M. v. Girija VS High Court of Madras represented by its Registrar, Madras and others
2001-10-19
MALAI SUBRAMANIAN, V.S.SIRPURKAR
body2001
DigiLaw.ai
V.S.Sirpurkar, J.: Petitioner is a member of the Pondichery Judicial Service, having been selected and working as Civil Judge (Junior Scale - Grade II). Presently she is posted as Inspector of Process, Judicial Department of Pondichery. 2. By this petition, the petitioner is challenging the order dated 7.9.2001 under G.O.Ms.No.24/2001-LD, Pondichery whereby the Lieutenant Governor, Pondichery has conveyed the sanction to her deputation as Principal District Munsif, Kuzhithurai, Kanyakumari District, Tamil Nadu. Petitioner challenges this order predominantly on the ground that her service conditions, which are governed by the rules in G.O.Ms. No.10/96-LD, dated 21.3.1996 do not provide for any such deputation without her consent and as such, she cannot be sent out to serve in the State of Tamil Nadu which would be essentially beyond the territorial jurisdiction of the Union Territory of Pondichery much less without her consent. 3. In the petition, in paragraphs 3 to 6, an unnecessary history has been given of her tenure as a Civil Judge perhaps with an idea to justify her prayer for promotion of which we are told that another writ petition has been filed. We are not concerned with that petition. We are concerned only with the transfer aspect which is in challenge in this petition and indeed, the learned counsel restricted himself to the subject of transfer alone. As has been pointed out, the petitioner is now transferred in the same capacity of Kuzhithurai in Kanyakumari District in the State of Tamil Nadu which, according to the petitioner, is contrary to her service conditions. According to her, she had not given her consent for deputed out of Union Territory of Pondichery and the order of the High Court, ultimately resulting in sanction by the Lieutant Governor, Pondichery, is without any legal sanction. 4. As against this, it is pointed out by the learned senior counsel, Mr.D.Murugesan, appearing on behalf of the Union Territory of Pondichery and the learned Additional Government Pleader appearing on behalf of the High Court, Madras that the High Court is perfectly justified in transferring the petitioner and that is has the authority to do so under the existing rules. 5. The second contention of the petitioner is that she is transferred on account of some complaints, which were stage-managed complaints, by some disgruntled elements of the Bar.
5. The second contention of the petitioner is that she is transferred on account of some complaints, which were stage-managed complaints, by some disgruntled elements of the Bar. In short, her complaint is that this transfer is a "punitive transfer" without giving her any opportunity to explain and without hearing. 6. As regards this, the contention of the respondents is that there is nothing on record to suggest that this is a "punitive transfer". On the other hand, it is reiterated that ordinarily itself the members of the Tamil Nadu State Judiciary can and are transferred to the Pondichery Judicial Service while the members of the Pondichery Judicial Service are transferred to the Tamil Nadu Judicial Service. It is pointed out by the learned counsel that there are any number of Judicial Officers who have been transferred like this and the said transfer orders have not been contested so far. 7. On this conflicting background, we have to consider the point at issue. 8. Mr.V.Prakash, the learned counsel took us to the Pondichery Judicial Service (Cadre and Recruitment) Rules, 1996 (hereinafter referred to as the "P.J.S. Rules"), to which we have already made a reference, which have been brought into existence on 21.3.1996 by G.O.Ms.No.10/96-LD. He points out that these rules have been framed under Art.309 of the Constitution of India and can be applicable only to the members of the Pondichery Judicial Service. In this behalf, our attention was drawn to Rule 2(e) wherein the word "service" is defined as under: "2. Definitions: In these rules, unless the context otherwise requires- (e) "Service" means the Pondichery Judicial Service." Learned counsel stretching his arrangement further pointed out that Rule 5 of P.J.S. Rules provides for the appointment to the service while Rule 7 provides for the recruitment of the Civil Judges, which appointments have to be made by transfer on deputation or direct recruitment in consultation with the High Court. The learned counsel then points out that under Rule 7(4), the transfer and posting of the Judicial Officers is to be made by the High Court.
The learned counsel then points out that under Rule 7(4), the transfer and posting of the Judicial Officers is to be made by the High Court. Our attention was more particularly drawn to Rule 7(3), which runs as under: "(3) If no suitable candidate is available for promotion to the posts vacant in cadre (1), those posts shall be filed up by transfer shall be filled up by transfer on deputation of Judicial officers holding analogous posts in the State of Tamil Nadu, failing which, through direct recruitment." Our attention was drawn at Rule 8 also which reads as under: "8. Appointment on deputation: Notwithstanding anything contained in these rules, the appointment to any post in the service may also be made by the Administration on the recommendations of the High Court on deputation of officers holding analogous posts in the State of Tamil Nadu." 9. The Mainstay of the arguments of the learned counsel is that both the rules, that is Rule 7(3) and Rule 8 of P.J.S. Rules, provide that the members of the Tamil Nadu Judicial Service can be deputed and brought to Pondichery and can be posted in the Union Territory of Pondichery. However, there is no such provision in the whole rules to provide that the members of the Pondichery Judicial Service can be deputed out and posted in the state of Tamil Nadu. From this, the learned counsel suggests that though it will be possible for members of the Tamil Nadu Judicial Service to be posted in Pondichery, the vice versa cannot hold good in the absence of any specific rule to that effect. The learned counsel further argues relying on Rule 24 of P.J.S. Rules that the "disciplinary authority" under the rules is the High Court. However, the High Court cannot appoint members of the Pondichery Judicial Service like the petitioner extra-territorially, i.e., beyond the territories of Pondichery. The second limb of the argument is that such appointment would be essentially in different cadre and would, therefore, have to be made only with the consent as, according to the learned counsel, the deputation cannot be ordered unless there is a consent. 10. Considering the first argument, in the first place, it has to be seen that the language of Rule 8 of P.J.S. Rules, which were have quoted above, does speak of the deputation. There can be no dispute about it.
10. Considering the first argument, in the first place, it has to be seen that the language of Rule 8 of P.J.S. Rules, which were have quoted above, does speak of the deputation. There can be no dispute about it. Further, Rule 8, which starts with a non-obstinate clause, provides that the Administrator can make appointments to any post in the service but with the recommendations of the High Court of the officers on deputation who hold analogous posts in the Tamil Nadu Judicial Service. The learned senior counsel appearing on behalf of Union Territory of Pondichery invited our attention to the similar rules of Tamil Nadu State Judicial Service and pointed out that Rule 5(a) is introduced in Tamil Nadu State Judicial Service Rules (in short "T.N.J.S. Rules") by G.O.Ms.No.89, dated 27.1.2000. The said rule reads as follows: "5-A: Appointment on deputation: Notwithstanding anything contained in these rules, appointment to the service may also be made by the Government in consultation with the High Court, Madras by deputation of a person holding analogous post in the Union Territory of Pondichery, for a period of not exceeding three years. Provided that the person on deputation shall draw the pay as drawn by him in the scale of pay in the Union of Territory of Pondichery." 11. Looking at Rule 8 of P.J.S. Rules and Rule 5-A of T.N.J.S. Rules, which has been introduced by amendment, one thing is certain that Rule 5-A of T.N.J.S. Rules is counterpart of Rule 8 of the P.J.S. Rules. Learned senior counsel pointed out that it is because of Rule 5-A that the appointments of the members of the Pondichery Judicial Service can be made on deputation to Tamil Nadu Judicial Service while because of Rule 8, the appointments of members of the Tamil Nadu Judicial Service can be made in Pondichery. Both the rules, according to the learned senior counsel, are the replica of each other and would have to be read together so as to read a power to appoint the members of one State Judicial Service by deputation into other State Judicial Service. The argument is undoubtedly correct. Rule 5-A of T.N.J.S. Rules appears to be absolutely complementary to Rule 8 of P.J.S. Rules and creates a similar and identical power as has been provided in Rule 8.
The argument is undoubtedly correct. Rule 5-A of T.N.J.S. Rules appears to be absolutely complementary to Rule 8 of P.J.S. Rules and creates a similar and identical power as has been provided in Rule 8. It is obvious that while under Rule 8 of P.J.S. Rules, the appointments are to be made by the Administrator with the recommendation of the High Court, under Rule 5-A, the appointments are to be made by the Government again in consultation with the High Court. 12. It has to be remembered that under Art.235 of the Constitution of India, the High Court has complete control over the District Courts and the Courts subordinate thereto and such control includes the postings, promotions, grant of leave, etc. to the officers belonging to the judicial service of a state as also holding any post inferior to the post of District Judge. The only rider which is provided is that if there is a right of appeal to any such person under the law regulating the conditions of his service, it is not taken away nor can the High Court deal with such persons otherwise than in accordance with the conditions of his service prescribed under such law. 13. The subject of “administrative control” of Madras High Court over the members of the Pondichery Judicial Service stands concluded by the reported Division Bench decision of this Court, reported in Union of India, Union Territory of Pondichery, represented by the Chief Secretary, Government of Pondichery, Pondichery and others v. P. Manogaran and others, (1994)1 L.W. 1 , in the following words: “When once the jurisdiction of the High Court was extended, the powers under Chapters V and VI of Part VI of the Constitution, as a matter of course, became available to it over the Subordinate Judiciary in the Union Territory of Pondichery over which jurisdiction of the High Court was extended. This is also clear from the wordings in Arts.233 and 234 of the Constitution. .... ... .... ...The jurisdiction of the High Court is extended to the Union Territory of Pondichery. If such extension of jurisdiction is to be meaningful, the extent and the scope of such jurisdiction are to be determined in the light of the distribution of powers and independence of the Judiciary ensured under the constitution.
.... ... .... ...The jurisdiction of the High Court is extended to the Union Territory of Pondichery. If such extension of jurisdiction is to be meaningful, the extent and the scope of such jurisdiction are to be determined in the light of the distribution of powers and independence of the Judiciary ensured under the constitution. Therefore, necessarily the expression ‘State’ occurring in Chapter VI of Part VI shall have to be read as including Union Territory also. ... ... ...While interpreting Sec.9 read with Art.230 of the Constitution, we have held that the extension of jurisdiction of the High Court of Madras means the extension of the jurisdiction, which the High Court of Madras enjoyed under Chapters V and VI of Part VI of the Constitution. That being the position, the control over the subordinate Judiciary of the Union Territory of Pondichery is vested in the High Court of Madras and the powers that are available to it under Chapters V and VI of Part VI of the Constitution are exercisable by it over the Subordinate Judiciary of the Union Territory of Pondichery.” 14. In Paragraph 9 of this judgment, the High Court noted that in the event the High Court held that powers under Chapters V and VI of Part VI of the Constitution were exercisable by the High Court of Madras over the Subordinate Judiciary of the Union Territory of Pondichery, the Government of Pondichery would suitably amend the Pondichery Judicial Service Rules, 1980 and also other connected Acts and Rules pertaining to the jurisdiction of the High Court over the Subordinate Judiciary and also the establishment of the Courts. The Court, taking note of this undertaking, did not issue a mandamus to amend the P.J.S. Rules. The learned counsel pointed out that the said rules which were amended in the light of the judgment were the very same rules vide G.O.Ms.No.10, dated 21.3.1996. The learned counsel also pointed out that after the introduction of Rule 5-A to T.N.J.S. Rules, the position became all the more clear that the High Court had complete administrative control over the members of the Tamil Nadu Judicial Service as well as Pondichery Judicial Service and, therefore, the High Court could decide the matters regarding their posting, which includes even transfer on deputation.
Considering the judgment of the Division Bench of this Court regarding the administrative control of the High Court and considering the language of Rule 8 of P.J.S. Rules vis-a-vis, the language of Rule 5-A of T.N.J.S. Rules, we are left with no doubt that the High Court had the necessary power to effect the transfers of both the members of the Tamil Nadu Judicial Service as well as Pondichery Judicial Service. 15. However, the learned counsel contended that this was a power only related to the cadre postings in the sense that the High Court had the complete power to transfer the members of the Tamil Nadu Judicial Service within the State of Tamil Nadu and the members of the Pondichery Judiciary Service within Pondichery. That is obviously incorrect in view of the language of Rule 8 of P.J.S. Rules, which is complementary and analogous to Rule 5-A of the T.N.J.S. Rules. Reading these two rules together, a clear-cut power can be spelt out in the High Court to effect transfers of members of Tamil Nadu Judicial Service to Pondichery Judicial Service and vice versa. In our view, there would be no necessity of any specific rule authorising the deputation of a member of that particular State Judicial Service to the other State Judicial Service. We may immediately point out that there is no such power in the T.N.J.S. Rules also to effect the transfer on deputation of the members of the Tamil Nadu Judicial Service to Pondichery Judicial Service. The reason is not far to seek because there is an analogous power in P.J.S. Rules vide Rule 8. 16. Be that as it may. There is also another rule, which has been ignored by the learned counsel for the petitioner. That rule is Rule 7(4) of P.J.S. Rules, which reads as under: "7(4) The transfer and posting of all Judicial Officers shall be made by the High Court." The learned counsel says that wide language of this rule does not specifically give the power to the High Court to transfer the members of the Pondichery Judicial Service out of Pondichery territory. We are unable to accept this narrow interpretation of Rule 7(4). If we accept the contention of the learned counsel in that behalf, we will have to read some additional words into that rule.
We are unable to accept this narrow interpretation of Rule 7(4). If we accept the contention of the learned counsel in that behalf, we will have to read some additional words into that rule. On the other hand, it is pointed out that Rule 5(1) which speaks about the "appointments" speaks regarding the appointments "to" the service. The word "service" is specifically defined as the Pondichery Judicial Service. However, the words "to the service" are conspicuously absent in Rule 7(4). If the interpretation put forth by the learned counsel was correct, Rule 7(4) should have been: "The transfer and posting of all Judicial Officers to the service shall be made by the High Court." We cannot read any extra words into the rule by the accepted canons of interpretation and, therefore, the rule will have to be read giving it a full scope. Therefore, the transfer and posting of all Judicial Officer which is to be made by the High Court can be to any post under its administrative control which would also include the posts in Tamil Nadu Judicial Service. In this behalf, Rule 7 of T.N.J.S. Rules is also worth seeing. It reads as follows: "All postings and transfers of the member of the service, subsequent to their first appointment thereto, shall be made by the High Court." We must read the language of this rule so as to include the power of making such postings in or transfers to the Union of Territory of Pondichery also and that alone would be the correct interpretation of the rule. In that way Rule 7(4) of P.J.S. Rules is analogous to Rule 7 of T.N.J.S. Rules. These being the complementary rules to each other, we are left with no doubts in our minds that there is ample power in the High Court to effect the inter-state transfers of Judicial Officers of both the States. 17.
In that way Rule 7(4) of P.J.S. Rules is analogous to Rule 7 of T.N.J.S. Rules. These being the complementary rules to each other, we are left with no doubts in our minds that there is ample power in the High Court to effect the inter-state transfers of Judicial Officers of both the States. 17. The learned counsel thereafter argued with reference to Art.235 of the Constitution and pointed out the last part of that Article which reads as follows: "....but nothing in this article shall be construed as taking away from any such person any right of appeal which he may under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law." From this the learned counsel argued that if the Pondichery Judicial Service did not provide for the deputation of a Judicial Officer outside the cadre or to the Tamil Nadu Judicial Service then no such power could be read even with the aid of Art.335 of the Constitution. The learned counsel is clearly incorrect. In the first place, here is no such conditions of service which prescribe the transfer of a member of the Pondichery judicial service outside the Union of Territory of Pondichery and more particularly to the State of Tamil Nadu with reference to the interpretation of the earlier rules we have already shown that. Secondly, it cannot be said that the transfer is a "condition of service." In fact, the matter of transfer of a Judicial Officer cannot be said to be a condition of his service. The words used "conditions of service" in Art.135 are in the entirely different context. They are in respect of his conditions of service such as emoluments, other rights and privileges, etc. According to the rules governing his conditions of service. "transfer" is not a matter which is covered therein. For this also, the argument of the learned counsel regarding Art.235 of the Constitution of India must be rejected. 18. Learned counsel then tried to argue that by posting a Judicial Officer of Pondichery cadre as a Judicial Officer of Tamil Nadu Cadre on transfer would clearly amount to deputation and indeed it has to be understood as a deputation.
For this also, the argument of the learned counsel regarding Art.235 of the Constitution of India must be rejected. 18. Learned counsel then tried to argue that by posting a Judicial Officer of Pondichery cadre as a Judicial Officer of Tamil Nadu Cadre on transfer would clearly amount to deputation and indeed it has to be understood as a deputation. According to the learned counsel, it is a basic tenent of the service jurisprudence that a deputation can never be effected without the consent of the concerned officer. 19. We would also point out that it is not every time that the deputation must be with consent. In fact, the notion that deputation has to be with consent is based on the rules. The necessity of "consent" by the concerned officer for deputation is always an outcome of a rule to that effect and we hasten to point out that the rules are absolutely silent in so far as that aspect is concerned. The word "deputation" is used in both the P.J.S. Rules as also in T.N.J.S. Rules only to suggest the appointment of the Officer in the post or his transfer to a particular post which is beyond the State territory and it is only in that sense that the word "deputation" would have to be seen. In fact, the word "deputation" is defined in the New Oxford Dictionary as follows: "deputation a group of people appointed to undertake a mission or take part on behalf of a larger group. Eg. He had been a member of deputation to Napoleon III." The word "depute" which is a basic word from which the noun "deputation" emanates means appoint or instructs someone to perform a task for which one is responsible. If the word "deputation" itself is to be used as a noun, it means a person appointed to act in an official capacity or a representative of the another official. Therefore, it will be seen that the word "deputation" has a special meaning in the service jurisprudence and is not used in the rules in its ordinary dictionary parlance. Hidayatullah,J. has held in State of Assam v. Ranga Muhammad, A.I.R. 1967 S.C. 903, as under: "That a special meaning may be given to a word because of the collocation of words in which it figures, is a well-recognised canon of construction. Maxwell (On Interpretation of Statutes, 11th Edn.
Hidayatullah,J. has held in State of Assam v. Ranga Muhammad, A.I.R. 1967 S.C. 903, as under: "That a special meaning may be given to a word because of the collocation of words in which it figures, is a well-recognised canon of construction. Maxwell (On Interpretation of Statutes, 11th Edn. p. 321 and the following pages) gives numerous examples of the application of this principle, from which one may be given here. The words "places of public resort" assume a very different meaning when coupled with "roads"and streets" from that which the same words would have if they were coupled with "houses". In the same way the word "posting" cannot be understood in the sense of "transfer" when the idea of appointment and promotion is involved in the combination. In fact, this meaning is quite out of place because "transfer" operates at a stage beyond appointment and promotion. If "posting" was intended to mean "transfer" the draftsman would have hardly chosen to place it between "appointment" and "promotion" and could have easily used the word "transfer" itself....." All that we are trying to point out from this case is that in the present case, the word "deputation" is no used in the sense it is used in the other rules which are generally being relied upon by Mr.Prakash. 20. Mr.Prakash then tried to rely on the decision reported in State of Punjab v. Inder Singh, (1997)8 S.C.C. 372 , wherein the Apex Court has given the true connotation to the word "deputation" in the following words: "The concept of "deputation" is well understood in service law and has a recognised meaning. "Deputation" has a different connotation in service law. The dictionary meaning of the word "deputation" is of no help. In simple words, "deputation" means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation, the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per the recruitment rules. Whether the transfer is outside the normal filed of deployment or not is decided by the authority which controls the service or post from which the employee is transferred.
Whether the transfer is outside the normal filed of deployment or not is decided by the authority which controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The law on deputation and repatriation is quite settled as we have also seen in various judgments which we have referred to above. There is no escape for the respondents now to go back to their parent departments and working there as Constables or Head Constables as the case may be." The learned counsel very heavily relied on this paragraph to suggest that there can be no deputation unless such deputation was consented to by the concerned employee. 21. There can be no dispute about the meaning ascribed to the term "deputation" by the Apex Court and indeed, there can be no escape from the fact that the word "deputation" would mean the service outside the cadre or outside the parent department. There can also be no dispute that the transfer of the petitioner would mean a service outside the cadre in strict sense though it cannot be said to be outside the parent department. However, it has to be remembered here that beyond the territorial jurisdiction, there is absolutely nothing which is going to change in case of the petitioner. It is not as if the petitioner is going to work in any different capacity with any different powers and under any other department excepting the Judiciary. In this also, she is going to serve under the very High Court under which she would have worked had she continued at Pondichery. It is, therefore, only in this sense that we have pointed out that the word "deputation" has to be understood. This is apart from the fact that the rules themselves provide for the transfer or appointment of the members of the Tamil Nadu Judicial Service in Pondichery Judicial Service and vice versa as we have pointed from Rule 8 of P.J.S. Rules and Rule 5-A of T.N.J.S. Rules. Such was not the position in the aforementioned ruling of the Supreme Court and, therefore, on the factual scenario of the present case, the ruling would be of no assistance to the learned counsel for the petitioner. 22.
Such was not the position in the aforementioned ruling of the Supreme Court and, therefore, on the factual scenario of the present case, the ruling would be of no assistance to the learned counsel for the petitioner. 22. The other cases cited by the learned counsel for the petitioner such as the decisions reported in P.K.P. Bidi Factory v. O.L.Thenge, (1970)1 L.L.J. 492 and General Officer Commanding-in-Chief and another v. Dr.Subhash Chandra Yadav and another, (1988)2 L.L.J. 345 are not opposite to the subject. 23. Lastly by way of desperate argument, the learned counsel tried to suggest that the transfer was a "punitive transfer" as it was made at the behest of a disgruntled member of Bar against whom the petitioner had issued a non-bailable warrant when she was at Karaikkal. The petitioner has sworn an additional affidavit to that effect by way of introduction of a new plea. 24. In the first place, there is no basis for petitioner’s assertion because we do not find any such material from the orders passed. The learned senior counsel appearing on behalf of the Union Territory of Pondichery as also the learned Additional Government Pleader appearing on behalf of the High Court were prepared to go on record to suggest that this was no a transfer order by way of “punishment” and that it was absolutely incorrect to link it with an incident which might have taken place when the petitioner was working at Karaikkal. In fact, the petitioner made no grudge of the fact that she was transferred from Karaikkal to Pondichery. It is only now that she raises this issue when she is sought to be transferred out of Pondichery territorial jurisdiction. Therefore, the very bona fides of the petitioner become questionable. If the petitioner was so sensitive to the transfer, her transfer from Karaikkal to Pondichery itself could have been and should have been challenged on the ground of “punitive transfer”. The petitioner was transferred from Karaikkal to Pondichery and while at Pondichery now she is being transferred to Kuzhithurai, Kanyakumari District in the State of Tamil Nadu. Therefore, the alleged incidence at Karaikkal is of really no consequence and relevance. 25. The writ petition has no merits and has, therefore, to be dismissed. No costs. W.M.P.Nos.25743 and 27822 of 2001 are closed.