IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.10.2009 CORAM: THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.No.3949 of 2009 M.P.Nos.1 and 3 of 2009 B.Selvam ... Petitioner Versus 1. The Secretary to Government, State of Tamil nadu, Water Supply Department, Secretariat, Fort St. George, Chennai-9. 2. The Commissioner of Municipal Administration, Chepauk, Chennai-5. 3. The Commissioner, Tiruchirappalli City Municipal Corporation, Tiruchirappalli 620 017. 4. V.Balagangadharan ... Respondents Writ Petition is filed under Article 226 of the Constitution of India praying for a Writ of Certiorari, to call for the records relating to the impugned order of the first respondent issued in G.O.(D)No.30, MA & WS, dated 02.02.2009 and quash the same. For Petitioner : Mr.Vijayanarayan, SC for Mr.R.Parthiban For 1st Respondent : Mr.P.Subramanian, Addl. Government Pleader For Respondents 2 & 3 : Mr.S.Ramasamy, Addl. Advocate General I Assisted by Mr.P.Srinivas O R D E R The petitioner, an Assistant Executive Engineer, working in Tiruchirappalli Municipal Corporation, has challenged the order of transfer issued by the Government in G.O.(D)No.30, MA & WS Department, dated 02.02.2009, transferring from Municipal Corporation to a Municipality. 2. Facts leading to the Writ Petition are as follows: The petitioner was appointed as Junior Engineer in the Municipal service on 14.01.1988 and he worked in various municipalities. During 1994, the Government have upgraded Tiruchirappalli Municipality along with three other Municipalities as Municipal Corporation. The petitioner was absorbed in Tiruchirappalli City Municipal Corporation and thereafter, promoted as Assistant Executive Engineer in the year 2007 and posted in Golden Rock Zone of Tiruchirappalli Corporation. While so, the Secretary to the Government, Water Supply Department, first respondent, issued orders in G.O.(D)No.542, MA & WS Department, dated 29.12.2008, transferring the petitioner from Tiruchirappalli City Municipal Corporation to Municipal Service and posted him in the Office of the Regional Director of Municipal Administration, Tirunelveli, as Assistant Executive Engineer. The said order was challenged in W.P.No.285 of 2005 and while entertaining the Writ Petition, this Court in M.P.No.2 of 2009, dated 20.01.2009, has granted interim stay. When the said Writ Petition was pending, the first respondent suo-moto cancelled the order of transfer, dated 29.12.2008 and issued another Order in G.O.(D)No.30, MA & WS Department, dated 02.02.2009, in exercise of its powers, under Section 116(1)(d) of the Coimbatore City Municipal Corporation Act, 1981 and Section 73-A(1) of the Tamil Nadu District Municipalities Act, 1920, transferring him to Arani Municipality as Municipal Engineer, Grade II. Aggrieved by the same, the petitioner has preferred the present Writ Petition. 3. The Commissioner, Tiruchirappalli City Municipal Corporation, third respondent herein, in his counter affidavit, has submitted that the Government in G.O.Ms.No.542, MA & WS Department, dated 29.12.2008, issued orders, transferring and posting the petitioner to the office of the Regional Director of Municipal Administration, as Assistant Executive Engineer, in which, it was clearly indicated that the said order of transfer is for conducting a free and fair enquiry initiated against him with regard to the disproportionate assets to the known sources of income. Accordingly, the petitioner was relived from the duties on the Forenoon of 10.01.2009. In the mean while, the Director of Municipal Administration, in his proceedings, dated 09.01.2009, has issued orders, transferring Mr.V.Balagangadharan, Assistant Executive Engineer (TSUNAMI) of Vedharanyam Municipality as Assistant Executive Engineer in Tiruchirappalli City Municipal Corporation on deputation basis in the vacant post due to the transfer of the petitioner to the Office of the Regional Director, Tirunelveli, on the ground of disbandment of the post of Assistant Executive Engineer under TSUNAMI Scheme. Accordingly, the said Mr.V.Balagangadharan, Assistant Executive Engineer was permitted to join duty on deputation basis, vide proceedings, dated 10.01.2009. 4. The third respondent has further submitted that in the mean while, the petitioner filed W.P.No.285 of 2009 before this Court, challenging G.O.Ms.No.542, MA & WS Department, dated 29.12.2008, on the ground inter alia that the Government have got powers only to transfer an officer or employee of the Corporation to any Municipality and vice versa as per Section 73-A of the Tamil Nadu District Municipalities Act, and cannot transfer an officer or employee of the Corporation to Government service (viz., the Regional Directorate of Tirunelveli). In the above Writ Petition, this Court, by order, 20.01.2009, has granted interim stay. Consequently, the Government in G.O.(D)No.30, Municipal Administration and Water supply Department, dated 02.02.2009, cancelled the earlier orders issued in G.O.Ms.No.542, and issued a fresh order, transferring the petitioner to Arani Municipality as Municipal Engineer, Grade II (in the cadre of Assistant Executive Engineer) in the existing vacancy duly as per the provisions laid under Section 116(1)(d) of the Tamil Nadu Municipal Corporation Act, 1981 and Section 73-A(1) of the Tamil nadu District Municipalities Act, 1920. 5. The third respondent has further submitted that the Vigilance authorities have filed a FIR in Trichy in Cr.No.7/08 and it is in progress. Further, only for conducting a free and fair enquiry, the Government have issued orders, transferring the petitioner to a new station, for which, the Government have got powers, as stated supra. The third respondent has further submitted that the resolution of the Council is not necessary for effecting transfer of an employee from one place to another, when the Government invokes power under Section 116 of the Coimbatore City Municipal Corporation Act, 1981 r/w 73 of the Tamil Nadu District Municipalities Act, 1920. 6. The third respondent has further submitted that following a house search and seizure of certain documents by the Vigilance and Anti-Corruption Department, a case has been registered and based on the recommendation of the investigating authorities, the Government have issued orders in public interest, transferring the petitioner from one place to another, in order to enable the authorities to conduct a free and fair enquiry, which cannot be said to be arbitrary. 7. Mr.Vijayanarayanan, Learned Senior Counsel for the petitioner submitted that inspite of an interim order granted by this Court, the respondents have failed to issue appropriate postings to the petitioner in Tiruchirappalli Municipal Corporation, even to a non-sensitive post. He also brought to the notice of this Court that in Contempt Application No.506 of 2009, the respondents have taken time for compliance of the interim order, but they have chosen to file an application for vacating the interim stay granted by this Court. Therefore, as a preliminary submission, learned Senior Counsel submitted that the respondents are bent upon in not providing a suitable place, even non-sensitive, which would exhibit the mala fide intention of the respondents, in somehow transferring the petitioner out of Tiruchirappalli Municipal Corporation. 8. Without prejudice to the above submissions, learned Senior Counsel submitted that the first respondent has erred in invoking Section 116(1)(d) of Coimbatore City Municipal Corporation Act, 1981 and Section 73-A(1) of the Tamil Nadu District Municipalities Act, 1920, for transferring the petitioner out of the Corporation. 9. Referring to Section 116 of the Coimbatore City Municipal Corporation Act, 1981 and Section 8 of the Tiruchirappalli City Municipal Corporation Act, 1994, learned Senior Counsel submitted that, save as otherwise expressly provided in the latter Act, all the provisions of the 1981 Act shall apply mutatis-mutandis to the Tiruchirappalli Corporation and provisions of Tiruchirappalli City Municipal Corporation Act, 1994 should be read and construed, as if the provisions of the latter Act had formed part of the 1981 Act. 10. Inviting the attention of this Court to Section 9(6) of the Trichirapalli City Municipal Corporation Act, 1994 and in particular, to the second proviso, learned Senior Counsel for the petitioner submitted that the said proviso speaks about transferrable cadre, by which, an option is given to an officer or employee serving in the Municipality, either to be absorbed in the service of the Corporation or to be retained in the service constituted under Section 74 of the Tamil Nadu District Municipalities Act, 1920. He therefore submitted that transfer of an officer or employee from Municipal Corporation to the service constituted under the Municipalities Act, will arise only when, an option is obtained from the officer or employee of the Corporation and therefore, the first respondent has no jurisdiction to invoke Section 116(1)(d) of the Coimbatore City Municipal Corporation Act, 1981 to terminate the vested rights in Trichirapalli Municipal Corporation. 11. Learned Senior Counsel for the petitioner further submitted that by exercising the power under Section 116(1)(d) of Tiruchirappalli City Municipal Corporation Act, 1981 and Section 73-A(1) of the Tamil Nadu District Municipalities Act, 1920, there cannot be any change of an employer at the whims and fancies of the Government. According to him, if the Government is empowered to transfer an employee from the Corporation to any Municipality on the sole ground that a Vigilance enquiry is pending, then the purpose of obtaining consent or option from the officer or employee under Section 9(6) of the Tiruchirappalli City Municipal Corporation Act, 1994, would stand negated. 12. Referring to Section 116(1)(d) of the Tiruchirappalli City Municipal Corporation Act and Section 73(A)(i) of the Tamil Nadu District Municipalities Act, 1920, learned Senior Counsel for the petitioner submitted that both the provisions are pari materia in nature. Having regard to the adverse effects of transfer of an officer or employee from one service to another, with a difference in the organisational set-up, downgrading the position in the new service to which an officer or employee is transferred and the reduction of status and chances of promotion in the parent department, he submitted that when the Government decides to transfer an employee from the Municipal Corporation to any Municipality, the same cannot be done without obtaining option or consent from the said officer or employee. 13. Learned Senior Counsel further submitted that the word "transfer" employed in Section 116(1)(d) of Coimbatore City Municipal Corporation Act, 1981 should be interpreted to mean only as "deputation of service" and in these circumstances, terminating the lien and vested rights of the petitioner in Tiruchirappalli Municipal Corporation, is illegal and contrary to the provisions of the statute referred to earlier. 14. Learned Senior Counsel for the petitioner further submitted that Section 116 of the Coimbatore City Municipal Corporation Act, 1981 does not lay down any guidelines, as to when the power can be exercised. According to him, in the absence of any guidelines, the power can arbitrarily be exercised by the Government and there is nothing in the said provision or in any other provision of the Act, determining the rights of such transferred employees in the transferred department, i.e., if the Government decides to deny promotion to an officer or employee of a Corporation, it can always bring any another person from any one of the Municipalities and thereby, deny his promotion in the parent unit, viz., Corporation. Similarly, if the Government intends to deny promotion to an officer or employee of a Corporation, at the time when he was legitimately expecting promotion, he can be transferred under Section 116(1)(d) of the Coimbatore City Municipal Corporation Act, 1981. In these circumstances, he submitted that the term "transfer" employed in Section 116(1)(d), should be interpreted only to mean as, "deputation" for a specific period, in the order, where a tri-parte agreement is required. 15. Referring to Rule 38 of the Tiruchirappalli City Municipal Corporation Service Rules, 1996, learned Senior Counsel for the petitioner submitted that when the rules contemplate that each Corporation is a separate unit for the purpose of appointment, promotion, seniority, etc., transfers could be effected only within the Corporation and if it is outside the Tiruchirappalli Municipal Corporation, it can be done only by way of deputation, retaining the lien in the parent department, viz., Tiruchirappalli Municipal Corporation. 16. Placing reliance on a decision in D.M.Bharati v. L.M.Sud and others reported in 1991 Supp. (2) SCC 168, learned Senior Counsel for the petitioner submitted that if an officer or employee of Municipal Corporation is transferred to an excadre post, without clearly specifying the nature of transfer, then such transfer has to be held only as deputation. 17. Relying on a decision reported in U.P.Gram Panchayat Adhikari Sangh v. Daya Ram Saroj reported in 2007 (2) SCC 138, learned Senior Counsel submitted that while interpreting the word "transfer" occurring in Section 116 of the Coimbatore City Municipal Corporation Act, 1981, one has to read the Section as a whole and by effecting transfer, in exercise of the power conferred on the Government under the said Section, the service conditions in the parent department cannot be altered, which has got the effect of changing the employer. 18. Referring to the proceedings in Roc.No.003/2009/C1(Main), dated 31.08.2009, of the Commissioner, Tiruchirappalli Corporation, Tiruchirappalli, learned Senior Counsel for the petitioner further submitted that when the Commissioner of Tiruchirappalli City Municipal Corporation has himself admitted that the petitioner, who is now posted to Arani Municipality as Municipal Engineer, Grade-II, (in the cadre of AEE), would not lose his seniority in the City Municipal Corporation, Tiruchirappalli, if he is otherwise eligible for further promotion, the impugned order of transfer has to be interpreted and meant only as an order of deputation. 19. Pointing out the case of several individuals against whom, action has been taken by the Director of Vigilance and Anti-Corruption Department for possession of disproportionate assets to the known sources of income, learned Senior Counsel for the petitioner further submitted that the impugned action taken against the petitioner exhibits gross discrimination, arbitrariness and mala fide to somehow transfer the petitioner from Tiruchirappalli City Municipal Corporation to Arani Municipality. 20. In response to above submissions, Mr.S.Ramasamay, learned Additional Advocate General submitted that Section 116 of the Coimbatore City Municipal Corporation Act, 1981, by virtue of its applicability to Tiruchirappalli City Municipal Corporation Act, 1994, empowers the Government to transfer any officer or servant of the Municipal Corporation to any Municipality. Referring to the Second Proviso to Sub-Section (6) of Section 9 of the Tiruchirappalli City Municipal Corporation, 1994, he further submitted that the said provision is attracted only when there is a transition or a change, where an option is required to be exercised by any officer or other employee serving in the Municipality, either to be absorbed to the service of the Corporation or to be retained in service constituted under Section 73-A of the Tamil nadu District Municipalities Act, 1920 or to be retrenched from service of the Municipality. He further submitted that Section 9(6) of the Tiruchirappalli City Municipal Corporation Act, 1994 has no application to the facts of this case, as the petitioner had been absorbed as an employee of the Corporation. 21. By referring to the proceedings in Roc.No.003/2009/C1(Main), dated 31.08.2009, of the Commissioner of Tiruchirappalli Corporation, Tiruchirappalli, learned Additional Advocate General further submitted that the apprehension of the petitioner that he would be losing his seniority, status and other privileges attached to the office of the Assistant Executive Engineer, which he was holding in the Corporation, pursuant to the transfer, is not well founded for the reason that the seniority of the petitioner, now posted as Municipal Engineer, Grade II (in the cadre of AEE) in Arani Municipality, which is an equivalent cadre, would be protected and that he would be considered for promotion if he is otherwise eligible. 22. Learned Additional Advocate General further submitted that the preliminary enquiry conducted by the Vigilance and Anti-Corruption Department would go to show that the petitioner has got disproportionate assets to the known sources of his income and therefore, in order to facilitate a free and fair enquiry, the Government have transferred the petitioner out of the Corporation, which is in in public interest and therefore, it cannot be termed as arbitrary or mala fide exercise of power. 23. Placing reliance on a decision in Union of India v. Janardhan Debanath and another reported in 2004 (4) SCC 245, learned Additional Advocate General submitted that the question of any downgradation of seniority or promotional prospects, are the aspects, which can be gone into in an appropriate proceedings and when the allegations made against an officer of the Municipal Corporation are of serious nature, there is no need to conduct a roving enquiry at the time of effecting transfer and it is suffice that if the order is issued in public interest or exigencies of administration to enforce decorum and ensure probity. 24. Placing reliance on a decision in T.V.Subramaniam v. The State of Tamil Nadu reported in 2001 (3) MLJ 476, learned Additional Advocate General further submitted that the power of the Government to transfer an employee from a Municipality to a City Municipal Corporation has already been confirmed by this Court and therefore, the contention that the petitioner that he should be treated only as a deputationist is liable to be rejected. He also submitted that the decision relied on by the learned Senior Counsel for the petitioner in U.P.Gram Panchayat Adhikari Sangh v. Daya Ram Saroj reported in 2007 (2) SCC 138, is apposite to the facts of this case. For the above said reasons, he prayed for dismissal of the Writ Petition. Heard the learned counsel for the parties and perused the materials available on record. 25. In order to examine the rival submissions of the Senior Counsel as to whether the word "transfer" employed in Section 116 of the Coimbatore City Municipal Corporation Act, 1981 and Section 73-A of the Tamil Nadu District Municipalities Act, 1920, convey a meaning, "deputation" or "transfer", by which, the lien in the parent department is once in for all terminated, it is necessary to extract the above Sections. "116. Power of Government to transfer officers and servants of the corporation or municipalities:- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force, the Government shall have power- (a) to transfer any officer or servant of the corporation to the service of the Municipal Corporation of Madras Constituted under the Madras City Municipal Corporation Act, 1919 (Tamil Nadu Act IV of 1919) or the Municipal Corporation of Madurai constituted under the Madurai City Municipal Corporation Act, 1971 (Tamil Nadu Act XV of 1971) or any other municipal corporation be constituted under any law for the time being in force; or (b) to transfer any officer or servant of the Municipal Corporation of Madras Constituted under the Madras City Municipal Corporation Act, 1919 (Tamil Nadu Act (IV of 1919) or the Municipal Corporation of Madurai constituted under the Madurai City Municipal Corporation Act, 1971 (Tamil Nadu Act XV of 1971) or any other municipal corporation constituted under any law for the time being in force, to the service of the corporation; or (c) to transfer any officer or servant of the corporation to the service of any municipality constituted under the Tamil Nadu District Municipalities Act, 1920 (Tamil Nadu Act V of 1920); (d) to transfer any officer or servant of any municipality constituted under the Tamil nadu District Municipalities Act, 1920 (Tamil Nadu Act V of 1920) to the service of the Corporation." "73-A. Power of State Government to transfer officers and servants of municipalities or corporations:- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force, the State Government shall have power- (a) to transfer any officer or servant of a municipality to the service of the Municipal Corporation of Chennai Constituted under the Chennai City Municipal Corporation Act, 1919 (Tamil Nadu Act IV of 1919) or the Municipal Corporation of Madurai constituted under the Madurai City Municipal Corporation Act, 1971 (Tamil Nadu Act XV of 1971) or the Municipal Corporation of Coimbatore constituted under the Coimbatore City Municipal Corporation Act, 1981 (Tamil Nadu Act 25 of 1981) or any municipal corporation constituted under any law for the time being in force; or (b) to transfer any officer or servant of any of the municipal corporation referred to in Clause (a), to the service of any municipality; or (c) to transfer any officer or servant of any municipality to the service of any municipality. (2) The State Government shall have power to issue such general or special directions as they may deem necessary for the purpose of giving due effect to any transfer made under sub-Section (1)." 26. As per Section 8(1) of the Trichirappalli City Municipal Corporation Act, 1994, save as otherwise expressly provided in the Act, all the provisions of 1981 Act, i.e., Coimbatore City Municipal Corporation Act, 1981, including the provisions relating to the levy and collection of any tax or fee are hereby extended to and shall apply, mutatis mutandis to the corporation (i.e., Trichirappalli City Municipal Corporation) and the 1981 Act (Coimbatore City Municipal Corporation Act, 1981) shall, in relation to the Corporation (i.e., Trichirappalli City Municipal Corporation) be read and construed as if the provisions of the Act had formed part of the 1981 Act. Therefore, by virtue of Section 8(1) of the Trichirappalli City Municipal Corporation Act and Section 116 of the Former Act, 1981 is applicable to the petitioner. 27. Sub-Section 6 of Section 9 of the Trichirappalli City Municipal Corporation Act, 1994, reads as follows: "(6) Notwithstanding anything contained in this Act, every officer or employee who, immediately before the date of such commencement was in the service of the municipality shall, on and from the date of commencement of this Act, be deemed to be an officer or employee of the corporation: Provided that- (a) the terms and conditions applicable to such officers and employees consequent on their absorption in the service of the corporation shall not be less favourable than those applicable to such employees immediately before the date of such commencement, as regards pay and allowance, leave, pension, gratuity, provident fund and age of superannuation; and (b) the service rendered by any such officer or other employee under the municipality upto the date of such commencement shall be deemed to be service under the corporation and shall be entitled to count that service for the purpose of increments, leave pension, provident fund, and gratuity; Provided further that any officer or other employee serving in the municipality shall be given an option to be exercised within such time and such manner as may be prescribed either to be absorbed in the service of the Corporation or to be retained in the service constituted under Section 73-A of the District Municipalities Act, or to be retrenched from the service of the Municipality on such retrenchment benefits as may be prescribed." 28. Section 116 of the Coimbatore City Municipal Corporation Act, 1981 is pari-materia to Section 73-A of the Tamil nadu District Municipalities Act, 1920, which states that notwithstanding anything contained in this Act or in any other law for the time being in force, the Government shall have power to transfer any officer or servant of the municipal corporation to the service of any municipality constituted under the District Municipalities Act, 1920 and vice versa. As per Section 73-A of the Tamil nadu District Municipalities, 1920, the State Government shall have the powers to issue such general or special directions, as the case may, deem necessary for the purpose of giving due effect to any transfer made under sub-Section (1) of the said Section. 29. Before adverting to the contentions that the word, "transfer" employed in Section 116(1)(d) of the Coimbatore City Municipal Corporation Act, 1981 and Section 71-A of the Tamil Nadu District Municipalities Act, 1920, convey the meaning only "deputation" or "permanent transfer", it is useful to extract few decisions of the Supreme Court on the principle of interpretation to a statutory provision. 30. In Anwar Hasan Khan v. Mohd. Shafi reported in 2001(8) SCC 540, the Supreme Court, at Paragraph 8, held as follows: "For interpreting a particular provision of an Act, the import and effect of the meaning of the words and phrases used in the statute have to be gathered from the text, the nature of the subject-matter and the purpose and intention of the statute. It is a cardinal principle of construction of a statute that effort should be made in construing its provisions by avoiding a conflict and adopting a harmonious construction. The statute