C.Paneerselvam v. The District Adi Dravidar and Tribal Welfare Officer,Villupuram

IN THE HIGH COURT JUDICATURE AT MADRASDATED : 08.01.2010CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.27346 to 27354 of 2009 andM.P.Nos.1,1,1,1,1,1,1,1,1 and 2 of 2009C.Paneerselvam ...Petitioner in W.P.No.27346 of 2009S.Chandramouli ...Petitioner in W.P.No.27347 of 2009M.Markandan ...Petitioner in W.P.No.27348 of 2009P.Chelladurai ...Petitioner in W.P.No.27349 of 2009M.Selvaraj ...Petitioner in W.P.No.27350 of 2009A.Govindammal ...Petitioner in W.P.No.27351 of 2009P.Vinayagamurthy ...Petitioner in W.P.No.27352 of 2009J.Martin Manoharan ...Petitioner in W.P.No.27353 of 2009V.Kumar ...Petitioner in W.P.No.27354 of 2009 Vs.The District Adi Dravidar and Tribal Welfare Officer,Villupuram. ... Respondents in all the Writ PetitionsPRAYER: Writ Petition filed under Article 226 of the Constitutionof India praying to issue a Writ of certiorarified mandamus,calling for the records relating to the proceedings of therespondent made in Na.Ka.No.M3/19354/2009-48,36,42,50,52,40,28,34,47 dated 18.12.2009, respectively and toquash the same as illegal and consequently directing the respondentherein to retain the petitioner in the same station i.e., as Wardenat Government ADW Boys Hostel, Chinna Salem (W.P. 27346/09),Melmalaiyanur, Gingee Taluk (W.P.27347/09), Nagaiyur KallakurichiTaluk (W.P.27348/09), Asakalathur, Kallukurichi Taluk(W.P.27349/09), Ammaiyagaram & Post, (W.P.27350/09), Warden atGovernment ADW Girls Hostel, Thiyagadurugam Kallakurichi Taluk(W.P.27351/09), Tindivanam (W.P.27352/09), Valathi, Gingee Taluk https://hcservices.ecourts.gov.in/hcservices/ (W.P.27353/09), Veppari, Tindivanam Taluk (W.P.27354/09) till theacademic year 2009-2010 respectively.For Petitioners : Mr.K.Radhakrishnan in all the PetitionersFor Respondent : Mr.A.Arumugam,Spl.G.P. in all the PetitionersC O M M O N O R D E RThe petitioners are at present working as Wardens in theWelfare Hostel run by the respondent Adi Dravidar and TribalWelfare Department. The post of Warden of the hostel and theSecondary Grade Teacher are interchangeable. There is no differencebetween the salary or other service conditions. Though thepetitioners were appointed as Secondary Grade Teachers, they wereable to get posted as Wardens in the B.T. Scale since the post ofWarden has been upgraded to that of B.T scale post. Thepetitioners have admittedly served the various hostels for morethan three years. 2. By the impugned order, the petitioners were directed to beposted to various Adi Dravidar Welfare Schools in the same areawithin a distance of 5 to 10 kms. They have come forward tochallenge the said transfer order. When the writ petition came upon 30.12.2009 during the vacation court, the matter was adjournedafter vacation. On 06.01.2010, when the matter came up before thisCourt, this Court directed the learned Special Government Pleaderto take notice and to get written instructions. Accordingly, thematter came up today and the learned Government Pleader is readywith his instructions. 3. Mr.K.Radhakrishnan, learned counsel for the petitioner madethe following submissions:a)The order of transfer has been passed before the end of theacademic year.b)The order is contrary to G.O.Ms.No.64 Adi Dravidar TribalWelfare Department dated 03.06.2009 and the consequentialguidelines issued thereunder.c) Thirdly, since it was stated as administrative reasons, thequestion of transfer without permission of the Commissioner is notvalid. Reliance was placed upon the guidelines issued dated05.06.2009, wherein it is stated that if after the general transferany transfer has to be made, the approval of the Commissioner hasto be obtained and the transfer should not affect others.4. Per contra, Mr.A.Arumugam, learned Special GovernmentPleader submitted that Para 4.7 of the Government Order itselfstates that if any person working in the hostel as Warden for morethan three years as on 01.06.2009, they should be transferred tothe respective schools. Therefore, in the present cases all thepetitioners have worked for more than three years as Hostel Warden https://hcservices.ecourts.gov.in/hcservices/ and they have no vested right to continue in the said school. Healso submitted that taking into account their family and otherinterests, they have been transferred to the nearby schools whichare situated within 5 to 10 kms from the present place of posting.He further submitted that all the other teachers who have beentransferred have joined in the respective places except thepetitioner. He also stated that the administrative approval of theCommissioner had also been obtained for effecting such transfer. 5. Even otherwise, the learned counsel relies on the orderpassed by this Court in W.P.No.33396 of 2006 and batch cases dated18.12.2006 and the consequential order of the Division Bench inW.A.No.539 of 2007 and batch cases dated 04.04.2007 to emphasisethat similar order was made during the year 2006 and G.O.Ms.No.74Adi Dravidar and Tribal Welfare Department dated 21.06.2006 came tobe interpreted and this Court held that if there is any transferduring non-transfer period, the approval of the Commissioner isrequired. 6. In the present case, it is the definite stand of therespondent that approval of the Commissioner has been obtained.Even otherwise in the matter of transfer, this Court has hardly gotany judicial review and the petitioners cannot challenge the saidorder on the grounds stated in the affidavit.7. Admittedly, since the petitioners belong to a State Servicecreated under Article 309 of the Constitution of India, they areentitled to serve wherever a posting is given to them. Therefore,the basic question is whether the petitioners are entitled toresist an order of transfer or in the alternative, through theCourt, can get the posting to a particular place in the absence ofRules. Under the Rules framed under Article 309 of the Constitutionof India being a State Service, transfer is an incidence of serviceof any service personnel and unless the transfer is made on theground of mala fide or for extraneous reasons, the Court cannot gobehind the power of the authorities in effecting transfer.8.In this context, it is necessary to refer to the decision ofthe Hon'ble Supreme Court reported in State of U.P. Vs. Siya Ramand another (2004 (7) SCC 405). In paragraph 5, it was observed asfollows.5. The High Court while exercising jurisdictionunder Articles 226 and 227 of the Constitution ofIndia had gone into the question as to whetherthe transfer was in the interest of publicservice. That would essentially require factualadjudication and invariably depend upon peculiarfacts and circumstances of the case concerned. Nogovernment servant or employee of a publicundertaking has any legal right to be postedforever at any one particular place or place ofhis choice since transfer of a particular https://hcservices.ecourts.gov.in/hcservices/ employee appointed to the class or category oftransferable posts from one place to other is notonly an incident, but a condition of service,necessary too in public interest and efficiencyin the public administration. Unless an order oftransfer is shown to be an outcome of mala fideexercise or stated to be in violation ofstatutory provisions prohibiting any suchtransfer, the courts or the tribunals normallycannot interfere with such orders as a matter ofroutine, as though they were appellateauthorities substituting their own decision forthat of the employer/management, as against suchorders passed in the interest of administrativeexigencies of the service concerned. Thisposition was highlighted by this Court inNational Hydroelectric Power Corpn. Ltd. v. ShriBhagwan.9.Further, the Hon'ble Supreme Court in yet another decisionreported in 2004 (11) SCC 402 (State of U.P. Vs. Gobardhan Lal), inparagraph 7 observed as follows:-7. It is too late in the day for anygovernment servant to contend that onceappointed or posted in a particular place orposition, he should continue in such place orposition as long as he desires. Transfer of anemployee is not only an incident inherent inthe terms of appointment but also implicit asan essential condition of service in theabsence of any specific indication to thecontra, in the law governing or conditions ofservice. Unless the order of transfer is shownto be an outcome of a mala fide exercise ofpower or violative of any statutory provision(an Act or rule) or passed by an authority notcompetent to do so, an order of transfercannot lightly be interfered with as a matterof course or routine for any or every type ofgrievance sought to be made. Evenadministrative guidelines for regulatingtransfers or containing transfer policies atbest may afford an opportunity to the officeror servant concerned to approach their higherauthorities for redress but cannot have theconsequence of depriving or denying thecompetent authority to transfer a particularofficer/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 isno infraction of any career prospects such asseniority, scale of pay and secured https://hcservices.ecourts.gov.in/hcservices/ emoluments. This Court has often reiteratedthat the order of transfer made even intransgression of administrative guidelinescannot also be interfered with, as they do notconfer any legally enforceable rights, unless,as noticed supra, shown to be vitiated by malafides or is made in violation of any statutoryprovision.10.In the absence of any valid legal grounds and factualpleadings regarding mala fides, the Writ petitions deserve to bedismissed and accordingly, dismissed. No costs. Connectedmiscellaneous petitions are closed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsvkiToThe District Adi Dravidar and Tribal Welfare Officer,Villupuram.+ 9 ccs to Mr.K.Rathakrishnan, Advocate, SR 1597/10+ 1 cc to the Govt., Pleader, High Court, Madras-104, SR 2095/10W.P.Nos.27346 to 27354/2009TM (CO)RH (25.1.10)