1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01/08/2011 C O R A M THE HONOURABLE Mr.JUSTICE S.MANIKUMAR Writ Petition (MD)Nos.5764 and 5765 of 2011 and MP.No.1,1,2,2 and 3 of 2011 S.Sridharan ... Petitioner in both W.Ps. Vs 1.The District Collector Thanjavur District,Thanjavur. 2.The District Backward Classes and Minority Welfare Officer, Thanjavur, Thanjavur District ... Respondents in both W.Ps. 3.T.Sivagurunathan S/o.M.Thangavel North Street, Okkanadu East Orathanadu Taluk Thanjavur Distric. ... Respondent in W.P.No.5765/11 Prayer in W.P.No.5764: Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus to call for the entire records pertaining to the order passed by the second respondent vide his proceedings in Na.Ka.No.7198/2011 ”C1 dated 20.04.2011 and quash the same and consequently directing the second respondent to reinstate the petitioner into service as Warden at Government College Boys Hostel (Backward Classes), Thanjavur, Thanjavur District. Prayer in W.P.No.5765: Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorari to call for the entire records pertaining to the order passed by the second respondent vide his proceedings in Na.Ka.2122/2011 ”C1 dated signed on 30.04.2011 and quash the same. For petitioner ...Mr.R.Anand For respondents...Mr.B.Pugalendhi R1 and R2 Special Government Pleader R3 No appearance O R D E R In W.P.No.5764 of 2011, the petitioner has challenged the order dated 20.04.2011 passed by the District Backward Classes and Minority Welfare Officer, Thanjavur, Thanjavur District, the second respondent herein suspending the petitioner from service, from the post of Warden Government Boys Hostel, Rajah's Serfoji Government College, Thanjavur, Thanjavur District. https://hcservices.ecourts.gov.in/hcservices/ 2 2. In W.P.No.5765 of 2011, the petitioner has challenged the order dated 30.04.2011 transferring one Thiru.Sivagurunathan, who was earlier working as Warden in Government Students Hostel, (Backward Classes) Orathanadu, to Government Boys Hostel, Rajah's Serfoji Government College, Thanjavur, Thanjavur District, in the place, where the petitioner was working, prior to suspension. 3. Though, the third respondent in W.P.No.5765 of 2011, has been served and vakalat filed on his behalf has been returned, it has not been represented. 4. Assailing the correctness of the order of suspension, on the basis of the averments made in the affidavit filed in support of the writ petitions, Mr.R.Anand, learned counsel for the petitioner submitted that the District Backward Classes and Minority Welfare Officer, the second respondent herein, while passing the order of suspension, had predetermined the guilt of the writ petitioner, as to the allegations levelled against the petitioner and passed the impugned order of suspension. It is his further submission that only to accommodate the third respondent in W.P.No.5765 of 2011, the petitioner has been placed under suspension. 5. Learned counsel for the petitioner has further submitted that in view of general elections, the College Hostel was directed to be closed and that therefore the allegations are baseless and do not warrant suspension. 6. Record of proceedings shows that when this Court ordered Notice of Motion in W.P.No.5764 of 2011, by an order dated 01.06.2011, has granted an order of interim stay, which has been periodically extended. 7. Seeking to vacate the interim order, the District District Backward Classes and Minority Welfare Officer, Thanjavur, Thanjavur District, the second respondent herein, has filed a vacate stay petition in M.P.No.3 of 2011 and reiterating the averments made in supporting affidavit, Mr.B.Pugalendhi, learned Special Government Pleader, submitted that right from the date of induction of the petitioner in Government service, he had been a habitual offender and awarded with many punishments. He denied the allegations relating to predetermination. According to him, the motive attributed to the second respondent is baseless. It is further submitted that following the order of suspension, disciplinary action has been initiated against the petitioner by formulating definite charges. He further submitted that pursuant to the filing of the writ petition, the order of suspension impugned in this writ petition, has been revoked on 20.05.2011 and that it was also served in person, in his official residence. In such circumstances, he submitted that the suspension order impugned in W.P.No.5764 of 2011 has become infructuous. 8. Insofar as W.P.No.5765 of 2011, challenging an order of transfer is concerned, by inviting the attention of this Court to the impugned order dated 30.04.2011, learned counsel for the petitioner submitted that without due application of minds and when the relationship of master and servant is still subsisting, the District Backward Classes and Minority Welfare Officer, Thanjavur, Thanjavur District, has transferred one Thiru.Sivagurunathan, Warden from the https://hcservices.ecourts.gov.in/hcservices/ 3 Government Mens Hostel (Backward Classes), Orathanadu, to the College hostel, by stating that the petitioner had already been dismissed and in the resultant vacancy, the third respondent has been accommodated. He further submitted that the impugned order of transfer, only reflects malafide attitude of the second respondent. According to him, at the relevant time, the Code of Election Conduct Rules was in force and there was a total ban for effecting transfers and in such circumstances, it is evident that the second respondent has passed the order of transfer, only to accommodate the third respondent. 9. The abovesaid contentions are refuted by the District Backward Classes and Minority Welfare Officer, Thanjavur, Thanjavur District and the learned Special Government Pleader submitted that when the petitioner was placed under suspension on 20.04.2011, from Government Boys Hostel, Rajah's Serfoji Government College, Thanjavur, Thanjavur District, taking into consideration the interests of administration and to manage such a big hostel in the District Headquarters, Thiru.Sivagurunathan, was posted as a Warden on 30.04.2011 and according to the learned counsel, no motive can be attributed for this administrative act. He also submitted that the said individual has also joined the said station. For the abovesaid reasons, he prayed for dismissal of the writ petitions. 10. In view of the revocation of the order of suspension, vide proceedings of the second respondent, dated 20.05.2011, this Court is not inclined to advert the merits of the order of suspension. As rightly contended by the learned Special Government Pleader, W.P.No.5764 of 2011, has become infructuous and accordingly, the same is dismissed as infructuous. 11. Insofar as the order dated 30.04.2011 is concerned, posting of Sivagurunathan, as College Warden in Government Boys Hostel, Rajah's Serfoji Government College, Thanjavur, Thanjavur District, no motive or malafide can be attributed, as it is purely an administrative act. The submission of the learned Special Government Pleader that the said order has been passed only in the interest of administration to manage the hostel in the District Headquarters, merits consideration. Therefore, this Court is not inclined to subscribe to the contention of malafide, in effecting transfer. Nevertheless, the order of transfer states that as if the vacant place had been created, on account of dismissal of the writ petitioner from service. The reasons stated in the order of transfer reflects non-application of mind. There was no permanent cessation of service, from the Department, but it was only an ad-interim suspension. 12. For the reasons stated supra, this Court is inclined to interfere with the order of transfer and accordingly, the same is set aside. 13. When the order of suspension was revoked, on 20.05.2011, the petitioner has been transferred and posted at Neyveli. The submission of the learned counsel for the petitioner that once an order of suspension is revoked, then the Government servant should be restored only to the place and position, from where, he has been suspended, cannot be countenanced, for the reason that it is purely https://hcservices.ecourts.gov.in/hcservices/ 4 the prerogative of the employer, to provide appropriate placement. Transfer is an incident of service. Posting the Government servant, in any particular place after revocation, depends upon the availability of vacancy, ground realities, as to whether, retention of the person in any particular place is conducive for administration and for other genuine reasons. A suspended employee, on revocation, has no statutory or legal authority to insist that he should be posted in the same place, from where, he was suspended. 14. In the case on hand, charges have been formulated and enquiry has also been commenced. Learned Special Government Pleader also submitted that it would not serve the interests of the administration, if the petitioner is posted as Warden in the College, where the irregularities have been noticed. 15. Learned counsel for the petitioner submitted that even the post of Warden in Government hostel, Neyveli, to which he has been transferred has been filled up. In such circumstances, it is open to the District Backward Classes and Minority Welfare Officer, Thanjavur, to issue appropriate posting orders to the writ petitioner. The directions made in this order would not foreclose the petitioner to make any representation for posting in the very same place, from where he is suspended. However, it is made clear, that if the petitioner's request is denied, it is not open to him to challenge. With the aforesaid observations and directions, W.P.No.5765 of 2011 is disposed of and W.P.No.5764 of 2011 is dismissed as infructuous. No costs. Consequently connected miscellaneous petitions are closed. Sd/- Assistant Registrar(W) /True Copy/ Sub Assistant Registrar To 1.The District Collector Thanjavur District, Thanjavur. 2.The District Backward Classes and Minority Welfare Officer, Thanjavur, Thanjavur District +one cc to Special Government Pleader, Sr.No.25584 Writ Petition Nos.5764 and 5765 of 2011 and M.P.Nos.1,1,2,2 and 3 of 2011 01/08/2011 RR SMA/19.8.2011/4C/4P https://hcservices.ecourts.gov.in/hcservices/