1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08.08.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.8863 of 2011 and M.P.(MD)No.1 of 2011 G.Raghupathi : Petitioner Vs. 1.The Additional Director General of Police and Inspector General of Prison, Tamil Nadu, Chennai-600 008. 2.The Superintendent, Central Jail, Palayamkottai, Tirunelveli District. : 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 of the second respondent relating to proceedings No.6300/G-1/2011, dated 29.07.2011 and quash the same and direct the respondents to allow the petitioner to serve in the same post and in the same station without any disturbance. For Petitioner : Mr.S.Visvalingam For Respondents : Mr.T.S.Mohammed Mohideen Additional Government Pleader ORDER ****** Challenge in this Writ Petition is to an order dated 29.07.2011, of the Superintendent of Central Prison, Palayamkottai, Tirunelveli District, who has carried on the instructions of the Additional Director General of Police and Inspector General of Prison, in Rc.No.30082/C.S.3/2011-2, dated 28.07.2011, where a direction has been issued to transfer the petitioner from Central Prison, Palayamkottai to Pudukkottai District Prison and Borstal School. 2. Placing reliance on a decision of the Supreme Court in Somesh Tiwari v. U.O.I. reported in 2009(3) MLJ 727(SC), Mr.S.Visvalingam, learned counsel for the petitioner submitted that the impugned order of transfer has been made on the ground that the petitioner had come to adverse notice and that it casts stigma and, therefore, the order of transfer has to be interfered with. It is the further contention that the impugned order of transfer has been made, in lieu of punishment and in such circumstances, the petitioner should be provided with an opportunity to show cause on the adverse ground, cited as the reason for transfer. https://hcservices.ecourts.gov.in/hcservices/ 2 3. Mr.T.S.Mohammed Mohideen, learned Additional Government Pleader, who took notice on behalf of the respondents, opposed the Writ Petition on the ground that an order of transfer passed on administrative grounds should not be interfered with by this Court, while exercising the power under Article 226 of the Constitution of India. In support of the said contention, he placed reliance on a decision of the Supreme Court in State of U.P. v. Siya Ram reported in 2004(7) SCC 405 and hence, he prayed for dismissal of the Writ Petition. 4. Heard the learned counsel for the parties and perused the materials available on record. 5. Perusal of the impugned order dated 29.07.2011 issued by the Superintendent of Central Prison, Palayamkottai, Tirunelveli District shows that the Additional Director General of Police and Head of the Department Prisons, in Rc.No.30082/C.S.3/2011-2, dated 28.07.2011, has already issued orders transferring the petitioner from Central Prison, Palayamkottai to Pudukkottai District Prison and Borstal School, taking into consideration the interest of administration. The reason assigned for effecting transfer by the Head of the Department is that the petitioner had come to adverse notice. 6. It is well settled in catena of decisions that the transfer is an incident of service and if a particular employee is appointed to a class or category of transferable posts from one place to other, it can be effected in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions, prohibiting any such transfer, Courts cannot normally interfere with such orders, as a matter of routine. In this context, it is worthwhile to extract paragraph Nos.5 and 6 of the judgment in State of U.P. v. Siya Ram reported in 2004(7) SCC 405, relied on by the learned Additional Government Pleader, which are as follows: "5. The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corpn. Ltd., v. Shri Bhagwan. https://hcservices.ecourts.gov.in/hcservices/ 3 6. The above position was recently highlighted in Union of India v. Janardhan Debanath. It has to be noted that the High Court proceeded on the basis as if the transfer was connected with the departmental proceedings. There was not an iota of material to arrive at the conclusion. No mala fides could be attributed as the order was purely on administrative grounds and in public interest." 7. In Somesh Tiwari v. U.O.I. reported in 2009(3) MLJ 727(SC), relied on by the petitioner, the appellant therein was transferred on the basis of a anonymous complaint that he was caste-biased. A discrete enquiry was conducted into the said anonymous complaint and the allegations made against the appellant therein were not found to be true. Considering the nature of the complaint levelled against the appellant therein and the veracity thereof, the Supreme Court held that the order of transfer was passed on a material, which was not in existence and, therefore, it suffers from total non application of mind. Malice in effecting transfer, despite the report in favour of the appellant therein, was the ground for interference by the Supreme Court and on the facts of the case, the Supreme Court observed that when an order of transfer is passed, in lieu of punishment, the same is liable to be set aside, being wholly illegal. In the said reported judgment, the Supreme Court also imposed a cost of Rs.50,000/-. The facts and circumstances of the reported case cannot be applied mutatis mutandis to this case, for the simple reason, that in the above reported judgment, there is a factual finding in favour of the appellant therein and malice was inferred. 8. In the case on hand, the Additional Director General of Police and Inspector General of Prison has already issued orders on 28.07.2011 itself, transferring the petitioner from Central Prison, Palayamkottai to Pudukkottai District Prison and Borstal School and the impugned order is nothing but a consequential order carrying out the instructions. 9. In the light of the above discussion, this Court is not inclined to accept the contention of the petitioner that the impugned order is punitive. On the other hand, the decision relied on by the learned Additional Government Pleader in Siya Ram's case cited supra is appropriate to the facts of this case. No mala fide has been pleaded and proved and nor there is any violation of statutory provisions. An order of transfer cannot be interfered by this Court, except on three grounds, viz., (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. 10. The writ petitioner has not made out a case for interference on the above said grounds. Hence, I find no merit in the Writ Petition https://hcservices.ecourts.gov.in/hcservices/ 4 and the same stands dismissed accordingly. Consequently, the connected miscellaneous petition is also dismissed. No costs. sd/- Assistant Registrar (RTI) /True Copy/ Sub Assistant Registrar (C.S) To 1. The Additional Director General of Police and Inspector General of Prison, Tamil Nadu, Chennai-600 008. 2. The Superintendent, Central Jail, Palayamkottai, Tirunelveli District. + 1 cc to The Special Government Pleader, SR No.27647 Order made in W.P.(MD).No.8863 of 2011 Dated:- 08.08.2011 SML RJ/11.8.11 4p/4c https://hcservices.ecourts.gov.in/hcservices/