1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08.09.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.9404 of 2011 and M.P.(MD)Nos.1 to 3 of 2011 S.Leelavathi : Petitioner Vs. 1.Engineer -in- Chief W.R.O. & Chief Engineer (General), Public Works Department, Chepauk, Chennai-5. 2.The Chief Engineer, Public Works Department, W.R.O., Madurai Region, Thallakulam, Madurai-2. 3.The Superintending Engineer, Public Works Department, W.R.O., Periyar Basin Circle, Thallakulam, Madurai-2. 4.The Executive Engineer, Public Works Department, W.R.O., Periyar Main Canal Division, Melur, Madurai District. : Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorari, to call for the records relating to Letter No.S1(1)/20206/2011-186, dated 18.08.2011 of the first respondent and quash the same. For Petitioner : Mr.N.Karthik Kanna For Respondents : Mr.T.S.Mohammed Mohideen Additional Government Pleader ORDER Challenge in this Writ Petition is to the order dated 18.08.2011 of the Engineer -in- Chief W.R.O., & Chief Engineer (General), Public Works Department, Chepauk, Chennai-5, the first respondent herein, transferring the petitioner from Periyar Main Canal Sub Division II, Melur Division, Madurai District to Lower Vaigai Special Projects Sub Division No.3, Madurai. https://hcservices.ecourts.gov.in/hcservices/ 2 2. The case of the petitioner is that she was working as a Draftsman from the year 1982 to 1986. Subsequently, in the year 1986, she was appointed as Junior Engineer in Public Works Department and she worked as Junior Engineer in Virudhunagar, Madurai Periyar Main Canal Division, Madurai Quality Control and Periyar Improvements (Usilampatti Sub Division) during the period from 1989 to 1991, 1991 to 1993, 1993 to 1998 and 1998 to 2003 respectively. In the year 2003, she was re-designated as Assistant Engineer and worked in Periyar Improvements Division (Andipatti Sub Division) till 2010. On 17.05.2010, she was promoted as Assistant Executive Engineer, Public Works Department, W.R.O., Periyar Mani Canal Sub Division II, Melur Division, Madurai District and has been working in the same post till date. 3. The further case of the petitioner is that she has completed almost 28 years of service and almost in all these years of service, she was allocated only field work, supervising the project by visiting the site every day and she was supposed to travel several miles a day. In the year 2003, she was re-designated as Assistant Engineer. However, the site is at Andipatti, Theni District. The site is about 75 kilometre far from her home and hence, she has to travel more than 150 km per day. 4. While so, to her shock and surprise, the Engineer -in- Chief, W.R.O. & Chief Engineer (General), Public Works Department, Chepauk, Chennai-5, the first respondent herein issued an order of transfer in Letter No.S1(1)/20206/2011-186, dated 18.08.2011, in and by which, the petitioner was posted again to a site work, having office at Manamadurai, which is about 60 kms away from her home. Challenging the same, the petitioner has come up with the present Writ Petition for the reliefs stated earlier. 5. The first respondent has filed a counter-affidavit on behalf of respondents 2 to 4, wherein it is stated that the petitioner has admitted that she was working as Draftsman in the respondents- department from the year 1982 to 1986 and on selection by the Tamil Nadu Public Service Commission, she was appointed as a Junior Engineer in Public Works Department from 1989 to 2003 in different stations, which are within the proximity of Madurai. Even after her re-designation as Assistant Engineer, in the year 2003, she was working within the easy city of Madurai till the year 2010. On promotion as Assistant Executive Engineer also, she has been working under the control of respondents 2 to 4 and she has been working in only Madurai. Hence, from her own admissions, she has all along been working in and around Madurai and even now, the office to which, she has been transferred, is at Madurai and the respondents have no intention to transfer her outside Madurai. 6. It is further stated that in the case of B.Varadha Rao vs. State of Karnataka reported in AIR 1987 SC 287, the Supreme Court held that unless there is a specific mention in the letter of appointment that the post is non-transferable, all employees are liable to be transferred. https://hcservices.ecourts.gov.in/hcservices/ 3 7. It is further stated that the petitioner had willfully suppressed the fact of her transfer to lower Vaigai Special Projects Sub Division No.3 with headquarters at Madurai itself, which is under the control of the Executive Engineer, Lower Vaigai Special Project Division, Manamadurai and the petitioner has not been transferred to Manamadurai at all. 8. It is also stated that even assuming that it is a transfer, it is well settled in law that 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 redressal, but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest. In State of U.P. vs. Gobardhal Lal reported in 2004 (11) SCC 402, the Supreme Court had already stressed 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. 9. For the abovesaid reasons, the respondents have prayed for dismissal of the Writ Petition. 10. Heard the learned counsel for the parties and perused the materials available on record. 11. While considering the scope and power of judicial review in matters of transfer, the Hon'ble Mr.Justice K.Chandru, in W.P.Nos.18732 to 18740 of 2011, dated 11.08.2011, has extensively considered various decisions of the Supreme Court as to whether the Government guidelines issued from time to time have a statutory force and whether violation of the same provide any legally enforceable right to the Government servant. In addition to the above, the learned Judge has also considered the parameters for exercise of judicial review. Useful reference can be made to the decision relied on, in the judgment made in W.P.Nos.18732 to 18740 of 2011, dated 11.08.2011. 12. In General Manager (Per), National Insurance Co. Ltd., v. Dr.S.Ashok Kumar reported in 2010(4) MLJ 433, a Division Bench of this Court has held that unless an impugned order of transfer is tainted with mala fide or in violation of statutory rules, the same cannot be interfered with, even on humanitarian grounds. It is also useful to refer to a decision of the Apex Court in Rajendra Singh Rajesh v. State of U.P. reported in JT (2009) 10 SC 187, relied on by the Division Bench in Ashok Kumar's case, wherein the Apex Court observed that while dealing with matters of transfer, the High Court should have appreciated the true extent of scrutiny into a matter of transfer and the limited scope of judicial review and it cannot enter into an arena which did not belong to it. At paragraph Nos.13 and 16, it has been held as follows: "13. It is the cardinal principle that a transfer is ordinarily an incident of service. The Court should not https://hcservices.ecourts.gov.in/hcservices/ 4 interfere with a transfer order which is made for administrative reasons unless the transfer orders are made in violation of any mandatory or 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 and 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. Indisputably, the order of transfer is an administrative order and there cannot be a doubt whatsoever that the transfer is an incident of service and the same should not be interfered with save in cases where inter alia mala fide of the authority is proved. It is also a settled principle that mala fide is of two kinds, one is malice in fact and the second is malice in law. Order in question would attract the malice in law if it was not passed on any factor germane for passing an order of transfer. It is one thing to say that the appellant is entitled to pass an order of transfer in an administrative exigency but it is another thing to say that the order of transfer passed in lieu of punishment. When an order of transfer is passed in lieu of punishment, then the Court shall have power to interfere with the same. 14.......... 15.......... 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." 13. In the light of the above discussion and the judgments of this Court as well as the Supreme Court, the petitioner is not entitled to the equitable remedy under Article 226 of the Constitution of India and, therefore, the Writ Petition stands dismissed. The interim stay already granted is vacated. Consequently, the connected miscellaneous petitions are also dismissed. No costs. Sd/- Assistant Registrar (CO) /True Copy/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 5 To 1.Engineer -in- Chief W.R.O. & Chief Engineer (General), Public Works Department, Chepauk, Chennai-5. 2.The Chief Engineer, Public Works Department, W.R.O., Madurai Region, Thallakulam, Madurai-2. 3.The Superintending Engineer, Public Works Department, W.R.O., Periyar Basin Circle, Thallakulam, Madurai-2. 4.The Executive Engineer, Public Works Department, W.R.O., Periyar Main Canal Division, Melur, Madurai District. +1 CC to Special Government Pleader (SR.No.30817) Order made in W.P.(MD).No.9404 of 2011 Dated:- 08.09.2011 SML NSV/9.9.11/5P/6C https://hcservices.ecourts.gov.in/hcservices/