N.Sivakumar v. The Conservator of Forests,O/o of the Conservator of Forests,Coimbatore

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 24.07.2009CORAMTHE HONOURABLE MR.JUSTICE K.N.BASHAW.P.No.14312 of 2009& M.P.No.1 of 2009N.Sivakumar.. PetitionerVs.The Conservator of Forests,O/o of the Conservator of Forests,Coimbatore. .. RespondentPrayer : Writ petition filed under Article 226 of the Constitution ofIndia praying for a Writ of Certiorarified Mandamus to call for therecords of the respondent relating to the order issued inS.O.No.P1/59/2009, dated 15.07.2009 and quash the same andconsequently, direct the respondent to allow the petitioner tocontinue in the present place of work, namely, in Forest ProtectionSquad, Coimbatore.For Petitioner:Mrs.Selvi GeorgeFor Respondent:Mr.S.N.Kirubanandam, Special Govt. Pleader (Forests)ORDERLearned Special Government Pleader (Forests) takes notice forthe respondent. By mutual consent of the learned counsel for thepetitioner and the learned Special Government Pleader, this writpetition is taken up for final disposal at the admission stage.2. The petitioner has come forward with this petition seekingfor the relief of quashing the order passed by the respondent inS.O.No.P1/59/2009, dated 15.07.2009 and consequently, directing therespondent to allow the petitioner to continue in the present placeof work, namely, in Forest Protection Squad, Coimbatore.3. Mrs.Selvi George, learned counsel for the petitionercontended that the petitioner is challenging the impugned order oftransfer on the ground that the said order is in contravention of theGovernment letter No.934/S/2009-1 dated 20.05.2009 as the respondent https://hcservices.ecourts.gov.in/hcservices/ has not followed the guidelines contained in the said letter to theeffect of consulting the Personnel and Administrative ReformsDepartment before passing the impugned order. It is contended by thelearned counsel for the petitioner that in the impugned order it ismerely stated that the petitioner has been transferred onadministrative reasons and there is no specific reason given fortransferring the petitioner. The learned counsel would furthercontend that the petitioner's wife and his family members includingthe child, were now residing at Coimbatore and as such thepetitioner, who has been transferred from Coimbatore ForestProtection Squad to Gudalur division, would be put into greathardship and irreparable loss. The learned counsel for thepetitioner further contended that even in the affidavit filed beforethis Court the petitioner has specifically stated that there areseveral vacancies available as on date at Coimbatore itself and assuch the respondent could have posted the petitioner withinCoimbatore. The learned counsel for the petitioner would furtherpoint out that the petitioner has already preferred a representationdated 21.04.2009 and the same was not considered by the respondentherein. Therefore, it is contended that the impugned order oftransfer is liable to be quashed.4. Mr.S.N.Kirubanandam, learned Special Government Pleader(Forests) contended that there is absolutely no infirmity orillegality in the impugned order of transfer passed by the respondentherein. It is contended by the learned Special Government Pleaderthat the letter of the Chief Secretary addressed to all theSecretaries and the Heads of Departments contained only certainguidelines and those guidelines cannot stand in the way ofauthorities exercising the power of transfer due to administrativeexigencies as per the statutory rules. The learned SpecialGovernment Pleader would submit that the respondent herein hasrightly passed the impugned order of transfer on administrativereasons and as such the same is not liable to be quashed as thepetitioner has not made out any other legal ground to interfere withthe impugned order of transfer. The learned Special GovernmentPleader would also place reliance on the decision of this Court inC.Somasundaram V. The District Forest Officer, Coimbatore & anotherreported in 2007 Writ L.R. 943.5. I have carefully considered the rival contentions put forwardby either side and also perused the impugned order and othermaterials available on record.6. The main grievance of the petitioner, as per the submissionsof the learned counsel for the petitioner, is to the effect that theimpugned order of transfer was passed in contravention of the letterdated 20.05.2009 in letter No.934/S/2009-1 issued by the ChiefSecretary to the Government of Tamil Nadu. It is pointed out by the https://hcservices.ecourts.gov.in/hcservices/ learned counsel for the petitioner that before passing the impugnedorder, the respondent had not consulted the Personnel andAdministrative Reforms Department as the transfer was effected onadministrative reasons. At the outset, I am unable to accept suchcontention as the said guidelines are only directory and suchguidelines cannot have a statutory status. From the reading of theimpugned order it cannot be stated that they have not consulted theauthorities concerned. The fact remains that it is clearly stated inthe impugned order that the petitioner has been transferred onadministrative reasons. It is pertinent to note that the petitioner,being a driver and his services being an essential service it is opento the respondent to transfer to a place on the ground ofadministrative exigencies and as such on that ground the impugnedorder cannot be interfered with by this Court.7.The learned counsel for the petitioner further pointed outthat there are several vacancies available at Coimbatore itself andas such the respondent could have posted the petitioner at theCoimbatore city without transferring him from Coimbatore ForestProtection Squad to Gudalur division. The petitioner, being aGovernment servant coupled with the fact that the petitioner wasserving at Coimbatore for the last more than two years, cannot seekthe relief of permanent post at Coimbatore itself as the post itselfis a transferable post. It is pertinent to note that the petitioneralso made certain irrelevant reference about alleged rift between thePresident of Tamil Nadu Drivers Association and the Head of thedepartment and also made reference about issuing a charge sheetagainst him on certain allegations and further stated that only incontinuation of the same the present impugned order of transfer wasissued with a view to harass him. The petitioner also went to theextent of raising one of the grounds in his affidavit to the effectthat the impugned order was issued against him only due to mala fideintention and to accommodate somebody in his place with ulteriormotive. This Court is of the considered view that the petitionerought to have restrained himself from making such unwarranted andbaseless allegations. It is well-settled that mere allegation ofmala fides and bias on mere suspicion, surmises and conjecturescannot be sustained and malafide has to be established by strongproof.8. The learned Special Government Pleader (Forests) has rightlyplaced reliance on the decision of this Court in C.Somasundaram V.The District Forest Officer, Coimbatore and another reported in 2007Writ.L.R. 943 regarding the order of transfer. In that decision,this Court has observed in respect of the similar Government Order asfollows :"14. .... The said amendment makes it very clearthat the transfer policy is a mere guidelines to thecompetent authority while effecting transfer and it does https://hcservices.ecourts.gov.in/hcservices/ not confer any right on the government servant to rely onthe same for retention or transfer from a particularplace or post citing GO.Ms.No.10, P & A.R. Departmentdated 07.01.1994.9. The learned single Judge also placed reliance on thedecisions of the Hon'ble Apex Court as hereunder :"17. In this connection, it will be useful to referthe decision of the Honourable Apex Court in Union ofIndia V. Janardhan Debanath (2004 (4) SCC 245), whereinit has been held as follows :".... Transfers unless they involve any suchadverse impact or visit the persons concerned with anypenal consequences, are not required to be subjectedto same type of scrutiny, approach and assessment asin the case of dismissal, discharge, reversion ortermination and utmost latitude should be left withthe department concerned to enforce discipline,decency and decorum in public service which areindisputably essential to maintain quality of publicservice and meet untoward administrative exigencies toensure smooth functioning of the administration.Additionally, it was pointed out by learnedcounsel for the Union of India that as indicated inthe special leave petition itself there was noquestion of any loss of seniority or promotionalprospects. These are the aspects which can be goneinto in an appropriate proceeding, if at all there isany adverse order in the matter of seniority orpromotion. It was also submitted that transfer waswithin the same circle, i.e., the North-Eastern Circleand, therefore, the question of any seniority gettingaffected by the transfer prima facie does not arise."18. It is also useful to refer to the decision ofthe Honourable Apex Court reported in 2004 (11) SCC 402(State of U.P. V. Gobardhan Lal) wherein it has been heldas follows :"It is too late in the day for any governmentservant to contend that once appointed or posted in aparticular place or position, he should continue insuch place or position as long as he desires.Transfer of an employee is not only an incidentinherent in the terms of appointment but also implicitas an essential condition of service in the absence of https://hcservices.ecourts.gov.in/hcservices/ any specific indication to the essential condition ofservice in the absence of any specific indication tothe contra, in the law governing or conditions ofservice. Unless the order of transfer is shown to bean outcome of a mala fide exercise of power orviolative of any statutory provision (an Act or Rule)or passed by an authority not competent to do so, anorder of transfer cannot lightly be interfered with asa matter of course or routine for any or every type ofgrievance sought to be made. Even administrativeguidelines for regulating transfers or containingtransfer policies at best may afford an opportunity tothe officer or servant concerned to approach theirhigher authorities for redress but cannot have theconsequence of depriving or denying the competentauthority to transfer a particular officer/servant toany place in public interest and as is foundnecessitated by exigencies of service as long as theofficial status is not affected adversely and there isno infraction of any career prospects such asseniority, scale of pay and secured emoluments. ThisCourt has often reiterated that the order of transfermade even in transgression of administrativeguidelines cannot also be interfered with, as they donot confer any legally enforceable rights, unless, asnoticed supra, shown to be vitiated by mala fides oris made in violation of any statutory provision." 10. The Hon'ble Apex Court in Shilpi Bose V. State of Biharreported in 1991 Supp. (2) SCC 659 held as follows :"The courts should not interfere with a transferorder which is made in public interest and foradministrative reasons unless the transfer orders aremade in violation of any mandatory statutory rule or onthe ground of mala fide. A government servant holdinga transferable post has no vested right to remainposted at one place or the other, he is liable to betransferred from one place to the other. Transferorders issued by the competent authority do not violateany of his legal rights. Even if a transfer order ispassed in violation of executive instructions ororders, the courts ordinarily should not interfere withthe order ; instead affected party should approach thehigher authorities in the department. If the courtscontinue to interfere with day-to-day transfer ordersissued by the government and its subordinateauthorities, there will be compete chaos in theadministration which would not be conducive to publicinterest." https://hcservices.ecourts.gov.in/hcservices/

11. The principles laid down in the decisions cited supra aresquarely applicable to the facts of the instant case as in this casealso the learned counsel for the petitioner mainly relied on certainguidelines given by the Government through the letter No.934/S/2009-1dated 20.05.2009 and such letter, containing certain guidelines,cannot override the statutory rules. The yet another ground ofallegation of mala fides and bias taken by the petitioner is alsounsustainable in view of the reasons as stated above. 12. For the aforesaid reasons, this Court is of the consideredview that no valid and legal ground made out by the petitionerwarranting interference of this Court in the impugned order oftransfer and accordingly, this petition is hereby dismissed. Nocosts. Consequently, connected miscellaneous petition is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarggToThe Conservator of Forests,O/o of the Conservator of Forests,Coimbatore.1 cc To Mr.Selvi George, Advocate, SR.34574.1 cc To The Special Government Pleader (Taxes), SR.34676.W.P.No.14312 of 2009 & M.P.No.1 of 2009 RL(CO)RVL 12.08.2009