K.Anbalagan v. The Director of Elementary Education, Chennai

2under the said circumstances, there is an administrative exigency, warranting transfer of the petitioner, is arbitrary, nothing but colourableexercise of power. According to the learned counsel, the reasons assignedexhibit mala fide and in such circumstances, the impugned order causedstigma. For the abovesaid reasons, he prayed for intervention.4. Heard the learned counsel for the petitioner and perused thematerials available on record.5. Pleadings and materials on record disclose that as per theaverments in the supporting affidavit, the Assistant Elementary EducationalOfficer, Sethubavachathiram Union, Thanjavur District had lodged acomplaint on 22.09.2010 against the petitioner before the DistrictElementary Educational Officer, the second respondent herein. Anexplanation was sought for. Thereafter, after obtaining a letter from thepetitioner to the effect that there would not be any disturbance to theoffice administration, the petitioner has been warned and the action takenagainst the petitioner has been stopped. The complaint of the AssistantElementary Educational Officer was to the effect that there wasmisbehaviour and that the Headmaster did not discharge his duties properly. 6. A reading of the impugned order further discloses that evenafter the stopping of the action against the petitioner, the petitioner hadbeen conducting himself, interfering with office administration and hadbeen repeatedly making applications under the Right to Information Act andthus, there is no proper relationship between the petitioner, Headmaster ofKuruvikarambai Panchayat Union Elementary School and the AssistantElementary Educational Officer, Sethubavachathiram Union, ThanjavurDistrict. In such circumstances, the impugned order of transfer has beenissued.7. In Somesh Tiwari's case cited supra, the appellant therein hadcontended that since he had taken action against some erring officers, theywere instrumental in sending an anonymous letter, on the basis of whereofno action should have been taken, in the light of the circular lettersissued by the Central Vigilance Commission. However, an enquiry wasconducted by an Assistant Commissioner, Directorate of Vigilance into thesaid anonymous complaint, wherein allegations have made against theappellant and it was found that they will not true, but, stillrecommendations were made that the appellant should be transferred fromBhopal. On that basis, he was transferred to Shillong. He made arepresentation that as he had been taking some treatment, on compassionateand humanitarian grounds, he should be retained at Bhopal at least for oneyear. In the abovesaid factual backdrop, he filed an Original Applicationbefore the Central Administrative Tribunal, Jabalpur Bench. However, havingregard to the fact that the representation of the appellant for retentionhad not been disposed of by the authorities, the Central AdministrativeTribunal, Jabalpur Bench, by its order dated 27.09.2005, directed therespondent No.2 to consider and decide the representation dated 29.08.2005and take a decision by passing a speaking, detailed and reasoned order, within four weeks from the date of receipt of a copy of the abovesaidorder. It is also directed that till the decision was taken by therespondent No.2 on the representation stated supra, the appellant will notbe disturbed from the present place of posting. Pursuant to the order ofthe Tribunal, vide order dated 19.10.2005, the representation of the https://hcservices.ecourts.gov.in/hcservices/ 3appellant was rejected. 8. Another representation was filed on 25.10.2005. The saidrepresentation was also rejected on 27.10.2005. Challenging the abovesaidorder, the appellant filed another Original Application before the CentralAdministrative Tribunal, Jabalpur. During the pendency of the originalapplication, the Assistant Commissioner of Customs and Central Excise, passed an order dated 28.12.2005, transferring the appellant from Shillongto Ahmedabad. The orders dated 22.08.2005, 19.10.2005 and 28.12.2005 wereall challenged before the Tribunal. The Central Administrative Tribunalrefused to interfere with the interim orders. Being aggrieved by the same, the appellant filed a Writ Petition before the High Court of Madhya Pradeshat Jabalpur. During the pendency of the Writ Petition, disciplinaryproceedings were initiated against the appellant on the premise that he hadnot joined the post at Ahmedabad. The High Court granted an order ofinterim stay. On adjudication of the facts and circumstances, the HighCourt, by opining that the order of transfer could not be passed on thebasis of an anonymous complaint, which, on enquiry, having been found to beincorrect, held as follows:"Though, when individually considered, theimpact of the incorrect mention of the fact that thepetitioner belongs to Madhya Pradesh and does not knowEnglish in the order rejecting the Petitioner'srepresentation, except for indicating the extent ofabsence of application of mind by the respondents, isnot fatal. However, the transfer of the petitioner onthe ground that he apparently gave an impression that heworked on caste-biased ideology, in spite of the fact ofrecording a finding in the negative in the discreetinquiry conducted into the anonymous complaint wouldshock the conscience of any reasonable man to say theleast.;It was furthermore opined that as the allegationsof having a caste- bias were not found to be true, theorder of transfer having been issued by way ofpunishment was unjustified, stating :- "It is no doubt true that the petitioner or anyother member of an All India Service can be transferredto any place (sic) country and is obliged and duty boundto comply with the same, but to transfer him on theground that some unidentified colleague feels that he isa caste is (sic), in other words only because he belongsto a particular caste, is in violation of hisfundamental rights under Article 14, 15(1) and 16(2) ofthe 8 Constitution of India and is also stigmatic as itwould label and identify him, without adjudication orjustification, as a person who works on caste- bias forall times to come and would make him vulnerable to alland any such further anonymous complaints as whateverplace he is posted and could be used as a convenienttool to take any action against him or move him out as https://hcservices.ecourts.gov.in/hcservices/ 4and when desired, by any person. Such an action alsomakes serious in roads into the personal rights of thepetitioner as an individual as well as his fundamentalrights of the petitioner as an individual as well as hisfundamental rights, as the petitioner has apparentlybeen transferred for having a working association withcertain colleagues who happen to belong to his caste andwhich apparently has not found favour with therespondents, thereby giving a clear message to thepetitioner to abstain from having any such relation withpersons belonging to his own caste in future. Theimpugned order, if permitted to stand, would amount toopening a Pandora's box and would let loose the veryevil that the Constitution seeks to contain anderadicate." 9.In R.Mohanasundaram Vs. The Principal Chief Conservator ofForests, Chennai and Ors reported in (2009 (5) CTC 231), it was contendedthat the impugned order of transfer though characterized, as one ofadministrative in nature, the same was made only on the ground of certainadverse remarks false allegations levelled against the petitioner therein. 10.Perusal of the order in R.Mohanasundaram's case shows that evenin the counter affidavit the respondents had admitted that there werecertain dereliction of duties and irregularities and only on those groundsthe impugned order of transfer came to be passed. In this context, it isalso worthwhile to reproduce the averments made in the counter affidavitfiled in the above case that "the petitioner has such a character of notobeying even his basic duties. The petitioner has not changed his attitudeand his performance of duty was below normal. Since there was noimprovement in his performance and also registering false case creatingunlawful situation in the administration, it necessiated to transfer him toanother place where the workload is comparatively lesser than atKallakurichi. .... Since it was not possible to mention each and everydereliction of his duties, irregularities improper service etc., in thetransfer order, in concise it has been stated that the transfer was onadministrative grounds.11.Therefore, in the above case, in the context of the avermentsmade in the counter affidavit, this Court, came to a conclusion that theimpugned order of transfer was passed not on administrative grounds, but, on adverse remarks and allegations received against the petitioner. Therefore, the Court had no hesitation to hold that the transfer waspunitive and that too, without giving any opportunity to the petitionertherein, to give explanation for such adverse remarks and allegations. Inthe above reported case, even in the counter affidavit, there was aspecific averments regrading the complaint levelled against the petitioner.12. Perusal of the impugned order shows that earlier on theallegation that the petitioner had not been discharging his dutiesproperly, a complaint has been made by the Assistant Elementary EducationalOfficer, Sethubavachathiram Union, Thanjavur District, the 3rd respondentherein in Rc.No.832/A1/2010, dated 22.09.2010. Pursuant to which, theDistrict Elementary Education Officer, Thanjavur, the second respondentherein, vide letter dated 04.10.2010, has sought for explanation. In https://hcservices.ecourts.gov.in/hcservices/ 5response to the same, the petitioner, in his explanation, dated 10.11.2010,has stated that he has sought for certain particulars of the teachersworking in the above said Union, under the Right to Information Act andthat he has also made complaint against the Assistant ElementaryEducational Officer, Sethubavachathiram Union, Thanjavur District, the 3rdrespondent herein. In his explanation he has also stated that in futurethere would not be any inconvenience to the administration and that hewould withdraw the complaint. Accepting his explanation and observing thatthe conduct and the responsibility of a Headmaster in order to conducivefor the administration and that considering the length of service andexperience, and also of the fact that such incident had occurred for thefirst time, the petitioner has been warned, vide order dated 27.10.2010, ofthe District Elementary Education Officer, Thanjavur, the second respondentherein. The petitioner has again started filing petitions to the PublicInformation Officer, Office of the the Assistant Elementary EducationalOfficer, Sethubavachathiram Union, Thanjavur District, and posed as many as35 questions.13.Perusal of the petition, dated 22.03.2011, shows that havingsubmitted his explanation to withdraw the earlier complaint, the petitionerhas once again, been harping only on the earlier incidents. Some of thequestions raised in the petition submitted to the Public InformationOfficer, Office of the the Assistant Elementary Educational Officer, Sethubavachathiram Union, Thanjavur District, requires reproduction."7. vd; kPJ jA;fshy; g[fhh; Twg; gl;l jA;fs; mYtyf e/f/vz;/832-M1-2010 ehs; 22/09/2010 Bjjpapl;l fojj; jpd; xsp efy; tHA;fBfl; Lf;bfhs; fpBwd;.8) 18/08/2010 md;W vdJ gs; spia ghh; itapl;l jhA;fs; jiyik Mrphpah; Mh;tKld; bray; gLfpwhh; mth; gzp rpwf;f thH;j;Jf;fs; vd;W gs; spMa;t[f; Fwpg; ngl; oy; vGjpa[s;sPhfs;/ Mdhy; jA;fs; fojk; 832-M1-2010 ehs; 22/09/2010 md;W vdJ fy; tpg; gzpia rhptu bra; atpy; iyvd; Wk. cjtpj; bjhlf; ff; fy; tp mYtyhplk; xGA;fPdkhf ele; Jbfhz; ljhft[k; Twp khtl;l bjhlf; ff; fy; tp mYtyUf;F vd; kPJ g[fhh; kDtpid mDg;gpa[s;sPh;fs;/ vjd; mog; gilapy; vd; gij tpsf; fkhfbjhptpf; FkhW Bfl; Lf;bfhs; fpBwd;/ 9) 18/08/2010 f;Fk; 22/09/2010 f;Fk; nilapy; 22 ehl; fs; vA;fs; gs; speilbgw; Ws;sJ/ njpy; vj; jid Kiw vdJ gs; spf;F tUifje; jPh;fs;/ vd; bdd;d FiwghLfs; gs; spapy; nUe;jJ FiwghL gw; wpatpguA;fis ghh; it g[j;jfj; jpy; gjpt[ bra; Js;sPh;fsh> Mk; vd; why; ghh; it efy; jut[k;. ny; iy vd; why; vjw; fhf vd; kPJ jtwhd Fw;wr; rhl; LRkj; jg; gl; Ls;sJ vd;w tpguj; ij bjhptpf; FkhW Bfl; Lf;bfhs; fpnwd;. 10. vd; kPJ gs; sp khzth; fspd; bgw; Bwhh; fs; ahuhtJg[fhh; bjhptpj; Js;shh; fsh> Mk; vd; why; g[fhhpd; xsp efy; vdf;F tHA;Fk;go Bfl; Lf;bfhs; fpBwd.11) vd; kPJ gs; sp Mrphpah; fs; ahuhtJ g[fhh; bjhptpj; Js;shh; fsh> Mk; vd; why; g[fhhpd; xsp efy; vdf;F tHA;Fk;go Bfl; Lf;bfhs; fpnwd;. https://hcservices.ecourts.gov.in/hcservices/ 612) vd; kPJ Mrphpag; gapw; Weh; my; yJ Bkw; ghh; itahsh; ahuhtJ g[fhh; bjhptpj; Js;shh; fsh> Mk; vd; why; [g[fhhpd; xsp efy; vdf;F tHA;Fk;go Bfl; Lf;bfhs; fpBwd;.13) vd; kPJ bghJkf; fs; my; yJ BtW ahuhtJ g[fhh; bjhptpj; Js;shh; fsh> Mk; vd; why; [g[fhhpd; xsp efy; vdf;F tHA;Fk;go Bfl; Lf;bfhs; fpBwd;.14)ehd; gzpapy; Brh;e;j 28/07/1999 Kjy; nd;W tiu vd; gzp kPJahBuDk; g[fhh; bfhLj;Js;shh; fsh> Mk; vd; why; g[fhhpd; xsp efy; vdf;F tHA;Fk;go Bfl; Lf;bfhs; fpBwd;.15) jA;fs; mYtyf e/f/vz;/850-M1-2010 ehs; 28/09/2010 md; iwaBjjpapl;L vdf;F mDg;gpajhf Twg; gLk; Fwpg; ghizapd; xsp efy; juBfl; Lf;bfhs; fpnwd;.16) jA;fs; mYtyf e/f/vz;/850-M1-2010 ehs; 28/09/2010 md; iwaBjjpapl;L vdf;F mDg;gpajhf Twg; gLk; Fwpg; ghiz vdf; Frhh;g[ bra; ag; gltpy; iy vd; Wk; Fwpg; ghizapd; xsp efy; Bfl;L ehd; jA;fSf;F fle;j 04/11/2010 md;W gjpt[j;jghy; K:yk; jA;fSf;Ffojk; mDg;gp nUe;Bjd; (foj vz; 29-2010 ehs;/ 04/11/2010) nJ ehs; tiu vdf;F xsp efy; tH';fg; gltpy; iy/ mjw; fhd fhuzj; ijtpsf; fkhf ju Bfl; Lf;bfhs; fpBwd;. 14. The petitioner has also posed many questions to the AssistantElementary Educational Officer, Sethubavachathiram Union, ThanjavurDistrict, the 3rd respondent herein. Few questions, raised by him, arereproduced hereunder:-"20)fy; tpg; gzpia rhptu bra; atpy; iy vd;W Fwpg; gpLk; jhA;fs; Bjrpa Kf;fpaj; Jtk; thae;j kf; fs; bjhif fzf; bfLg;g[ - 2011 gzpf; FKjd; ik gapw; rpahsuhf xd; wpaj; jpy; nUe;J nuz;L Mrphpah; fs; kl; LBk epakpf; fg; gl; jpy; vd; id ghpe; Jiu bra; jJ vjdhy;>tpsf; fk; ju Bfl; Lf;bfhs; fpBwd;.24) vd; Dila <n.rp.v!; rk; gsg; gpy; vA;F jahhpf; fg; gLfpwJ. mjw; FxU khjj; jpw;F MFk; bryt[ vt; tst[. bkhj; jkhf U:gha; 100 vd; dplk; tR{y; bra; ag; gl; Ls;sJ/ xt; bthU khjKk; Bjitahd U:ghapidrk; gsg; gpy; Yld; thA;fpf; bfhs; syhBk. bkhj; jkhf tR{y; bra;a Btz; oamtrpak; vd;d> BkYk; mYtyfj; jpy; gzpahsh; fs; gw; whf; Fiw vd; WTwptpl;L midj;J mYtyfg; gzpf; Fk; Mrphpah; fis gad; gLj;Jk; jhA;fs; <n.r.p.v!; gzpapiz kl; Lk; mYtyfj; jpy; bra; ahky; jA;fSf;F Btz; oa egh; fSf;F bfhLf;fg; gl; Ls;sJ/ njw; fhd tpsf; fj; ij ju Bfl; Lf;bfhs; fpBwd;. 29) xU mrphpahpd; gzpapy; my; yJ gs; sp bjhlh; ghd fy; tpg; gzpfspy; Fiwfs; nUe;jhy; cjtpj; bjhlf; ff; fy; tp mYtyfj; jpy; nUe;J Fwpg; ghiz mDg;gp tpsf; fk; nfl; gJ tHf;fkhd eilKiwahfnUe;J tUfpwJ/ jhA;fs; vd; Dila tpc&aj; jpy; mt; thW gpd; gw; whky; Beuoahf khtl;l bjhlf; ff; fy; tp mYtyhplk; g[fhh; bjhptpj; jJ vjdhy; vd; wtpguj; ij ju Bfl; Lf;bfhs; fpBwd;. https://hcservices.ecourts.gov.in/hcservices/ 730) jA;fs; mYtyfj; jpy; Bghjpa nltrjp nUe;Jk; 1k; tFg;g kw; Wk; 6k; tFg;g[ rkr; rPh; ghlg;g[j;jfA;fs; FUtpf; fuk; ig gs; spapdv.gp.vy; tFg;giwapy; nUg;g[ itf; fg; gl; Ls;sJ. njdhy; FUtpf; fuk; iggs; spf;F gy nila{Wfs; jA;fs; mYtyfj; jhy; Vw;gLj;jg; gl; LtUfpwJ/ nJ Fwpj;J jhA;fs; tpsf; fj; ij ju Bfl; Lf;bfhs; fpBwd. 31) cjtpj; bjhlf; ff; fy; tp mYtyuhfpa ePA;fs; gzpg[hpa[k;xd; wpaj; jpByh my; yJ BtW xd; wpaj; jpByh nUf;Fk; nghJ mt; tHpahfrhiyapy; bry; Yk; jA;fs; xd; wpaj; jpy; gzpg[hpa[k; xU Mrphpaiu tHpkwpj; Jgs; sp Beuj; jpy; vA;F bry; fpd; wPh;fs; vd;W Bfl; gjw;F jA;fs; flikfspy; Twg; gl; Ls;sjh> my; yJ VBjDk; tpjpfspy; Twg; gl; Ls;sjh> Mk;vdpy; mjw; fhd murhiz kw; Wk; tpjpfs; nUe;jhy; mjd; xsp efy; jut[k.ny; iy vd; why; jhA;fs; mt; thW ele;J bfhs; tJ Vd;> tpsf; fk; jut[k;.\33) jiyik Mrphpauhd ehd; gs; spf;F tUif je; jpUf;Fk;BghJmd; iwa jpdk; eilbgWk; jiyik Mrphpah; Tl;lj; jpw;F vd; Dila cjtpMrphpaiu mDg;gp itf; fyhkh> my; yJ vd; Dld; xU cjtp MrphpaiumiHj;Jf;bfhz;L Tl;lj; jpy; fye;J bfhs; syhkh> tptuk; jut[k;. 15.Contending that he was not given the reply, the petitioner hassent another letter, dated 16.03.2011, to the District Elementary EducationOfficer, Thanjavur, the second respondent herein. As stated supra, thoughthe petitioner, had already submitted an explanation on 11.01.2010, to theshow-cause notice, dated 04.10.2010, issued by the District ElementaryEducational Officer, Thanjavur, the second respondent herein, again andafter warning, the petitioner once again resurrected the very same issueand submitted the petition, dated 16.03.2011, terming it as an appeal tothe objections to the report, which had already been finalized by giving awarning.16.In this context, this Court deems it fit to extract thesubject, mentioned in the letter, dated 16.03.2011."bghUs; fy; tp-bjhlf; ff; fy; tp - BrJghtrhj; jpuk; xd; wpak;,FUtpf; fuk; ig Cuhl; rp xd; wpaj; Jtf; fg; gs; sp jiyik Mrphpauhd vd; kPJfy; tpg; fzpia rhptur; bra; ahjJ kw; Wk; cjtp bjhlf; ffy; tp mYtyhplk; xGA;fPdkhf ele; Jbfhz; ljhf Twg; Lk; g[fhUf;F Ml;Brgid bjhptpj; JBky; KiwaPL bra; jy; bjhlh; ghf" 17. Again he has sent a petition, dated 15.04.2011. Admittedly, the proceedings, dated 27.10.2010, has not been challenged before thehigher authorities. He has not denied the contents of the explanation, dated 10.07.2010. The explanation of the petitioner, as extracted in theorder dated 27.1.2010, of the District Elementary Education Officer, Thanjavur, the second respondent herein, is reproduced:- "jw; BghJ me;j jiyikahrphpah;, BrJghtrhj; jpuk; cjtpbjhlf; ffy; tp mYtyfj; jpy; ;fuk; ig Cuhl; rp xd; wpaj; Jtf; fg; gs; spMrphpah; fs; rhh; ghd jfty; fis jftywpa[k; chpikr; rl; lj; jpd; fPH;Bfhhpajhft[k;, cjtp bjhlf; ffy; tp mYtyfh; kPJ g[fhh; bjhptpj; jpUe;jjhft[k; jw; BghJ KGkdJld; jhd; bfhLj;j g[fhh; kw; Wk; jftywpa[k; https://hcservices.ecourts.gov.in/hcservices/ 8rl; lj; jpd; fPH; bfhLj;j fojj; jpid jpUk;gg; bgw; Wf;bfhs; fpBwd; vd; Wbjhptpj;J tUA;fhyj; jpy; jd; dhy; eph; thfj; jpw;F ve; etpj nila{Wk;Vw;glhJ vdt[k; bjhptpj; Js;shh;."18. Thus it could be seen from the sequence of events that havingsuffered an order of warning from the District Elementary EducationOfficer, Thanjavur, the second respondent herein, the petitioner obsesswith incidents, has started sending objections one after another, to thePublic Information Officer, Office of the the Assistant ElementaryEducational Officer, Sethubavachathiram Union, Thanjavur District, seekingfor explanation from the Assistant Elementary Educational Officer, Sethubavachathiram Union, Thanjavur District, the 3rd respondent herein, and also sought for explanation from the said authority regarding hisfunctioning.19.No doubt, the provisions of Right to Information Act provide aRight to any person to seek for details, regarding on any subject, exceptthe exemptions provided under relevant Section of the said Act. But, perusal of the petitions repeatedly addressed to the Public InformationOfficer, Office of the the Assistant Elementary Educational Officer, Sethubavachathiram Union, Thanjavur District, makes it clear that thepetitioner has not inclined to have a proper approach in administration andthat has been questioning the superior officers on various issues.20. In this context, it is worthwhile to extract a decision of theSupreme Court in N.K.Singh Vs. Union of India (1994) 6 SCC 1304, has heldthat the assessment of the worth has been left to the bona fide decision ofthe superiors in service and their honest assessment accepted, as a part ofservice discipline. There may be several imponderables requiring formationof a subjective opinion in that sphere may be involved at time. The ApexCourt further observed, only the realistic approach is to leave it to thewisdom of that hierarchical superior to make that decision. Unless thedecision is vitiated by mala fides or infractions, of any professed normsor principles governing the transfer, which alone can be scrutinizedjudicially. There is no judicially managable stand for scrutinizing alltransfers and the Courts lack the necessary expertise for personnelmanagement of all Government departments. 21.It is well known that transfer is an incidence of service andthe same could be interfered with only on the following grounds;-This Court also held that an order of transfer can be interfered with onlyon three grounds;-“a.When the order is mala fideb. If it is in violation of statutory provisions, orc. The order has been passed by an authority not competent.” 22. Reference can also be made to few decisions:- (1) In yet another decision of this Court in Tamil NaduMercantile Bank Ltd., V. T.Venkatesan, reported in (1992 I LLN 627), https://hcservices.ecourts.gov.in/hcservices/ 9wherein, another esteemed Hon'ble Mr.Justice M.Srinivasan, (as He thenwas)) held as follows ;- "The right sought to be enforced is not a common lawright. A perusal of the plaint shows that the only groundon which the order of transfer is challenged is that it isa mala fide act of victimization and punishment. It is notthe case of the plaintiff that there is any violation ofthe terms of the contract of service. It is not in disputethat the order of appointment under which the respondententered in service with the petitioners contained specificclause that he may be transferred to anysection/department/branch of the establishment. It is notthe case of the respondent that the said clause is inviolation of any provision in the Contract Act or anyother Statute. This is not a case in which the respondentis seeking to enforce the contract between him and thepetitioners; nor is it a case based on a breach ofcontract. No doubt, there is a passing reference in Para12 of the plaint that the order of transfer is alsocontrary to the transfer policy, i.e., a staff will not betransferred from one place to another before completion ofthree years. There is no averment in the plaint that theso called transfer policy forms part of the contractbetween the plaintiff and the defendants.""A right to challenge an order of transfer on theground of mala fides or victimization cannot be equatedwith the right to get wages during the pendency of theproceeding in a High Court or the Supreme Court by anemployer against the award passed by a Labour Court, Tribunal or National Tribunal directing reinstatement ofworkman.""In this case, it is not in dispute that theemployees' union of which the plaintiff is the Vice-President, has already initiated proceedings under theIndustrial Disputes Act. The respondent having initiatedproceedings under the Industrial Disputes Act is notentitled to maintain the suit in Civil Court has nojurisdiction to decide the same. The orders of the CivilCourt below are set aside." (2) In B. Varada Rao v. State of Karnataka (1986-II-LLJ-516), theSupreme Court held that it is well understood that transfer of Governmentservant, who is appointed to a particular cadre of transferable post fromone place to another is an ordinary incident of service and therefore, doesnot result in any alteration of any of the conditions of service to hisdisadvantage. The Supreme Court declined to accept the case of thepetitioner therein, that he should not be transferred. (3) In V.Jagannadha Rao Vs. State of A.P.and Others reported in2010 10 SCC 401, the Hon'ble Supreme Court has held as follows:- https://hcservices.ecourts.gov.in/hcservices/ 10Transfer in relation to service reduced to simpleterms means a change of place of employment within anorganization. It is an incidence of public service andgenerally does not require the consent of the employee.In most service rules, there are express provisionsrelating to transfer. Though definitions may differ andin many cases transfer is conceived in wider terms as amovement to any other place or branch of theorganization , transfer essentially is to a similar postin the same cadre. A government servant is liable to betransferred to a similar post in the same cadre which is anormal feature and incidence of government service and nogovernment servant can claim to remain in a particularplace or in a particular post unless, of course, hisappointment itself is to a specified non-transferablepost. No transfer is made to a post higher than what agovernment servant is holding. In other words, it isgenerally a lateral and not vertical movement within theemployer's organization.(4). Now let we consider some of the judgments related to thetransfer. In B.VARADA RAO v. STATE OF KARNATAKA reported in 1986 (II) LLJ516, the Supreme Court has held that it is well understood that transfer ofGovernment servant, who is appointed to a particular cadre of transferablepost from one place to another is an ordinary incident of service andtherefore, does not result in any alteration of any of the conditions ofservice of his disadvantage. The Supreme Court declined to accept the caseof the petitioner therein, that he should not be transferred. (5) In 1995 (I) LLJ 854 (N.K.SINGH v. UNION OF INDIA), the Hon'bleSupreme Court while dealing with the correctness of the order, has observedthat no roving inquiry into the matter is called for or justified withinthe scope of judicial review of a transfer scrutinized with reference tothe private rights of an individual. It was further held that transfer of aGovernment servant in a transferable service is a necessary incident of theservice career and that assessment of the quality of men is to be made bysuperiors taking into account several factors including suitability of theperson for a particular post and exigencies of administration. (6) IN THE REGISTRAR, HIGH COURT, MADRAS v. VASUDEVAN, A.K. ANDOTHERS reported in 1996 MLJ 153, a Division Bench of this Court, whileconsidering the scope of judicial review in matters of transfers of theGovernment servant to an equivalent post, at paragraph Nos.19 and 36 hasheld as follows:-“19. The scope of judicial review in matters of transfer of agovernment servant to an equivalent post without any adverseconsequence on the service or career prospects is very limitedbeing confined only to the grounds mala fides and violation of anyspecific provision or guideline regulating such transfersamounting to arbitrariness. It is also settled law that for thesaid purpose, no roving inquiry into the matter is called for orjustified within the scope of judicial review of a transferscrutinized with reference to the private rights of an individual.In N.K.Singh V. Union of India and others, (1994)6 S.C.C. 98 at https://hcservices.ecourts.gov.in/hcservices/ 11108, their Lordship said:“...Assessment of worth must be left to the bona fidedecision of the superiors in service and their honestassessment accepted as a party of service discipline. Transfer of a government servant in a transferable serviceis a necessary incident of the service career. Assessment ofthe quality of men is to be made by the superiors takinginto account several factors including suitability of theperson for a particular post and exigencies ofadministration. Several imponderables requiring formation ofa subjective opinion in that sphere may be involved, attimes. The only realistic approach is to leave it to thewisdom of that hierarchical superiors to make that decision. Unless the decision is vitiated by mala fides or infructuousof any professed nor on or principle governing the transfer, which alone can be scrutinized judicially, there are nojudicially manageable standards for scrutinising alltransfers and the courts lack the necessary expertise forpersonnel management of all government departments. Thismust be left, in public interest, to the departmental headssubject to the limited judicial scrutiny indicated.In the same decision, further down, in paragraph 24, they havesaid thus:“...Challenge in courts of a transfer when the careerprospects remain unaffected and there is no detriment tothe government servant must be eschewed and interference bycourts should be rare.... ... ... ....” 36. In this connection, it is also better to remember adecision of this Court reported in Dr.M.Krishnamoorthy v. The Stateof Madras, (1951) 1 M.L.J. 709: A.I.R. 1951 Mad. 882: 1951 M.W.N.410. That was a case where the petitioner therein challenged hisdismissal. While considering the same, this Court held that theGovernment or management is entitled to consider the question ofinefficiency, insubordination and general reputation of corruptconduct of a Government servant. As stated earlier, the relationshipof Master and Servant is being put an end to by the order ofdismissal. When the Government is competent to consider theefficiency and reputation of a Government servant, it is not onlyfor the purpose of taking punitive action, but also to considerwhether he should be allowed to continue in a particular place ofemployment. In the said decision, it was stated thus:“It is however contended by learned counsel for thepetitioner that there is another implied requirement thatcivil servants in the position of the petitioner can bedismissed or removed only for misconduct and at one stage ofthe argument he even went to the extent of contending that inthe case of a charge like corruption, the petitioner musthave beeen convicted by a criminal court for that offence, or, in any event, that this Court must be satisfied in theexercise of criminal appellate jurisdiction so to say, thatthere was evidence on which a conviction could be supported.We see nothing of this sort laid down in Art.311 or in anyother article of the Constitution. It is nowhere stated onwhat ground a civil servant might be dismissed or removed. One can conceive of a dismissal or removal being justified on https://hcservices.ecourts.gov.in/hcservices/ 12grounds of inefficiency, insubordination of (sic) general reputation of corrupt conduct. ... (Italicssupplied)An employee is expected to work with all devotion, honestly andintegrity. The employer is also entitled to assess the performanceof the employee. It cannot be disputed that the employer is entitledto consider the suitability of the person to a post. Similarly theemployer is also entitled to consider whether his employee issuitable to work in a particular place or to continue there. If,during the assessment, the employer finds that the work or theperformance of the employee is not satisfactory, or in case wherethe employee, while discharging his duties, has to mingle with themembers of the public (in this case, the litigant public), whichgives room for complaints in the nature of bad faith, corruption, etc., that will also be an added reason for the employer to findthat his staff can discharge his duties in a better way in anotherplace. Such an assessment is not in the nature of any punishment. Itis only to avoid or minimise any future complaint or give theemployee a better opportunity in a better atmosphere, he is asked towork in a different place, under an order of transfer. Such an ordercannot be considered as a punishment, nor can the same becharacterised as a stigma cast on him, as alleged by the petitionerin each one of these writ petitions under consideration.”(7).In Bank of India Staff Union, West Bengal vs. Bank of India, Eastern Zone reported in 1996 II LLJ 1219 (Cal) the Court held as follows:-“Transfer is an incident of service not to be interfered with by theCourts unless it is shown to be clearly arbitrary or vitiated by mala fidesor infraction of any processional norm or principle governing the transfer.”(8).In G.S.Puri Vs. Indian Oil Corporation reported in (1996 2LLJ 573 (Delhi) the Court held as follows:-The Court considered as to whether the transfer of anactive worker of a Trade Union has no special rightsagainst a transfer so long as it is not motivated –Transfer is a normal incident and personal difficultiesare matters for consideration of the employer – No vestedright could be claimed by an employee against transfer.(9) IN PUBLIC SERVICES TRIBUNAL BAR ASSOCIATION v. STATE OF U.PAND ANOTHER, reported in 2003 (4) SCC 104, the Supreme Court has reiteratedthat the scope of Judicial Review in transfer is very limited as it is anincidence of service and normally should not be interfered with by Courts.(vi) IN STATE OF U.P. AND ANOTHER v. SIYA RAM AND ANOTHER, reported in2004(7) SCC 405, the Supreme Court held that no Government servant oremployee of the public undertaking has any legal right to be posted foreverat any one particular place or place of his choice since transfer of aparticular employee appointed to the class or category of transferableposts from one place to other is not only an incident, but a condition ofservice, necessary too in public interest and efficiency in the publicadministration. Unless an order of transfer is shown to be an outcome of https://hcservices.ecourts.gov.in/hcservices/ 13mala fide exercise or stated to be in violation of statutory provisionsprohibiting any such transfer, the courts or the tribunals normally cannotinterfere with such orders as a matter of routine, as though they wereappellate authorities substituting their own decision for that of theemployer/management, as against such orders passed in the interest ofadministrative exigencies of the service concerned. (10) A Division Bench of this Court while considering thecontentions of the petitioner that two children were studying in Class IXand if any transfer is effected that would cause hardship, in PALANISAMY v.THE GENERAL MANAGER, TAMIL NADU STATE TRANSPORT CORPORATION LIMITED,reported in 2005 (4) LW 604, at paragraph No.4 has held as follows:- “4.Learned counsel for the appellant then submitted that thetransfer order does not contain reasons. This argument is alsobased on a misconception. A transfer order is a purelyadministrative order and not a judicial or quasi judicial order. The Writ Petition is dismissed.” (11).In Somesh Tiwari Vs. Union of India reported in (2009) 3 MLJ727 (SC), the Hon'ble Supreme Court has considered the correctness of anorder passed by the High Court. In the above said judgement, the SupremeCourt, at paragraph Nos.19 and 20 has held as follows:-19. Indisputably an order of transfer is anadministrative order. There cannot be any doubt whatsoeverthat transfer, which is ordinarily an incident of serviceshould not be interfered with, save in cases where interalia mala fide on the part of the authority is proved. (12)In Novartis India Limited Vs. State of West Bengal andOthers, reported in (2009(3) SCC 124), wherein, the Hon'ble Supreme Court, at paragraph No.34, has held as follows:-“34. There cannot be any doubt whatsoever thatordinarily an employee who has been transferred should, subject to just exceptions, join at his transferredplace....Admittedly the respondents were challenging theright of the employer to order transfer of the employeeparticularly when they hold some posts in the association. The dispute was subjudice. They were in their latefiftees. They had served the company for a period of morethan 25 years. It is true that they did not join at theirtransferred posts within a reasonable time. It may also inan ordinary situation be held that seven months is toolong a period to join at the transferred place. Therecannot furthermore be any doubt that the transfer is anincidence of service. Unless an order of transfer ispassed contrary to the provisions of the statutory rule orsettlement, the same should not be inferred.(13) In a recent decision of the Hon'ble Supreme Court inSTATE OF HARYANA AND OTHERS v.KASHMIR SINGH AND ANOTHER, reported in2010 (13) SCC 306, the Supreme Court has held as follows:-“12.Transfer ordinarily is an incidence of service, and the https://hcservices.ecourts.gov.in/hcservices/ 14courts should be very reluctant to interfere in transfer orders aslong as they are not clearly illegal. In particular, we are of theopinion that transfer and postings of policemen must be left in thediscretion of the State authorities concerned which are in the bestposition to assess the necessities of the administrativerequirements of the situation. The administrative authoritiesconcerned may be of the opinion that more policemen are required inany particular district and/or another range than in another, depending upon their assessment of the law and order situationand/or other considerations. These are purely administrativematters, and it is well settled that courts must not ordinarilyinterfere in administrative matters and should maintain judicialrestrain, vide Tata Cellular v. Union of India.14. In our opinion, the High Court has taken a totallyimpractical view of the matter. If the view of the High Court is toprevail, great difficulties will be created for the Stateadministration since it will not be able to transfer/deploy itspolice force from one place where there may be relative peace toanother district or region/range in the State where there may bedisturbed law and order situation and hence requirement of morepolice. Courts should not, in our opinion, interfere with purelyadministrative matters except where absolutely necessary on accountof violation of any fundamental or other legal right of thecitizen. After all, the State administration cannot function withits hands tied by judiciary behind its back. As Holmes, J. of theUS Supreme Court pointed out, there must be some free play of thejoints provided to the executive authorities.” (14) In a Division Bench Judgment of this Court in GENERALMANAGER (PERSONNEL), NATIONAL INSURANCE COMPANY LIMITED, HEAD OFFICE,KOLKATA AND ANOTHER v. DR.S.ASHOK KUMAR, reported in 2010 (4) MLJ 433, theHon'ble Mr.Justice H.L.Gokhale, sitting along with another learned Judge, considered a query as to whether an order of transfer could be interferedwith, when there is an allegation of mala fide and after considering thedecision of the Hon'ble Supreme Court in RAJENDRA SINGH RAJESH v. STATE OFU.P. AND OTHERS reported in (2009) 10 SC 187, held as follows:-“14. Keeping in view the above legal position as well asfacts and circumstances of the case, we are of the view that theallegation made in respect of the non-consideration of theconfidential report by the respondent in favour of K.Inbaraj, is amatter of administrative work and it cannot be attributed to themala fide intention of the appellant Company in order to interferewith the same. In fact, during the year 2008, the station-wiselist of Officers was drawn and this respondent was considered assenior most Officer and on that basis, while adopting the transferpolicy, when he was transferred to Hyderabed Region, therespondent himself made a representation to the appellant Companyto exempt him from the transfer policy and retain him at Chennaifor one year. While that being so, it cannot be contended that thepresent impugned order of transfer is tainted with mala fideintention and inflicted against the respondent. Further, in fact, the learned single Judge has not dealt with the issue regardingmala fide but set aside the order of transfer only on humanitariangrounds. Even for this also, we are not in agreement with thelearned single Judge as having regard to the fact that the https://hcservices.ecourts.gov.in/hcservices/ 15respondent had been in Chennai Region for more than 17 yearsdepriving of other incumbent of the appellant Company to functionin the said place and further he was already let off from beingconsidered for transfer by exempting him from Transfer MobilityPolice in the year 2008. Therefore, having already availed thebenefit of exemption from being considered for transfer andremained himself for one year, there is no justification on thepart of the respondent now in assailing the impugned order oftransfer.16. Therefore, having regard to the above proposition laiddown by the Hon'ble Supreme Court, we are of the view that thelearned single Judge ought not to have shown any indulgence evenon humanitarian grounds to the respondent who keeps on agitatingthe transfer orders by remaining himself in Chennai for yearstogether. In such view of the matter, we are unable to confirm theorder of the learned single Judge.”nsferred place. There cannot furthermore be any doubt thatthe transfer is an incidence of service. Unless an orderof transfer is passed contrary to the provisions of thestatutory rule or settlement, the same should not beinterfered.”(15) In a recent decision of the Hon'ble Supreme Court in STATEOF HARYANA AND OTHERS v.KASHMIR SINGH AND ANOTHER, reported in 2010 (13)SCC 306, the Supreme Court has held as follows:-“12.Transfer ordinarily is an incidence of service, and thecourts should be very reluctant to interfere in transfer orders aslong as they are not clearly illegal. In particular, we are of theopinion that transfer and postings of policemen must be left in thediscretion of the State authorities concerned which are in the bestposition to assess the necessities of the administrativerequirements of the situation. The administrative authoritiesconcerned may be of the opinion that more policemen are required inany particular district and/or another range than in another, depending upon their assessment of the law and order situationand/or other considerations. These are purely administrativematters, and it is well settled that courts must not ordinarilyinterfere in administrative matters and should maintain judicialrestrain, vide Tata Cellular v. Union of India.14. In our opinion, the High Court has taken a totallyimpractical view of the matter. If the view of the High Court is toprevail, great difficulties will be created for the Stateadministration since it will not be able to transfer/deploy itspolice force from one place where there may be relative peace toanother district or region/range in the State where there may bedisturbed law and order situation and hence requirement of morepolice. Courts should not, in our opinion, interfere with purelyadministrative matters except where absolutely necessary on accountof violation of any fundamental or other legal right of thecitizen. After all, the State administration cannot function withits hands tied by judiciary behind its back. As Holmes, J. of theUS Supreme Court pointed out, there must be some free play of thejoints provided to the executive authorities.” https://hcservices.ecourts.gov.in/hcservices/ 16(16) In a Division Bench Judgment of this Court in GENERALMANAGER (PERSONNEL), NATIONAL INSURANCE COMPANY LIMITED, HEAD OFFICE,KOLKATA AND ANOTHER v. DR.S.ASHOK KUMAR, reported in 2010 (4) MLJ 433, theHon'ble Mr.Justice H.L.Gokhale, sitting along with another learned Judge, considered a query as to whether an order of transfer could be interferedwith, when there is an allegation of mala fide and after considering thedecision of the Hon'ble Supreme Court in RAJENDRA SINGH RAJESH v. STATE OFU.P. AND OTHERS reported in (2009) 10 SC 187, held as follows:-“14. Keeping in view the above legal position as well asfacts and circumstances of the case, we are of the view that theallegation made in respect of the non-consideration of theconfidential report by the respondent in favour of K.Inbaraj, is amatter of administrative work and it cannot be attributed to themala fide intention of the appellant Company in order to interferewith the same. In fact, during the year 2008, the station-wiselist of Officers was drawn and this respondent was considered assenior most Officer and on that basis, while adopting the transferpolicy, when he was transferred to Hyderabed Region, therespondent himself made a representation to the appellant Companyto exempt him from the transfer policy and retain him at Chennaifor one year. While that being so, it cannot be contended that thepresent impugned order of transfer is tainted with mala fideintention and inflicted against the respondent. Further, in fact, the learned single Judge has not dealt with the issue regardingmala fide but set aside the order of transfer only on humanitariangrounds. Even for this also, we are not in agreement with thelearned single Judge as having regard to the fact that therespondent had been in Chennai Region for more than 17 yearsdepriving of other incumbent of the appellant Company to functionin the said place and further he was already let off from beingconsidered for transfer by exempting him from Transfer MobilityPolice in the year 2008. Therefore, having already availed thebenefit of exemption from being considered for transfer andremained himself for one year, there is no justification on thepart of the respondent now in assailing the impugned order oftransfer.16. Therefore, having regard to the above proposition laiddown by the Hon'ble Supreme Court, we are of the view that thelearned single Judge ought not to have shown any indulgence evenon humanitarian grounds to the respondent who keeps on agitatingthe transfer orders by remaining himself in Chennai for yearstogether. In such view of the matter, we are unable to confirm theorder of the learned single Judge.” 22.Retention of a Government servant, in a particular post orplace, cannot be claimed, as a matter of right. It should be left to thediscretion of the controlling authority. The desirability, suitability, theconduct of a Government servant or employee in causing disturbance inadministration, by frequently making complaint, to the higher authorities, questioning the action of the superior officers, in the discharge of theirduties, and seeking explanation under the Right to Information Act, all arematters, which can always be considered by the controlling officers, as towhether retention of a person in a particular post or place is necessary. https://hcservices.ecourts.gov.in/hcservices/

#1723. Who should be transferred and where, is a matter for theappropriate authority to decide. Unless the transfer order is vitiated, amala fide is made in violation of any statutory provisions, the Court wouldnot interfere. Where transfer was for smooth and efficientadministration, depends upon the facts and circumstances of each case, andit cannot be contended that there was no exigency of service. Theexistence of the administrative exigency, can very well be inferred fromthe conduct of the petitioner and the facts and circumstances. 24.For smooth and efficient administration, the controllingauthority, is a person/Judge, to decide, as to the existence of exigencyof such servant, while effecting transfer. Exigencies has to be understoodin its widest pragmatic sense and not every order of transfer could beassailed on the ground that there was a complaint which in every case, hasto be enquired into. Needless to say, if there are complaints, warranting disciplinary action, a Government servant can also be suspended, or in lieu there off, he could be transferred to some other post or place. Discretion is conferred on the controlling authority and in the absence ofany strong or compelling ground, an order of transfer cannot be said to beunjustified and unwarranted.25.No mala fide or bad faith, can be attributed against thetransferring authority, nor the order of transfer could be termed aspunitive in nature unless, there is a change in the service. Reasonscontained in the impugned order per se reflects, that the DistrictElementary Education Officer, Thanjavur, the second respondent herein, inthe interest of administration, has transferred the petitioner.26.For the above said reasons, the decisions relied on by learnedcounsel for the petitioner, in Somesh Tiwari Vs. Union of India reported in(AIR 2009 SC 1399) and in R.Mohanasundaram Vs. The Principal ChiefConservator of Forests, Chennai and Ors reported in (2009 (5) CTC 231),would not lend any support of the facts of the present case. 27.In the result, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.SD ASST REGISTRAR ( CO )/TRUE COPY/SUB ASST REGISTRAR To1.The Director of Elementary Education, Chennai.2.The District Elementary Educational Officer, District Elementary Education Office, Thanjavur.3.The Assistant Elementary Educational Officer, Assistant Elementary Education Office, Sethubavachathiram Union, Thanjavur District.1CC TO MR. D.R.MURUGAN, ADVOCATE, SR: 32466:DM::2011:SEPTEMBER:23:: Order made in W.P.(MD).No.10742 of 201117p:5C:: Dated:- 21.09.2011