Haridasan Thambi v. The General Manager (Administration)State Express Transport CorporationTamil Nadu Division – I Ltd.Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 19.12.2007CORAMTHE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR. JUSTICE M.VENUGOPALW.A. NO. 1517 OF 1999Haridasan Thambi.. Appellant- Vs -The General Manager (Administration)State Express Transport CorporationTamil Nadu Division – I Ltd.Chennai – 2... Respondent Writ Appeal filed against the order dated 6th July, 1999,passed by learned single Judge in W.P. No.11499 of 1999.The Writ Petition presented under Article 226 of theConstitution of India for the issuance of writ ofcertiorarified mandamus calling for the records from therespondent relating to the order No.17/14888/04 dated 23.2.1999transfering the petitioner from computer operator in EDPSection in Trichy to Technical side as Assistant Tradesman inChennai Depot and quash the same and consequently direct therespondent to post him as computer operator in EDP Section.For Appellant: Mr. D.HariparanthamanFor Respondent: Mr. V.R.KamalanathanJUDGMENTS.J.MUKHOPADHAYA, J.The appellant, who was functioning as Computer Operator inEDP Section, Trichy, having transferred to technical side asAssistant Tradesman, challenged the order No.17/14888/A4 dated23rd Feb., 1999 passed by General Manager (Admn.), State ExpressTransport Corporation Ltd., T.N. Division-I, Madras(hereinafter referred to as 'Corporation'). The writ petitionhas been dismissed by learned single Judge by common orderpassed alongwith other writ petitions and, hence, the presentappeal. https://hcservices.ecourts.gov.in/hcservices/

2. It appears that the appellant joined the service on 1stSept., 1981, as Technical Assistant at Madras in the erstwhileThiruvalluvar Transport Corporation, Chennai, now known asState Express Transport Corporation, Chennai. In 1989, as itappears, computer operators were required for EDP Section.Though no specific post appears to have been created, theManaging Director, Thiruvalluvar Transport Corporation,Chennai, issued circular No.1557/A1/T.Trans/89 dated 26th March,1989, inviting applications from willing workmen of theCorporation to appear in the test on 26th March, 1989, a Sunday,in the headquarter office at Chennai for selection as computeroperator in EDP Section. The appellant, along with others,participated in the test and on the basis of marks secured inthe test, a panel was prepared, published and circulated on 26thMarch, 1989, wherein name of appellant was reflected at S.No.26of the merit list. In the circular it was mentioned that theindividuals from the list, based on need, will be transferredto computer section and will be given requisite training atappropriate time. It was also mentioned that the computersection was to function for 24 hours. The selected individualswill have to work in turn in one of the three shifts.3. It is the case of the appellant that while he wasworking in the central workshop at Trichy, was relieved fromTrichy by order dated 24th May, 1989 to join training where hejoined on 29th May, 1989 and completed training on 8th June,1989. Thereafter, he was posted as computer operator in EDPSection in Marthandam Depot in Kanyakumari District. Sincethere was no depot at Trivandrum, under the control ofMarthandam Depot, the appellant was required to work at EDPSection, Trivandrum by the Branch Manager of Marthandam Depot.After Trivandrum Depot was established, the appellant continuedto serve as computer operator in Trivandrum Depot.On 8th April, 1994, the appellant was transferred fromTrivandrum Depot to Kanyakumari Depot where in absence of EDPSection, he was asked to work as technical workman. At thatstage he represented before the authorities stating that he wasworking as computer operator and, therefore, he should betransferred to EDP Section and not to the technical side. Onthe basis of such application, by order dated 18th May, 1994, hewas transferred back to EDP Section in Marthandam Depot, wherehe continued.Again, while he was functioning as computer operator inthe EDP Section in Marthandam Depot, he was transferred to thetechnical side in the same depot vide order dated 12th Aug.,1997. Consequential order of transfer was issued on 23rd Aug.,1997 and the appellant was asked to join the technical side.When the matter was again brought to the notice of the https://hcservices.ecourts.gov.in/hcservices/ authorities, the appellant was again transferred back to EDPSection as computer operator, but in Trichy Depot, by orderdated 27th Sept., 1997. However, after about 1½ years, he wasagain transferred from EDP Section to technical side vide orderdated 23rd Feb., 1999, which was served on him on 2nd March,1999. He preferred a representation, but no reply havingreceived, a writ petition, W.P. No.11499/99 was preferred.Learned single Judge, by impugned order dated 6th July,1999, dismissed the writ petition on the ground that thetransfer is a condition of service and that the appellant wasonly deprived of a special pay attached to the post and that aslong as the appellant was posted in EDP Section, he was onlyentitled for special pay, but not against other post. It wasalso observed that there is no cadre of computer operator northe appellant was appointed to any such post and, thus, theorder of transfer was not vitiated, transfer being an incidenceof service.4. Learned counsel for the appellant while submitted thatthe order of transfer is violative of Article 14, according tohim, the said order is also against Section 9-A of 4th Scheduleof Industrial Disputes Act, 1947, condition of service havingaltered. Reliance was placed on one or other decisions of thisCourt and Supreme Court.On the other hand, according to learned counsel for theCorporation, transfer is an incidence of service and no personcan claim posting against a particular post or in a particularplace.5.Admittedly, a special pay was attached for performingduty of computer operator in EDP Section and no person hasright to claim special pay, if not posted against such post.Normally, transfer is accepted as incidence of service and noperson has a right to continue at one place against aparticular post till it is shown that the order is arbitrary oragainst law. Apart from routine transfer, transfer may be amode for appointment in different service, if appropriateselection procedure is followed for posting a person against aparticular post or department or section.6. It is not in dispute that EDP Section was opened in1989 and Corporation was in need of computer operators. TheCorporation has also not disputed the fact that for posting inEDP Section to perform the duty of computer operator, aselection was made calling for applications from eligiblepersons to appear in test. The appellant appeared in the testheld on 26th March, 1989 (a Sunday) and having come outsuccessful, his name was shown in the selected list dated 26thMarch, 1989 and he was sent for training and posting in EDP https://hcservices.ecourts.gov.in/hcservices/ Section was made on the basis of such selection on merit. Oncea procedure of selection is made, in such a case it cannot betermed to be a mere transfer against one or other post, whichis made in a routine manner against a cadre post withoutadjudging the merit of any individual. Once the merit isadjudged for posting against a particular post or in a sectionto perform one or other job, it is a selection and personsselected for posting in a department on the basis of such testcannot be disturbed to accommodate any other person, includingthose who were not selected on the ground that it is a meretransfer and posting.7. There is nothing on the record to suggest that theCorporation has abandoned the EDP Section or do not requirecomputer operator for its office. There is no allegation madeagainst the appellant relating to his competency in handlingcomputer or dealing with the matter in the EDP Section. Inthis background, we are of the view that the selectedcandidate, if posted in a department by selection on the basisof merit list, such person cannot be disturbed in an arbitrarymanner to accommodate one or other, particularly those who havenot been selected through a test, though it is always open tothe competent authority to transfer such person for similar jobin same section (computer operator – EDP Section) in any otherplace or other division. The aforesaid aspect has not beennoticed by learned single Judge nor discussed the issue whetherthe action of the respondent in disturbing a selected candidatetransferring him to other place to a different section isarbitrary and, thereby, it attracts Article 14 of theConstitution.8. We, accordingly, declare the order dated 23rd Feb.,1999, passed by the respondent as illegal, set aside the orderdated 6th July, 1999, passed by learned single Judge and remitthe case to the respondent to decide the posting of theappellant. If EDP Section is available in one or otherdivision, job of computer operator is taken, in such case, therespondent will post the appellant in EDP Section in anyappropriate place according to administrative need. If EDPSection is in existence in the Corporation, computer operatorsare required, but no more additional hand is required, then itwill be open to the authorities to transfer a person to othersection, if the person had not been selected through anycompetitive test for performing the duty of computer operator.If all of them are selected through competitive test, thenthose who are lower in the merit list, they may be sent toother section to accommodate those, who are holding higherposition in the order of merit or were selected in the earliertest. It will be open to the appellant to point out the needof computer operator in EDP Section in one or otherdivision/place. If any adverse decision is taken, the https://hcservices.ecourts.gov.in/hcservices/ authority will communicate the ground to the appellant andappropriate order be passed within a period of six weeks fromthe date of receipt/production of a copy of this order.The writ appeal is allowed with the aforesaidobservations. But there shall be no order as to costs.GLNSd/Asst.Registrar/true copy/Sub Asst.RegistrarToThe General Manager (Administration)State Express Transport CorporationTamil Nadu Division – I Ltd.Chennai – 2.+ 1 cc to Mr. D. Hariparanthaman, Advocate SR No. 75599+ 1 cc to Mr. V. R. Kamalanathan, Advocate SR No. 75626RS(CO)SR/2.1.2008WA.1517 of 1999