Pradeep Kumar v. The Director, Local Administration Department, Puducherry & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 04.12.2009CORAM:THE HON’BLE MR.JUSTICE K.CHANDRUW.P.No.19412 of 2009andM.P.Nos.1 and 2 of 2009Pradeep Kumar [ PETITIONER ]Vs1. The Director, Local Administration Department, Puducherry.2. The Commissioner, Bahour Commune Panchayat, Bahour. [ RESPONDENTS]Prayer :Petition under Article 226 of the Constitution of Indiapraying for a Writ of Certiorari, calling for the records onthe file of the 1st respondent in proceedings No.3475/LAD/CPII(A2)/2009 dated 12.9.2009 and quash the same as illegal,incompetent and without jurisdiction.For Petitioner : Mr.V.RagkavachariFor Respondents: Ms.N.Mala, Additional Government Pleader (Puducherry)O R D E RThe petitioner is a Junior Engineer presently working inBahour Commune. By the impugned order dated 12.9.2009, thepetitioner was transferred in the same capacity to MaheMunicipality with immediate effect. The petitioner has comeforward to challenge the said transfer order in this WritPetition. 2.When the matter came up on 18.9.2009, this Courtgranted an interim stay and directed the counsel for thepetitioner to take private notice to the respondents. The saidinterim order came to be continued from time to time. 3.On notice from this Court, the 1st respondent hasfiled a counter affidavit dated 26.10.2009 justifying thetransfer order. The petitioner has filed a rejoinder dated1.11.2009 to the counter affidavit. https://hcservices.ecourts.gov.in/hcservices/

4.Mr.V.Raghavachari, learned counsel appearing for thepetitioner submitted that the impugned order of transfer isillegal and he raised the following three contentions. Thefirst contention is that there is no power to transfer from onecommune to another commune and therefore, the order is invalid.The second contention was that Section 73(3) of the PondicherryVillage and Commune Panchayats Act, 1973 empowers theGovernment to transfer any officer of a Commune PanchayatCouncil to the service of any other commune panchayat councilor any Municipality has not been complied with. The thirdsubmission that though there were other persons who are workingin the said commune panchayat for a long number of years, theyhave not been disturbed. Only the petitioner has beendisturbed. 5.Further seeing the justification in the counteraffidavit, the learned counsel for the petitioner would furthersubmitthat though his father was a Malayalee, he is notwell versed in Malayalam.6.In respect of his first contention, the learnedcounsel appearing for the petitioner has relied upon a decisionreported in (1988) 2 Supreme Court Cases 351, General OfficerCommanding-in-Chief and another Vs. Dr.Subhash Chandra Yadavand another. In that case, the Supreme Court after referringto Section 280 of the Cantonments Act found that the service inCantonment Board is not a centralised service and it is not aservice of the State either. Therefore, there is no questionof transfer from oneBoard to another Board in the sameState. The Central Government was advised to make theCantonment Service as a Centralised Service so as to facilitatethe transfer from one cantonment to another cantonment. 7.That question does not arise in the present case.Because Section 73 of the Puducherry Village and CommunePanchayats Act, 1973 (No.10 of 1973) provides power to thefirst respondent to transfer employees from one communepanchayat to another commune panchayat or any other villagepanchayat.8.Section 73 of the Act reads as follows:73.Transfer of officers and otheremployees : (1) Any officer or other otheremployees of a village panchayat may be transferredto the service of any commune panchayat council orany other villagepanchayat by the Director:Provided that no officer or other employeeshall be so transferred except after consulting thecommissioner or the executive authoritiesconcerned.(2)In making a transfer under sub-section(1) the Director may issue such general or special https://hcservices.ecourts.gov.in/hcservices/ directions as may in his opinion be necessary forthe purpose of giving due effect to such transfer.(3)Notwithstanding anything contained inthis Act or the Pondicherry Municipalities Act,1973, any officer or other employee of a communepanchayat council (including the commissioner) maybe transferred by the Government to the service ofany other commune panchayat council or anymunicipalities constituted under the PondicherryMunicipalities Act, 1973:Provided that no officer or other employee (otherthan the commissioner) shall be so transferred,except after consulting the commune panchayatcouncils or municipal councils concerned.(4)When making a transfer under sub-section(3), the Government may give such general orspecial directions as may in its opinion benecessary for the purpose of giving due effect tosuch transfer.(Emphasis added)"9.The learned counsel for the petitioner in respect ofthe second contention would submit that the proviso to Section73(3) requires that no Officer or other employee other than theCommissioner shall be so transferred, except after consultingthe commune panchayat councils or Muncipal councils concerned.Therefore in the present case, there was no consultation eitherwith the Bahour Commune Panchayt or with the Mahe Municipality. 10.In response to this contention, Ms.N.Mala, learnedAdditional Government Pleader (Puducherry) appearing for therespondents submitted that a notice was served by the Directorto the Bahour Commune Panchayat and also produced a copy of theNotice dated 2.9.2009 sent by the 1st respondent to the 2ndrespondent asking their opinion for the transfer of thepetitioner. There is no reference to the said order in thecounter affidavit filed by the 1st respondent. In any event,the counsel for the petitioner contended that the CommunePanchayat had strongly objected to the transfer of thepetitioner. The respondents are not forthcoming with theopinion expressed by the 2nd respondent. Neither his letterdated 2.9.2009 nor the reply any received from the 2ndrespondent was disclosed in the affidavit.11.The further question is that when the proviso toSection 73(3) talks about concerned Municipal Authoritiesmeans that it is referable to authorities to both the places.It means not only the place a person is transferred out butalso the place in which he is to be transferred into. Thecounsel for the respondents fairly submitted that there is nosuch letter was sent to the Mahe Municipality. She also addedthat the provision has been understood only for the placewhere a person is transferred out. https://hcservices.ecourts.gov.in/hcservices/

12.This Court is unable to agree with the stand taken bythe respondents. Further Section 73(3) requires consultationin both ends. In the present case, there is nothing on recordto show that any reply was received from the 2nd respondent. Itis also the stand of the respondent that no consultation hasbeen done with the Mahe Municipality. The impugned order oftransfer cannot be held to be valid without full compliancewith Section 73(3) of the Act. 13.The third contention raised by the counsel for thepetitioner cannot be sustained. In the counter affidavit thereis a statement that petitioner is familiar with Malayalam.Since the language spoken in Mahe area is Malayalam, it isalways open to the respondents to decide who will be bettersuited to depute in that area considering the fact that UnionTerritory of Puducherry is situated in three differentlinguistic areas. Therefore, the petitioner cannot pleadagainst such transfer. In any event, it is open to therespondents to take appropriate decision on the matter oftransfer. If there are strong reasons they can always make anexception to the general rule.14.In the light of the above, the impugned order oftransfer, dated 12.9.2009 passed by the 1st respondent is setaside in so far as there is no effective consultation with boththe Bahour Commune Panchayat as well as Mahe Municipality.15.In the result, the Writ Petition is allowed.Consequently, connected Miscellaneous Petitions are closed. Nocosts. But it is made clear that it is open to the respondentsto pass appropriate order in accordance with law.tsiSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo1. The Director, Local Administration Department, Puducherry.2. The Commissioner, Bahour Commune Panchayat, Bahour.+ 1 cc to Mr. V. Raghavachari, Advocate SR No.66231+ 1 cc to Sr GP cum Sr PP, Advocate SR No.66131W.P.No.19412 of 2009KU(CO)SR/6.1.2010