to protest against the district administration and in such circumstances, this suspension order dated 10.12.2009, came to be passed. She also submitted that when a preliminary enquiry was conducted by the Joint Director of Public Health and Preventive Medicine (Epidemics) on 28.01.2010 on the directions of the Director of Health Services, Chennai, neither the copy of the complaint was furnished nor any allegations were made against the petitioner, during the course of the said enquiry and therefore, having accepted the explanation, the 1st respondent has revoked the order of suspension on 12.02.2010 and directed the petitioner to report before Deputy Director of Health Services, Cuddalore. 7. It is the further submission of the learned counsel for the petitioner that the order of revocation of suspension was not served on the petitioner, so as to enable him to report before the Deputy Director of Health Services, Cuddalore. Instead, within two weeks, the 1st respondent has passed yet another order dated 26.02.2010, modifying the place of posting, directing the petitioner to report to the Medical Officer, Government Primary Health Centre, Ayangudi. 8. Learned counsel for the petitioner further submitted that had the order of revocation been served on 12.02.2010, the petitioner would have joined the office of the Deputy Director of Health Services, Cuddalore. It was deliberately withheld by the 2nd respondent and subsequently at her instance, the petitioner was shifted to another place. Pointing out, that the impugned order of transfer has been served on the writ petitioner at 12.10 pm on 14.03.2010 and whereas, the 3rd respondent has joined the office of the Deputy Director of Health Services, Cuddalore at 10.00am on 14.03.2010, learned counsel for the petitioner submitted that the delay in serving the impugned order on the petitioner, was deliberate and intentional, so as to enable the 3rd respondent to join the post, even before the petitioner was relieved from the office of the Deputy Director of Health Service, Cuddalore and in the light of the above facts, learned counsel for the petitioner submitted that victimising and malafide on the part of the Deputy Director of Health Services, Cuddalore is per-se apparent and therefore, the impugned order of transfer, which has been passed at the instance of 2nd respondent is liable to be set aside. 9. Per contra, based on the counter affidavit filed by Director of Public Health and Preventive Medicine, Chennai the 1st respondent, Mr.R.Murali, learned Government Advocate, submitted that as Superintendent (Accounts), in the office of the 2nd respondent, it is the bounden duty of the petitioner to ensure that bills are presented to the Treasury without any irregularities. He submitted that the petitioner has failed to guide the 2nd respondent in incurring the expenditure for electrical repair works, but lateron the petitioner had opposed sanctioning of that bill. 10. According to the 1st respondent, no financial irregularities were found or reported so far by the audit, in the office of the 2nd respondent and therefore the instances referred to in the supporting affidavit to the writ petition cannot be attributed as reasons or basis for alleged motive or malafide for the impugned order of transfer. 11. As regards the order of suspension, learned counsel for the 1st respondent submitted that when certain allegations, were brought to the notice of the 1st respondent , it was decided to place the petitioner under suspension pending enquiry into the grave charges, contemplated under Tamil Nadu Civil Services (Discipline & Appeal) Rules. In this regard, Joint Director of Public Health and Preventive Medicine (Epidemics) was requested to conduct a preliminary enquiry into the allegations levelled against the petitioner by the 2nd respondent. Subsequently, it was decided to revoke the order of suspension and accordingly, an order of re- instatement was issued on 12.02.2010. However, taking into account the conduct of the petitioner in instigating the staff against the District administration, it was decided to modify the place of posting and accordingly the petitioner was directed to report to the office of the Medical Officer, Government Primary Health Centre, Ayangudi to maintain smooth functioning at district level. 12. On the aspect of timing in service, of the modified orders, learned counsel for the 1st respondent submitted that the messenger entrusted with the duty of serving order to the petitioner was held up with treasury work and that he could not serve the order in time on the petitioner. He submitted that the same need not be given much importance, when the impugned order of transfer was on administrative grounds. 13. Referring to, Rule 57 of Tamil Nadu State and Subordinate Services Rules, learned counsel for the 1st respondent submitted that if the petitioner had any grievance against the order of transfer, statutory rules provide an appeal or review to the higher authorities. In the absence of approaching to the competent authorities, the petitioner has rushed to this Court and therefore the writ petition is not maintainable. 14. Learned counsel for the 1st respondent further submitted that being a Government Servant, the petitioner, cannot insist that he should be retained only in a place where he desires and it is open to the Head of the Department to transfer the petitioner from the office of the Deputy Director of Health Services, Cuddalore, to maintain smooth administration at the district level. For the above said reasons, he submitted that there is no malafide on the part of the 1st respondent in passing the order of transfer and therefore, prayed for dismissal of the writ petition. 15. Heard the learned counsel for the parties and perused the materials available on record. 16. Though the learned counsel for the petitioner has contended that after getting permission from police, a lawful protest was made against the 2nd respondent, Deputy Director of Health Services, Cuddalore, who has been impleaded in her personal capacity, the conduct of the petitioner in convening a meeting of the staff without getting prior permission from the concerned authorities, but informing the press/police about the meeting and thereby attempting to tarnish the image of the district administration, said to be in violation of Rule 22(a) of Tamil Nadu Government Servants Conduct Rules, 1973, has been taken note of by the Head of the Department, while issuing the order of suspension dated 10.12.2009. 17. Perusal, of the impugned order of suspension dated 10.12.2009 shows that certain complaints regarding instigating the office staff to protest against district administration levelled against the petitioner by the Deputy Director of Health Services, Cuddalore had been taken note of and pending enquiry into the grave charges against the petitioner, under contemplation the 1st respondent had thought it fit to suspend the petitioner. Restoring to suspension depends upon the materials against the Government servant and this Court cannot delve into factual aspects and examine as to whether suspension was required or not. 18. After considering, the explanation of the writ petitioner and after conducting a preliminary enquiry, through the Joint Director of Public Health and Preventive Medicine (Epidemics), the Head of the Department has chosen to revoke the order of suspension and further directed the petitioner to report before the Deputy Director of Health Services, Cuddalore. Subsequently, finding that posting the petitioner, in the office of the Deputy Director of Health Services, Cuddalore, would not be conducive for smooth administration at the district level, the 1st respondent has resorted to modify the place of posting and directed the petitioner, to join the office of Medical Officer, Government Primary Health Centre, Ayangudi. 19. On the facts of the case, it could be seen that the petitioner had chosen to conduct a gateway meeting on 17.11.2009 along with other staff, protesting against the action of the 2nd respondent. According to the Director of Public Health and Preventive Medicine, Chennai, the staff were actually engaged in flood relief activities and the protest, at that relevant point of time, by instigating the staff was made without approaching the district level administration or the Director of Health Service, Chennai for redressal and therefore, it has caused inconvenience, besides, according to the first respondent, it was also violative of Rule 22(a) of Tamil Nadu Government Servants Conduct Rules, 1973. Whether the petitioner and others had obtained prior permission from the police or not, it is for the disciplinary authority or the Head of the Department to take appropriate decision, depending upon the fact situation, either to transfer the petitioner from the said place or to take disciplinary action or both, to maintain smooth administration. 20. Though the learned counsel for the petitioner has contended that the two incidences which are stated in the supporting affidavit are the cause for transferring the petitioner, this Court is unable to subscribe to the contentions of the learned counsel for the petitioner for the reason that the Head of the Department has intended to modify the place of posting only to maintain a smooth administration at district level. 21. As rightly contended by the learned counsel for the 1st respondent, transfer, being an incidence of service made on administrative grounds, cannot be interfered with unless, strong grounds of malafide are pleaded and proved against the authority, who has passed the order of transfer. The further contention of the writ petitioner that he was prevented from joining the office of the Deputy Director of Health Services, Cuddalore by not serving the order of revocation dated 12.02.2010 and that there was also an intentional delay in serving of the impugned order, thereby enabling the 3rd respondent to join office at 10.00am are not relevant for the purpose of adjudicating the correctness of the order of transfer, which can be assailed only on the grounds of malafide, lack of jurisdiction or against statutory rules. Useful reference can be made to few decisions of the Apex Court. 22. In State of U.P., v. Siya Ram reported in 2004 (7) SCC 405, the transfer order was assailed on the ground that it was punitive in nature. The Supreme Court, while testing the correctness of the order, at Paragraph 5, held that, "5. The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or tribunals normally cannot interfere with such orders as a matter of routine, as though they were appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned." 23. In the latest decision in Somesh Tiwari v. Union of India reported in 2009 (2) SCC 592, the Supreme Court held that, "An order of transfer in an administrative order. Transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fides on the part of the authority is proved. Mala fides are of two kinds – first, malice in fact and second, malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane to passing of an order of transfer and based on an irrelevant ground, i.e., on the allegations made against the appellant in an anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of, or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal. No vigilance enquiry was initiated against the appellant. Transfer order was passed on material which was non- existent. The order suffers not only from non- application of mind but also suffers from malice in law." 24. Further, as rightly contended by the learned counsel for the 1st respondent, Tamil Nadu State and Subordinate Services Rules contemplate an appeal/review against any order passed under the rules. 25. During the course of hearing, it was also brought to the notice of this Court that pursuant to the impugned order, the petitioner has joined the office of Medical Officer, Government Primary Health Centre, Ayangudi on 15.03.2010 and that he is serving in the said place. As the impugned order of transfer does not fall within the above said legal parameters, this court is not inclined to interfere with the same. For the above said reasons, the writ petition is dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ars To 1. The Director of Public Health and Preventive Medicine, DMS Campus, 359, Anna Salai, Teynampet, Chennai – 600 006. 1 cc To Mr.K.Elango, Advocate, SR.67983 1 cc To The Government Pleader, SR.67622 W.P.No.4776 of 2010 and M.P.No.1 of 2010 gr(co) pmk.1.10.2010.