W.P.No.5834 of 2011:-S.Rajagopal v. State of Tamil Nadu

2. The Engineer in Chief (WRO) and Chief Engineer (General) Public Works Department Chepauk, Chennai – 5.3. K.P.Venkatachalam.. RespondentsWrit Petition No.7360 of 2011 filed under Article 226 of theConstitution of India praying for the issuance of a writ ofCertiorarified Mandamus to call for the records relating to thefirst respondent herein in G.O. (Rt) No.96, Public Works (A2)Department dated 28.2.2011 and the consequential order of thesecond respondent herein in Letter No.C1(1)/1708/2011 dated18.3.2011 and quash the same in so far as the petitioner isconcerned and consequently allow the petitioner to continue in thesame place.For Petitioner : Mr.K.Parthasarathy for Anand and SuryasFor Respondents: Mr.S.Gopinathan Addl. Govt. Pleader for R1 & R2 Mr.A.Thiyagarajan, Senior Counsel for Mr.G.Elanchezhiyan for R3-----COMMON ORDERIn W.P.No.5834 of 2011, the petitioner challenges the order oftransfer passed by the first respondent in G.O. (Rt) No.96, PublicWorks (A2) Department, dated 28.2.2011 and seeks to quash the same.2. In W.P.No.7360 of 2011, the petitioner challenges the orderof transfer passed by the first respondent in G.O. (Rt) No.96,Public Works (A2) Department, dated 28.2.2011 and the consequentialorder passed by the second respondent dated 18.03.2011 and seeks toquash the same and prays for a consequential direction to allow himto continue in the same place.3. Case of the petitioner in W.P.No.5834 of 2011 is that hejoined the services in the Public Works Department in the year 1978and joined as an Executive Engineer in Public Works Department,Technical Education Division, Tirunelveli on 4.4.2007 and his jobcovers four districts, namely, Ramnad, Kanyakumari, Turicorin andTirunelveli and his headquarters is at Tirunelveli. 4. It is further averred in the affidavit that the firstrespondent passed the impugned Government Order dated 28.2.2011, https://hcservices.ecourts.gov.in/hcservices/ wherein he had transferred the petitioner from Tirunelveli to workas an Executive Engineer in HR & CE Department, Madurai in theplace of the second respondent and the second respondent had beentransferred to the petitioner's place without assigning anyreasons. 5. The petitioner challenges the aforesaid impugned order onthe grounds that the said order has been passed without assigningany reason and that too, in the middle of the academic year; thatthe said order has been passed only to suit the convenience of thesecond respondent; that even though the order is dated 28.2.2011,the same has not been served on the petitioner till 4.3.2011 and ithas been served only after the issuance of Election Notificationdated 1.3.2011 and hence the said order of transfer cannot beeffected; that the order of transfer has been passed while he wascarrying on several works under different contractors and that tooafter the issuance of the Election Notification and the same isarbitrary, unjust and unsustainable in law.6. Case of the petitioner in W.P.No.7360 of 2011 is that hejoined the services in the Public Works Department as an AssistantEngineer in the year 1980 on temporary basis and in the year 1982,a special recruitment test was conducted by the TNPSC and he wasregularly absorbed as an Assistant Engineer and thereafter, he waspromoted to the post of Assistant Executive Engineer in the year2003 and further promoted to the post of Executive Engineer in theyear 2007 and that he has been working in various places in theDepartment and his work has been appreciated by his superiors. 7. It is further stated that after the issuance of ElectionNotification, the first respondent has passed the impugned order oftransfer in G.O.(Rt) No.96, Public Works Department, dated28.2.2011. According to the petitioner, though the order waspassed on 28.2.2011, the Tamil month date has been stated as Maasi17, which clearly proves that the same has been passed after thedate of Election Notification and it was despatched to him only on3.3.2011 and since he was on leave, the same was received by himonly on 7.3.2011. In fact, without even communicating the order tohim, the third respondent herein, who has been posted in his place,alleged to have taken charge on 2.3.2011. 8. It is further averred in the affidavit that though hebrought to the knowledge of the second respondent about the actionof the third respondent, the same was not properly considered.However, the second respondent as per his letter No.C1(1)/1708/2011dated 18.3.2011 requested him to obey the Government order, as thethird respondent has taken the charge on promotion as ExecutiveEngineer. In the aforesaid circumstances, having no othereffective remedy, the petitioner has filed the present writpetition. https://hcservices.ecourts.gov.in/hcservices/

9. The petitioner challenges the aforesaid impugned order onthe grounds that the said order has been passed after the ElectionNotification and the Model Code of conduct come into force and tocircumvent the Election Notification, the impugned order has beenanti-dated and that the Tamil date has been clearly stated as 17thMaasi and the corresponding English date was 1.3.2011 and not28.2.2011; that the first respondent ought to have seen that thethird respondent was promoted and posted as per the order of thefirst respondent in G.O.(D) No.418, Pubic Works (A2) Departmentdated 9.9.2010, but he failed to join in that place and now only toaccommodate the third respondent, the impugned order has beenpassed; that the impugned order is passed in the middle of theacademic year and the same is arbitrary and unjust.10. The first respondent has filed counter-affidavit inW.P.No.5834 of 2011, wherein it is stated that the order oftransfer is on the administrative ground, which can be assailedonly on well celebrated grounds available under Administrative Law;that the transfer is an incidence of service, which cannot benormally invoked under Article 226 of the Constitution of India.11. It is further stated that that the petitioner has beenworking as Executive Engineer in Technical Education Division,Tirunelveli from 4.4.2007 and from his own averments, it could beestablished that he has been working in the above said Divisionmore than three years, which itself would go to prove that thetransfer now ordered by the first respondent was on valid ground.12. It is also stated that the transfer order issued to thepetitioner in G.O.(D) No.96, Public Works (A2) Department, dated28.2.2011 is before the notification of the Election Commission;that generally after a certain prescribed period, transfers aremade and this principle is allowed in order to ensure that theGovernment servants by their long standing in a particular place donot gain undesirable local influence or gain such familiarity withthe local people as to put them in a delicate position of notrefusing a favour even when it happens contrary to Rules; that thetransferring of employee even from one station to another is theinherent right of the employer and any civil servant is liable tobe transferred from one place to another and it is one of theconditions of service they accept when they become employees of theGovernment and the petitioner is no exception to this basicconcept.13. It is further stated that the petitioner is working asExecutive Engineer in the same Division for more than three yearsand due to administrative reasons, he was transferred to HinduReligious and Charitable Endowments Department, Madurai; that theimpugned order dated 28.2.2011 sent to concerned officials through https://hcservices.ecourts.gov.in/hcservices/ fax in time, that a Government servant is liable to be transferredto a similar post in the same cadre is normal feature and anincidence of Government service and no Government servant can claimto remain in a particular place or in a particular post unless hisappointment order specifically states that it is a non-transferablepost and therefore, they prayed for the dismissal of the writpetition.14. Similarly, in W.P.No.7360 of 2011, respondents 1 and 2have filed counter-affidavit stating inter alia that the writpetition filed by the petitioner challenging the order of transferis not maintainable, as it is an administrative order, which can beassailed only on well celebrated grounds available underAdministrative Law and the order of transfer is an incidence ofservice, which cannot be normally invoked under Article 226 of theConstitution of India. 15. According to the respondents, the petitioner has beenworking as Executive Engineer in Araniyar Basin Division, Chennaifor more than 3½ years from 24.09.2007 and even prior to that, hewas working in the same division in various capacities with effectfrom 30.6.1999 and totally the petitioner was working in the samedivision for more than eleven years and that due to administrativegrounds, the petitioner was transferred to Project Division,Gudiyatham vide G.O.(Rt) No.96, Public Works (A2) Department, dated28.2.2011.16. It is further stated that the said order was issued beforethe notification of the Election Commission, that the Tamil monthdate Masi 17, instead of Masi 16, has been stated in the GovernmentOrder is a typographical error; that the impugned transfer ordersent to the concerned Chief Engineer through fax in time; that thepetitioner instead of joining in the new station, has representedto the Engineer-in-Chief, Water Resources Department and the ChiefEngineer (General), Public Works Department in his letter dated8.3.2011; that the third respondent herein has joined duty himselfin the Araniyar Basin Division, Chennai on 2.3.2011 by one sidewithout following the official procedures and the petitioner wasinstructed to obey the transfer order issued in the GovernmentOrder dated 28.2.2011 vide Engineer-in-Chief, Water ResourcesDepartment and Chief Engineer (General), Public Works DepartmentLr.No.C1(1)/1708/2011, dated 18.3.2011.17. It is further averred in the counter that transferring ofan employee even from one station to another is the inherent rightof the employer and any civil servant is liable to be transferredfrom one place to another and it is one of the conditions ofservice they accept when they become employees of the Governmentand the petitioner is no exception to this basic concept; and thatthey prayed for the dismissal of the writ petition. https://hcservices.ecourts.gov.in/hcservices/

18. The petitioner in W.P.No.7360 of 2011 filed a replyaffidavit stating that the respondents cannot contend that thementioning of the Tamil date, as Masi 17 instead of Masi 16, is atypographical error. It is further stated that the typographicalerror of date can be committed by the typist only for the previousdate and not for subsequent date and the said plea has been takento justify their action.19. Mr.AR.L.Sundaresan, learned senior counsel appearing forthe petitioner in W.P.No.5834 of 2011, would submit that theimpugned order of transfer dated 28.2.2011 was issued only afterthe issuance of Election Notification i.e. on 01.03.2011. Hefurther submits that the impugned order of transfer was passed onlyto suit the convenience of the second respondent herein. He alsosubmits that the order was not on administrative grounds and thatit was passed in the middle of the academic year and hence, thesame is liable to be quashed.20. Mr.K.Parthasarathy, learned counsel appearing for thepetitioner in W.P.No.7360 of 2011, would submit that the impugnedorder was made after the Election Notification and the Model Codeof Conduct come into force, only to accommodate the thirdrespondent herein. He would further submit that the thirdrespondent herein has not obeyed the earlier order passed by thefirst respondent in G.O.(D) No.418, Public Works (A2) Department,dated 9.9.2010 and only to accommodate him the earlier order hasbeen cancelled and now the impugned order has been passed.According to him, the impugned order, which is passed in the middleof the academic year, is arbitrary, unjust and unsustainable in lawand hence, the same is liable to be quashed. 21. Mr.S.Gopinathan, learned Additional Government Pleaderappearing for the first respondent in W.P.No.5834 of 2011 andrespondents 1 and 2 in W.P.No.7360 of 2011 would contend that theimpugned order of transfer was passed before the date of ElectionNotification and it is made on administrative grounds. He wouldfurther contend that both the petitioners have completed more thanthree years of service in the same station and therefore, the orderof transfer, which is an incidence of service, unless a mala fideestablished, cannot be interfered by this Court. According to him,the mentioning of Tamil date as Masi 17 instead of Masi 16 in theimpugned order, is a typographical error, which is not at all aground for quashing the impugned order of transfer. 22. Mr.N.G.R.Prasad, learned counsel appearing for the secondrespondent in W.P.No.5834 of 2011, would contend that the impugnedorder of transfer has been made on 28.2.2011 i.e. before theissuance of the Election Notification and the second respondent hasreported for duty immediately to the transferred station and since https://hcservices.ecourts.gov.in/hcservices/ the petitioner has been transferred after completion of three yearsof service, it cannot be questioned by him, as it will causeprejudice and affect the right of the second respondent. 23. In support of his contention, he relies upon the decisionof a Division Bench of this Court reported in (2010) 1 MLJ 1393(P.Gandhi vs. R.Velmurugan and another). In the said decision, theDivision Bench, following the decision of the Supreme Court inState of U.P. vs. Siya Ram (AIR 2004 SC 4121), allowed the writappeal, and the relevant portion is extracted hereunder:"5. The High Court while exercising jurisdictionunder Articles 226 and 227 of the Constitution ofIndia had gone into the question as to whether thetransfer was in the interest of public service. Thatwould essentially require factual adjudication andinvariably depend upon peculiar facts andcircumstances of the case concerned. No governmentservant or employee of a public undertaking has anylegal right to be posted forever at any oneparticular place or place of his choice sincetransfer of a particular employee appointed to theclass or category of transferable posts from oneplace to other is not only an incident, but acondition of service, necessary too in publicinterest and efficiency in the public administration.Unless an order of transfer is shown to be an outcomeof mala fide exercise or stated to be in violation ofstatutory provisions prohibiting any such transfer,the courts or the tribunals normally cannot interferewith such orders as a matter of routine, as thoughthey were appellate authorities substituting theirown decision for that of the employer/management, asagainst such orders passed in the interest ofadministrative exigencies of the service concerned.This position was highlighted by this Court inNational Hydroelectric Power Corpn. Ltd. v. ShriBhagwan".24. Mr.A.Thiyagarajan, learned senior counsel appearing forthe third respondent in W.P.No.7360 of 2011, would submit that theimpugned order of transfer was passed before the issuance ofElection Notification. He would further submit that the petitionerworked in the same station for more than eleven years and that thethird respondent has joined the present station in obedience to theimpugned order and that after the promotion the third respondenthas to be allowed to join the present station.25. I have heard the learned counsel appearing on either sideand perused the materials available on record. https://hcservices.ecourts.gov.in/hcservices/

26. The circumspection of the facts pleaded by the petitionerswould reveal that the petitioners are working as ExecutiveEngineers in Tirunelveli and Chennai from 4.4.2007 and 24.9.2007respectively and they have completed more than three years ofservice. The first respondent, considering that the petitionershave completed three years of service, have now passed the impugnedorder transferring the petitioner in W.P.No.5834 of 2011 fromTirunelveli to work as an Executive Engineer in HR & CE Department,Madurai and the petitioner in W.P.No.7360 of 2011 from AraniyarBasin Division, Chennai to Project Division, Gudiyatham. In boththe cases, after taking into consideration the fact that thepetitioners have completed three years of service, the impugnedorder of transfer has been passed.27. From the facts pleaded by the petitioners, it can becongregated that the petitioner in W.P.No.5834 of 2011 has beenworking as Executive Engineer in Technical Education Division,Tirunelveli from 4.4.2007 and the petitioner in W.P.No.7360 of2011 has been working as Executive Engineer in Araniyar BasinDivision, Chennai-5 for more than 3½ years i.e. from 24.9.2007 andeven prior to that he was working in the same division in variouscapacities with effect from 30.6.1999. It is, therefore, clearthat both the petitioners have completed more than three years ofservice in the respective stations. 28. It is substantially averred in the counter-affidavits thatthe impugned order has been made taking into account thecircumstances which necessitated for making such a transfer.Therefore, the contention of the learned counsel for thepetitioners that the impugned order is issued only to accommodatethe second and third respondents respectively, would not vindicatethe stand for the reason that, except the statements made, nothingis materially proved to substantiate the contention. Hence, thesaid contention cannot be countenanced. 29. Law is well settled that while exercising jurisdictionunder Article 226 of the Constitution of India, as to whether, thetransfer was in the interest of public service, that wouldessentially require factual adjudication and invariably depend uponpeculiar circumstances of the case concerned. No governmentservant or employee of a public undertaking has any legal right tobe posted forever at any one particular place or place of hischoice since transfer of a particular employee appointed to theclass or category of transferable posts from one place to other isnot only an incident, but a condition of service, necessary too inpublic interest and efficiency in the public administration.Unless an order of transfer is shown to be an outcome of mala fideexercise or stated to be in violation of statutory provisionsprohibiting any such transfer, the courts or the tribunals normallycannot interfere with such orders as a matter of routine, as though https://hcservices.ecourts.gov.in/hcservices/ they were appellate authorities substituting their own decision forthat of the employer/management, as against such orders passed inthe interest of administrative exigencies of the service concerned.30. On the issue of transfer, the Supreme Court in Union ofIndia vs. S.L.Abbas (AIR 1993 SC 404) held that unless it is shownthat transfer order is imbibed with malice, the question ofquashing it does not arise. The Supreme Court further held asfollows:"7. Who should be transferred where, is amatter for the appropriate authority to decide.Unless the order of transfer is vitiated by malafides or is made in violation of any statutoryprovisions, the Court cannot interfere with it..." 31. On a similar issue, the Supreme Court in State of Punjabvs. Joginder Singh Dhatt (AIR 1993 SC 2486) held that it isentirely within the competency of the employer to transfer anemployee and the Court should not ordinarily interfere with that.An excerpt from it would run thus:"3. We have heard learned counsel for theparties. This Court has time and again expressed itsdisapproval of the Courts below interfering with theorder of transfer of public servant from one place toanother. It is entirely for the employer to decidewhen, where and at what point of time a publicservant is transferred from his present posting.Ordinarily the Courts have no jurisdiction tointerfere with the order of transfer. The High Courtgrossly erred in quashing the order of transfer ofthe respondent from Hoshiarpur to Sangrur. The HighCourt was not justified in extending its jurisdictionunder Article 226 of the Constitution of India in amatter where, on the face of it, no injustice wascaused."32. In fact, the Hon'ble Apex Court in both the aforesaidcases would highlight that simply because the transfer orders arenot strictly in accordance with the rules, the Courts are notjustified in interfering with that unless mala fides could beattributed to such transfer.33. On the point that transfer of an employee is an incidenceof service, the Supreme Court in State Bank of India vs. AnjanSanyal (AIR 2001 SC 1748), held as follows: 4. The order of transfer of an employee is a partof the service conditions and such order of transferis not required to be interfered with lightly by aCourt of law in exercise of its discretionaryjurisdiction unless the Court finds that either the https://hcservices.ecourts.gov.in/hcservices/ order is mala fide or that the service rules prohibitsuch transfer or that the authorities, who issued theorder, had not the competence to pass theorder......."34. On the same issue, the Supreme Court in State of U.P. vs.Govardhan Lal (AIR 2004 SC 2165) held as follows:"7. It is too late in the day for anyGovernment servant to contend that once appointed orposted in a particular place or position, he shouldcontinue in such place or position as long as hedesires. Transfer of an employee is not only anincident inherent in the terms of appointment butalso implicit as an essential condition of servicein the absence of any specific indication to thecontra in the law governing or conditions ofservice. Unless the order of transfer is shown tobe an outcome of a mala fide exercise of power orviolative of any statutory provision (an Act orrule) or by an authority not competent to do so; anorder of transfer cannot lightly be interfered withas a matter of course or routine for any of everytype of grievance sought to be made. Evenadministrative guidelines for regulating transfersor containing transfer policies at best may affordan opportunity to the officer or servant concernedto approach their higher authorities for redress butcannot have the consequence of depriving or denyingthe competent authority to transfer a particularofficer/servant to any place in public interest andas is found necessitated by exigencies of service aslong as the official status is not affectedadversely and there is no infraction of any careerprospectus such as seniority, scale of pay andsecured emoluments. This Court has often reiteratedthat the order of transfer made even intransgression of administrative guidelines cannotalso be interfered with, as they do not confer anylegally enforceable rights, unless, as noticedsupra, shown to have been by mala fides or is madein violation of any statutory provision."35. A perusal of the impugned order would show that it hasbeen made on 28.2.2011 in G.O.(Rt) No.96, Public Works (A2)Department, effecting the above said transfers. The ElectionNotification has come into force from 1.3.2011. The ElectionCommission of India, issued an Election Notification dated01.03.2011, which has been placed on record, wherein the followingConduct of Officials and guidelines are given: https://hcservices.ecourts.gov.in/hcservices/ Conduct of OfficialsThe Commission expects all officials engaged inthe conduct of elections to discharge their dutiesin an impartial manner without any fear or favour.They are deemed to be on deputation to theCommission and shall be subject to its control,supervision and discipline. Several instructionshave been issued from time to time to ensureimpartiality of officials who are engaged in theconduct of elections. The conduct of all GovernmentOfficials who have been entrusted with electionrelated responsibilities and duties would remainunder constant scrutiny of the Commission and strictaction shall be taken against those officials whoare found wanting on any account. The Commissionhas already given instructions that no electionrelated official or Police officer of the rank ofSub Inspector and above shall be allowed to continuein his home district. Besides, instructions havealso been issued that election related officialsincluding police officials who have completed threeyears in a district during last four years should betransferred out of that district. The StateGovernments and the UT Administration of Puducherryhave also been asked to transfer all those officersagainst whom the Commission has recommendeddisciplinary action or who have been charged for anylapse during previous elections or for any electionrelated work, from positions entailing any electionwork. The State Governments/UT Administration ofPuducherry have been instructed to ensure that thosewho stand transferred shall move out physically fromtheir last place of posting and shall not remainthere on any pretext including leave. The Commissionhas also instructed the State Governments/UTAdministration of Puducherry not to associate anyofficer with the electoral process against whomcharges have been framed in a court of law in anycase."36. From a perusal of both the impugned order and the ElectionNotification, it could be seen that the order of transfer has beenmade prior to the issuance of Election Notification and the ModelCode of Conduct came into force. Therefore, the contention raisedby the petitioners that the impugned order is made only after theissuance of Election Notification has no substance. It is truethat after the issuance of Notification of the Election Commission,the Model Code of Conduct came into force and the State Governmentshave been instructed to ensure that those who stand transferred, https://hcservices.ecourts.gov.in/hcservices/ shall move out physically from their last place of posting andshall not remain there on any pretext including leave. If that isso, the impugned order issued prior to the Election Notificationwill have to be given effect to. On the contrary, it has beenchallenged by the petitioners, instead of obeying the same, on thepretext that the impugned order has been given effect to only afterthe Election Notification. When the order of transfer of anemployee is part of condition of service, the same need not beinterfered by the Court of law, in exercise of its discretionaryjurisdiction, unless mala fide is attributed to or there is anyviolation of statutory provisions of the Act or Rule or by anauthority not competent to do so. In the absence of any suchthings, it is not proper for this Court to interfere in a matter ofroutine transfer. 37. A perusal of the impugned orders would give a clearimpression to this Court that the order of transfer assailed by thepetitioner is not tainted with mala fide intention or colourableexercise of power. In the absence of any such ground available tothe petitioners, it is not open to this Court to interfere in thematter of routine transfer. 38. For the foregoing reasons and the discussions made, I amof the considered view that the impugned order of transfer dated28.2.2011 passed by the first respondent in G.O.(Rt) No.96, PublicWorks (A2) Department, does not call for interference andtherefore, the writ petitions deserve no merit consideration andthey are liable to be dismissed. However, if the petitioners arestill aggrieved by the impugned order, it is for them to representthe same before the first respondent after joining the transferredplace and if any such representation is made, the first respondentis directed to consider the same in accordance with law.39. With the above observation, these writ petitions aredismissed. No costs. Consequently, interim stay already grantedis vacated and the miscellaneous petitions are also dismissed.Sd/-Vacation Officer//True Copy//Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Secretary to Govt. State of Tamil Nadu PWD (A2) Department Fort St. George, Secretariat Chennai 600 009.2. The Engineer in Chief (WRO) and Chief Engineer (General) Public Works Department Chepauk, Chennai – 5.BKY(CO)SR/17.5.2011 Common Order inW.P.Nos.5834 & 7360 of 2011