IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.02.2011 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.Nos.46823 of 2006 and 2513 of 2005 (O.A.No.4438 of 2000) R.M.Partheeban .. Petitioner in both W.Ps. Vs. 1. The Asst.Director of Survey and Land Records Collectorate, Vellore Vellore District PIN 632 009 .. 1st respondent in W.P.46823/2006/ respondent in W.P.2513/2005 2. The Tahsildar Tirupathur Vellore District PIN 635 601 3. The Commissioner Municipal Office Tirupathur Vellore District PIN 635 601 .. respondents 2 and 3 in W.P.46823/2006 Prayer in W.P.No.46823/2006: Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus to call for the records relating to the impugned order dated 28.6.1999 and made in proceedings Na.Ka. A 14/15232/98 on the file of the first respondent herein and quash the same and direct the respondents 1 to 3 to regularise the service of the petitioner from 9.3.1996 to 3.3.1997 as duty and to pay the salary bonus and other service benefits to the petitioner. Prayer in W.P.No.2513/2005: Petition under Article 226 of the Constitution of India praying for a Writ of Mandamus to direct the respondent to treat the period from 9.3.1996 to 3.3.1997 as duty for all purpose and direct the respondent to pay the salary for the said period with 18 % interest. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner :: Mr.Pa..Kadirvel For Respondents :: Mr.R.Murali, G.A for R1 & R2 Mr.M.Hidayatullah Khan for R3 COMMON ORDER These Writ Petitions came to be posted on being specially ordered by the Hon'ble Chief Justice vide order dated 3.2.2011. 2. The petitioner is the one and the same person in both the Writ Petitions. The first Writ Petition No.46823 of 2006 arose out of O.A.No.4438 of 2000 filed by the petitioner before the Tamil Nadu Administrative Tribunal, who was working as a Deputy Inspector of Survey, Taluk Office, Chengam, Tiruvannamalai District. In the Original Application, the petitioner challenged an order dated 28.6.1999 and after setting aside the same he sought for a direction to regularise the service for the period from 9.3.1996 to 3.3.1997 as duty. The said Original Application was admitted by the Tribunal on 11.7.2000. On notice from the Tribunal, the respondents have filed a reply affidavit dated 7.3.2001. Though the petitioner sought for an interim direction pending the Original Application, the Tribunal did not grant any such interim order. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was renumbered as W.P.No.46823 of 2006. Even while the Original Application was pending before the Tribunal, the petitioner filed a Writ Petition before this Court in W.P.2513 of 2005 for a prayer that the interregnum period, namely 9.3.1996 to 3.3.1997 should be treated as duty for all purposes. 3. This action of the petitioner was highly reprehensible because in the earlier Original Application, the petitioner's specific request was denied by an order dated 28.6.1999 and that was the subject matter of challenge in that Original Application. When that order was the subject matter of challenge, the petitioner cannot file another Writ Petition seeking for a fresh direction to treat the period as duty as if there was no order passed against him earlier. In the Writ Petition, except in paragraph 10 making a brief reference by stating that the earlier Original Application was still pending and as it could not be listed for final disposal, he having got retired from service on 31.5.2003, he chose to file the second Writ Petition, there is no other averment. Even otherwise, such a course is not open to the petitioner. The petitioner should have got the transfer of his Original Application to this Court or should have moved the Tribunal for an early disposal of the Original Application. When by an order dated 28.6.1999 the respondent had declined to treat the period as duty for all purposes, in the absence of a challenge to that main order, a writ in the nature of a direction is clearly not permissible. In any event, the grievance projected by the petitioner https://hcservices.ecourts.gov.in/hcservices/ that the period from 9.3.1996 to 3.3.1997 should be treated as a compulsory wait was on the premises that the petitioner had challenged the order of transfer in the earlier round of litigation, i.e., in O.A.No.1639 of 1996. The Tribunal finally disposed of the matter on 12.2.1997 directing that the order impugned therein would take effect from the date of commencement of the transfer period in 1997. 4. It is seen from the records that the petitioner was working in Survey and Land Records Department and was initially allotted to the undivided North Arcot District. Due to the bifurcation of the District, the petitioner was allotted to Tiruvannamalai District. On 22.2.1996, he was transferred to the District. The petitioner contending that the transfer was effected during the middle of the academic year and there was a contravention to G.O.Ms.No.10 P&AR Department, moved the Tribunal. The Tribunal granted an interim order on 22.3.1996. Subsequently, the said Original Application was disposed of by a final order dated 12.2.1997. In the final order, the Tribunal did not agree with the petitioner's contention that the transfer was illegal. In the operative portion of the order, the Tribunal observed as follows: "The only grievance of the applicant seems to be that his disturbance in the middle of the academic year causes hardship. That he has given his option to work in the new District is not disputed. It appears that he gave his consent twice. First time, he expressed his consent five years ago when the District was bifurcated. Again on 21.12.95 also he has expressed his consent. Considering the fact that orders regarding distribution of staff were passed only on 23.11.95, it cannot be said that there is infirmity in the transfer order. However, taking into account, the hardship caused to the applicant in view of disturbance in the middle of the academic year and that the interim stay for the impugned order is in force from 22.3.1996, we direct that the impugned order is to take effect from the commencement of the transfer period in 1997. Respondents are to issue suitable joining instructions within three weeks. (emphasis added) 5. Therefore, it cannot be said that the petitioner had succeeded in setting aside the transfer order. On the other hand, the petitioner's specific request not to transfer him in the middle of the academic year was considered and the Tribunal directed to give effect to the impugned order during the commencement of the transfer period in 1997. If at all any relief was given to the petitioner, it was only to protect him from his service being https://hcservices.ecourts.gov.in/hcservices/ treated as break in service. By the Tribunal's order even in the absence of the petitioner succeeding, he got the interim order to be treated as a new transfer order and a direction was given to the respondents to give an appropriate posting order. After the petitioner joined at the new station he sent a representation for treating the period from 1.3.1996 to 3.3.1997 as compulsory wait. When there was no order passed, he filed O.A.No.8538 of 1998 before the Tamil Nadu Administrative Tribunal and sought for a direction to regularise his period. The Tribunal gave a direction to pass appropriate orders by another order dated 29.10.1998. It is pursuant to the order, the impugned order came to be passed. 6. In the impugned order, the respondents have stated that as per Fundamental Rules, there was no scope for treating the period as compulsory wait for the period during which the petitioner did not work. In the reply affidavit in W.P.No.46823 of 2006, it was stated that the petitioner was relieved from Tirupathur Town on 8.3.1996. But he had not joined at Tiruvannamalai and it is only to obey the order of the Tribunal, subsequent posting order came to be issued to him. It was also stated that the petitioner did not submit any leave application for regulating the period of his absence. 7. In the counter affidavit filed in W.P.2513 of 2005, it was alleged that when the petitioner was relieved from service in Tirupathur, another person joined his post by name S.Sugumar and therefore there was no scope for giving further posting to the petitioner. Though the said S.Sugumar was originally impleaded as 4th respondent in W.P.No.46823 of 2006, the petitioner deleted the said Sugumar from being the 4th respondent in that Writ Petition. It is also stated that the petitioner had opted to go to Tiruvannamalai and thereafter he had not joined despite the transfer order was issued to him. Though the petitioner was directed to submit an appropriate leave application for regulating the period, he had not done so. 8. The short question that arises for consideration is whether the petitioner's absence during the relevant period should be treated as compulsory wait or should be regulated in any other manner. It is the case of the petitioner that subsequently he had retired from service on 31.5.2003. It is not clear as to whether after his retirement, he has given appropriate letter seeking treating the period as leave to which he is eligible, without which he could not have drawn pension. In any event, the contention raised by the petitioner cannot be countenanced for more than one reasons. 9. Unless the petitioner succeeds in setting aside the transfer order, the question of treating the said period of his absence as https://hcservices.ecourts.gov.in/hcservices/ duty or in the alternative as a compulsory wait will not arise. Merely because the petitioner had got an interim order and subsequently due to threat of contempt, he got a posting order, will not make the transfer invalid. 10. This Court had an occasion to consider as to how the period of absence should be treated during the pendency of the proceedings before the court, challenging the transfer order by a Government servant, vide judgment in K.Pandi and others vs. State rep.by the Secretary to Government, Finance Department, Chennai reported in (2009) 7 MLJ 1191. This Court held that only in cases where transfer orders are finally set aside by this Court, can there be a direction to the official respondents to regularise the period as spent on duty with wages. In the very same judgment, it was also held that if on the strength of the interim order, the posting order is given, subsequently there is no final order passed on the merits of the transfer order, even in such cases, the definite question of treating interregnum period as duty period will not arise. 11. In the present case, the petitioner relied upon a judgment of the Supreme Court in Electronics Corporation of India Limited and others vs. Sateesh S.Rao Sonawalkar reported in (2004) 11 SCC 550. The said judgment came to be considered in Pandi's case (cited supra) in paragraph 20. This Court in paragraph 21 in Pandi's case observed that direction in the Electronics Corporation case was by virtue of power exercised under Article 142 and that cannot be cited for exercising such power under Article 226 of the Constitution by this Court. The power of the High Court under Article 226 is only to see whether an impugned order can be judicially reviewed. This Court also held that if any order of stay of transfer was passed, the said order will necessarily lapse with the final decision in the main proceedings and that will not enure any benefit to any Government servant. 12. In the light of the above, no case is made out. Hence, both the Writ Petitions are dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ajr https://hcservices.ecourts.gov.in/hcservices/ To 1. The Asst.Director of Survey and Land Records Collectorate, Vellore Vellore District PIN 632 009 2. The Tahsildar Tirupathur Vellore District PIN 635 601 3. The Commissioner Municipal Office Tirupathur Vellore District PIN 635 601 1 cc To Mr.Pa.Kadirvel, Advocate, SR.9212 1 cc To The Government Pleader, SR.9306 W.P.Nos.46823 of 2006 and 2513 of 2005 TEJ (CO) RH (25.2.11) https://hcservices.ecourts.gov.in/hcservices/