1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 23.08.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.8819 of 2011 And M.P.(MD).Nos. 1 & 2 of 2011 N.Manivel ... Petitioner -Vs- 1. The Commissioner Survey and Settlement "Survey House" Chepauk Chennai - 600 005 2. The Assistant Director Department of Survey and Land Records Thanajvur 3. R.Agilandam ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorari calling for the records relating to the impugned proceedings issued by the first respondent Commissioner vide Na.Ka.No. 3/ 22987/2011 (L.S) dated 26.07.2011, and the consequential order issued by the second respondent vide Na.Ka.A8 3683-2011 (1) dated 29.07.2011 quash the same. **** For Petitioner : Mr.M.Ajmal Khan for Mr.M.Thayumaswamy For RR 1& 2 : Mr. B. Pugalenthi Special Government Pleader For 3rd Respondent: Mr.Deepak O R D E R By an order, dated 24.06.2011, the Assistant Director, Department of Survey and Land Records, Thanajvur, the second respondent herein, has transferred the petitioner from the District Survey Office, Thanjavur, to Taluk Office, Thanjavur. Vice versa the third respondent, R.Agilndam, has been transferred to the Land Survey and Revenue Department, https://hcservices.ecourts.gov.in/hcservices/ 2 Thanajvur. As per the order of transfer, dated 24.06.2011, the petitioner joined the Taluk Office, Thanjavur. The third respondent, challenging the same, has filed W.P.(MD).No. 7916 of 2011 and consequently, prayed for a direction to restore her position in Taluk Office, Thanjavur. 2.When the matter came up for hearing on 18.07.2011, this Court, without expressing any opinion on the merits of this case, as to whether the impugned order of transfer, dated 24.06.2011, (signed on 30.06.2011), is illegal or not, directed the Commissioner, Land Survey and Settlement, Chennai, the first respondent therein, to consider and pass orders on the representation of the petitioner, dated 04.07.2011, if acknowledged, within a period of three weeks from the date of receipt of a copy made in the above said Writ Petition. The directions granted by this Court in the above Writ Petition has given rise to second round of litigation, wherein, acting on the representation, dated 04.07.2011 of the petitioner therein, the Commissioner, Land Survey and Settlement, Chennai, the first respondent herein, vide proceedings in R.C.No. 3/22987/2011 (L.S.), dated 26.07.2011, has directed the Assistant Director, Department of Survey and Land Records, Thanajvur, the second respondent herein, to issue appropriate transfer orders, accepting the request of the third respondent. Consequently, the Assistant Director, Department of Survey and Land Records, Thanajvur, vide proceedings in R.C.No. A8 3683-2011 (1), dated 29.07.2011, has cancelled the earlier order of transfer, dated 24.06.2011, issued in favour of the present writ petitioner and consequently, transferred the third respondent, who was on leave, to the District Taluk Office, Thanajvur. 3.Assailing the correctness of the orders, dated 26.07.2011 and 29.07.2011 and inviting the attention of this Court to paragraphs 16 and 17 of the Judgment in A.P.SRTC and Others v. G.Srinivas Reddy and Others reported in (2006) 3 SCC 674, Mr.M.Ajmal Khan, learned counsel for the petitioner submitted that when this Court in W.P.(MD).No. 7916 of 2011, dated 18.07.2011, issued only a direction to the first respondent to consider the representation of the third respondent, dated 04.07.2011, without examining the question, as to whether she was entitled to the relief sought for in the writ petition, and further directed that the representation, dated 04.07.2011, has to be considered on merits and in accordance with law, the first respondent ought to have considered her representation, as directed by this Court, on merits. On the other hand, misconstruing the abovesaid directions, as a positive direction or order, directing transfer of the 3rd respondent to her original position, the Commissioner, Land Survey and Settlement, Chennai, the first respondent herein, has passed an order, dated 26.07.2011, directing the Assistant Director, Department of Survey and Land Records, Thanajvur, to accept her request and to issue appropriate transfer order. 4.Placing reliance on a Judgment of this Court in G.Srinivas Reddy's case, (cited supra) Mr.M.Ajmal Khan, learned counsel for the petitioner submitted that the first respondent ought to have considered the representation, in the light of the facts and circumstances stated in such representation, dated https://hcservices.ecourts.gov.in/hcservices/ 3 04.07.2011 and when the impugned order, dated 26.07.2011, in this present writ petition does not reflect any consideration, it cannot be supported by any reasons, in the counter affidavit and that would be contrary to the decision of the Supreme Court in Mohinder Singh Gill Vs. Chief Election Commissioner reported in (AIR 1978 SC 851), the Apex Court has categorically held that the impugned order has to succeed for the reasons contained therein and it cannot be permitted to be supported by filing counter affidavit. 5.Inviting the attention of this Court to Rule 57 of the Tamil Nadu State Subordinate Service Rules and placing reliance on a Judgment of this Court in C.Somasundaram Vs. District Forest Officer and another reported in (2007) 6 MLJ 1819, learned counsel for the petitioner further submitted that though the transfer is an incident of service, but when an appeal is preferred to the Commissioner, Land Survey and Settlement, Chennai, the first respondent herein, the same ought to have been disposed of by considering all the parameters required to be taken into consideration for the disposal. He further submitted that if any appeal has to be disposed of by an Appellate Authority, the appellate Authority ought to have given an opportunity to the writ petitioner, so as to enable him to put-forth his contentions. On that basis, he further submitted that the impugned order is violative of the principles of natural justice, as the petitioner has not been given any opportunity. 6.Though, this Court, while entertaining the Writ Petition, on 05.08.2011, granted an order of status-quo and further directed the learned Special Government Pleader took notice on behalf of respondents 1 and 2 and though the matter has been adjourned on two occasions, no counter affidavit has been filed, so far. 7. Mr.B.Pugalenthi, learned Special Government Pleader, on instructions, submitted that in spite of his request, the respondents 1 and 2 have not furnished any remarks. A detailed counter affidavit has been filed by the third respondent. Mr.Deepak, learned counsel for the 3rd respondent submitted that the Commissioner, Land Survey and Settlement, Chennai, the first respondent herein, has considered the request of the petitioner in proper manner. Inviting the attention of this Court to the order, dated 24.06.2011, passed by the Assistant Director, Department of Survey and Land Records, Thanajvur, the second respondent herein, he submitted that the earlier order passed by the second respondent was made on the request of the writ petitioner, dated 30.05.2011 and that therefore, when the abovesaid facts were brought to the notice of the Commissioner, Land Survey and Settlement, Chennai, the first respondent herein, the same has been modified. According to him, there is no manifest illegality in the impugned order, warranting interference. 8.Heard learned counsel for the parties and perused the materials available on record. 9.Earlier, by order dated 24.06.2011, the Assistant Director, Department of Survey and Land Records, Thanjavur, the second respondent herein, on administrative grounds, has https://hcservices.ecourts.gov.in/hcservices/ 4 transferred the petitioner from the District Survey Office, Thanjavur, to the Taluk Office, Thanjavur District, likewise, the 3rd respondent from Taluk Office, Thanjavur District to the District Survey Office, Thanjavur. The order has been signed on 30.06.2011 and directed to be given effect from the said date. The concerned, Tahsildar, has been directed to relieve the above said individuals. Pursuant to the same, the petitioner has assumed office on 30.06.2011, as Senior Drafts man in Taluk Office. Being aggrieved by the Transfer, Akilandam, the 3rd respondent herein, has submitted an appeal to the Commissioner, Land Survey and Settlement, Chennai, the first respondent herein, contending interalia that she had joined the Taluk Office only on 27.10.2009 and within 19 months, she has been shifted. In her appeal, she has been submitted that, she had not completed three years of normal tenure, in Taluk Office. In her representation/appeal she has also stated that the petitioner, who had been recently promoted, as Senior Draftsman and transferred from Orathanadu Taluk Office and served in Thanjavur District Survey Office, had been posted in her place. She has also alleged motive in the transfer. 10. When the representation/appeal, dated 04.07.2011, was pending consideration on the file of the Commissioner, Land Survey and Settlement, Chennai, the 3rd respondent herein, has filed a writ petition in W.P.(MD)No.7916 of 2011, challenging the order, dated 24.06.2011, contending interalia that the said order has been passed only to accommodate the writ petitioner. On ground that when the seniority issue was subjudice on the file of this Court, the order dated 24.06.2011, ought not to have been passed. It was also assailed on the ground of violation of Government guidelines in G.O.Ms.No.10 P& AR Department, dated 07.01.1994. However, the learned Senior Counsel appearing for the 3rd respondent submitted that it is suffice, if a direction is given to the Commissioner, Land Survey and Settlement, Chepauk, Chennai, the first respondent therein, to consider the representation of the petitioner dated 04.07.2011 and pass appropriate orders. 11.This Court, without going into the merits of the case, as to whether the order of transfer, dated 24.06.2011, is illegal or not or in violation of the Government guidelines, stated supra, directed the Commissioner, Land Survey and Settlement, Chennai, the first respondent therein, to consider and pass orders on the representation of the Smt.R.Agilandam, the 3rd respondent herein, if acknowledged, within a period of three weeks, from the date of receipt of a copy made in the above writ petition. What has been ordered by this Court was a simple direction to the first respondent to consider the representation of the petitioner, dated 04.07.2011. 12.In A.P.SRTC and Others v. G.Srinivas Reddy and Others reported in (2006) 3 SCC 674,, the Supreme Court has considered an issue, as to how the administrative authorities, take a decision in a matter, which requires consideration, the facts or the legal questions involved. The Supreme Court has also explained, as to how an authority has to consider, if the Court directs him to consider, when observations or findings are recorded. In the order of the Court and in cases, where, a https://hcservices.ecourts.gov.in/hcservices/ 5 simple direction is given, without reference to the above. The significance and the meaning of the directions given by the Courts to "consider a case" explained by the Supreme Court in Paragraphs 14 to 20 are worth reproduction. “14. We may, in this context, examine the significance and meaning of a direction given by the court to “consider” a case. When a court directs an authority to “consider”, it requires the authority to apply its mind to the facts and circumstances of the case and then take a decision thereon in accordance with law. There is a reason for a large number of writ petitions filed in the High Courts being disposed of with a direction to “consider” the claim/case/representation of the petitioner(s) in the writ petitions. 15. Where an order or action of the State or an authority is found to be illegal, or in contravention of the prescribed procedure, or in breach of the rules of natural justice, or arbitrary/unreasonable/irrational, or prompted by mala fides or extraneous consideration, or the result of abuse of power, such action is open to judicial review. When the High Court finds that the order or action requires interference and exercises the power of judicial review, thereby resulting in the action/order of the State or authority being quashed, the High Court will not proceed to substitute its own decision in the matter, as that will amount to exercising appellate power, but require the authority to “consider” and decide the matter again. The power of judicial review under Article 226 concentrates and lays emphasis on the decision-making process, rather than the decision itself. 16. The High Courts also direct the authorities to “consider”, in a different category of cases. Where an authority vested with the power to decide a matter, fails to do so in spite of a request, the person aggrieved approaches the High Court, which in exercise of the power of judicial review, directs the authority to “consider” and decide the matter. In such cases, while exercising the power of judicial review, the High Court directs “consideration” without examining the facts or the legal question(s) involved and without recording any findings on the issues. The High Court may also direct the authority to https://hcservices.ecourts.gov.in/hcservices/ 6 “consider” afresh, where the authority had decided a matter without considering the relevant facts and circumstances, or by taking extraneous or irrelevant matters into consideration. In such cases also, the High Court may not examine the validity or tenability of the claim on merits, but require the authority to do so. 17. Where the High Court finds the decision-making process erroneous and records its findings as to the manner in which the decision should be made, and then directs the authority to “consider” the matter, the authority will have to consider and decide the matter in the light of its findings or observations of the court. But where the High Court without recording any findings, or without expressing any view, merely directs the authority to “consider” the matter, the authority will have to consider the matter in accordance with law, with reference to the facts and circumstances of the case, its power not being circumscribed by any observations or findings of the court. 18. We may also note that sometimes the High Courts dispose of the matter merely with a direction to the authority to “consider” the matter without examining the issue raised even though the facts necessary to decide the correctness of the order are available. Neither pressure of work nor the complexity of the issue can be a reason for the court to avoid deciding the issue which requires to be decided, and disposing of the matter with a direction to “consider” the matter afresh. Be that as it may. 19. There are also several instances where unscrupulous petitioners with the connivance of “pliable” authorities have misused the direction “to consider” issued by court. We may illustrate by an example. A claim, which is stale, time-barred or untenable, is put forth in the form of a representation. On the ground that the authority has not disposed of the representation within a reasonable time, the person making the representation approaches the High Court with an innocuous prayer to direct the authority to “consider” and dispose of the representation. When the court disposes of the petition with a direction to “consider”, the authority grants the relief, taking shelter under the order of the court directing him to https://hcservices.ecourts.gov.in/hcservices/ 7 “consider” the grant of relief. Instances are also not wanting where authorities, unfamiliar with the process and practice relating to writ proceedings and the nuances of judicial review, have interpreted or understood the order “to consider” as directing grant of relief sought in the representation and consequently granting reliefs which otherwise could not have been granted. Thus, action of the authorities granting undeserving relief, in pursuance of orders to “consider”, may be on account of ignorance, or on account of bona fide belief that they should grant relief in view of the court's direction to “consider” the claim, or on account of collusion/connivance between the person making the representation and the authority deciding it. Representations of daily-wagers seeking regularisation/absorption into regular service is a species of cases, where there has been a large-scale misuse of the orders “to consider”. 20. Therefore, while disposing of the writ petitions with a direction to “consider”, there is a need for the High Court to make the direction clear and specific. The order should clearly indicate whether the High Court is recording any finding about the entitlement of the petitioner to the relief or whether the petition is being disposed of without examining the claim on merits. The court should also normally fix a time-frame for consideration and decision. If no time-frame is fixed and if the authority does not decide the matter, the direction of the court becomes virtually infructuous as the aggrieved petitioner will have to come again to court with a fresh writ petition or file an application for fixing time for deciding the matter.” 13.In the case on hand, as rightly contended by learned counsel for the petitioner, without recording any findings or without expressing any opinion, while disposing the writ petition in W.P.(MD)No.7916 of 2011, dated 18.07.2011, this Court, has merely directed the Commissioner, Land Survey and Settlement, Chennai, the first respondent therein, to consider the matter in accordance with law. This Court has not gone into the merits of the case, as any observations made would certainly made the decision making authority to consider such observations or findings, in the process of arriving at the discretion or in the direction itself, to be taken by the first respondent, on the representation, dated 04.07.2011, made, against the order of transfer, dated 24.06.2011, interchanging the position of the https://hcservices.ecourts.gov.in/hcservices/ 8 writ petitioner and the 3rd respondent. Therefore, as rightly contended by learned counsel for the writ petitioner, when the orders of this Court only directed the first respondent to exercise his powers, not being circumscribed by observations or findings of this Court, it is imperative on the said authority to examine the facts and circumstances with reference to the objections raised in the representation, dated 04.07.2011, by the 3rd respondent and pass an order. 14.At this juncture, it is seen that on promotion, as a Senior Draftsman, the petitioner has been transferred from Orathanadu Taluk Office to Thanjavur District Survey Office and perusal of the transfer order, dated 24.06.2011, shows that he has submitted a representation, dated 13.05.2011. land considering the same, the order of transfer, dated 24.06.2011 has been issued. It appears that the Assistant Director of Survey and Settlement, Thanjavur, has made some changes in the orders issued earlier, in so far as the post of senior draftsman is concerned. In the impugned order of the Commissioner, Land Survey and Settlement, Chepauk, Chennai, the first respondent, dated 26.07.2011, has issued a direction to the Assistant Director of Survey and Land Records, Thanjavur, to accept the request of the 3rd respondent and issue transfer orders. To consider, as to whether the first respondent has exercised his jurisdiction and acted in the manner, as explained by the Supreme Court, this Court deems it necessary to extract the present impugned order dated 26.07.2011:- "jpUkjp ,uh.mfpyhz;lk ;> KJepiy tiuthsuJ khWjy; Nfhhpf;ifapid Vw;W chpa khw;wy ; cj;jut toq;FkhW Nfl;Lfnfhs;fpNwd; (Xk;) m.RFkhud;> epymsit kw;Wk ; epythpj;jpl;lk ;> Mizah;"" 15.Rule 57 of Tamil Nadu State and Subordinate Services Rules deals with right of appeal against an order made under the said rule or the special rule applicable to a post. When an order of transfer came to be challenged before this Court in C.Somasundaram Vs. District Forest Officer and another reported in (2007) 6 MLJ 1819, this Court, after considering the G.O.Ms.No.10 P&AR Department, dated 07.01.1994, as clarified by letters, dated 26.08.1997 and 25.08.2007 and Rule 57 of the Tamil Nadu State and Subordinate Services Rules, which provide right of appeal or review before the competent authority by an aggrieved person held that when a Government servant is transferred, he cannot straightway approach the High Court without seeking redressal before the appropriate authority. This Court also held that an order of transfer can be interfered with only on three grounds;- “a. When the order is mala fide b. If it is in violation of statutory provisions, or c. The order has been passed by an authority not competent.” https://hcservices.ecourts.gov.in/hcservices/ 9 16.The above said judgment has been relied on by learned counsel for the writ petitioner in respect of his contentions that the representation, dated 04.07.2011, made by the 3rd respondent to the Head of the Department, has to be considered, as an appeal under Rule 57 of the Tamil Nadu State and Subordinate Services Rules and in such circumstances, the appellate authority, ought to have provided an opportunity of hearing to the writ petitioner also, for the reason that if there was any change or modification, and for any reasons that if the said order, dated 24.06.2011 has to be reversed or modified or altered then it would affect the interests of the writ petitioner and in such circumstances, the appellate authority ought to have considered the objections or submissions of the writ petitioner. 17.Transfer is an incident of service and it is the exclusive right or prerogative right of the appointing authority or the Government to consider the administrative exigency, necessity or suitability of a person to be retained in a particular place. A Government servant working in a transferable post, has no statutory right to question the authority of his employer or the Government, except for the reasons stated supra. Therefore, even if any representation, against an order of transfer is received by the Head of the Department or the Government or such other competent authority, it is not required to issue any notice to a person, who is likely to be affected, consequent to any variation or reversal of an earlier order of transfer. Principles of natural justice cannot be imported into an administrative action of transfer which is the executive or the prerogative right of the employer or the Government, in transferring its employee. Such an argument is not acceptable to this Court. 18. Reading of the order, dated 26.07.2011 of the Commissioner, Land Survey and Settlement, Chennai, the first respondent herein, stated supra, makes it clear that when a representation, dated 04.07.2011, has been made by the 3rd respondent, coupled with the directions of this Court, directing the 1st respondent to exercise his discretion, to look into the said representation and pass appropriate orders, without any observations or findings, makes it clear that the first respondent, ought to have exercised his power with reference to the facts and circumstances, mentioned in the representation and that the consequent order should reflect the reasons for issuing a direction to the Assistant Director of Survey and Land Records, the second respondent herein. 19.At this juncture, it is pertinent to point out that the respondents 1 and 2 have not filed any counter affidavit rebutting the averments made n the supporting affidavit. No records were also placed before this Court to ascertain as to whether the first respondent herein, has taken into consideration the relevant facts and circumstances and called for any remarks from the second respondent before passing the https://hcservices.ecourts.gov.in/hcservices/ 10 impugned order, dated 26.07.2011, directing the second respondent to accept the request for transfer, and to issue appropriate order. 20.To examine whether the order dated 26.07.2011, is in conformity with the decision of the Supreme Court in A.P.SRTC and Others v. G.Srinivas Reddy and Others reported in (2006) 3 SCC 674 case, this Court deems it fit to extract the operative portion of the representation, dated 04.07.2011:- "MfNt Nkd;ik jq;fpa Mizah; mth;fs; vd;dhy; NkNy njhptpf;fg;gl ;Ls ;s tptuq;fis fdpTld; ghpr Pyid nra;J jQ;rht+h; tl;lhl;rpah; mYtyfj;jpypUe;J vd;id khw;wk ; nra;J jQ;rht+{h; epsmsitj;Jiw cjtp ,af;Feuhy; gpwg;gpf;fg ;gl ;Ls ;s e.f.vz;.m8/3683/11 ehs; 24.06.2011 Mizia uj;J nra;J jQ;rht+h; tl;lhl ;rpah; mYtyfj;jpNyNa ehd; k Pz ;Lk ; gzpghpa Mizfs; toq;fpLkhW kpfTk; gzpTld; Nfl;Lf ;nfhs;fpNwd;."" 21.What was requested by the 3rd respondent is only for a direction to set aside the order, dated 24.06.2011, passed by the Assistant Director of Survey and Land Records, Thanjavur, transferring the 3rd respondent from Taluk Office, Thanjavur. But instead of setting aside the said order, the first respondent has directed the Assistant Director of Survey and Land Records, Thanjavur, to accept the request of the 3rd respondent and issue suitable transfer orders. 22.When this Court, by order dated 18.07.2011, in W.P.(MD) No.7916 of 2011, has directed the first respondent to consider the representation of the 3rd respondent, dated 04.07.2011, in accordance with law, he should have exercised his discretion or authority to pass an order on his own. Instead, he had directed the