Research › Search › Judgment

Madras High Court · body

2009 DIGILAW 2638 (MAD)

N. Sivakumar v. The Conservator of Forests

2009-07-24

K.N.BASHA

body2009
Judgment :- Learned Special Government Pleader (Forests) takes notice for the respondent. By mutual consent of the learned counsel for the petitioner and the learned Special Government Pleader, this writ petition is taken up for final disposal at the admission stage. .2. The petitioner has come forward with this petition seeking for the relief of quashing the order passed by the respondent in S.O.No.P1/59/2009, dated 15.07.2009 and consequently, directing the respondent to allow the petitioner to continue in the present place of work, namely, in Forest Protection Squad, Coimbatore. 3. Mrs.Selvi George, learned counsel for the petitioner contended that the petitioner is challenging the impugned order of transfer on the ground that the said order is in contravention of the Government letter No.934/S/2009-1 dated 20.05.2009 as the respondent has not followed the guidelines contained in the said letter to the effect of consulting the Personnel and Administrative Reforms Department before passing the impugned order. It is contended by the learned counsel for the petitioner that in the impugned order it is merely stated that the petitioner has been transferred on administrative reasons and there is no specific reason given for transferring the petitioner. The learned counsel would further contend that the petitioners wife and his family members including the child, were now residing at Coimbatore and as such the petitioner, who has been transferred from Coimbatore Forest Protection Squad to Gudalur division, would be put into great hardship and irreparable loss. The learned counsel for the petitioner further contended that even in the affidavit filed before this Court the petitioner has specifically stated that there are several vacancies available as on date at Coimbatore itself and as such the respondent could have posted the petitioner within Coimbatore. The learned counsel for the petitioner would further point out that the petitioner has already preferred a representation dated 21.04.2009 and the same was not considered by the respondent herein. Therefore, it is contended that the impugned order of transfer is liable to be quashed. .4. Mr.S.N.Kirubanandam, learned Special Government Pleader (Forests) contended that there is absolutely no infirmity or illegality in the impugned order of transfer passed by the respondent herein. Therefore, it is contended that the impugned order of transfer is liable to be quashed. .4. Mr.S.N.Kirubanandam, learned Special Government Pleader (Forests) contended that there is absolutely no infirmity or illegality in the impugned order of transfer passed by the respondent herein. It is contended by the learned Special Government Pleader that the letter of the Chief Secretary addressed to all the Secretaries and the Heads of Departments contained only certain guidelines and those guidelines cannot stand in the way of authorities exercising the power of transfer due to administrative exigencies as per the statutory rules. The learned Special Government Pleader would submit that the respondent herein has rightly passed the impugned order of transfer on administrative reasons and as such the same is not liable to be quashed as the petitioner has not made out any other legal ground to interfere with the impugned order of transfer. The learned Special Government Pleader would also place reliance on the decision of this Court in C. Somasundaram V. The District Forest Officer, Coimbatore & another reported in 2007 Writ L.R. 943. 5. I have carefully considered the rival contentions put forward by either side and also perused the impugned order and other materials available on record. 6. The main grievance of the petitioner, as per the submissions of the learned counsel for the petitioner, is to the effect that the impugned order of transfer was passed in contravention of the letter dated 20.05.2009 in letter No.934/S/2009-1 issued by the Chief Secretary to the Government of Tamil Nadu. It is pointed out by the learned counsel for the petitioner that before passing the impugned order, the respondent had not consulted the Personnel and Administrative Reforms Department as the transfer was effected on administrative reasons. At the outset, I am unable to accept such contention as the said guidelines are only directory and such guidelines cannot have a statutory status. From the reading of the impugned order it cannot be stated that they have not consulted the authorities concerned. The fact remains that it is clearly stated in the impugned order that the petitioner has been transferred on administrative reasons. From the reading of the impugned order it cannot be stated that they have not consulted the authorities concerned. The fact remains that it is clearly stated in the impugned order that the petitioner has been transferred on administrative reasons. It is pertinent to note that the petitioner, being a driver and his services being an essential service it is open to the respondent to transfer to a place on the ground of administrative exigencies and as such on that ground the impugned order cannot be interfered with by this Court. .7. The learned counsel for the petitioner further pointed out that there are several vacancies available at Coimbatore itself and as such the respondent could have posted the petitioner at the Coimbatore city without transferring him from Coimbatore Forest Protection Squad to Gudalur division. The petitioner, being a Government servant coupled with the fact that the petitioner was serving at Coimbatore for the last more than two years, cannot seek the relief of permanent post at Coimbatore itself as the post itself is a transferable post. It is pertinent to note that the petitioner also made certain irrelevant reference about alleged rift between the President of Tamil Nadu Drivers Association and the Head of the department and also made reference about issuing a charge sheet against him on certain allegations and further stated that only in continuation of the same the present impugned order of transfer was issued with a view to harass him. The petitioner also went to the extent of raising one of the grounds in his affidavit to the effect that the impugned order was issued against him only due to mala fide intention and to accommodate somebody in his place with ulterior motive. This Court is of the considered view that the petitioner ought to have restrained himself from making such unwarranted and baseless allegations. It is well-settled that mere allegation of mala fides and bias on mere suspicion, surmises and conjectures cannot be sustained and malafide has to be established by strong proof. .8. The learned Special Government Pleader (Forests) has rightly placed reliance on the decision of this Court in C.Somasundaram V. The District Forest Officer, Coimbatore and another reported in 2007 Writ.L.R. 943 regarding the order of transfer. In that decision, this Court has observed in respect of the similar Government Order as follows : ."14. .... .8. The learned Special Government Pleader (Forests) has rightly placed reliance on the decision of this Court in C.Somasundaram V. The District Forest Officer, Coimbatore and another reported in 2007 Writ.L.R. 943 regarding the order of transfer. In that decision, this Court has observed in respect of the similar Government Order as follows : ."14. .... The said amendment makes it very clear that the transfer policy is a mere guidelines to the competent authority while effecting transfer and it does not confer any right on the government servant to rely on the same for retention or transfer from a particular place or post citing GO.Ms.No.10, P & A.R. Department dated 07.01.1994. 9. The learned single Judge also placed reliance on the decisions of the Honble Apex Court as hereunder : "17. In this connection, it will be useful to refer the decision of the Honourable Apex Court in Union of India V. Janardhan Debanath ( 2004 (4) SCC 245 ), wherein it has been held as follows : ".... Transfers unless they involve any such adverse impact or visit the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration. Additionally, it was pointed out by learned counsel for the Union of India that as indicated in the special leave petition itself there was no question of any loss of seniority or promotional prospects. These are the aspects which can be gone into in an appropriate proceeding, if at all there is any adverse order in the matter of seniority or promotion. It was also submitted that transfer was within the same circle, i.e., the North-Eastern Circle and, therefore, the question of any seniority getting affected by the transfer prima facie does not arise." 18. It was also submitted that transfer was within the same circle, i.e., the North-Eastern Circle and, therefore, the question of any seniority getting affected by the transfer prima facie does not arise." 18. It is also useful to refer to the decision of the Honourable Apex Court reported in 2004 (11) SCC 402 (State of U.P. V. Gobardhan Lal) wherein it has been held as follows: "It is too late in the day for any government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision." 10. The Honble Apex Court in Shilpi Bose V. State of Bihar reported in 1991 Supp. The Honble Apex Court in Shilpi Bose V. State of Bihar reported in 1991 Supp. (2) SCC 659 held as follows : "The courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order; instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to-day transfer orders issued by the government and its subordinate authorities, there will be compete chaos in the administration which would not be conducive to public interest." 11. The principles laid down in the decisions cited supra are squarely applicable to the facts of the instant case as in this case also the learned counsel for the petitioner mainly relied on certain guidelines given by the Government through the letter No.934/S/2009-1 dated 20.05.2009 and such letter, containing certain guidelines, cannot override the statutory rules. The yet another ground of allegation of mala fides and bias taken by the petitioner is also unsustainable in view of the reasons as stated above. 12. For the aforesaid reasons, this Court is of the considered view that no valid and legal ground made out by the petitioner warranting interference of this Court in the impugned order of transfer and accordingly, this petition is hereby dismissed. No costs. Consequently, connected miscellaneous petition is closed.