CoramThe Honourable Mr v. The District Forest Officer

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 8-8-2007CoramThe Honourable Mr.Justice K. VENKATARAMANW.P.Nos.22391, 22760, 23138 & 24179 of 2007andConnected M.Ps.W.P.No.22391 of 2007: C.Somasundaram .. PetitionerVs.1. The District Forest Officer, Coimbatore Division, Coimbatore-18.2. R.Sivaraman .. RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia praying to issue a writ of certiorarified mandamus callingfor the records of the first respondent relating to the orderissued in S.O.No.143/07/P1 dated 22.6.2007 and quash the sameand consequently direct the first respondent to allow thepetitioner to continue in the present place of work, namely, inK.K.Chavadi check post, Coimbatore District. For Petitioner : Mrs.Selvi George For Respondent-1 : Mr.K.Rajasekar, Govt. Advocate (Forest). For Respondent-2 : Mr.B.Rajendran ... W.P.No.22760 of 2007: P.Ashok Kumar .. PetitionerVs.1. The District Forest Officer, Coimbatore Division, Coimbatore-18. 2. Ramalingam .. Respondents[R2 impleaded as party, as per the order of this Court inM.P.No.3 of 2007 dated 2.8.2007] https://hcservices.ecourts.gov.in/hcservices/ Writ Petition filed under Article 226 of the Constitution ofIndia praying to issue a writ of certiorarified mandamus callingfor the records on the file of the first respondent in orderNo.143/07/P1 dated 22.6.2007 and quash the same andconsequently, direct the respondent to permit the petitioner topeacefully continue to serve on the same present place. For Petitioner : Mrs.T.Aananthi For Respondent-1 : Mr.K.Rajasekar, Govt. Advocate ( for Spl G.P. (Forest) For Respondent-2 : Mr.M.Vkvekanandan ... W.P.No.23138 of 2007: R.Murugasen .. PetitionerVs.1. The District Forest Officer, Vellore Division, Vellore 632 004.2. Thiru Ko.Manickam, I.F.S., District Forest Officer, Vellore 632 004. .. RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia praying to issue a writ of certiorarified mandamus callingfor the records on the file of the first respondent relating toS.O.No.153/2007 (Na.Ka.No.5913/2007/B1) dated 2.7.2007 andconnected orders, quash the same and issue consequentialdirections to the respondents to permit the petitioner tocontinue to serve in the same post/station. For Petitioner : Mr. M.Ravi, For M/s.R.Prasana Devy For Respondent : Mr.K.Rajasekar,No.1 Govt. Advocate (Forest).For Respondent 2: Mr. K. Challapandian. ... W.P.No.24179 of 2007: C.Chennappan .. PetitionerVs. https://hcservices.ecourts.gov.in/hcservices/

1. The Principal Chief Conservator of Forests, Panagal Buildings, Chennai 600 015.2. The Conservator of Forests, Dharmapuri Circle, Dharmapuri.3. The District Forest Officer, Dharmapuri4. P.Chidambaram .. Respondents Writ Petition filed under Article 226 of the Constitution ofIndia praying to issue a writ of certiorarified mandamus callingfor the records relating to the orders in (1)Pro.Na.Ka.No.AB1/18567/2007 dated 8.6.2007 passed by the firstrspondente; and (2) S.O.No.110/2007/Pa.1(Na.Ka.No.5506/2007/Pa.1) dated 13.7.2007 passed by the thirdrespondent, quash the same and issue consequential directions tothe respondents to permit the petitioner to continue to serve inthe same post/station. For Petitioner : Mr.M.Ravi For Respondent : Mr.K.Rajasekar,No.1 to 3 Govt. Advocate (Forest). For Respondent-4 : Mr.P.Jayaraman, S.C. For Mr.Ellenchezhian ... O R D E RIn all these Writ Petitions, the main ground of attackis that the orders of transfer have been made in clearviolation of the instructions of the Government. Moreparticularly, the case of the petitioners in these WritPetitions is that the impugned orders have been passed inviolation of the transfer policy enunciated in the Governmentletter dated 5.8.1998 and G.O.Ms.No.10 P.&A.R. Department dated7.1.1994. Further, the petitioners have expressed theirpersonal grievances like their wards are studying in school,mother is suffering from Asthma,etc. The petitioner in one ofthe writ petitions has stated that he is suffering from ailment,etc. Thus, the case of the petitioners is that on the footingof the above referred personal grievances, the orders oftransfers have to be set aside. 2. Per contra, the learned Government Advocate(Forest) appearing for the respondents contended that the orders https://hcservices.ecourts.gov.in/hcservices/ of transfer have been passed on administrative grounds in someof the Writ Petitions and on the basis of complaint in respectof some of the Writ Petitions. Further, the learned learnedGovernment Advocate contended that transfer is one of theservice conditions and hence, the same cannot be interfered with.3. I have heard Mr.M.Ravi, the learned counselappearing for the petitioners in W.P.Nos.23138 & 24179 of 2007,Mrs.T.Ananthi, the learned counsel for the petitioner inW.P.No.22760 of 2007, Mrs.Selvi George, the learned counsel forthe petitioner in W.P.No.22391 of 2007 and Mr.K.Rajasekar, thelearned Government Advocate (Forest) appearing for therespondents.4. Mr.M.Ravi, the learned counsel appearing for thepetitioner in W.P.Nos.23138 and 24179 of 2007 has vehementlycontended that in W.P.No.23138 of 2007, it has been specificallystated that the second respondent in order to accommodate someother person in the place of the petitioner has passed theimpugned order with mala fide intention. Further, the learnedcounsel submitted that the second respondent who is the DistrictForest Officer has been arrayed by name. Further, he hassubmitted that when a specific plea has been taken stating thatthe order of transfer has been passed with a mala fide intentionand the said Officer has been impleaded by name, the countershould have been filed by the respondents. Since no counter hasbeen filed, it has be presumed that the petitioner has provedthat the orders of transfer have been passed with a mala fideintention.5. Further, the learned counsel submitted that theimpugned order has been passed in violation of the transferpolicy of the Government in their letter dated 5.8.1998 andG.O.Ms.No.10 P & A.R.(Per-S) Department dated 7.1.1994. Thesaid Government letter dated 5.8.1998, according to the learnedcounsel appearing for the petitioner, prohibits an order oftransfer during non transfer period and after commencement ofthe academic year. Further, the learned counsel appearing forthe petitioners have drawn my attention to G.O.Ms.No.10 P & A.R.Department dated 7.1.1994 and submitted that as per the saidG.O., a person shall be transferred only after completion ofthree years and further in the said G.O., it has beenspecifically stated that in case of subordinate serviceofficers, who are not due for transfer from their post as perthe instructions, but who are proposed to be transferred,specific and valid reasons for such transfer should be reported.By pointing out the said portion of the Government Order, thelearned counsel appearing for the petitioner contended that nospecific or valid reason has been assigned in the order oftransfer passed against the petitioner in W.P.No.23138 of 2007. https://hcservices.ecourts.gov.in/hcservices/

6. In W.P.No.22391 of 2007, Mrs.Selvi George, thelearned counsel appearing for the petitioner contended thatapart from the contention that the impugned order of transfer isin violation of the Rules/instructions issued by the Government;that his daughter is studying in X-Std in Government HigherSecondary School, Madukkarai, which is situated just 2 k.m. fromhis place of residence and that he has been transferred to aplace which is more than 60 k.m. from his present place ofliving; and that his wife is also suffering from Asthma andhence, the order of transfer has to be set aside. Per contra,Mr.K.Rajasekar, the learned Government Advocate appearing forthe respondents contended that since the second respondent hasalready taken charge in K.K.Chavadi Check post in the place ofthe petitioner, if the order of transfer is set aside, it willcause great hardship.7. In W.P.No.22760 of 2007, Mrs.T.Aananthi, thelearned counsel appearing for the petitioner, contended thatapart from the contention raised regarding violation ofguidelines, the petitioner is suffering from Asthma, wheezingand high blood pressure and hence, the order of transfer willcause great hardship to the petitioner.8. In W.P.No.24179 of 2007, the case of the petitioneris that by an order dated 8.6.2007, the petitioner has beentransferred from Dharmapuri Circle to Vellore Circle andsubsequently, it has been kept in abeyance. Thereafter, anotherorder of transfer has been passed by the 3rd respondenttransferring the petitioner from Neruppur Section to PennagaramSection. The same has been given effect and the petitioner hasjoined the said place. Later by communication dated 13.7.2007,the 4th respondent has been posted to Pennagaram Section in hisplace and the petitioner has been transferred to VelloreDivision. Later by communication dated 30.7.2007, the 3rdrespondent cancelled the order dated 13.7.2007 and thepetitioner has been allowed to continue at Pennagaram. Hence,Mr.V.Ravi, the learned counsel appearing for the petitionersubmitted that as far as this matter is concerned, in view ofthe subsequent order that has been passed on 30.7.2007cancelling the order dated 13.7.2007 thereby allowing thepetitioner to continue at Pennagaram Section, there need be anyorder in this Writ Petition. In view of the same, W.P.No.24179of 2007 becomes infrucutuous and the same is liable to bedismissed.9. I have considered the several contentions raised bythe learned counsels for the writ petitioners and the learnedGovernment Advocate (Forests) for the respondents.10. It has been held in several judgments by theHonourable Apex Court as well as by this Court that transfer is https://hcservices.ecourts.gov.in/hcservices/ an incident of service and hence, the same cannot be interferedby the Courts. Further, the Honourable Apex Court has also heldthat transfer could be made if it is shown inefficiency ormisbehaviour on the part of the person against whom an order oftransfer has been made. Furthermore, whether a person has to betransferred or not, has to be decided and determined by theemployer considering the administrative necessities. The orderof transfer could be interfered only when it is shown that (i)there is violation of statutory provision, or (ii) the authoritywho has passed the said order has no jurisdiction; or (iii)vitiated by mala fide. If such things does not prevail, thequestion of interfering with such order of transfer is totallyoutside the purview of the Court. Furthermore, the employer hasto see various factors depending on administrative exigenciesand at no stretch of imagination, it can be said that anemployee cannot be transferred from one place to another and theemployee has no right to contend that he shall not betransferred at all and he should be permitted to work in thesame station. Further, the guideline that has been pointed outby the learned counsel for the petitioners has no bindingeffect. Thus, summing up the position regarding transfer theCourts can interfere with an order of transfer only on threegrounds, namely, (a) When the order of transfer has been shownto be vitiated by mala fide; (ii) if it is in violation ofstatutory provision; or (iii) the same has been passed by anauthority not competent to pass such order.11. In all these Writ Petitions, it is not the case ofthe petitioners that there is any violation of any statutoryprovision. Further, it is not their case that the authority whohas passed the orders of transfer is not competent to pass suchorders.12. In W.P.No.23138 of 2007, the case of thepetitioner is that the impugned order has been passed by thesecond respondent to accommodate some other person with malafide intention. It is useful to extract the averments made bythe petitioner in the said Writ Petition. In paragraph 5 of theaffidavit, the petitioner stated as follows:-"It is only to accommodate some other person in myplace, the second respondent has passed theimpugned order with mala fide intention."13. The allegation made by the petitioner is veryvague. Mere allegation of mala fide cannot be looked into atall. Furthermore, it is not the case of the petitioner that thesecond respondent is trying to accommodate a particular person.The affidavit reads that it is only to accommodate some otherperson in the place of the petitioner. Hence, I am constrainedto hold that the petitioner in the said Writ Petition has notmade out any case to show that the transfer order has beenpassed with male fide intention. https://hcservices.ecourts.gov.in/hcservices/

14. It is to be further noted that the Government ofTamil Nadu by letter dated 26.8.1997 has clarified G.O.Ms.No.10,P.&.A.R. Department, dated 25.8.2007 and issued the amendment tothe said G.O. which reads as follows:-"(3) After the end of para V, the followingshall be added as para VI:-"Notwithstanding anything contained in theprevious paragraphs of the G.O., the Governmentreserve the right to transfer any governmentservant at any point of time in public interestfor valid and sufficient reasons to be recorded inwriting.""This transfer policy should be considered asmere guidelines to the competent authoritiesconcerned for effecting transfers and does notconfer any right on the Government servants torely on the same for retention or transfer in/froma particular place or post citing the above G.O.or its various clauses." "The said amendment makes it very clear that the transfer policyis a mere guidelines to the competent authority while effectingtransfer and it does not confer any right on the governmentservant to rely on the same for retention or transfer from aparticular place or post citing G.O.Ms.No.10, P.& A.R.Department dated 7.1.1994.15. Further, it has to be seen that Rule 57 of the Tamil NaduState and Subordinate Service Rules reads as follows:-"Appeal or Review:-- (a) Where no specificprovision for appeal or review is made in theseRules, or in the Special Rules against any orderpassed under the said rules for redressal ofgrievances, an appeal or review, as the case maybe, shall lie, to the authority to which an appealor review petition would like against an order ofdismissal.(b) An appeal or review under sub-rule (a)shall be preferred within two months from the dateof receipt of the orders by the appellant or thereview petitioner, as the case may be.(c) Every appeal or review under sub-rules(a) shall be disposed of within four months fromthe date of the receipt of the appeal or reviewpetition.(d) The appellate or reviewing authority mayissue interim directions as it deems fit, pendingfinal decision thereon in order to avoid anyirreparable loss to the appellant or review https://hcservices.ecourts.gov.in/hcservices/ petitioner or to avoid administrativeinconvenience."16. The said Rule make it very clear that where nospecific provision for appeal or review made available under theRules, an appeal or review could be preferred within two monthsfor redressal of any grievances to the Authority to which anappeal or review petition would lie. If the petitioners areaggrieved by the orders of transfer, they could very well availthe said provision for filing an appeal or review before thecompetent authority. But, the petitioners, instead ofapproaching the appropriate Authority, have straight away cometo this court challenging the orders of transfer. 17. In this connection, it will be useful to refer the decisionof the Honourable Apex Court in UNION OF INDIA v. JANARDHANDEBANATH (2004 (4) S.C.C. 245), wherein it has been held asfollows:-"That brings to the other question as towhether the use of the expression "undesirable"warranted an enquiry before the transfer. Strongreliance was placed by the learned counsel forthe respondents on a decision of this Court inJAGDISH MITTER v. UNION OF INDIA (AIR 1964 S.C.449)to contend that whenever there is a use ofthe word "undesirable" it casts a stigma and itcannot be done without holding a regular enquiry.The submission is clearly without substance. Thesaid case relates to use of the expression"undesirable" in an order affecting thecontinuance in service by way of discharge. Thedecision has therefore no application to thefacts of the present case. The manner, natureand extent of exercise to be undertaken bycourts/tribunals in a case to adjudge whether itcasts a stigma or constitutes one by way ofpunishment would also very much depend upon theconsequences flowing from the order and as towhether it adversely affected any serviceconditions - status, service prospectsfinancially - and the same yardstick, norms orstandards cannot be applied to all categories ofcases. Transfers unless they involve any suchadverse impact or visit the persons concernedwith any penal consequences, are not required tobe subjected to same type of scrutiny, approachand assessment as in the case of dismissal,discharge, reversion or termination and utmostlatitude should be left with the department https://hcservices.ecourts.gov.in/hcservices/ concerned to enforce discipline, decency anddecorum in public service which are indisputablyessential to maintain quality of public serviceand meet untoward administrative exigencies toensure smooth functioning of the administration.Additionally, it was pointed out by learnedcounsel for the Union of India that as indicatedin the special leave petition itself there was noquestion of any loss of seniority or promotionalprospects. These are the aspects which can begone into in an appropriate proceeding, if at allthere is any adverse order in the matter ofseniority or promotion. It was also submittedthat transfer was within the same circle i.e.,the North-Eastern Circle and, therefore, thequestion of any seniority getting affected by thetransfer prima facie does not arise."18. It is also useful to refer to the decision of theHonourable Apex Court reported in 2004 (11) S.C.C. 402 (STATE OFU.P. v. GOBARDHAN LAL) wherein it has been held as follows:-"It is too late in the day for any governmentservant to contend that once appointed or postedin 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 theessential condition of service in the absence ofany specific indication to the contra, in the lawgoverning or conditions of service. Unless theorder of transfer is shown to be an outcome of amala fide exercise of power or violative of anystatutory provision (an Act or Rule) or passed byan authority not competent to do so, an order oftransfer cannot lightly be interfered with as amatter of course or routine for any or every typeof 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 redressbut cannot have the consequence of depriving ordenying the competent authority to transfer aparticular officer/servant to any place in publicinterest and as is found necessitated byexigencies of service as long as the officialstatus is not affected adversely and there is noinfraction of any career prospects such asseniority, scale of pay and secured emoluments. https://hcservices.ecourts.gov.in/hcservices/ This Court has often reiterated that the order oftransfer made even in transgression ofadministrative guidelines cannot also beinterfered with, as they do not confer any legallyenforceable rights, unless, as noticed supra,shown to be vitiated by mala fides or is made inviolation of any statutory provision." 19. Thus, the catena of decisions cited by the learnedGovernment Advocate appearing for the respondents amplyestablish that the order of transfer could not normally beinterfered by the Court unless and otherwise it is shown thethree factors enumerated above. Since none of the said factorsare available in these Writ petitions, I am not inclined tointerfere with the orders of transfer passed by the respondentin these Writ Petitions.20. In the result, these Writ petitions are dismissed.The connected M.Ps. are closed. No costs. It is needless tosay that the dismissal of the Writ Petitions will not bar thepetitioners from approaching the appropriate Authority forcancellation or stay of the orders of transfer, if they desireto do so. dpp Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The District Forest Officer, Coimbatore Division, Coimbatore-18.2. The District Forest Officer, Vellore Division, Vellore 632 004.3. The Principal Chief Conservator of Forests, Panagal Buildings, Chennai 600 015.4. The Conservator of Forests, Dharmapuri Circle, Dharmapuri. https://hcservices.ecourts.gov.in/hcservices/

5. The District Forest Officer, Dharmapuri+ 1 cc to Mr. G. Elanchezhiyan, Advocate SR No. 49983+ 1 cc to Mr. M. Ravi, Advocate SR No. 49724+ 1 cc to Mr. C. Kalaichelvan, Advocate, SR No.49903+ 1 cc to Ms. R. Prasana Devy, Advocate, SR No.49721+ 1 cc to Mr. M. Vivekanandan, Advocate, SR No.49887+ 4 ccs to the Spl Government Pleader (Forests), SR Nos.49939,49941, 49942, 49743+ 1 cc to Mr. B. Rajendran, Advocate, SR No.49741+ 1 cc to Mrs. Selvi George, Advocate SR No. 49888JSK(CO)SR/23.8.2007 W.P.Nos.22391, 22760, 23138 & 24179 of 2007;&Connected M.Ps.