Registrar Gen vs R.Perachi & Ors

3. The Division Bench by its impugned judgement and order has quashed and set-aside the transfer of the first respondent from District Thoothukudi to District Ramanathapuram, and directed the High Court to 2 restore him in District Thoothukudi with his seniority, and confer on him the post of Personal Assistant (P.A.) to the District Judge, Thoothukudi.

4. The first respondent joined the Tamil Nadu Judicial Ministerial Service as a Typist on 11.4.1979, and was initially posted in the Court of Judicial Magistrate II Class at Kovilpatti in District Thoothukudi (formerly known as Tuticorin). Over the period he was promoted from time to time and from 15.10.2001 onwards he was working as Sheristadar Category I in Court of Principal District Judge, Thoothukudi. He was also holding the additional charge of the post of P.A. to the District Judge, Thoothukudi, since that post had fallen vacant. It is his case that he was expecting the regular promotion in the post of P.A. to the District Judge.

5. It so transpired that the first respondent alongwith other two employees in the District, that is one S. Kuttiapa Esakki, Sheristadar, Sub- Court, Kovilpatti and one T.C. Shankar, Head Clerk in the Court of Principal District Judge, Thoothukudi came to be transferred outside the district by order dated 19.9.2006 issued by the appellant on behalf of the High Court on administrative grounds. These other two employees filed writ petitions bearing nos. WP (MD) No.9378 and 10528 of 2006 before the Madurai Bench of Madras High Court, but the petitions came to be dismissed by the High Court by its order dated 20.4.2007. The first respondent did not challenge his transfer at 3 that time and joined at the place where he was transferred in district Ramanathapuram.

6. The first respondent came to know that the post of P.A. to the District Judge, Thoothukudi was being filled, and on 21.4.2007 he made a representation to the Principal District Judge, Thoothukudi, the respondent no.2 herein for being considered for that post. The first respondent learnt that the fourth respondent was promoted to that post of P.A. to the District Judge though he was due to retire shortly on 31.8.2007. He is junior to the first respondent as well as to the third respondent. Third respondent went on medical leave in July 2007 and that is how fourth respondent was promoted to that post. Later on, the first respondent learnt that he was not considered for this post for the reason that he was already transferred outside that district, and the reasons for the decision were recorded in the proceeding of the second respondent dated 6.6.2007.

7. At this stage the first respondent obtained necessary information by filing an application under the Right to Information Act, 2005 and then filed a writ petition on 24.8.2007 bearing W.P. (MD) No.7121/2007 before the Madurai Bench, and prayed that the proceeding dated 6.6.2007 bearing No.2697 concerning his non-consideration for that post be called from the file of the second respondent, and be quashed and set-aside. He also prayed that a selection panel be prepared for the post of P.A. to the District Judge, Thoothukudi by including his name in that panel, and necessary orders be 4 passed. The Principal District Judge was joined as the first respondent, the High Court was joined as the respondent no.2, and the two concerned employees were joined as respondent no.3 and 4 in that petition.

9. The writ petition was opposed by the second respondent herein i.e. by the District Judge, Thoothukudi by filing an affidavit dated 20.3.2008. 5 He pointed out that the first respondent was transferred outside district Thoothukudi alongwith earlier mentioned two employees S. Kuttiapa Esakki and T.C. Shankar by the High Court under a common order on the basis of a confidential letter received from the then Principal District Judge, Thoothukudi. The District Judge also pointed out in his affidavit that the first respondent can claim appropriate promotion in the district where he was transferred on the basis of his original seniority, but he can no longer claim it in district Thoothukudi wherein he had lost his lien. He referred to Rule 14(A) (d) of the Fundamental Rules of Tamil Nadu Government which lays down that the lien of a Government servant on his post shall stand terminated on his acquiring lien on another permanent post.

10. It was therefore, pointed out in the affidavit that after the writ petitions filed by the earlier mentioned two employees were dismissed, the employees who were in the zone of consideration were considered for the promotion to the post of P.A. to District Judge, Thoothukudi, and the selection was made after considering the merit, ability and seniority of the candidates concerned as per rules 8 and 19 of Tamil Nadu Judicial Ministerial Service Rules. As far as the claim of the first respondent to the lien on a post in Thoothukudi is concerned, it was pointed out that first respondent had not challenged his transfer from Thoothukudi. It was, therefore, submitted that the petition be dismissed. Since, the above referred Rule 14-A was relied upon, we may quote the same which reads as follows:-

13. The amended petition was opposed by the then Registrar General of the High Court by filing one more affidavit dated 1.8.2008. She pointed out that the first respondent was transferred along with two other employees outside the district Thoothukudi on administrative grounds by the High Court under administrative proceeding dated 19.9.2006. She also pointed out that a complaint had been received from the staff of the judicial department of that district by the Vigilance department of the High Court on 2.1.2006. The complaint stated that the first respondent along with some other employees had formed a coterie in the District Court and they were dominating the District Administration whereby the Court was suffering in its work, and therefore these employees be transferred to other district. That letter was forwarded to the District Judge, Thoothukudi for his comments, who in turn wrote back to the High Court on 28.4.2006 placing it on record that departmental enquiries were pending against the first respondent and three other employees on the charges of corruption. The District Judge had also opined that if these employees were continued in the district, the administration would be very 8 much spoiled. It is, therefore, that the High Court Administration directed that the first respondent and the concerned employees be transferred outside the district on administrative grounds. There was no malafide intention whatsoever in these transfers.

19. The impugned judgment distinguished the judgment in Vasudevan's case by observing that the promotional prospects of the first respondent were affected in the present matter which was not so in Vasudevan's case. The Division Bench observed that after obtaining the remarks of the District Judge, the appellant ought to have issued a notice and sought the explanation from the first respondent. It was therefore, of the view that the first respondent had not been provided with any opportunity to explain and the transfer was punitive. The Court, therefore, passed an order setting aside the transfer, directing the appellant and the District Judge to immediately restore the respondent no.1 and 2 at District Thoothukudi alongwith his seniority, and confer on him the post of P.A. in that district, since, according to the Division Bench except the order of impugned transfer, there was no other 12 impediment for his promotion. It is this order which is challenged in this appeal. This Court has passed an order of status quo with respect to that order during the pendency of this appeal.

27. The other ground on which the Division Bench has interfered with the transfer order is that according to the Division Bench, but for this transfer order there was no other impediment for the District Judge to promote the respondent no.1. The Division Bench was of the view that the first respondent had lost the opportunity of getting promoted to the post of P.A. to the District Judge on account of this transfer, and therefore the same was punitive. As far as this finding of the bench is concerned, it ought to have noted that the transfer is an incident of service, and the first respondent himself had clearly stated in para 8 of his affidavit in support of the petition that there was no malafide exercise in the present transfer. As seen above, the transfer was purely on the administrative ground in view of the pending complaint and 18 departmental enquiry against first respondent. When a complaint against the integrity of an employee is being investigated, very often he is transferred outside the concerned unit. That is desirable from the point of view of the administration as well as that of the employee. The complaint with respect to the first respondent was that he was dominating the administration of the District Judiciary, and the District Judge had reported that his retention in the district was undesirable, and also that departmental enquiries were pending against him and other employees, with respect to their integrity. In the circumstances the decision of the then Chief Justice to transfer him outside that district could not be faulted.

12. In view of these affidavits filed in reply to his petition, the first respondent amended his petition nearly after nine months by filing an application dated 21.4.2008 with supporting affidavit, and now sought to add the prayer that the records relating to the transfer order dated 19.9.2006 be also called from the files of the High Court, and the same be quashed and set- aside.

They have to live and behave like "hermits" who have no desire or aspiration, having shed it through penance. Their mission is to supply light and not heat. This is necessary so that their latent desire to run the High Court administration may not sprout before time, at least, in some cases."

35. Thus it is very clear that the impugned judgment and order are wholly unsustainable, and in complete disregard of the law laid down by this Court. This Court has, therefore, to allow this appeal and to set-aside the judgment and order dated 28.8.2008 passed by the Madras High Court on W.P.(MD) No. 7121 of 2007. Accordingly, this appeal is allowed and the order dated 28.8.2008 passed by the Madras High Court on Writ Petition (MD) No. 7121 of 2007 is set-aside. The said writ petition shall stand dismissed. There will, however, not be any order as to the costs.