1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :: 23.11.2011 CORAM :: THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN W.P.(MD)No.4504 of 2011 and M.P.(MD)No. 1 of 2011 S. Stella, W/o. M. John Peter, No.80-A, Somasundaram Street, Devakkottai, Sivagangai District. ....... Petitioner Vs - 1. The Secretary to Government, School Education (D1) Department, Government of Tamil Nadu, Secretariat, Chennai - 600 009. 2. The Chief Educational Officer, Sivagangai. 3. Head Master, Government Higher Secondary School, Nerkuppai, Sivagangai District. 4. Sebastian, B.T. Assistant, Government Higher Secondary School, Sivagangai. ...... Respondents (R-4 impleaded as per the order dated 23.11.2011 in M.P.(MD)No.3 of 2011 in W.P.(MD)No.4504 of 2011) Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus to call for the records relating to the impugned order of the respondent in Ref.Na.Ka.No.2470/A2/09 dated 12.04.2011 to quash the same and consequently direct the second respondent to pass orders posting the petitioner at Anumanthakudi with notional seniority in the place as existed on 01.06.2009. For Petitioner :: Mr. N. Sundaresan For Respondents :: Mr. M. Alagadevan for R-1 to R-3 Special Government Pleader O R D E R The case on hand demonstrates a very defiant attitude and an adamant refusal to comply with an order of transfer. 2. By consent of both the parties, the main writ petition itself is taken up for final hearing and disposal. 3. Heard Mr. N. Sundaresan, learned counsel for the petitioner and Mr. M. Alagadevan, learned Special Government Pleader for the respondent Nos. 1 - 3. https://hcservices.ecourts.gov.in/hcservices/ 2 4. The petitioner was working as a B.T.Assistant (History) in the Government Higher Secondary School, Nerkuppai, Sivagangai District. She participated in the counselling held in May 2009 and requested for a transfer to the Government Higher Secondary School in Anumanthakudi in the same district on the ground that her husband is employed in the Indian Army. It is to be noted that her husband is not posted in Anumanthakudi or anywhere in Sivagangai District. He is working in North East. 5. In the counselling, she was placed at Serial No.1 as per seniority. Another person by name Sebastian, who was working in Government Higher Secondary School, S.S.Kottai in the same District also participated in the Counselling and his name was included at Serial No.15 in the list of persons, who participated in the Counselling. 6. By an order dated 27.05.2009, the Chief Educational Officer, Sivagangai transferred the said Sebastian, B.T.(History), working in the Government Higher Secondary School, S.S.Kottai, Sivagangai District to the Government Higher Secondary School, Anumanthakudi, Sivagangai District. By another order passed on the same date, the petitioner was transferred from Nerkuppai to Kannankudi in the same Sivagangai District. 7. Contending that as per the seniority of persons who participated in the counselling, and as per the guidelines issued by the Government in G.O.Ms.No.145 School Education (E1) Department dated 15.04.2009, she must have been accommodated in the school at Anumanthakudi, the petitioner filed a writ petition in W.P.(MD)No.4854 of 2009 on the file of this Court. The said writ petition was allowed by an order dated 07.08.2009. Upon coming to know of the said order, the said Sebastian filed an Application for Review in Review Application (MD)No.34 of 2009. The Review Application was allowed by an order dated 07.06.2010 and the writ petition was ultimately dismissed. 8. Challenging the order passed in the Review Application, the petitioner herein filed a Writ Appeal in W.A.(MD)No.369 of 2010. The said Writ Appeal was allowed by a Division Bench of this Court, by a Judgment dated 03.09.2010. The reasons for the Writ Appeal being allowed, as stated in Paragraph 21 of the Judgment of the Division Bench are: "(i) that since the petitioner's husband is employed in the Army, she has a right to be posted in a place of her choice ; and (ii) that since she is having two school going daughters, they need protection". 9. In pursuance of the said Judgment passed by the Division Bench of this Court, the second respondent herein passed an order dated 15.10.2010, posting the petitioner as B.T.Assistant in the existing vacancy in Government Higher Secondary School, Anumanthakudi, without dislocating the aforesaid Sebastian. In the meantime, Sebastian also filed a Review Application before the Division Bench in Review Application (MD)No. 94 of 2010, but the same was dismissed by the Division Bench by order dated 28.01.2011. 10. Without joining duty at Anumanthakudi as per the order of the second respondent dated 15.10.2010, the petitioner made a request to the second respondent to accommodate her not only in the Government Higher Secondary School at Anumanthakudi, but also to accommodate her against the https://hcservices.ecourts.gov.in/hcservices/ 3 post, to which the aforesaid Sebastian was posted. Except that she did not seek the same Chair and Table occupied by the said Sebastian, the request of the petitioner was almost equivalent to the same. 11. However, the Chief Educational Officer again issued an order dated 14.02.2011, directing the petitioner to join duty as per the order dated 15.10.2010. But, the petitioner herein resisted the said order and filed a Contempt Petition in Contempt Petition (MD)No. 119 of 2011. In view of the threat held out in the form of a Contempt Petition, the second respondent passed another order dated 05.04.2011, requesting the petitioner herein to join duty in the vacancy existing in the post of B.T.Assistant in Government Higher Secondary School, Anumanthakudi and also indicated that it is not a surplus post, which may get affected at any time. The said order was followed by another order dated 12.04.2011, requesting the petitioner again to join duty on or before 18.04.2011. Challenging the said order, the petitioner has come up with the above writ petition. 12. The main contentions on which the petitioner has come up with the above writ petition is that the petitioner should be posted to the same vacancy in which the aforesaid Sebastian was accommodated in 2009 and that no disciplinary proceedings should be initiated against her. She also claims that she is entitled to full pay and allowances for the entire period from May 2009 till date, despite not being on duty. 13. The fact that the petitioner came up with the original prayer for posting in the Government Higher Secondary School, Anumanthakudi is not in dispute. The fact that she has been posted to the Government Higher Secondary School, Anumanthakudi at least by the order dated 15.10.2010 is also not in dispute. By the subsequent orders, the respondents have also clarified that the post, to which the petitioner is posted, is not a surplus post. Despite all the above, the petitioner wants some more assurances and action from the respondents. The petitioner wants to be posted in the same vacancy, in which the aforesaid Sebastian was accommodated. Such a request is nothing but an attempt at perverting the Service Law. No person has a right to be posted to any particular place. Even the guidelines relating to transfer and the counselling prescribed by the Government do not confer an absolute and unfettered right upon individuals to seek a posting in the same place, to which they made a request. The fact that the petitioner's husband is employed in the Army, in my opinion, has no relevance at all. In May 2009, the petitioner was employed in Nerkuppai in Sivagangai District. She was transferred to Kannankudi in Sivagangai District. The request of the petitioner was for a posting to Anumanthakudi in Sivagangai District. Her husband is working in the Army in North East. For him, it makes no difference whether the petitioner is posted in Kannankudi or Anumanthakudi or Nerkuppai, all of which are only in Sivagangai District. Therefore, the prayer now made by the petitioner to be posted to the same vacancy to which the aforesaid Sebastian was posted is to say the least, is atrocious. 14. In so far as the period from May 2009 till date is concerned, there is no dispute that the petitioner did not join duty anywhere. Even in extreme cases where the Court can interfere with orders of transfer, the Supreme Court has made it very clear that the individual should first join duty in the transferred place. Therefore, a person who has not joined the post, even after posting her to a place of her own choice, cannot take https://hcservices.ecourts.gov.in/hcservices/ 4 advantage of her victory in the writ petition to claim the full pay and allowances for the entire period. The success of the petitioner in the writ petition and the Writ Appeal at the most can be taken refugee by the petitioner only upto 15.10.2010, the date on which she was posted to a place of her choice. In my view, the petitioner cannot claim even this benefit. Therefore, the petitioner had no justification to have refused to join the place after 15.10.2010. In her concern for brining up her own two children, the petitioner has thrown to the winds, the future of several students, by being absent for the past two years and six months from duty without joining anywhere. Therefore, her claim that no disciplinary proceedings can be initiated and that she should be rewarded with full pay and allowances is nothing but audacious. Hence, this Writ Petition is devoid of merits and the same is liable to be dismissed. 15. Accordingly, this writ petition is dismissed. However, there will be no order as to costs. Consequently, the connected M.P.(MD)No.1 of 2011 is closed. Sd/- Assistant Registrar (Crl.side) /True copy/ Sub Assistant Registrar(C.S) To: 1. The Secretary to Government, School Education (D1) Department, Government of Tamil Nadu, Secretariat, Chennai - 600 009. 2. The Chief Educational Officer, Sivagangai. 3. Head Master, Government Higher Secondary School, Nerkuppai, Sivagangai District. +1. CC to the Special Government Pleader, SR.No. 41258 Dpn/- W.P.(MD)No.4504 of 2011 and M.P.(MD)No.1 of 2011 23.11.2011 TR : 09.12.2011: 4p/5c https://hcservices.ecourts.gov.in/hcservices/