Judgment · High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 27.6.2007CORAM:THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLAANDTHE HONOURABLE MR.JUSTICE S.TAMILVANANW.P.No.21535 of 20011. A.Shanmugam2. P.Arivalagan3. M.Muruganandam4. S.Pugalendi.. Petitionersvs.

The Commissioner and Director of Survey and Settlement, Chepauk, Chennai-5.

The Assistant Director of Survey and Land Records, Namakkal District, Collectorate, Namakkal.

The Registrar, Tamilnadu Administrative Tribunal, Chennai-104... RespondentsWrit Petition filed under Article 226 of the Constitutionof India, praying for issuance of a Writ of CertiorarifiedMandamus, to call for the records pertaining to the order inO.A.No.6971 of 2001, dated 31.10.2001 on the file of the Registrar, Tamilnadu Administrative Tribunal, Chennai-104, thethird respondent herein and the impugned orderNo.Na.Ka.Ma4/10627/2001 (Ni.a), dated 20.10.2001 and quashboth the orders as illegal, arbitrary, unreasonable beingviolative of rules and principles of natural justice andthereby direct the first and second respondents herein toretain the petitioners at Namakkal District itself. For petitioners : Mr.S.SrinivasanFor respondents 1 and 2: Mr.M.Dhandapani, Spl.G.P. https://hcservices.ecourts.gov.in/hcservices/ ORDER(The Order of the Court was made by F.M.Ibrahim Kalifulla,J)The petitioners are aggrieved by the order of the TamilNadu Administrative Tribunal, dated 31.10.2001 passed inO.A.No.6971 of 2001.2.

That apart, having regard to the specific stipulationcontained in the orders dated 22.10.1999 and 27.10.1999, thepersons who were shifted along with the posts, got their lienin Salem ex-cadre posts terminated by accepting and joiningthe ex-cadre posts in Namakkal District.

In the above said background, the proceedings dated20.10.2001 came to be issued, whereby the Director'sproceeding dated 12.10.1999 was sought to be cancelled and thepetitioners as well as Thiru.V.Raja Gounder along with theirex-cadre posts, were sought to be retransferred to SalemDistrict. The said proceedings dated 20.10.2001 also indicatedthat it was open for Namakkal District Administration to fillup five ex-cadre posts created with the available eligiblepersons.

When the petitioners challenged the said proceedingsdated 20.10.2001, the Tribunal, by the order impugned, heldthat the rights of the petitioners were not infringed. TheTribunal also took the view that only the persons alone weretransferred to Namakkal District and the posts were nottransferred from Salem to Namakkal District.

After hearing learned counsel for the petitioners andlearned Special Government Pleader, we are of the view thatthe reasoning of the Tribunal cannot be accepted. Shifting offive ex-cadre posts from Salem to Namakkal District along withthe persons, was ordered by the first respondent in hisproceedings dated 12.10.1999. A reading of the saidproceedings dated 12.10.1999 makes it abundantly clear thatthe shifting was not merely the persons, but the persons alongwith the posts. As we have held earlier, by virtue of suchshifting ordered by the first respondent in his proceedingsdated 12.10.1999 and the passing of the consequential order bythe second respondent, dated 22.10.1999 and 27.10.1999, fiveex-cadre posts which were hitherto existing in Salem District, on the transfer of posts along with the persons to NamakkalDistrict, got totally extinguished. In other words, after theproceedings dated 12.10.1999 of the first respondent and theproceedings of the second respondent, dated 22.10.1999 and27.10.1999, five ex-cadre posts in Salem District no longerremain and that it got merged with five other ex-cadre postswhich were lying vacant in Namakkal District. When once that https://hcservices.ecourts.gov.in/hcservices/ merger of posts had taken place in the ex-cadre posts of Sub-Inspector of Land Survey, it is not open for the firstrespondent to come forward with the present proceeding dated20.10.2001 by seeking to cancel their own earlier proceedingsdated 12.10.1999.

In the above context, it would be worthwhile to referto F.R.14-A of the Fundamental Rules of the Tamil NaduGovernment, wherein we find an implied prohibition inresorting to such action, as is sought to be now made by thefirst respondent in the present proceeding dated 20.10.2001.Under F.R.14-A(a) of the Fundamental Rules, it is stipulatedthat except as provided in Clauses (c) and (d) of that Rule, aGovernment servant's lien on a post may, in no circumstancesbe terminated, even with his consent. Sub-Clause (d) toF.R.14-A states that the Government servant's lien on a postshall stand terminated on his acquiring a lien on a permanentpost (whether under the Government or the Central Governmentor any other State Governments) outside the cadre on which heis borne. In the event of happening of circumstances ascontemplated in Sub-Clause (d) to F.R.14-A, there could stillbe a termination of a Government servant's lien on a post.

In the case on hand, all the petitioners originallyhad a lien on an ex-cadre post which was existing in SalemDistrict Unit. By virtue of the shifting ordered by the firstrespondent in his proceeding dated 12.10.1999, whereby fiveex-cadre posts along with the individuals were shifted to theexisting five vacant ex-cadre posts in Namakkal District andthe assumption of office by such persons in Namakkal DistrictUnit, the operation of Sub-Clause (d) of F.R.14-Aautomatically came into effect. Therefore, when F.R.14-A(d)was allowed to operate, there was no question of thoseindividual officers being brought back to non-existing posts, even if it is ex-cadre in Salem District, inasmuch as the lienin that post stood automatically terminated by virtue ofshifting of the posts along with the persons as ordered by thefirst respondent on 12.10.1999.

Therefore, by virtue of operation of F.R.14-A(a) and(d), as well as for various other reasons set out above, wefind that the impugned order of the first respondent dated20.10.2001 in seeking to re-transfer the petitioners back to Salem Unit, was not permissible in law, and therefore, thesaid proceeding was liable to be set aside. Moreover, byresorting to such re-transfer, the petitioners would have beenseriously prejudiced, as the service conditions of thepetitioners after their shifting to Namakkal Unit would havebeen far more beneficial than what was existing in Salem https://hcservices.ecourts.gov.in/hcservices/ District Unit prior to the shifting which was ordered on12.10.1999, 22.10.1999 and 27.10.1999.