S.Leelavathi v. Engineer -in- Chief W.R.O. & Chief Engineer (General), Public Works Department, Chepauk, Chennai-5.2. & Ors.

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 08.09.2011CORAM:THE HONOURABLE MR.JUSTICE S.MANIKUMARW.P.(MD).No.9404 of 2011 andM.P.(MD)Nos.1 to 3 of 2011S.Leelavathi: PetitionerVs.1.Engineer -in- Chief W.R.O. & Chief Engineer (General), Public Works Department, Chepauk, Chennai-5.2.The Chief Engineer, Public Works Department, W.R.O., Madurai Region, Thallakulam, Madurai-2.3.The Superintending Engineer, Public Works Department, W.R.O., Periyar Basin Circle, Thallakulam, Madurai-2.4.The Executive Engineer, Public Works Department, W.R.O., Periyar Main Canal Division, Melur, Madurai District.: RespondentsPRAYER: Writ Petition is filed under Article 226 of the Constitutionof India praying for the issue of a Writ of Certiorari, to call forthe records relating to Letter No.S1(1)/20206/2011-186, dated18.08.2011 of the first respondent and quash the same. For Petitioner: Mr.N.Karthik KannaFor Respondents: Mr.T.S.Mohammed Mohideen Additional Government PleaderORDERChallenge in this Writ Petition is to the order dated 18.08.2011of the Engineer -in- Chief W.R.O., & Chief Engineer (General), PublicWorks Department, Chepauk, Chennai-5, the first respondent herein,transferring the petitioner from Periyar Main Canal Sub Division II,Melur Division, Madurai District to Lower Vaigai Special Projects SubDivision No.3, Madurai. https://hcservices.ecourts.gov.in/hcservices/

22. The case of the petitioner is that she was working as aDraftsman from the year 1982 to 1986. Subsequently, in the year 1986,she was appointed as Junior Engineer in Public Works Department andshe worked as Junior Engineer in Virudhunagar, Madurai Periyar MainCanal Division, Madurai Quality Control and Periyar Improvements(Usilampatti Sub Division) during the period from 1989 to 1991, 1991to 1993, 1993 to 1998 and 1998 to 2003 respectively. In the year2003, she was re-designated as Assistant Engineer and worked inPeriyar Improvements Division (Andipatti Sub Division) till 2010. On17.05.2010, she was promoted as Assistant Executive Engineer, PublicWorks Department, W.R.O., Periyar Mani Canal Sub Division II, MelurDivision, Madurai District and has been working in the same post tilldate.3. The further case of the petitioner is that she has completedalmost 28 years of service and almost in all these years of service,she was allocated only field work, supervising the project byvisiting the site every day and she was supposed to travel severalmiles a day. In the year 2003, she was re-designated as AssistantEngineer. However, the site is at Andipatti, Theni District. The siteis about 75 kilometre far from her home and hence, she has to travelmore than 150 km per day. 4. While so, to her shock and surprise, the Engineer -in- Chief,W.R.O. & Chief Engineer (General), Public Works Department, Chepauk,Chennai-5, the first respondent herein issued an order of transferin Letter No.S1(1)/20206/2011-186, dated 18.08.2011, in and by which,the petitioner was posted again to a site work, having office atManamadurai, which is about 60 kms away from her home. Challengingthe same, the petitioner has come up with the present Writ Petitionfor the reliefs stated earlier.5. The first respondent has filed a counter-affidavit on behalfof respondents 2 to 4, wherein it is stated that the petitioner hasadmitted that she was working as Draftsman in the respondents-department from the year 1982 to 1986 and on selection by the TamilNadu Public Service Commission, she was appointed as a JuniorEngineer in Public Works Department from 1989 to 2003 in differentstations, which are within the proximity of Madurai. Even after herre-designation as Assistant Engineer, in the year 2003, she wasworking within the easy city of Madurai till the year 2010. Onpromotion as Assistant Executive Engineer also, she has been workingunder the control of respondents 2 to 4 and she has been working inonly Madurai. Hence, from her own admissions, she has all along beenworking in and around Madurai and even now, the office to which, shehas been transferred, is at Madurai and the respondents have nointention to transfer her outside Madurai.6. It is further stated that in the case of B.Varadha Rao vs.State of Karnataka reported in AIR 1987 SC 287, the Supreme Courtheld that unless there is a specific mention in the letter ofappointment that the post is non-transferable, all employees areliable to be transferred. https://hcservices.ecourts.gov.in/hcservices/

37. It is further stated that the petitioner had willfullysuppressed the fact of her transfer to lower Vaigai Special ProjectsSub Division No.3 with headquarters at Madurai itself, which is underthe control of the Executive Engineer, Lower Vaigai Special ProjectDivision, Manamadurai and the petitioner has not been transferred toManamadurai at all. 8. It is also stated that even assuming that it is a transfer, itis well settled in law that administrative guidelines for regulatingtransfers or containing transfer policies, at best, may afford anopportunity to the officer or servant concerned to approach theirhigher authorities for redressal, but cannot have the consequence ofdepriving or denying the competent authority to transfer a particularofficer/servant to any place in public interest. In State of U.P.vs. Gobardhal Lal reported in 2004 (11) SCC 402, the Supreme Courthad already stressed that the order of transfer made even intransgression of administrative guidelines cannot also be interferedwith, as they do not confer any legally enforceable rights. 9. For the abovesaid reasons, the respondents have prayed fordismissal of the Writ Petition.10. Heard the learned counsel for the parties and perused thematerials available on record.11. While considering the scope and power of judicial review inmatters of transfer, the Hon'ble Mr.Justice K.Chandru, inW.P.Nos.18732 to 18740 of 2011, dated 11.08.2011, has extensivelyconsidered various decisions of the Supreme Court as to whether theGovernment guidelines issued from time to time have a statutory forceand whether violation of the same provide any legally enforceableright to the Government servant. In addition to the above, thelearned Judge has also considered the parameters for exercise ofjudicial review. Useful reference can be made to the decision reliedon, in the judgment made in W.P.Nos.18732 to 18740 of 2011, dated11.08.2011.12. In General Manager (Per), National Insurance Co. Ltd., v.Dr.S.Ashok Kumar reported in 2010(4) MLJ 433, a Division Bench ofthis Court has held that unless an impugned order of transfer istainted with mala fide or in violation of statutory rules, the samecannot be interfered with, even on humanitarian grounds. It is alsouseful to refer to a decision of the Apex Court in Rajendra SinghRajesh v. State of U.P. reported in JT (2009) 10 SC 187, relied on bythe Division Bench in Ashok Kumar's case, wherein the Apex Courtobserved that while dealing with matters of transfer, the High Courtshould have appreciated the true extent of scrutiny into a matter oftransfer and the limited scope of judicial review and it cannot enterinto an arena which did not belong to it. At paragraph Nos.13 and16, it has been held as follows:"13. It is the cardinal principle that a transfer isordinarily an incident of service. The Court should not https://hcservices.ecourts.gov.in/hcservices/ 4interfere with a transfer order which is made foradministrative reasons unless the transfer orders are madein violation of any mandatory or statutory rule or on theground of mala fide. A Government servant holding atransferable post has no vested right to remain posted atone place or the other and he is liable to be transferredfrom one place to the other. Transfer orders issued by thecompetent authority do not violate any of his legal rights.Even if a transfer order is passed in violation ofexecutive instructions or orders, the Courts ordinarilyshould not interfere with the order, instead affected partyshould approach the higher authorities in the department.Indisputably, the order of transfer is an administrativeorder and there cannot be a doubt whatsoever that thetransfer is an incident of service and the same should notbe interfered with save in cases where inter alia mala fideof the authority is proved. It is also a settled principlethat mala fide is of two kinds, one is malice in fact andthe second is malice in law. Order in question wouldattract the malice in law if it was not passed on anyfactor germane for passing an order of transfer. It is onething to say that the appellant is entitled to pass anorder of transfer in an administrative exigency but it isanother thing to say that the order of transfer passed inlieu of punishment. When an order of transfer is passed inlieu of punishment, then the Court shall have power tointerfere with the same.14..........15..........16. Therefore, having regard to the above propositionlaid down by the Hon'ble Supreme Court, we are of the viewthat the learned single Judge ought not to have shown anyindulgence even on humanitarian grounds to the respondentwho keeps on agitating the transfer orders by remaininghimself in Chennai for years together. In such view of thematter, we are unable to confirm the order of the learnedSingle Judge."13. In the light of the above discussion and the judgments ofthis Court as well as the Supreme Court, the petitioner is notentitled to the equitable remedy under Article 226 of theConstitution of India and, therefore, the Writ Petition standsdismissed. The interim stay already granted is vacated. Consequently,the connected miscellaneous petitions are also dismissed. No costs.Sd/-Assistant Registrar (CO)/True Copy/Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 5To1.Engineer -in- Chief W.R.O. & Chief Engineer (General), Public Works Department, Chepauk, Chennai-5.2.The Chief Engineer, Public Works Department, W.R.O., Madurai Region, Thallakulam, Madurai-2.3.The Superintending Engineer, Public Works Department, W.R.O., Periyar Basin Circle, Thallakulam, Madurai-2.4.The Executive Engineer, Public Works Department, W.R.O., Periyar Main Canal Division, Melur, Madurai District. +1 CC to Special Government Pleader (SR.No.30817)Order made inW.P.(MD).No.9404 of 2011Dated:- 08.09.2011SMLNSV/9.9.11/5P/6C