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2009 DIGILAW 5196 (MAD)

P. Gandhi v. R. Velmurugan & Another

2009-11-30

N.PAUL VASANTHAKUMAR, R.BANUMATHI, VASANTHAKUMAR

body2009
Judgment :- This Writ Appeal is preferred against the order of learned Single Judge passed in Writ Petition No.21880 of 2009, directing second respondent to keep the transfer order in abeyance and to give effect to the same with effect from 01.06.2010. 2. Brief facts are that first respondent has been working as Warden in Government Boys Hostel (MBC), Somandargudi, Kallakurichi Taluk, Villupuram District. It is stated that first respondent is an handicapped person because of polio attack. Appellant has been working as Warden in Government Boys School (MBC), Nainarpalayam, Kallakurichi Taluk, Villupuram District. By order dated 210. 2009, the first respondent was transferred from Somandargudi Government Boys Hostel to Nainarpalayam Boys Hostel and the appellant was transferred from Nainarpalayam to Somandargudi. The transfer order was challenged by first respondent in Writ Petition No.21880 of 2009. 3. Upon hearing learned counsel for first respondent and for appellant and learned Government Pleader, who appeared for second respondent, learned Single Judge directed that the transfer order to be kept in abeyance till 31.05.2010 and to give effect to the same with effect from 01.06.2010. Learned Single Judge while observing that even though Government has power to pass transfer orders, there cannot be transfer orders in the middle of academic year, placed reliance on 1994 Supp (2) SCC 666 (Director of School Education, Madras and Others v. O.Karuppa Thevan and Another). 4. Challenging the impugned order, learned counsel for the appellant submitted that appellant has been working in Nainarpalayam Boys Hostel and he has only 14 months to retire and that appellant is a heart patient and considering overall circumstances, the second respondent passed the order, transferring the appellant from Nainarpalayam to Somandargudi. It was further submitted that when transfer order is not vitiated by malafide, learned Single Judge was not right in directing the transfer order to be kept in abeyance and further directing to give effect to the same with effect from 01.06.2010. 5. We have heard learned counsel for appellant, learned counsel for first respondent and also learned Government Pleader. 6. Learned counsel for the first respondent submitted that first respondent is 60% physically handicapped and that by transfer to Nainarpalayam, which is more than 30 kms. from his place of residence, the first respondent would be subjected to great hardship. 5. We have heard learned counsel for appellant, learned counsel for first respondent and also learned Government Pleader. 6. Learned counsel for the first respondent submitted that first respondent is 60% physically handicapped and that by transfer to Nainarpalayam, which is more than 30 kms. from his place of residence, the first respondent would be subjected to great hardship. It was further submitted that first respondents son is studying in I Standard in Ramakrishna Matriculation School, Veppur and having regard to his physical condition, the learned Single Judge was right in issuing direction to keep the transfer order in abeyance till 31.05.2010. 7. Specific case of first respondent is that he is 60% physically handicapped and his son is studying in I Standard in Ramakrishna Matriculation School, Veppur and therefore, transfer in the middle of academic year will affect first respondent as well as his childs education. Learned counsel for appellant submitted first respondent is settled at Ayothiyapatnam, Salem District, where his wife is working as Secondary Grade Teacher at Selliampalayam in Salem District and their son is studying in I Standard at Ammapet, Salem District. In the grounds of appeal, name of school is given as Holy Cross Matriculation School, Ammapet. Learned counsel for appellant submitted that first respondent has made an incorrect statement saying that his son is studying in Ramakrishna Matriculation School, Vepur. It is well settled that Courts cannot interfere as a matter of routine unless shown to be mala fide exercise of power or in violation of statutory provisions prohibiting such order. In 2004 (7) SCC 405 (State of U.P. v. Siya Ram), the Supreme Court has held as under: "5. The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category or transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan ( 2001 (8) SCC 574 )." 8. Referring to various decisions in 2007 (1) MLJ 550 (Chairman & Managing Director, Tamil Nadu Salt Corporation Limited, Chennai), a Division Bench of this Court has held that order of transfer cannot be interfered with merely for the purpose of asking for it and has held as under: "(i) Union of India v. S.L.Abbas AIR 1993 SC 404 : 1993-II-LLJ-626, of the Honble Apex Court would be on the point that unless it is shown that transfer order is imbibed with malice, the question of quashing it does not arise and an excerpt from it would run thus: "7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it..." (ii) State of Punjab v. Joginder Singh Dhatt AIR 1993 SC 2486 the Honble Apex Court would also highlight the fact that it is entirely within the competency of the employer to transfer an employee and the Court should not ordinarily interfere with that. An excerpt from it would run thus: "3. We have heard learned counsel for the parties. This Court has time and again expressed its disapproval of the Courts below interfering with the order of transfer of public servant from one place to another. It is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting. Ordinarily the Court have no jurisdiction to interfere with the order of transfer. The High Court grossly erred in quashing the order of transfer of the respondent from Hoshiarpur to Sangrur. It is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting. Ordinarily the Court have no jurisdiction to interfere with the order of transfer. The High Court grossly erred in quashing the order of transfer of the respondent from Hoshiarpur to Sangrur. The High Court was not justified in extending its jurisdiction under Article 226 of the Constitution of India in a matter where, on the fact of it, no injustice was caused." “In fact the Honble Apex Court in both the aforesaid cases would highlight that simply because the transfer orders are not strictly in accordance with the rules, the Courts are not justified in interfering with that unless mala fides could be attributed to such transfer." 9. Onbehalf of first respondent, it was submitted that first respondent is having physical disability and that transfer to Nainarpalayam, first respondent would find it difficult to manage in travelling etc. As rightly submitted by the learned counsel for appellant, first respondent even while working as Warden in Somandargudi, despite his physical disability, the first respondent was handling three Government Boys Hostels (MBC) namely Somandargudi, Chitteripattu and Thyagadurgam situated within Kallakurichi Taluk. It is not as if the first respondent is totally immobilised. So far, first respondent has been handling three hostels and therefore, it cannot be said that the transfer order has caused serious hardship to the physically challenged first respondent. Any transfer is likely to affect employees to certain extent, but such hardship should be taken to be incidence of service. Unless shown to be malafide exercise of power, Courts cannot interfere. We are of the view that order of transfer is not shown to be malafide. 10. Learned Single Judge was of the view that transfer order should not have been passed in the middle of academic year and the learned Single Judge has referred to 1994 Supp (2) SCC 666 (cited supra) for issuing direction to keep the transfer order in abeyance. There is no such rule prohibiting transfer during middle of academic year. Such guidelines are only directory and not mandatory. We do not find any violation of statutory provisions warranting interference. 11. As submitted by the learned counsel for appellant, the appellant is a heart patient and that he has only 14 months to retire. There is no such rule prohibiting transfer during middle of academic year. Such guidelines are only directory and not mandatory. We do not find any violation of statutory provisions warranting interference. 11. As submitted by the learned counsel for appellant, the appellant is a heart patient and that he has only 14 months to retire. Having regard to his health condition and short tenure of service, the authorities passed transfer order transferring appellant from Nainarpalayam to Somandargudi. If the same is to be given effect after 01.06.2010, the appellant would have only a couple of months to go for retirement and it would not serve any purpose. In such circumstances, we are unable to sustain the order of the learned Single Judge and Writ Appeal has to be allowed. 12. In the result, Writ appeal is allowed, setting aside the order of the learned Single Judge, dated 011. 2009. No costs. Consequently, M.P.No.1 of 2009 is closed.