1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29.08.2011 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI and THE HONOURABLE MR.JUSTICE M.M.SUNDRESH Writ Appeal(MD)No.654 of 2011 G.Govindarajan .. Appellant vs. 1.The Joint Director of School Education (Personnel), Office of the Director of School Education, College Road,Chennai-600 006. 2.The Chief Educational Officer, Panagal Buildings,Thanjavur, Thanjavur District. 3.The Assistant Elementary Educational Officer, Thanjavur Rural,Thanjavur,Thanjavur District. 4.P.Munusamy .. Respondents Prayer: Appeal filed under Clause 15 of Letters Patent, against the order, dated 12.04.2011 passed by the learned single Judge made in W.P.(MD)No.107 of 2011. Prayer in W.P.(MD)No.107 of 2011: Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorarified Mandamus, to call for the records relating to the order passed by the 1st respondent in his proceedings Na.Ka.No.32815/A3/E1/2009 dated 23.12.2010 and quash the same as illegal and consequently to direct the 1st respondent to allow the petitioner to continue to work as Superintendent in the 2nd respondent office. For Appellant : Mr.P.Wilson, Senior Counsel for Mr.A.K.Manickam For 4th Respondent : Mr.M.Ajmal Khan For Respondents 1-3 : Mr.K.Mahendran, Special Government Pleader. JUDGMENT P.JYOTHIMANI,J This writ appeal is directed against the order of the learned single Judge passed in W.P.(MD)No.107 of 2011, dated 12.04.2011 by which the learned single Judge allowed the writ petition filed by the fourth respondent in the appeal. The order impugned before the learned single Judge was passed by the first respondent in transferring the fourth respondent/writ petitioner from the office of the second respondent, the https://hcservices.ecourts.gov.in/hcservices/ 2 Chief Educational Officer, Thanjavur to the office of the third respondent, the Assistant Elementary Educational Officer, Thanjavur Rural which was challenged in the writ petition. While setting aside the said order, the learned single Judge has set aside the order transferring the appellant from the office of the third respondent to the second respondent and the appellant is aggrieved by the same since he is working in the second respondent office. According to the appellant, he is the senior most person among the Superintendents in Sl.No.38 while the fourth respondent/writ petitioner is in Sl.No.78 being his junior. The first respondent has called for counselling in Thanjavur District for transfer of Superintendents on 20.11.2010 by specifically stating the office of the Assistant Elementary Educational Officer, Thanjavur Rural Region, Office of the Assistant Elementary Educational Officer, Boothalur, Office of the Assistant Elementary Educational Officer, Ammapettai, Office of the Assistant Elementary Educational Officer, Thirupananthal, Office of the Assistant Elementary Educational Officer, Thiruvonam, Office of the Assistant Elementary Educational Officer, Peravoorani and the Office of the Chief Educational Officer, Thanjavur, have been notified for counselling. However, the second respondent was not notified for counselling. However, the fourth respondent/writ petitioner was stated to be wrongly transferred to the office of the second respondent which was not the subject matter of counselling called for by the first respondent. That was objected to by the appellant on the ground that the appellant was the senior. Thereafter, the first respondent has passed the revised order of transfer transferring the appellant from the office of the Assistant Elementary Educational Officer, Thanjavur Rural namely, the third respondent to the Office of the second respondent, the Chief Educational Officer, Thanjavur and as per the proceedings of the second respondent, dated 03.01.2011, the fourth respondent/writ petitioner was relieved from the office of the Chief Educational Officer, Thanjavur and allowing the appellant to join in the Chief Educational Officer, Thanjavur as Superintendent on the same day. As stated above, it was challenging the order of the first respondent, dated 23.12.2010, the fourth respondent/writ petitioner has filed the above writ petition on the ground that the transfer was not on administrative reasons but to accommodate the appellant and also based on the fax message stated to have been received from the Transport Minister's office. 2.It has been the specific case of the first and second respondents that while giving posting orders to the persons working as Desk Superintendents as regular Superintendents, seniority has already been maintained and it was on that basis, the impugned order passed by the first respondent was defended before the learned single Judge. It was in those circumstances, the learned single Judge having found that the fourth respondent/writ petitioner was involved in certain serious allegations of irregularities and the previous Chief Educational Officer has closed the said allegations and having closed, the second respondent has attempted to reopen the same and it was to accommodate the appellant, the fourth respondent/writ petitioner was shifted from the second respondent office to the third respondent office and on the ground that there has been mala fide action has set aside by which the fourth respondent/writ petitioner was sought to be transferred from the office of the second respondent to the third respondent office. It was https://hcservices.ecourts.gov.in/hcservices/ 3 incidentally, the order of the first respondent by posting the appellant in the office of the second respondent was also set aside about which the appellant is aggrieved. 3.The main contention of Mr.P.Wilson, learned Senior Counsel for the appellant is that in the impugned order challenged before the learned single Judge transferring the fourth respondent/writ petitioner from the office of the second respondent to the third respondent's office, the appellant who has already joined in the second respondent office, by virtue of transfer order passed by the first respondent cannot be disturbed. Moreover, it is his contention that the order passed by the first respondent in posting the petitioner in the office of the second respondent is purely administrative order which does not require any interference especially when it has been the case of the first and second respondents that against the fourth respondent/writ petitioner there has been some allegations of irregularities apart from the admitted fact that the fourth respondent/writ petitioner is junior to the appellant in the post of Superintendents. 4.On the other hand, Mr.M.Ajmal Khan, learned counsel for the fourth respondent/writ petitioner while justifying the impugned order of the learned single Judge would submit that the reference made by the learned single Judge in disturbing the appellant in the office of the second respondent is only consequential to the order setting aside the transfer order effected by the first respondent transferring the fourth respondent/writ petitioner from the office of the second respondent to the third respondent. 5.The fact remains that the entire episode is based on the counselling called for by the first respondent on 20.11.2010 in which the posting of Superintendent in the office of the second respondent was not at all included and therefore, the original order of the first respondent in appointing the fourth respondent/writ petitioner in the second respondent's office by transfer cannot be sustained and in fact, considering that only, such an order was cancelled by the first and second respondents themselves of course, on the complaint made by the appellant. But curiously, it is not known as to how the appellant himself has been posted in the office of the second respondent since admittedly, the second respondent's office was not included in the list of counselling. Therefore, while disapproving the transfer of the fourth respondent/writ petitioner in the office of the second respondent, the posting of the appellant in the office of the second respondent also equally is not sustainable. In any event, transfer is being administrative in nature, as pointed out by the learned single Judge in the impugned judgment itself, the power of this Court to interfere, is very limited. 6.Law is well settled that mala fide is a concept which has been pleaded and proved and normally, the orders of transfer on administrative ground are not interfered with unless the said mala fide is proved. It is the case of the appellant that even as on date he is working as Superintendent in the office of the second respondent as evidenced from the pay slips filed by the appellant for the months of January, February, March, April and May 2011. https://hcservices.ecourts.gov.in/hcservices/ 4 7.Due to the above said reasons, we set aside the order of the learned single Judge insofar as it relates to disturbing the posting of the appellant stated to be working in the second respondent's office in the writ petition filed by the fourth respondent/writ petitioner challenging the order of the first respondent transferring him from the office of the second respondent to the third respondent and direct the first respondent to pass appropriate orders considering the claim of both the appellant and the fourth respondent/writ petitioner, on merits and in accordance with law, without being influenced by any of the observation made in the judgment, within a period of eight weeks from the date of receipt of a copy of this order. 8.The writ appeal is ordered accordingly. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrar(AS) /TRUE COPY/ Sub Assistant Registrar To 1.The Joint Director of School Education (Personnel), Office of the Director of School Education, College Road, Chennai-600 006. 2.The Chief Educational Officer, Panagal Buildings,Thanjavur, Thanjavur District. 3.The Assistant Elementary Educational Officer, Thanjavur Rural,Thanjavur, Thanjavur District. +1cc to Special Govt.Pleader SR.No.29729 judgment made in Writ Appeal(MD)No.654 of 2011 29.08.2011 sms PA/08.09.2011/4P/5C https://hcservices.ecourts.gov.in/hcservices/