IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE :: 18..11..2010 CORAM :: THE HON'BLE MR. JUSTICE V. DHANAPALAN WRIT PETITION NO: 19657 OF 2008 P. Rajendran No: 59/163 c, Kumaran Nagar Mettur Dam Salem District. ... Petitioner -vs- 1. Deputy Insepctor General of Police Salem Region, Salem. 2. The Superintendent of Police Salem District. 3. The Superintendent of Police Krishnagiri District. ... Respondents Writ petition under Article 226 of the Constitution of India praying for issuance of a writ of ceritorarified mandamus to call for the records of the 1st respondent relating to R.O. No: 377 of 2008 – R.C. No: A1/011/P-26/2008 dated 07.08.2008, quash the same and issue consequential directions to the 1st respondent to permit the petitioer to continue to setve as Head Constrable at Deevattipatty Police Station, Salem District. For petitioner : M/s. S. Saranya for M/s. R. Thamarai Selvan For respondents : Mr. R. Neelakandan Government Advocate O R D E R Heard Ms. Saranya learned counsel for Mr. R. Tamaraiselvan learned counsel appearing for the writ petitioner and Mr.R. Neelakandan learned Government Advocate appearing for the respondents. In this writ petition an order of transfer passed by the 1st respondent in R.O. No: 377 of 2008 – R.C. No: A1/011/P-26/2008 dated 07.08.2008 whereby the petitioner has been transferred from Deevattipatty Police Station , Salem District, to Kallavi Police Station, Krishnagiri District, on adverse grounds is challenged. https://hcservices.ecourts.gov.in/hcservices/ 2. It is the case of the petitioner that he was initially enlisted as Grade–II, Police Constable in Salem Armed Reserve Unit on 25.05.1988 and, thereafter, promoted as Grade – I, Police Constable then Head Constable in the year 2004. He was posted and transferred to Prohibition Enforcement Wing, Steel Plant, Salem from Armed Reserve Unit and then transferred to Local Police and posted at Deevattipatty Police Station as Head Constrable on 22.07.2005. He claims that he has been awarded 25 rewards for his meritorious services. While that being so, all of a sudden, the 1st respondent in its order dated 25.07.2008 transferred the petitioner to Armed Reserve Unit, Krishnagiri District to Deevattipatty Police Station, Salem District, on administrative grounds. Subsequent to that, the 1st respondent passed another order in the impugned proceedings dated 07.08.2008 transferring the petitioner to Kallavi Police Station, Krishnagiri District, on adverse grounds with the instruction to report at the designated post without availing joining time. The said order has been challenged in this writ petition on the ground that the impugned transfer order is punitive in nature and without any notice or affording any opportunity of being heard in person in utter violation of principles of natural justice and contrary to the guidelines in G.O. Ms. No: 10, P & A.R. Department dated 07.01.1994; Government Letter No: 86456/Per.S/93-7 dated 09.08.1994 and Govt. Lr. No: 23847/S/98-1 dated 05.08.1998 and the impugned order has been passed with malafide motive to accommodate the interest of some individuals working in the same police station. Therefore, the order suffers from various infirmities and is liable to be set aside. 3. The respondents have filed counter affidavit stating that the petitioner is a head constable of Salem District and was serving in Deevattipatty Police Station from 25.07.2005 and he has completed the tenure of three years in that police station. The general public have complained that he is indulging in corrupt practices and, therefore, he was transferred from Deevattipatty Police Station, Salem District, to Kallavi Police Station, Krishnagiri District, on adverse grounds as per the impugned orders issued in R.O. 377/2008, C.No. A1/011/P.26/08 dated 07.08.2008 of Deputy Inspector General of Police, Salem Range, Salem. According to them the petitioner was recruited as Grade II PC on 25.05.1988 and elevated to the post of Gr. I PC by upgradation with effect from 01.10.1999 and as Head Constable from 28.10.2004. It is also stated that he served in Armed Reserve and then posted to Deevattipatty Police Station where he was serving from 22.07.2005. There are 25 rewards at his credit. Initially, an order of transfer, transferring the petitioner from Deevattipatty Police Station to Armed Reserve Krishnagiri District was issued in R.O. No: 348/08 (C. No. 10576/08) dated 25.07.2008. Subsequently, it was reconsidered and revised order transferring him to Kallavi Police Station, Krishnagiri District, in R.O. 377/2008 C. No: A1/11/P.26/08 dated 07.08.2008 was issued on the ground that serious allegations of corrupt practice were levelled against him by the general public. Since the transfer is considered necessary in public interest and sufficient in lieu of suspension, it is just and https://hcservices.ecourts.gov.in/hcservices/ proper. It is further stated that the transfer from one place to another is an incident in Government Service and it cannot be said to be punitive in nature and in violation of the principles of natural justice. 4. In the counter of the respondents it is also stated that the general public have complained that the petitioner was indulging in corrupt practices and conniving with bootleggers. Confidential enquiry revealed that the allegations were found to be true and, therefore, the transfer was considered necessary in the public interest and in lieu of suspension. An preliminary enquiry was also ordered to be conducted, to record statement from witnesses and send a report. Based on the report disciplinary action will be initiated against the petitioner for the proved charges. It is also stated that the petitioner who is working in the disciplinary force should have submitted a representation to his superiors for consideration and redressal. Before exhausting the departmental remedies available to him, he has filed the present writ petition thereby exhibited his unbecoming conduct. According to the respondents, the transfer from one place to another is an incident in Government Service and no Government servant can claim retention in a particular post or place and since the transfer was not ordered as a punishment, the question of issuing notice to him does not arise. It is submitted that confidential enquiry has been conducted and ascertained that the allegations are true and in view of this a detailed preliminary enquiry was ordered and based on the enquiry report, further action will be taken against him. 5. It is also the stand of the respondents that if the petitioner is allowed to continue in Salem District he will definitely tamper the witnesses and not permit them to depose against him and since the order is issued within the instructions issued in G.O. Ms. No: 10, P & AR. Dept. Dated 07.01.1994, there is no violation of Articles 14 and 16 of the Constitution. It is also stated that knowing that serious allegations are made against him and after the issue of order of transfer in R.O. 348/08 dated 25.07.2008, petitioner had gone on medical leave from 05.08.2008 and he has not at all received the transfer order intended for him and sent from the District Police Office, Salem, but he managed to get a xerox copy and has filed the present writ petition. For all the above reasons, respondents have prayed for dismissal of the writ petition. 6. Learned counsel for the petitioner in her submission would strenously contend that the transfer order is passed as a punishment. She would submit that before passing such an order petitioner was not given an opportunity about the adverse remarks and that, without following the due procedure of law, there cannot be any transfer. She would further contend that the petitioner has been transferred with a malafide intention on the instigation of other individuals working in the same police station. She would also submit that there is no administrative ground for transferring the petitioner within a short time. https://hcservices.ecourts.gov.in/hcservices/ 7. On the other hand, the learned counsel appearing for the respondents would contend that the order of transfer is only an incident of service and hence, no notice need be given to the petitioner before ever passing an order of transfer. He would also submit that a confidential enquiry was conducted into the allegations levelled against the petitioner from the general public, statements were recorded from the witnesses and based on the enquiry report petitioner had been transferred from Deevattipatti Police Station, Salem District. Further, by producing the proceedings in C. No: 33338/A1/2008 dated 15.11.2010 the respondent would state that the petitioner has been appointed as a Head Stable and he has been serving there from 25.05.1988. He had served in Salem District continuously for the past three years and is serving till date and therefore, in order to perputuate his activities in the same place, he has been posted at a different place. He would also submit that in the absence of any specific plea and without substantial reason, the order of transfer cannot be assailed on the plea of malafide. 8. I have heard the learned counsel on either side and perused the material documents and the relevant orders. The circumspection of the facts would reveal that the petitioner was recruited and appointed in the Armed Reserve Unit on 25.05.1988 and was thereafter promoted as Grade I, Police Constable and then as Head Constable in the year 2004. Initially he was in the Armed Reserve Unit and was then transferred to local police and posted at Deevattipatty Police Sttion as Head Constable on 22.07.2005. Further, he was transferred from Deevattipatty Police Station to Armed Reserve Unit at Krishnagiri District on 25.07.2008. Immediately his transfer order was re-considered and by the proceedings dated 07.08.2008 petitioner was transferred and posted at Kallavi Police Station, Krishnagiri District. Both the orders of transfer has been challenged by the petitioner in this writ petition. 9. It is seen from the written instructions produced before this Court that the petitioner had served at Armed Reserve Unit from 25.05.1988, the date of his joining, upto 06.07.1994 ; from 07.07.1994 upto 24.09.1995 he has served at the Prohibition Enforcement Wing ; from 04.10.1995 to 17.01.2003 he had served at Armed Reserved Unit at Salem District and then at Sankari Police Station from 18.01.2003 to 20.03.2004 and again at the Prohibition Enforcement Wing at Salem Steel Plant from 21.03.2004 to31.07.2005 and from 01.08.2005 to 30.06.2009 at Deevattipaty Police Station ; from 01.07.2009 to 11.11.2009 at Omalur Police Station and then from 12.11.2009 to till date he is serving at Kariyakoil Police Station. In this background it is seen that the petitioner continued to be in the service in the area in and around Salem District. On the adverse ground namely that there was a public complaint a preliminary enquiry was conducted, statements were recorded from the witnesses and the enquiry report was placed before the competent authority and a disciplinary action was also contemplated. In addition to the disciplinary action, the 1st respondent has decided to transfer the https://hcservices.ecourts.gov.in/hcservices/ petitioner on administrative grounds for the reason that the general public have complained that the petitioner is indulging in corrupt practices. Therefore, the respondents have considered that transfer is necessary in public interest. If that being so, it cannot be considered that the transfer is punitive in nature, since the 1st respondent has already initiated disciplinary action against the petitioner independently and also transferred him on administrative grounds. Therefore, the transfer cannot be faulted with. 10. Though the petitioner has alleged that it is a malafide act, in the absence of any specific motive, this Court cannot come to the conclusion that there is some malafide reason for making such a transfer. From the above analysis it is seen that only on administrative ground the transfer has been effected and while doing so, the procedure has been followed. In the counter affidavit a specific statement has been made in paragraph 11 that, " ...... there was no violation of natural justice, whatsoever, since disciplinary action is yet to be initiated against him. Already confidential enquiry was found that there was a prima facie case against the petitioner and detailed enquiry was also ordered against him. " Such being the position, it cannot be presumed that the transfer order is punitive in nature in view of the explanation submitted by the respondents that the transfer order is being issued in view of the public complaints that the petitioner was indulging in corrupt practices. 11. Moreover, it is a settled legal position that the scope of interference in transfer matters is very limited unless the malafide intention is proved by the petitioner. Without that, the transfer is only exigency of service for a Government servant and it cannot be held to be punitive in nature. In this regard, it is worth referring to the decisions of the Supreme Court reported in 2009 ( 15 ) SCC 178 in the case of Rajendra Singh v. State of U.P. and 1995 ( 2 ) SCC 532 in the case of Chief General Manager, (Telecom) N.E. Telecom Circle v. Rajendra Ch. Bhattacharjee. 12. The Supreme Court, while dealing with transfer matters in the case of Rajendra Singh v. State of U.P. cited supra, has held as follows: " A government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident https://hcservices.ecourts.gov.in/hcservices/ inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the government servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. " In Chief General Manager, (Telecom) N.E. Telecom Circle v. Rajendra Ch. Bhattacharjee, cited supra, the Supreme Court has held that, " The transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and compelling grounds rendering the transfer order improper and unjustifiable. In the present case we find no such grounds. On the contrary, as discussed above, the respondent remained at Agartala for most of the period. In the facts and circumstances stated above the claim of Respondent 1 for choice posting cannot be accepted and for that reason the impugned order of the Tribunal could not be sustained. In the result the appeal succeeds and is hereby allowed." 13. In view of the settled legal position and based on the foregoing discussions, in the absence of legal infirmity or malafide act, the impugned order of transfer is sustained. There is no merit in the writ petition and accordingly, the same is dismissed. Consequently, connected miscellaneous petition is closed. There shall be no orders as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gp To 1. The Deputy Insepctor General of Police Salem Region, Salem. 2. The Superintendent of Police Salem District. https://hcservices.ecourts.gov.in/hcservices/ 3. The Superintendent of Police Krishnagiri District. 1 cc To The Government Pleader, SR.82708 1 cc To Mr.R.Thamarai Selvan, Advocate, SR.82457 W.P. No: 19657 of 2008 PUR (CO) RH (3.1.11) https://hcservices.ecourts.gov.in/hcservices/