1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14/09/2011 C O R A M THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.4469 of 2011 And M.P.(MD).Nos. 1 to 3 of 2011 And Cont.P.(MD).No. 478 of 2011 W.P.(MD).No. 4469 of 2011: V.Kadatcham ... Petitioner Vs. The Additional Director General of Police CB-CID, Chennai - 600 002 ... Respondent PRAYER: Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus, calling for the records, pertaining to the impugned order Rc.A2/04647/2011, D.O./090/11, dated 28.3.2011, passed by this Respondent and quash the same as not valid and illegal and thereby direct the respondent to keep the petitioner, in the same place and post, where he is working in the same post. Cont. P.(MD).No. 478 of 2011: V.Kadatcham ... Petitioner / Petitioner Vs Mr.Sekar The Additional Director General of Police CBCID, Chennai - 600 002 ... Contemnor / Respondent PRAYER: Petition filed under Section 11 of the Contempt of Court Act, 1971, to issue notice of contempt to the contemnor / respondent, for his willful disobedience of the order passed in M.P.No. 2 of 2011 in W.P.No. 4469/2011, dated 19.04.2011 on the file of this Court and punish the contemnor / respondent for contempt of Court. MP[MD]NO.2 OF 2011: Petition praying that in the circumstances stated therein and in the affidavit filed therewith the High Court will be pleased to stay the operation of the impugned order RC.A2/04647/2011, D.O/090/11, dated 28.03.2011, passed by this respondent. For petitioner in both Petitions : Mr.F.X.Eugene For Respondent in both Petitions : Mr.T.S.Mohamed Mohideen Additional Government Pleader https://hcservices.ecourts.gov.in/hcservices/ 2 C O M M O N O R D E R Challenge in this Writ Petition is to an order, dated 28.03.2011 of the Additional Director General of Police, CBCID, Chennai, repatriating, the petitioner Special Sub Inspector of Police, CBCID, from Kanyakumari Unit to his parent unit ie., Ramanathapuram, on administrative grounds. 2.Assailing the impugned order, Mr.F.X.Eugene, learned counsel for the petitioner submitted that earlier when the petitioner was working in Ramanathapuram District, CBCID Unit, as his father was aged and ailing, he made a representation, dated 19.07.2006, to transfer him to Tirunelveli to the post of Head Constable, which was vacant in Tirunelveli Crime Branch, the petitioner was given a oral assurance that he would be transferred to Tirunelveli Crime Branch. Again, the petitioner made a representation on 10.04.2007 to the Inspector General of Police, CBCID, Chennai, for transfer for which, a reply memo, dated 25.01.2008 was given that as there was no vacancy, in Kanyakumari District, CBCID Unit, he would be considered, on priority basis, as and when vacancy arises in the said unit. Subsequently, on 09.07.2008, the Additional Inspector General of Police, Chennai, passed a transfer and posting order and as per the same, the petitioner was transferred to CBCID, Kanyakumari. 3. Though the petitioner was working in the said unit and was taking care of his aged and ailing father, suddenly, by the impugned order, dated 28.03.2011, he had been shifted from CBCID, Kanyakumari to the Parent Unit, Ramanathapuram. Learned counsel for the petitioner further submitted that when the Model Election Code, came into operation, effect from the date of notifying the Tamil Nadu State Legislature Assembly Elections in 1st March 2011, the impugned order of transfer, dated 28.03.2011, has been passed which is contrary to the guidelines issued by the Election Commission of India, relating to transfer. He further submitted that the impugned order of transfer is arbitrary and also violative of principles of natural justice, as no opportunity was given to the petitioner and that, the untimely order of transfer in the middle of the academic year would affect the petitioner. 4. Record of proceedings shows that while admitting the Writ Petition, this Court, by an order,dated 19.04.2011, has granted interim stay of transfer. Seeking to vacate the same, the respondent has filed M.P.(MD).No. 3 of 2011 and based on the averments in the supporting affidavit, Mr.T.S.Mohamed Mohideen, learned Additional Government Pleader submitted that the order of transfer is purely based on administrative grounds and that it is nothing but, repatriation of the petitioner from Kanyakumari Unit to his parent unit ie., Ramanathapuram. 5. Inviting the attention of this Court to the communication sent by the Election Commission of India, dated 1st March 2011, addressed to the Chief Secretaries to the Government of Tamilnadu and other states and referring to Section 28(A) of the Representation of the People Act 1951, the learned Additional Government Pleader further submitted that the Code of Conduct is applicable only in respect of officials connected with the Conduct of election and that, it cannot be made applicable to all the Government Servants. He further submitted that the petitioner, is a https://hcservices.ecourts.gov.in/hcservices/ 3 Special Sub Inspector of Police and that, his parent unit is Ramanathapuram District, Local Police. What has been done in the impugned order is only a repatriation of the petitioner from CBCID Unit, Kanyakumari District to his parent unit i.e., Ramanathapuram, on administrative grounds. 6. Learned Additional Government Pleader further submitted that transfer is only an incidence of service and the petitioner, who is a member of the disciplined force, is liable to be transferred in anywhere in the State, on administrative grounds. He further submitted that there is no jurisdictional error in transferring the petitioner. For repatriating the petitioner from CBCID, Kanyakumari Unit to his parent unit ie., Local Police, mala fide cannot be attributed against the Additional Director General of Police, CB-CID, Chennai, the respondent herein and in the absence of substantiating that the impugned order of transfer is contrary to any statutory rules, no interference should be made. As regards the inconvenience expressed by the petitioner on account of transfer made in the month of March, placing reliance on the decision of the Supreme Court in Rajendra Roy Vs. Union of India and another reported in AIR 1993 SCC 1236. He further submitted that the personal difficulty or hardship, cannot be a ground of challenge when Government servant is working in a transferred post. For the reasons stated supra, he prayed to vacate the interim order and consequently, dismiss the Writ Petition. 7. Heard the learned counsel for the parties and perused the materials available on record. 8. The impugned order of transfer reads as follows:- Tr.V.Kadatcham, SSI (HC 279), CBCID Kanyakumari Unit is repatriated to his parent Unit i.e. Ramnad District on administrative grounds. 2. The Inspector of Police, CBCID, Kanyakumari relieve the above SSI(HC 279) immediately with instructions to report before the Superintendent of Police, Ramanathapuram District and intimate the date of relief. 3. The Superintendent of Police, Ramnad District is requested to intimate the date of joining of the above SSI (HC 279)." 9. As regards the first ground of attack, it is necessary to extract Clause 6 of the Model Code of Conduct, issued by the Election Commission of India, New Delhi, dated 1st March 2011 to the Chief Secretaries to the Government of Tamil Nadu and other States, pursuant to the notification of the State Assembly Elections. 10. Clause 6 indicates that once a Model Code of Elections had come into effect, there shall be a total ban on the transfer of all officers and the officials connected with the conduct of election. In so far as the police officers are concerned, as per the Sub-clause 4 of clause 6 of the Model Code of Elections, Officers of the Police Department connected with the management of elections, like range IGs and DIGs, Senior Superintendent of Police and Superintendents of Police, Sub- https://hcservices.ecourts.gov.in/hcservices/ 4 divisional Police Officers like Deputy Superintendents of Police and other Police officers who are deputed to the Commission under Section 28 A of the Representation of the People Act 1951, cannot be transferred. 11. Though the Police Officers, included in Clause 6 of the Model Code of Elections, are only illustrative, as per the Code of Conduct, transfers should not be made if the officers/ Officials are connected with the Code of Conduct of Election. Admittedly, the petitioner belongs to Ramnad District, Local Police. 12. Material on record discloses that on the request of the petitioner, by an order, dated 09.07.2008, the Additional Director General of Police, CB-CID, Chennai, has issued an order of transfer and posting the petitioner to CBCID, Kanyakumari. It is well settled that transfer is not the condition of service, but is only an incidence of service. Courts have consistently held that the administrative order of transfer should not be interfered with. Useful reference can be made to few decisions of the Supreme Court. In Shilpi Bose (Mrs.) and Ors. v. State of Bihar and Ors. reported in AIR 1991 SC 532, this Court has held as follows: "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." In N.K. Singh v. Union of India and Ors. reported in (1994) 6 SCC 1998, this Court reiterated that the scope of judicial review in matters of transfer of a Government Servant to an equivalent post without adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fide or violation of any specific provision. 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. 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: https://hcservices.ecourts.gov.in/hcservices/ 5 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. 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 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". 13. It is also well settled that a number of all disciplined force is liable to serve at any place and that he cannot seek for any directions to squat in a particular place. The further contention that the impugned order of transfer made in the middle of the academic year would cause inconvenience is untenable in view of the decision of the Supreme Court in Rajendra Roy Vs. Union of India and another reported in AIR 1993 SCC 1236, wherein paragraph 7 of the affidavit, the Supreme Court held that: https://hcservices.ecourts.gov.in/hcservices/ 6 "It is true that the order of transfer often causes a lot of difficulties and dislocation in the family set up of the concerned employees but on that score the order of transfer is not liable to be struck down. Unless such order is passed mala fide or in violation of the rules of service and guidelines for transfer without any proper justification, the court and the Tribunal should not interfere with the order of transfer. In a transferable post an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department." 14. In yet another Judgement reported in Palanisamy Vs. the General Manager reported in 2005-4-L.W. 604, the Division Bench of this Court, while considering the inconvenience which is likely to be caused to the children of the transferee at para 3 of the Judgement held as follows:- "The learned Single Judge has however directed that the transfer order shall not be given effect to till the end of the academic year viz., 31.5.2005 since the petitioner's two children are studying in Class IX in a school at Valparai. In our opinion, the learned Single Judge was not justified in passing such an order. Almost everyone has children and if such kind of request is entertained, no transfer order can ever be passed. Every transfer order causes some hardship but if one wants to remain in service, he has to obey the transfer order as a transfer order is a purely administrative order, and is not a punishment. Transfer is an ordinary exigency of service". "In our opinion, the learned Single Judge was not justified in passing such an order. Almost everyone has children and if such kind of request is entertained, no transfer order can ever be passed. Every transfer order causes some hardship but if one wants to remain in service, he has to obey the transfer order as a transfer order is a purely administrative order, and is not a punishment. Transfer is an ordinary exigency of service". 15. In the light of the decisions of the Supreme Court stated supra, and having regard to the fact that the petitioner is a member of the disciplined force, who have been just repatriated from CBCID, to the parent unit, ie., local police and as the petitioner has not satisfy anyone of the following grounds: (i) if it is tainted with mala fide; (ii) if it is in violation of any statutory rules; (iii) if the authority, who has passed the order of transfer, has no jurisdiction to do so, the impugned order cannot be interfered with. 16. The interim stay granted on 19.04.2011 is vacated. The Writ Petition stands dismissed. Consequently, the connected miscellaneous petition is also dismissed. No costs https://hcservices.ecourts.gov.in/hcservices/ 7 17. In view of the order passed in W.P.(MD).No. 4469 of 2011, the Contempt Petition is closed. vsg Sd/- Assistant Registrar[Crl side] /True copy/ Sub Assistant Registrar To The Additional Director General of Police CB-CID Chennai - 600 002 W.P.(MD).No.4469 of 2011 And Cont.P.(MD).No. 478 of 2011 DATED:14/09/2011 7P/2C RPB 28.09.2011 https://hcservices.ecourts.gov.in/hcservices/