IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.8.2011 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.18804 to 18809 of 2011 M.Sikkandar Basha .. Petitioner in WP:18804/2011 K.Govindan .. Petitioner in WP:18805/2011 N.Samimuthu .. Petitioner in WP:18806/2011 V.Sekar .. Petitioner in WP:18807/2011 S.Kannan .. Petitioner in WP:18808/2011 C.Thiyagarajan .. Petitioner in WP:18809/2011 Vs. 1. The Director General of Police Chennai 600 004. 2. The Inspector General and Commissioner of Police City Police Office, Salem City. 3. K.Sokkallingam, IPS Inspector General and Commissioner of Police Salem City. 4. The Deputy Inspector General of Police Ramanathapuram Range Ramanathapuram. .. Respondents PRAYER in W.P.Nos.18804 to 18807 of 2011: Petitions under Article 226 of the Constitution of India for issue of writ of Certiorari to call for the records of the first respondent in his proceedings https://hcservices.ecourts.gov.in/hcservices/ Rc.No.1835/195115/NGB IV(2)/2011-2, dated 4.8.2011 and the consequential order passed by the second respondent herein in his proceedings CPO No.500/2011 in C.No.A1/17381/2011, dated 4.8.2011, and quash the same insofar as the petitioners are concerned. PRAYER in W.P.Nos.18808 and 18809 of 2011: Petitions under Article 226 of the Constitution of India for issue of writ of Certiorari to call for the records of the first respondent in his proceedings Rc.No.1835/195115/NGB IV(2)/2011-2, dated 3.8.2011 and the consequential order passed by the second respondent herein in his proceedings CPO No.494/2011 in C.No.A1/17381/2011, dated 4.8.2011, and quash the same insofar as the petitioners are concerned. For Petitioners : Mr.G.Bala for M/s.G.Bala and Daisy For Respondents : Mr.A.Navaneethakrishnan Advocate General, assisted by Mr.V.Subbiah Special Government Pleader ORDER The petitioners in these six writ petitions are members of the Police Force and at present they were serving in the Salem City. Aggrieved by the orders dated 3.8.2011 and 4.8.2011 passed by the first respondent/ Director General of Police and the consequential order of the second respondent/Inspector General and Commissioner of Police, Salem City dated 4.8.2011, the present writ petitions came to be filed. 2. In respect of the first four writ petitions, the petitioners are covered by the order dated 4.8.2011 passed by the first respondent and in respect of the last two writ petitions, they are covered by the order dated 3.8.2011. But however, in all the six writ petitions the petitioners were transferred from Salem City and posted to Tirunelveli and Ramanathapuram Ranges on administrative grounds with immediate effect. Consequent upon the transfer order issued by the first respondent, the second respondent has also relieved them from the present post. 3. The first petitioner was Sub Inspector of Police attached to Pallapatty Police Station. The petitioners in the second and third writ petitions were Head Constables attached to the very same police station. The petitioner in the fourth writ petition was Head Constable attached to Kannankuruchi Police Station. The petitioner in the fifth writ petition was Head Constable attached to the JAPU, and the petitioner in the sixth writ petition was the Special Sub Inspector of Police with North Traffic, Salem. https://hcservices.ecourts.gov.in/hcservices/ 4. In all the writ petitions, the second respondent has been made by name as the third respondent. It is the stand of the petitioners that during the month of July, 2011, a criminal case was registered against Veerapandi Arumugam, former Minister with reference to a land grabbing allegation and he filed a petition for anticipatory bail before this Court. As per the order passed by this Court, he surrendered before the Salem City Crime Branch and he was interrogated for three days in the police station. Subsequently, he was arrested on 27.7.2011 in connection with another case and he was remanded to judicial custody. The entire proceedings were conducted under the direct supervision and orders of the second respondent. 5. It was alleged that while the said Veerapandi Arumugam was in custody, he was treated in a soft and lenient manner and there was also law and order problem at the time of his judicial remand. The petitioners also came to understand that all materials at the relevant time were collected by the first respondent's office. The second respondent was directed to give detailed report about the incident. The second respondent was solely responsible for the entire situation, but with a view to safeguard his own interest and with mala fide motives, he gave a false report. It was stated by them that a random list of scapegoats was gathered and sent to the first respondent and taking into account such a tainted report, a mass transfer of the police personnel has taken place from Salem City to Tirunelveli and Ramanathapuram Ranges citing administrative grounds. 6. It is stated that though the impugned orders are said to have been passed on administrative grounds, they have really emanated from the false report sent by the second respondent and because of the orders of transfer 40 police personnel and their families, including the petitioners, have been dislocated. It is further stated that a transfer cannot be done by way of punishment and it cannot be resorted to based upon allegations or complaints, and since the impugned orders of transfer have been passed on administrative grounds, it attaches a stigma on the petitioners. It was contended that the transfer had violated the departmental circular issued by the Government in Personnel and Administrative Reforms Department dated 31.1.1992. It is also stated that this Court in S.Sevugan v. The Chief Educational Officer, Virudhunagar District, 2006 [2] CTC 468 has set aside a transfer in respect of an employee of the Education Department and the said view was also confirmed by subsequent Division Bench decisions. Under such circumstances, the orders of transfer are to be set aside by this Court. https://hcservices.ecourts.gov.in/hcservices/ 7. Mr.A.Navaneethakrishnan, learned Advocate General, assisted by Mr.V.Subbiah, learned Special Government Pleader appeared and opposed the admission of the writ petitions. 8. It has to be seen whether on the grounds urged by the petitioners whether the orders of transfer are liable to be set aside. 9. Mr.G.Bala, learned counsel reiterated the similar contention and also referred to certain other decisions of this Court and the Supreme Court. In this context, he relied upon the judgment of the Supreme Court in Somesh Tiwari v. Union of India, [2009] 3 MLJ 727 : [2009] 2 SCC 592 and referred to the following passage found in paragraphs [19] and [20]: "19. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds— one malice in fact and the second malice in law. 20. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the 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." 10. He also referred to the subsequent judgment of this Court in K.Narmatha v. The Deputy Inspector General of Police, Ramnad, 2010 [2] CWC 506, wherein Somesh Tiwari case, supra, was followed and an order of transfer was set aside on the ground that the same was mala fide. In paragraph [19] of the said judgment, it was stated that though transfer may be an incidence of service and government servants can be transferred, considering the fact that in that case the petitioner had made allegations of sexual harassment against the higher officials and four notices were given within a period of four months and three notices were dropped, a sudden transfer was considered to be illegal. https://hcservices.ecourts.gov.in/hcservices/ 11. He also referred to another judgment of this Court in K.M.Elumalai v. Superintendent of Prisons, Puzhal, Chennai, 2010 CIJ 388 Madras (1), wherein, after referring to Somesh Tiwari case, supra, this Court held that the order of transfer passed merely based on a pseudonymous petition and on the basis of a discreet enquiry, where the petitioner, who was a jail official, was alleged to have allowed non-vegetarian food, liquor and cell phone in the jail, is bad and in that context, the order of transfer was set aside. 12. The petitioner also relied upon a judgment of this Court rendered by me in A.Sargunaraj v. The Joint Director (Higher Secondary), Chennai and others, (W.P.(MD) No.7984 of 2010, dated 27.10.2010). In that case, after following Somesh Tiwari case, supra, this Court set aside the transfer order, but in that case a charge memo was sought to be served and even before it could be concretized into a charge memo for grave misconduct, a transfer was effected. The petitioner in that case was a Post Graduate Assistant and he belonged to Schedule Caste community and was sought to be transferred to a far away place on the ground that he did not produce good results. But all these were factually controverted and it was found that the transfer was sub rosa to punish the petitioner for a misconduct for which no evidence was available. 13. It is on the background of these, the counsel for the petitioner submitted that the impugned transfer was liable to be interfered with by this Court. 14. In the context of the rival contentions, it has to be seen whether the impugned orders of transfer are liable for interference by this Court. 15. It is not the case of the petitioners that the first respondent/ Director General of Police is incompetent to pass the order or that the petitioners service conditions do not provide for a transfer from place to place within the service. The parameters for conducting judicial review of transfer order came to be considered by the Supreme Court in Union of India and others v. H.N.Kirtania, [1989] 3 SCC 445. It was held that unless a transfer order is mala fide, illegal or in violation of statutory rules, the High Court should not interfere with the order of transfer. In paragraph [5], it was held as follows: "5. After hearing learned counsel for the parties we do not find any valid justification for the High Court for entertaining a writ petition against the order of transfer made against an employee of the Central Government holding transferable post. Further there was no valid justification for issuing injunction order against the Central Government. The respondent https://hcservices.ecourts.gov.in/hcservices/ being a Central Government employee held a transferable post and he was liable to be transferred from one place to the other in the country, he has no legal right to insist for his posting at Calcutta or at any other place of his choice. We do not approve of the cavalier manner in which the impugned orders have been issued without considering the correct legal position. Transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules or on ground of mala fides. There was no good ground for interfering with the respondent's transfer." 16. The Supreme Court, subsequently, in Abani Kanta Ray v. State of Orissa, 1995 Supp [4] SCC 169, has held that a transfer, which is an incident of service, is not to be interfered with by Courts unless it is shown to be clearly arbitrary or vitiated by mala fides or infraction of any professed norm or principle governing the transfer. In paragraph [10], it was observed as follows: "10. It is settled law that a transfer which is an incident of service is not to be interfered with by the courts unless it is shown to be clearly arbitrary or vitiated by mala fides or infraction of any professed norm or principle governing the transfer (See N.K. Singh v. Union of India, [1994] 6 SCC 98)." 17. A contention was raised by the petitioners that the transfer was opposed to the government guidelines. A similar question came to be considered by the Supreme Court in Union of India and others v. S.L.Abbas, [1993] 4 SCC 357, wherein it was held that the executive instructions regarding transfers are in the nature of guidelines and they do not have any statutory force and unless an order of transfer is vitiated by mala fides or made in violation of the statutory provisions, the Court cannot interfere with it and the guidelines do not confer upon a government employee a legally enforceable right. 18. The Supreme Court in Rajendra Singh and others v. State of Uttar Pradesh and others, [2009] 15 SCC 178, in paragraphs [8] to [10], has observed as follows: "8. A government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential https://hcservices.ecourts.gov.in/hcservices/ condition of service in the absence of any specific indication to the contrary. No Government can function if the government servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires (see State of U.P. v. Gobardhan Lal, [2004] 11 SCC 402, SCC p. 406, para 7). 9. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. In Shilpi Bose v. State of Bihar, 1991 Supp (2) SCC 659 this Court held: (SCC p. 661, para 4) “4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to-day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders.” 10. In N.K. Singh v. Union of India, [1994] 6 SCC 98 this Court reiterated that: (SCC p. 103, para 6) “6. … the scope of judicial review in matters of transfer of a government servant to an equivalent post without any adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides and violation of any specific provision….”" https://hcservices.ecourts.gov.in/hcservices/ 19. On the question of personal hardship that may arise out of the transfer, the Supreme Court held that in a transferable post, an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department. 20. Further, the petitioners belong to the uniformed service and in matters of transfer, the Court cannot lightly interfere, as was held by the Supreme Court in relation to the members of the Armed Force vide judgment in Major General J.K.Bansal v. Union of India, [2005] 7 SCC 227. In paragraphs [11] and [12] of the said judgment, it was observed as follows: 11. Similar view has been taken in National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan, [2001] 8 SCC 574 wherein it has been held that no government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders, as though they were the Appellate Authorities substituting their own decision for that of the management. 12. It will be noticed that these decisions have been rendered in the case of civilian employees or those who are working in public sector undertakings. The scope of interference by the courts in regard to members of armed forces is far more limited and narrow. It is for the higher authorities to decide when and where a member of the armed forces should be posted. The courts should be extremely slow in interfering with an order of transfer of such category of persons and unless an exceptionally strong case is made out, no interference should be made." 21. The petitioners have alleged mala fide against the third respondent and had asserted that it was done at his instance, but however, there was no mala fide attributed against the first respondent, who is the highest authority in the police force, and it cannot be automatically presumed that the first respondent was guided only by such report and therefore, the allegation of mala fides made against the respondents is too thin. https://hcservices.ecourts.gov.in/hcservices/ 22. With regard to the standard of proof required to prove the allegation of mala fides in the matter of transfer, it may be useful to refer to two decisions of the Supreme Court. The first relates to E.P.Royappa Vs. State of Tamilnadu, [1974] 4 SCC 3. The relevant passages found in paragraphs [91] and [92] are reproduced below: "91....The only question before us is whether the action taken by the respondents includes any component of mala fides; whether hostility and malus animus against the petitioner were the operational cause of the transfer of the petitioner from the post of Chief Secretary. 92. Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Here the petitioner, who was himself once the Chief Secretary, has flung a series of charges of oblique conduct against the Chief Minister. That is in itself a rather extraordinary and unusual occurrence and if these charges are true, they are bound to shake the confidence of the people in the political custodians of power in the State, and therefore, the anxiety of the Court should be all the greater to insist on a high degree of proof. In this context it may be noted that top administrators are often required to do acts which affect others adversely but which are necessary in the execution of their duties. These acts may lend themselves to misconstruction and suspicion as to the bona fides of their author when the full facts and surrounding circumstances are not known. The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charge of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life or administrative set up—these considerations are wholly irrelevant in judicial approach—but because otherwise, functioning effectively would become difficult in a democracy. It is from this standpoint that we must assess the merits https://hcservices.ecourts.gov.in/hcservices/ of the allegations of mala fides made by the petitioner against the second respondent." 23. The second decision relates to M.Sankaranarayanan, IAS Vs. State of Karnataka and others [1993] 1 SCC 54. The following passage found in paragraph [12] is worthy of reproduction here: "12. After considering the respective contentions of the learned counsels appearing for the parties, it appears to us that the appellant has not been able to lay any firm foundation warranting a finding that the impugned order of transfer was passed mala fide and/or for an oblique purpose in order to punish the appellant and/or to humiliate him. The pleadings of the appellant before the Central Administrative Tribunal only indicate that some of his suggestions in the matter of posting of senior bureaucratic officers of the State had not been accepted by the present Chief Minister of the State. Such facts alone do not constitute any foundation for a finding that because the appellant was not agreeable to oblige the Chief Minister by accepting all his suggestions and putting up notes to that effect, he had incurred the displeasure of the Chief Minister and the impugned orders had been passed not on administrative exigencies but only to malign the appellant and to humiliate him. It may not always be possible to demonstrate malice in fact with full and elaborate particulars and it may be permissible in an appropriate case to draw reasonable inference of mala fide from the facts pleaded and established. But such inference must be based on factual matrix and such factual matrix cannot remain in the realm of insinuation, surmise or conjecture. In the instance case, we are unable to find that there are sufficient materials from which a reasonable inference of malice in fact for passing the impugned order of transfer can be drawn. It is an admitted position that the Chief Secretary and the Chief Minister had differences of opinion on a number of sensitive matters. If on that score, the Cabinet and the Chief Minister had taken a decision to relieve the appellant from the post of Chief Secretary and post a very senior officer of their confidence to the post of Chief Secretary, it cannot be held that such decision is per se illegal or beyond the administrative authority. The position in this regard has been well explained in E.P.Royappa Vs. State of Tamilnadu, [1974] 4 SCC 3 by this Court." https://hcservices.ecourts.gov.in/hcservices/ In view of the settled legal position, the petitioners having not made out any ground to interfere with the orders of transfer, the writ petitions stand dismissed. No costs. Consequently, M.P.Nos.1 and 2 in W.P.No.18804 of 2011, M.P.Nos.1 and 2 in W.P.No.18805 of 2011, M.P.Nos.1 and 2 in W.P.No.18806 of 2011, M.P.Nos.1 and 2 in W.P.No.18807 of 2011, M.P.Nos.1 and 2 in W.P.No.18808 of 2011 and M.P.Nos.1 and 2 in W.P.No.18809 of 2011 are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sasi To: 1. The Director General of Police Chennai 600 004. 2. The Inspector General and Commissioner of Police City Police Office, Salem City. 3. The Deputy Inspector General of Police Ramanathapuram Range Ramanathapuram. 6 Ccs to M/s.C.Bala and Daisy, Advocate, S.R.No.49591 1 cc To The Government Pleader, SR.49840 W.P.Nos.18804 to 18809 of 2011 NR(CO) SRA(12/8/2011) https://hcservices.ecourts.gov.in/hcservices/