BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12 .04.2011 CORAM: THE HONOURABLE MR.JUSTICE K.VENKATARAMAN W.P.(MD)No.107 of 2011 and M.P.(MD)Nos.2 to 4 of 2011 P.Munusamy : Petitioner 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. 3.The Assistant Elementary Educational Officer, Thanjavur Rural, Thanjavur, Thanjavur District. 4.G.Govindarajan Superintendent, Office of the Chief Educational Officer, Panagal Building, Thanjavur, Thanjavur District. (Transferred to Assistant Elementary Educational Office, Thanjavur Rural but not joined) : Respondents Prayer: 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 Petitioner : Mr.M.Ajmal Khan For Respondents : Mr.Sankaran, A.G.P. for RR1 to RR3 Mr.A.Manickam for R4 https://hcservices.ecourts.gov.in/hcservices/ ORDER The present writ petition is laid challenging the impugned order of the 1st respondent dated 23.12.2010, an order of transfer. 2.The short matrix of the matter is set out hereunder: a) The petitioner was initially appointed as a Typist on 27.07.1981. Later, he was promoted as Assistant, upgraded Superintendent and Superintendent. He was working as upgraded Superintendent in the 2nd respondent office. While so, after the Government upgraded the post of upgraded Superintendent into that of Superintendent, the 1st respondent promoted the petitioner as Superintendent and posted him in the 2nd respondent office by his proceedings dated 20.11.2010. He has joined in the said post on 23.11.2010. b) The 4th respondent was also upgraded Superintendent working in the 2nd respondent office. When the post of upgraded Superintendent was upgraded into that of Superintendent, the 4th respondent was given a call letter to attend the counseling to choose his posting. The 4th respondent attended the counseling and opted for a posting in the 3rd respondent office. Conceding his option, the 1st respondent promoted him and posted him in the 3rd respondent office. Exerting influences, he has got an order of transfer in the office of the 2nd respondent. The said order was faxed by Transport Minister's office, Chennai, dated 24.12.2010. In furtherance to that, the original order of transfer, passed in favour of the petitioner to the office of the 2nd respondent was cancelled and the petitioner was transferred to the office of the 3rd respondent. Thus, the petitioner, challenging the order of the 1st respondent dated 23.12.2010, has come up with the present writ petition. 3.Counter affidavit was filed on behalf of the 2nd respondent along with an application in M.P.(MD) No.4 of 2011 to vacate the interim stay granted by this Court. In the counter affidavit, the following facts have been set out: (a) In the panel prepared for the year 2009 for promotion as regular Superintendent, the writ petitioner stands in Sl.No.78. But, the 4th respondent stands in Sl.No.38. In the counseling, the petitioner was posted in the 2nd respondent office and he joined the post on 23.11.2010. The 4th respondent was promoted and transferred to the 3rd respondent office, however, he did not join in the new place. https://hcservices.ecourts.gov.in/hcservices/ (b) In the meanwhile, the Chief Educational Officer forwarded a proposal seeking transfer of the petitioner from the 2nd respondent office. The said proposal is dated 14.12.2010. It contained various serious allegations against the petitioner. It warranted the authorities to transfer the petitioner from the 2nd respondent office to the 3rd respondent office, in order to maintain conducive atmosphere in the Government Office. (c) The order of transfer was passed on administration grounds and it cannot be termed as punishment. If the petitioner is allowed to continue in the same station, great prejudice would be caused in maintaining discipline in the office administration. The petitioner, being an employee under the State Government, cannot continue in the same station. The authorities are vested with powers to pass an order of transfer. Thus, the counter affidavit seek for the dismissal of the writ petition. 4.A counter affidavit has been filed by the 4th respondent along with the application in M.P.(MD) No.3 of 2001 for vacating the interim order. The counter affidavit spells out the following the facts: While attending the counseling, the vacancy at 2nd respondent office was not shown in the vacancy list. Therefore, the 4th respondent has been allotted in the office of the 3rd respondent. While so, the writ petitioner, who is the most junior, was given posting order in the 2nd respondent office. The 4th respondent, without joining the duty in the 3rd respondent, made a representation with the 1st respondent and to the Chief Minister's Cell. His representation was deeply enquired into and it has been found that the allegations are true. Hence, the 1st respondent, by an order dated 23.12.2010, posted the 4th respondent in the 2nd respondent office as regular Superintendent. It is denied that the Transport Minister's office sent a fax message. The said attempt was specifically planned and performed by the petitioner through his friends. The petitioner had obtained the order of transfer to the 2nd respondent office by playing fraud by suppressing the vacancy at the office of the 2nd respondent at the time of counseling. Listing out those facts, the counter affidavit sought for the dismissal of the writ petition. https://hcservices.ecourts.gov.in/hcservices/ 5.On the basis of the above pleadings, I have heard the learned counsel appearing for the petitioner, the learned Special Government Pleader appearing for the 2nd respondent, Mr.G.Sankaran, learned Special Government Pleader appearing for the respondents 1 and 3 and the learned counsel appearing for the 4th respondent. 6.The learned counsel appearing for the petitioner strenuously contended that when the petitioner was transferred and posted in the 2nd respondent office, the same was cancelled at the instance of the 4th respondent and the 4th respondent has been accommodated in the said place. According to the learned counsel appearing for the petitioner, fax message sent from the office of the Transport Minister, transferring the 4th respondent to the 2nd respondent office, thereby cancelling the order of transfer made in favour of the petitioner. In the typed set of paper, the order of transfer made in favour of the 4th respondent was filed. It could be seen in the top of the proceedings that the said order was faxed from the office of the Transport Minister. It has been specifically pleaded in the affidavit filed in support of the writ petition that the order of transfer made in favour of the 4th respondent dated 23.12.2010 was faxed by the Transport Minister's office, Chennai. When such an averment has been made in the affidavit filed in support of the writ petition, absolutely, there is no denial in the counter affidavit filed by the respondents 1 to 3. No doubt, there is a denial by the 4th respondent in his counter affidavit. The appropriate person, who has to deny the said statement shall be by the official respondents viz., respondents 1 to 3. 7.However, the learned Special Government Pleader appearing for the respondents 1 to 3 contended that no influences were made from the office of the Transport Minister and the order of transfer made in favour of the 4th respondent was not in pursuant to any fax message from the office of the Transport Minister. The petitioner was transferred from the office of the 2nd respondent to the office of the 3rd respondent, only because the Chief Educational Officer, the 2nd respondent herein made several irregularities against the petitioner and the same was sent to the 1st respondent viz., the Joint Director of School Education. It is further contended that when there is a serious allegation against the petitioner, when he was working in the 2nd respondent office, it may not be desirable to post him in the said office. This has been considered by the 1st respondent and hence, an order of transfer has been passed, transferring the petitioner to the office of the 3rd respondent and the 4th respondent has been accommodated in the 2nd respondent office. 8.The said contention of the learned Special Government Pleader appearing for the respondents 1 to 3 has been countenanced by the learned counsel appearing for the petitioner by submitting that the alleged lapses, if any on the part of the petitioner, was pertaining to certain incidents relating to the period 2006 and 2007 and so far, no charge memo has been issued to the petitioner https://hcservices.ecourts.gov.in/hcservices/ regarding the same. That apart, he has contended that certain lapses have been pointed out against the petitioner by the 2nd respondent only by proceedings dated 14.12.2010. The petitioner was transferred to the 2nd respondent office on 20.11.2010 and joined on 23.11.2010. Till then, the 2nd respondent office has not raised any finger against the petitioner. 9.He has further contended that the charges levelled against the petitioner has been deliberated and closed by the then incumbent Chief Educational Officer himself. While so, the 2nd respondent is now reopening a closed matter, in his proceeding dated 14.12.2010. 10. While considering the said submission made by the learned counsel appearing for the petitioner as well as the learned Special Government Pleader appearing for the respondents 1 to 3, I am of the considered view that if really, there were some lapses or irregularities committed by the petitioner, when he was originally posted in the office of the 2nd respondent, nothing prevented the 2nd respondent from taking any action against the petitioner. As rightly pointed out by the learned counsel appearing for the petitioner, only after the petitioner was promoted and posted in the 2nd respondent office, the 2nd respondent, by his proceedings dated 14.12.2010 to the 1st respondent, made certain serious allegations against the petitioner. 11.That apart, as rightly contended by the learned counsel appearing for the petitioner, the then Chief Educational Officer, seems to have closed the irregularities pointed out against the petitioner. Perhaps, the 2nd respondent want to reopen the matter. Though he may be at liberty to reopen the matter, that cannot be a sole ground to transfer the petitioner. As on date, the petitioner was not served with any charge memo. No doubt, if there is any irregularity against the petitioner, he cannot be allowed to continue in the same place. But, the way, in which the 4th respondent accommodated in the 2nd respondent office and the petitioner was shifted from the 2nd respondent office to the 3rd respondent office, as discussed above, would show that in order to accommodate the 4th respondent in the office of the 2nd respondent entire episode was enacted. 12.Several decisions have been cited by both the counsel appearing for the petitioner and the learned Special Government Pleader, appearing for the respondents 1 to 3. The learned Special Government Pleader appearing for the respondents 1 to 3 citing several judgments contended that the power of Courts is very limited pertaining to the order of Transfer. The authorities, who are vested with power, have got right over the matter. That apart, he has contended that the petitioner instead of approaching this Court ought to have approached the authorities to seek redressal. He heavily relied on the decision rendered by me, which is reported 2007 W.L.R. https://hcservices.ecourts.gov.in/hcservices/ 943. He has also made emphasize on the several decisions of the Apex Court as well as this Court. No doubt, the Hon'ble Apex Court as well as this Court, time and again, has held that an order of transfer cannot be interfered except under three circumstances viz., (i) if it is tainted with malafide, (ii) if the order has been passed by the authority, who has no power to do so and (iii) if it is violative of any service rules. In the case on hand, it is contended that only at the instance of the office of the Transport Minister, the said order came to be passed. As stated already, the said aspect stated in the affidavit filed in support of the writ petition is not controverted by the 2nd respondent in his counter affidavit. 13.That apart, after the petitioner was transferred to the office of the 2nd respondent, the 2nd respondent raising certain irregularities against the petitioner sending a letter to the 1st respondent. Till the petitioner was transferred to the office of the 2nd respondent, the 2nd respondent has not initiated any action against the petitioner. This makes me to believe that only in order to accommodate the 4th respondent in the office of the 2nd respondent, that too at the instance of Transport Minister's Office, the petitioner, who was posted there is sought to be transferred. 14.In the counter affidavit filed by the 2nd respondent, it is averred that when the petitioner was transferred to the 3rd respondent office, he has not obeyed the order. The said statement is equally applicable to the 4th respondent. The 4th respondent, even in his affidavit, has stated that even though he has been transferred to the 3rd respondent office, he has not joined in the said office. The 2nd respondent has not found fault with the said action of the 4th respondent , but, he finds fault with the petitioner. 15.This Court is conscious on the fact that an order of transfer cannot normally be interfered by the High Court, exercising power under Article 226 of the Constitution of India. However, the facts narrated above, would disclose that the 1st respondent was made to transfer the petitioner from the office of the 2nd respondent to the office of the 3rd respondent and the 4th respondent has been accommodated in the 2nd respondent office. Even assuming certain irregularities are found against the petitioner, it is not as if the 2nd respondent is left with no remedy. The petitioner could be charged for the irregularities, if at all made by the petitioner. 16.Considering the overall circumstances, I am of the considered view that the order of transfer passed by the 1st respondent, transferring the petitioner from the office of the 2nd respondent office to the office of the 3rd respondent and the order transferring the 4th respondent from the office of the 3rd respondent to the office of the 2nd respondent are liable to be set aside and https://hcservices.ecourts.gov.in/hcservices/ accordingly set aside. 17. In fine, the writ petition stands allowed, however no costs. Consequently, connected miscellaneous petitions are closed. Sd/ Assistant Registrar(Crl.Side) /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. 3.The Assistant Elementary Educational Officer, Thanjavur Rural,Thanjavur, Thanjavur District. +1cc to Mr.M.Ajmal Khan, Advocate, Sr.No.13848 +one cc to Special Government Pleader, Sr.No. 14045 Order made in W.P.(MD) NO.107 of 2011 12.04.2011 arul SMA/16.06.2011/6C/7P https://hcservices.ecourts.gov.in/hcservices/