1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21/9/2011 C O R A M THE HONOURABLE Mr.JUSTICE S.MANIKUMAR W.P.(MD)No.10787 of 2011 Welsingh ...Petitioner Vs 1. The Joint Director (Craftsman Training) Department of Employment and Training Guindy Chennai 600 032. 2. The Principal Government Industrial Training Institute Konam Nagercoil Kanyakumari District. 3. The Principal Government Industrial Training Institute Tiruchendur. 4. Mo.Rajan Hostel Superintendent/Physical Training Officer Government Industrial Training Institute Tiruchendur. ...Respondents Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari to call for the records of the first respondent, pertaining to his order in proceedings order Se.Mu.Order No.23245/Tho NuPa1/2011 dated 12/9/2011 on his file, served on the petitioner by the second respondent by endorsement in Me.Ku.No.5977/PaA/11 dated 19/9/2011 on his file and quash the same. For petitioner ... Mr.K.N.Thampi For respondent ... Mr.T.S.Mohammed Mohideen AGP O R D E R Being aggrieved by the order dated 12/9/2011 of the Joint Director (Craftsman Training), Department of Employment and Training, Chennai, transferring the petitioner from Government Industrial Training Institute, Tiruchendur to Government Training Institute, Nagercoil, the petitioner has preferred the writ petition. https://hcservices.ecourts.gov.in/hcservices/ 2 2. Assailing the correctness of the order of transfer and inviting the attention of this Court to a judgment of the Supreme Court in Director of School Education, Madras and others Vs. O.KARUPPA THEVAN AND ANOTHER reported in {1994 SUPP (2) SUPREME COURT CASES – 666}, Mr.K.N.Thampi, learned counsel appearing for the petitioner submitted that, the impugned order of transfer ought not to have been made in the mid-academic term and even assuming that the first respondent has jurisdiction and authority to effect transfer of a Teacher, he should have ascertained, as to whether the education of the children of the petitioner would be affected or not, if the mid-academic term transfer has to be effected. He further stated that the first respondent, ought to have considered as to whether there was any existence of an urgency, in issuing an order of transfer. He further submitted that, as the petitioner's daughter, aged about 7 years, is in the formative years, studying in standard II in Kendriya Vidhayala, Konam, Nagercoil, within the campus of Government Industrial Training Institute, the impugned order of transfer, issued in the middle of the academic year would certainly, disturb her education because, the syllabus of Kendriya Vidhyalaya with 'English' and 'Hindi' as languages of study are available only in limited number of Schools in Nagercoil and that therefore, the first respondent has failed to consider and give weightage to the education of his children, while effecting an order of transfer. 3. Inviting the attention of this Court to the impugned order, he further submitted that, the said order has been passed only to accommodate the fourth respondent and that therefore, there is no bonafide. He further submitted that the petitioner's spouse Mrs.Leema Rose, is working as Senior Assistant (Tamil), Government Higher Secondary School, Bhoothapandi, Kanyakumari District and by virtue of the impugned transfer of the petitioner to a far off place, there is a contravention of the guidelines issued by Government of Tamil Nadu, which states that, as far as possible, both the husband and wife shall be permitted to serve in nearby places. 4. Heard the learned counsel appearing for the petitioner and perused the materials available on record. 5. Before adverting to the facts of this case, this Court, deems it fit to reproduce some of the judgments of this Court as well as the Supreme Court relating to transfer. (i) In B.VARADA RAO v. STATE OF KARNATAKA reported in 1986 (II) LLJ 516, the Supreme Court has held that it is well understood that transfer of Government servant, who is appointed to a particular cadre of transferable post from one place to another is an ordinary incident of service and therefore, does not result in any alteration of any of the conditions of service of his disadvantage. The Supreme Court declined to accept the case of the petitioner therein, that he should not be transferred. (ii) In Shilpi Bose (Mrs.) and Ors. v. State of Bihar and Ors. reported in AIR 1991 SC 532, this Court has held as follows: https://hcservices.ecourts.gov.in/hcservices/ 3 "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." (iii) In 1995 (I) LLJ 854 (N.K.SINGH v. UNION OF INDIA), the Hon'ble Supreme Court while dealing with the correctness of the order, has observed that no roving inquiry into the matter is called for or justified within the scope of judicial review of a transfer scrutinized with reference to the private rights of an individual. It was further held that transfer of a Government servant in a transferable service is a necessary incident of the service career and that assessment of the quality of men is to be made by superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. (iv) IN THE REGISTRAR, HIGH COURT, MADRAS v. VASUDEVAN, A.K. AND OTHERS reported in 1996 MLJ 153, a Division Bench of this Court, while considering the scope of judicial review in matters of transfers of the Government servant to an equivalent post, at paragraph Nos.19 and 36 has held as follows:- “19. 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 mala fides and violation of any specific provision or guideline regulating such transfers amounting to arbitrariness. It is also settled law that for the said purpose, no roving inquiry into the matter is called for or justified within the scope of judicial review of a transfer scrutinized with reference to the private rights of an individual. In N.K.Singh V. Union of India and others, (1994)6 S.C.C. 98 at 108, their Lordship said: “...Assessment of worth must be left to the bona fide decision of the superiors in service and their honest assessment accepted as a party of service discipline. Transfer of a government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of https://hcservices.ecourts.gov.in/hcservices/ 4 administration. Several imponderables requiring formation of a subjective opinion in that sphere may be involved, at times. The only realistic approach is to leave it to the wisdom of that hierarchical superiors to make that decision. Unless the decision is vitiated by mala fides or infructuous of any professed nor on or principle governing the transfer, which alone can be scrutinized judicially, there are no judicially manageable standards for scrutinising all transfers and the courts lack the necessary expertise for personnel management of all government departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated. In the same decision, further down, in paragraph 24, they have said thus: “...Challenge in courts of a transfer when the career prospects remain unaffected and there is no detriment to the government servant must be eschewed and interference by courts should be rare.... ... ... ....” 36. In this connection, it is also better to remember a decision of this Court reported in Dr.M.Krishnamoorthy v. The State of Madras, (1951) 1 M.L.J. 709: A.I.R. 1951 Mad. 882: 1951 M.W.N. 410. That was a case where the petitioner therein challenged his dismissal. While considering the same, this Court held that the Government or management is entitled to consider the question of inefficiency, insubordination and general reputation of corrupt conduct of a Government servant. As stated earlier, the relationship of Master and Servant is being put an end to by the order of dismissal. When the Government is competent to consider the efficiency and reputation of a Government servant, it is not only for the purpose of taking punitive action, but also to consider whether he should be allowed to continue in a particular place of employment. In the said decision, it was stated thus: “It is however contended by learned counsel for the petitioner that there is another implied requirement that civil servants in the position of the petitioner can be dismissed or removed only for misconduct and at one stage of the argument he even went to the extent of contending that in the case of a charge like corruption, the petitioner must have beeen convicted by a criminal court for that offence, or, in any event, that this Court must be satisfied in the exercise of criminal appellate jurisdiction so to say, that there was evidence on which a conviction could be supported. We see nothing of this sort laid down in Art.311 or in any other article of the Constitution. It is nowhere stated on what ground a civil servant might be dismissed or removed. One can conceive of a dismissal or removal being justified on grounds of inefficiency, insubordination of (sic) general reputation of corrupt conduct. ... (Italics supplied) https://hcservices.ecourts.gov.in/hcservices/ 5 An employee is expected to work with all devotion, honestly and integrity. The employer is also entitled to assess the performance of the employee. It cannot be disputed that the employer is entitled to consider the suitability of the person to a post. Similarly the employer is also entitled to consider whether his employee is suitable to work in a particular place or to continue there. If, during the assessment, the employer finds that the work or the performance of the employee is not satisfactory, or in case where the employee, while discharging his duties, has to mingle with the members of the public (in this case, the litigant public), which gives room for complaints in the nature of bad faith, corruption, etc., that will also be an added reason for the employer to find that his staff can discharge his duties in a better way in another place. Such an assessment is not in the nature of any punishment. It is only to avoid or minimise any future complaint or give the employee a better opportunity in a better atmosphere, he is asked to work in a different place, under an order of transfer. Such an order cannot be considered as a punishment, nor can the same be characterised as a stigma cast on him, as alleged by the petitioner in each one of these writ petitions under consideration.” (v) In Havaldar Charan Singh v. Union of India, reported in 2000 (6) SLR 715, it is held that the transfer of a member of the disciplined force on administrative grounds cannot be interfered with by the Court. (vi) IN PUBLIC SERVICES TRIBUNAL BAR ASSOCIATION v. STATE OF U.P AND ANOTHER, reported in 2003 (4) SCC 104, the Supreme Court has reiterated that the scope of Judicial Review in transfer is very limited as it is an incidence of service and normally should not be interfered with by Courts. (vii) In State of U.P. v. Gobardhan Lal, reported in (2004) III LLJ 749 SC, the Supreme Court has set aside the order of the High Court, which interfered with the order of transfer and in paragraphs 7 and 8 held as follows: "7. It is too late in the day for any government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying https://hcservices.ecourts.gov.in/hcservices/ 6 the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision. 8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the courts or tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that courts or tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer." (viii) IN STATE OF U.P. AND ANOTHER v. SIYA RAM AND ANOTHER, reported in 2004(7) SCC 405, the Supreme Court held that no Government servant or employee of the 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 of 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 the 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. (ix) In J.K.Bansal v. Union of India, reported in AIR 2005 SCW 4079, the Hon'ble Supreme Court has considered the question of transfer and in paragraph 12 held as follows: "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 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." https://hcservices.ecourts.gov.in/hcservices/ 7 (x) A Division Bench of this Court while considering the contentions of the petitioner that two children were studying in Class IX and if any transfer is effected that would cause hardship, in PALANISAMY v. THE GENERAL MANAGER, TAMIL NADU STATE TRANSPORT CORPORATION LIMITED, reported in 2005 (4) LW 604, at paragraph No.4 has held as follows:- “4.Learned counsel for the appellant then submitted that the transfer order does not contain reasons. This argument is also based on a misconception. A transfer order is a purely administrative order and not a judicial or quasi judicial order. The Writ Petition is dismissed.” (xi) In a recent decision of the Hon'ble Supreme Court in STATE OF HARYANA AND OTHERS v. KASHMIR SINGH AND ANOTHER, reported in 2010 (13) SCC 306, the Supreme Court has held as follows:- “12.Transfer ordinarily is an incidence of service, and the courts should be very reluctant to interfere in transfer orders as long as they are not clearly illegal. In particular, we are of the opinion that transfer and postings of policemen must be left in the discretion of the State authorities concerned which are in the best position to assess the necessities of the administrative requirements of the situation. The administrative authorities concerned may be of the opinion that more policemen are required in any particular district and/or another range than in another, depending upon their assessment of the law and order situation and/or other considerations. These are purely administrative matters, and it is well settled that courts must not ordinarily interfere in administrative matters and should maintain judicial restrain, vide Tata Cellular v. Union of India. 14. In our opinion, the High Court has taken a totally impractical view of the matter. If the view of the High Court is to prevail, great difficulties will be created for the State administration since it will not be able to transfer/deploy its police force from one place where there may be relative peace to another district or region/range in the State where there may be disturbed law and order situation and hence requirement of more police. Courts should not, in our opinion, interfere with purely administrative matters except where absolutely necessary on account of violation of any fundamental or other legal right of the citizen. After all, the State administration cannot function with its hands tied by judiciary behind its back. As Holmes, J. of the US Supreme Court pointed out, there must be some free play of the joints provided to the executive authorities.” (xii) In a Division Bench Judgment of this Court in GENERAL MANAGER (PERSONNEL), NATIONAL INSURANCE COMPANY LIMITED, HEAD OFFICE, KOLKATA AND ANOTHER v. DR.S.ASHOK KUMAR, reported in 2010 (4) MLJ 433, the Hon'ble Mr.Justice H.L.Gokhale, sitting along with another learned Judge, considered a query as to whether an order of transfer could be interfered with, when there is an allegation of mala fide and after considering the decision of the Hon'ble Supreme Court in RAJENDRA SINGH RAJESH v. STATE OF U.P. AND OTHERS reported in (2009) 10 SC 187, held as follows:- https://hcservices.ecourts.gov.in/hcservices/ 8 “14. Keeping in view the above legal position as well as facts and circumstances of the case, we are of the view that the allegation made in respect of the non-consideration of the confidential report by the respondent in favour of K.Inbaraj, is a matter of administrative work and it cannot be attributed to the mala fide intention of the appellant Company in order to interfere with the same. In fact, during the year 2008, the station-wise list of Officers was drawn and this respondent was considered as senior most Officer and on that basis, while adopting the transfer policy, when he was transferred to Hyderabed Region, the respondent himself made a representation to the appellant Company to exempt him from the transfer policy and retain him at Chennai for one year. While that being so, it cannot be contended that the present impugned order of transfer is tainted with mala fide intention and inflicted against the respondent. Further, in fact, the learned single Judge has not dealt with the issue regarding mala fide but set aside the order of transfer only on humanitarian grounds. Even for this also, we are not in agreement with the learned single Judge as having regard to the fact that the respondent had been in Chennai Region for more than 17 years depriving of other incumbent of the appellant Company to function in the said place and further he was already let off from being considered for transfer by exempting him from Transfer Mobility Police in the year 2008. Therefore, having already availed the benefit of exemption from being considered for transfer and remained himself for one year, there is no justification on the part of the respondent now in assailing the impugned order of transfer. 16. Therefore, having regard to the above proposition laid down by the Hon'ble Supreme Court, we are of the view that the learned single Judge ought not to have shown any indulgence even on humanitarian grounds to the respondent who keeps on agitating the transfer orders by remaining himself in Chennai for years together. In such view of the matter, we are unable to confirm the order of the learned single Judge.” 6. As far as the contention of the learned counsel for the petitioner that the first respondent has failed to consider as to whether there was any urgency, in effecting the transfer to accommodate the fourth respondent and the applicability of the judgment in Director of School Education, Madras and others Vs. O. Karuppa Thevan and another reported in 1994 Supp (2) Supreme Court Cases – 666, this Court is of the view that in the said judgment, no specific issue raised and answered, as to whether the higher Officers, who exercise the power of transfer, should at each and every point of time, consider the likelihood of disruption of education of the children of a Government servants or the employee, working in a transferable post. Such an exercise, though it is contained in certain Rules like CISF or CRPF, etc., is conspicuously, absent in the rules relating to employees in Government Schools. In view of the above, the judgment rendered in O.KARUPPA THEVAN'S case, cannot be treated as a precedent on the law relating to transfer. 7. As regards, the contention of the learned counsel for the petitioner, to the impugned order of transfer is purely to accommodate https://hcservices.ecourts.gov.in/hcservices/ 9 the fourth respondent and therefore, it has made not on any bonafide grounds, this Court is of the view that mid-academic transfers are permissible on administrative grounds and in eventualities like ill- health relinquishment right to a post of privilege, etc. It is well known that the Government have also issued G.O.Ms.Nos.10 and 20, P & AR Department, though not statutory in character, but given an opportunity to the Government servant to make a representation for transfer cases for bonafide reasons. 8. Therefore, the contention of the learned counsel for the petitioner that, there was no bonafide in entertaining the representation of the fourth respondent, in effecting the transfer during the mid academic term, cannot be countenanced. As far as the contention that the spouses should be allowed to work in the same place or in a nearby places, the said issue is no longer res integra and it has already been considered and answered in P.ARUMUGAM AND OTHERS Vs. THE ASSISTANT EDUCATIONAL OFFICER, SATHYAMANGALAM, PERIAYAR DISTRICT AND