1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:12/08/2011 C O R A M THE HONOURABLE Mr.JUSTICE S.MANIKUMAR Writ Petition (MD)No.9069 of 2011 P.Kuppan ...Petitioner Vs 1.The District Collector, Dindigul District, Dindigul. 2.The Commissioner Natham Panchayat Union, Natham, Dindigul District. 3.V.Krishnan Noon Meal Organiser Panchayat Union Primary School Rajagopalapuram Natham Taluk, Dindigul District. ... Respondents Prayer :Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorari to call for the records pertaining to the impugned order of the first respondent in Na.Ka.No.5042/2011/Oo.Va 13 dated 03.08.2011, quash the same. For petitioner ...Mr.Shaji Chellan For respondents ... Mr.S.Chandrasekar 1 & 2 Government Advocate O R D E R Challenging the impugned order of the first respondent, dated 03.08.2011 and to quash the same, the petitioner has come up with the writ petition. 2. Mr.S.Chandrasekar, learned Government Advocate, takes notice for the respondents. By consent, the writ petition is taken up for final disposal. 3. Pleadings and material on record disclose that on 23.01.2007, the petitioner has been transferred to Duraikamalam Government Boys Higher Secondary School, Natham. After three years and seven months, he has been transferred to Panchayat Union Primary School, Rajagopalapuram, which is impugned on the ground that the said order of transfer is only to accommodate the third respondent. Malafides are also sought to be imputed against the District Collector, on the ground that the third respondent's https://hcservices.ecourts.gov.in/hcservices/ 2 family members belongs to ruling party and since the petitioner's brother belongs to opposite party, and due to political vengeance, the impugned order of transfer came to be passed to favour the third respondent. The said allegation made against the District Collector, is wholly without basis, vague and not supported with any materials. 4. The Supreme Court in BHARAT SINGH AND OTHERS V. STATE OF HARYANA AND OTHERS reported in 1988 (4) SCC 534 at paragraph No.13, it has held as follows: “13. ....... In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter- affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter- affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit.” 5. Admittedly, the petitioner has worked at Duraikamalam Government Higher Secondary School, Natham, for more than three years. Pleadings further disclose that the transfer is within 15 kilometres. An administrative transfer, cannot be interfered with. At this juncture, reference can be made to few decisions relating to transfer: (i) In B.VARADA RAO v. STATE OF KARNATAKA reported in 1986 (II) LLJ 516, the Supreme Court has held that it is well understood that transfer of Government servant, who is appointed to a particular cadre of transferable post from one place to another is an ordinary incident of service and therefore, does not result in any alteration of any of the conditions of service of his disadvantage. The Supreme Court declined to accept the case of the petitioner therein, that he should not be transferred. (ii) In 1995 (I) LLJ 854 (N.K.SINGH v. UNION OF INDIA), the Hon'ble Supreme Court while dealing with the correctness of the order, has observed that no roving inquiry into the matter is called for or justified within the scope of judicial review of a transfer scrutinized with reference to the private rights of an individual. It was further held that transfer of a Government servant in a transferable service is a necessary incident of the service career and that assessment of the quality of men is to be made by superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. https://hcservices.ecourts.gov.in/hcservices/ 3 (iii) IN THE REGISTRAR, HIGH COURT, MADRAS v. VASUDEVAN, A.K. AND OTHERS reported in 1996 MLJ 153, a Division Bench of this Court, while considering the scope of judicial review in matters of transfers of the Government servant to an equivalent post, at paragraph Nos.19 and 36 has held as follows:- “19. The scope of judicial review in matters of transfer of a government servant to an equivalent post without any adverse consequence on the service or career prospects is very limited being confined only to the grounds mala fides and violation of any specific provision or guideline regulating such transfers amounting to arbitrariness. It is also settled law that for the said purpose, no roving inquiry into the matter is called for or justified within the scope of judicial review of a transfer scrutinized with reference to the private rights of an individual. In N.K.Singh V. Union of India and others, (1994)6 S.C.C. 98 at 108, their Lordship said: “...Assessment of worth must be left to the bona fide decision of the superiors in service and their honest assessment accepted as a party of service discipline. Transfer of a government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of a subjective opinion in that sphere may be involved, at times. The only realistic approach is to leave it to the wisdom of that hierarchical superiors to make that decision. Unless the decision is vitiated by mala fides or infructuous of any professed nor on or principle governing the transfer, which alone can be scrutinized judicially, there are no judicially manageable standards for scrutinising all transfers and the courts lack the necessary expertise for personnel management of all government departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated. In the same decision, further down, in paragraph 24, they have said thus: “...Challenge in courts of a transfer when the career prospects remain unaffected and there is no detriment to the government servant must be eschewed and interference by courts should be rare.... ... ... ....” 36. In this connection, it is also better to remember a decision of this Court reported in Dr.M.Krishnamoorthy v. The State of Madras, (1951) 1 M.L.J. 709: A.I.R. 1951 Mad. 882: 1951 M.W.N. 410. That was a case where the petitioner therein challenged his dismissal. While considering the same, this Court held that the Government or management is entitled to consider the question of inefficiency, insubordination and general reputation of corrupt conduct of a Government servant. As stated earlier, the relationship of Master and Servant is being put an end to by the order of dismissal. When the Government is competent to consider the efficiency and reputation of a Government servant, it is not only for the purpose of taking punitive action, but also to https://hcservices.ecourts.gov.in/hcservices/ 4 consider whether he should be allowed to continue in a particular place of employment. In the said decision, it was stated thus: “It is however contended by learned counsel for the petitioner that there is another implied requirement that civil servants in the position of the petitioner can be dismissed or removed only for misconduct and at one stage of the argument he even went to the extent of contending that in the case of a charge like corruption, the petitioner must have beeen convicted by a criminal court for that offence, or, in any event, that this Court must be satisfied in the exercise of criminal appellate jurisdiction so to say, that there was evidence on which a conviction could be supported. We see nothing of this sort laid down in Art.311 or in any other article of the Constitution. It is nowhere stated on what ground a civil servant might be dismissed or removed. One can conceive of a dismissal or removal being justified on grounds of inefficiency, insubordination of (sic) general reputation of corrupt conduct. ... (Italics supplied) An employee is expected to work with all devotion, honestly and integrity. The employer is also entitled to assess the performance of the employee. It cannot be disputed that the employer is entitled to consider the suitability of the person to a post. Similarly the employer is also entitled to consider whether his employee is suitable to work in a particular place or to continue there. If, during the assessment, the employer finds that the work or the performance of the employee is not satisfactory, or in case where the employee, while discharging his duties, has to mingle with the members of the public (in this case, the litigant public), which gives room for complaints in the nature of bad faith, corruption, etc., that will also be an added reason for the employer to find that his staff can discharge his duties in a better way in another place. Such an assessment is not in the nature of any punishment. It is only to avoid or minimise any future complaint or give the employee a better opportunity in a better atmosphere, he is asked to work in a different place, under an order of transfer. Such an order cannot be considered as a punishment, nor can the same be characterised as a stigma cast on him, as alleged by the petitioner in each one of these writ petitions under consideration.” (iv) IN PUBLIC SERVICES TRIBUNAL BAR ASSOCIATION v. STATE OF U.P AND ANOTHER, reported in 2003 (4) SCC 104, the Supreme Court has reiterated that the scope of Judicial Review in transfer is very limited as it is an incidence of service and normally should not be interfered with by Courts. (v) IN STATE OF U.P. AND ANOTHER v. SIYA RAM AND ANOTHER, reported in 2004(7) SCC 405, the Supreme Court held that no Government servant or employee of the 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 https://hcservices.ecourts.gov.in/hcservices/ 5 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. (vi) A Division Bench of this Court while considering the contentions of the petitioner that two children were studying in Class IX and if any transfer is effected that would cause hardship, in PALANISAMY v. THE GENERAL MANAGER, TAMIL NADU STATE TRANSPORT CORPORATION LIMITED, reported in 2005 (4) LW 604, at paragraph No.4 has held as follows:- “4.Learned counsel for the appellant then submitted that the transfer order does not contain reasons. This argument is also based on a misconception. A transfer order is a purely administrative order and not a judicial or quasi judicial order. The Writ Petition is dismissed.” (vii) In a recent decision of the Hon'ble Supreme Court in STATE OF HARYANA AND OTHERS v. KASHMIR SINGH AND ANOTHER, reported in 2010 (13) SCC 306, the Supreme Court has held as follows:- “12.Transfer ordinarily is an incidence of service, and the courts should be very reluctant to interfere in transfer orders as long as they are not clearly illegal. In particular, we are of the opinion that transfer and postings of policemen must be left in the discretion of the State authorities concerned which are in the best position to assess the necessities of the administrative requirements of the situation. The administrative authorities concerned may be of the opinion that more policemen are required in any particular district and/or another range than in another, depending upon their assessment of the law and order situation and/or other considerations. These are purely administrative matters, and it is well settled that courts must not ordinarily interfere in administrative matters and should maintain judicial restrain, vide Tata Cellular v. Union of India. 14. In our opinion, the High Court has taken a totally impractical view of the matter. If the view of the High Court is to prevail, great difficulties will be created for the State administration since it will not be able to transfer/deploy its police force from one place where there may be relative peace to another district or region/range in the State where there may be disturbed law and order situation and hence requirement of more police. Courts should not, in our opinion, interfere with purely administrative matters except where absolutely necessary on account of violation of any fundamental or other legal right of the citizen. After all, the State administration cannot function with its hands tied by judiciary behind its back. As Holmes, J. of the US Supreme Court pointed out, there must be some free play of the joints provided to the executive authorities.” https://hcservices.ecourts.gov.in/hcservices/ 6 6. Malafides alleged are bereft of details and are liable to be rejected and therefore, the writ petition is dismissed. No costs. Consequently connected miscellaneous petition is closed. RR Sd/- Assistant Registrar[AS] /True copy/ Sub Assistant Registrar To 1.The District Collector, Dindigul District, Dindigul. 2.The Commissioner Natham Panchayat Union, Natham, Dindigul District. +1 cc to the Special Government Pleader, SR.No.27752. +1 cc to Mr.L.Shaji Chellan, Advocate SR.No.27373. Writ Petition No.9069 of 2011 Dated:12.08.2011 6P/5C RPB 25.08.2011 https://hcservices.ecourts.gov.in/hcservices/