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2014 DIGILAW 415 (MAD)

R. Suguna v. District Collector

2014-02-20

M.VENUGOPAL

body2014
JUDGMENT 1. The Petitioner has focused the instant Writ of Certiorarified Mandamus praying for issuance of an order by this Court calling for the records pertaining to the impugned order in reference Na.Ka.No.63259/2011/Pa.Thi.2 dated 02.01.2012 passed by the 1st Respondent and to quash the same. Further, she has sought for passing of an order by this Court in directing the 1st Respondent to permit her to continue in service in Pasuvapatti Village Panchayats, Chennimalai Union, Erode District. 2. It comes to be known that the Petitioner by impugned order Na.Ka.No.63259/2011/ Pa.Thi.2 dated 02.01.2012 was transferred by the 1st Respondent/District Collector, Erode to Vilakethi Panchayat, Modakurichi Union, Erode District, based on administrative interest. Further, the concerned Block Development Officer was directed to send details in regard to relieving of the Petitioner and taking charge of the position, etc. 3. The Learned Counsel for the Petitioner urges before this Court that the impugned order of transfer dated 02.01.2012 passed by the 1st Respondent/District Collector as against the Petitioner is an unlawful and illegal one because of the simple reason that the same is contrary to the provisions of Tamil Nadu Panchayats Act, 1994. 4. According to the Learned Counsel for the Petitioner, the ingredients of Section 104(1) of Tamil Nadu Panchayats Act, 1994, categorically points out that 'Any officer or servant of a Village Panchayats may be transferred to the service of any Panchayats Union Council or any other village Panchayats by the Inspector. Provided that no officer or servant shall be so transferred except after consulting the commissioner or the executive authority concerned'. 5. At this juncture, the Learned Counsel for the Petitioner projects an argument that there was no consultation of the Commissioner or the Executive Authority prior to passing of the impugned transfer order dated 02.01.2012 in respect of the Petitioner effected by the 1st Respondent and in fact, the said Transfer Order is vitiated for non-compliance of the ingredients of Section 104(1) of Tamil Nadu Panchayats Act, 1994. 6. 6. At this stage, the Learned Counsel for the Petitioner reliance on the Division Bench of this Court in C.ALAGIRISAMY NAIDU V. THE COLLECTOR OF MADURAI DISTRICT AND ANOTHER, 1981 (1) MLJ at Page 3, wherein it is categorically laid down as follows: "The first proviso to sub-section (2) of section 60 of the Tamil Nadu Panchayats Act, clearly contemplated the concerned two Panchayat Union Councils being consulted before the transfer is effected. Simply because the power of the Government under section 60(2) had been delegated to the Collector, the requirement of the first proviso could not be dispensed with. There being no power other than the one conferred by section 60(2), the requirement of consultation must be complied with whether the Government exercised the power themselves or some other officer by virtue of the delegation by the Government exercised that power." 7. Also, the Learned Counsel for the Petitioner referred to a word 'Consult' [vide P.Ramanatha Aiyar's Advanced Law Lexicon] wherein, it is mentioned as follows: "Consult. 'Consult implies a conference of two or more persons or the impact of two or more minds bought about in respect of a topic with a view to evolve a correct or at least a satisfactory solution. It must be directed to the essential points of the subject under discussion and enable the consultor to consider the pros and cons before coming to a decision. The consultation may be between an uninformed person and an expert or between two experts (1947)2 All ER 496 Ref. R.Pushpam v. State of Madras, AIR 1953 Mad 392 . Shorter "Oxford English Dictionary, gives a definition of the verb 'to consult as "to ask advice of, seek counsel from." The essence of consultation is the communication of a genuine invitation, extended with a receptive mind, to give advice. If the invitation is once received, it matters not that it is not accepted and no advice is professed. Agriculture Training Board v. Aylesbury Mushrooms, (1972) 1 ALL ER 280, 284 (QBD). Also see Union of India v. Sankalchand Himatlal Sheth, AIR 1977 SC 2328 . The word 'consult' means 'to discuss something together, to deliberate.' Words and Phrases, Permanent Edn., 1960, Vol. Agriculture Training Board v. Aylesbury Mushrooms, (1972) 1 ALL ER 280, 284 (QBD). Also see Union of India v. Sankalchand Himatlal Sheth, AIR 1977 SC 2328 . The word 'consult' means 'to discuss something together, to deliberate.' Words and Phrases, Permanent Edn., 1960, Vol. P.3, as cited in High Court of Judicature for Rajasthan v. P.P.Singh, (2003) 4 SCC 239 , para 37: AIR 2003 SC 1459 and Corpus Juris Secundum, Vol 16-A, 1956 Edn.,: P.1242, as cited in High Court of Judicature for Rajasthan v. P.P.Singh, (2003) 4 SCC 239 , para 37 : AIR 2003 SC 1459 . The word 'consult' in its ordinary sense means 'to ask advice' or 'to take counsel'. Madan Mohan Chaudhari v. State of Bihar, (1999) 3 SCC 396 , para 27 : AIR 1999 SC 1018 ." 8. In effect, the stand of the Petitioner is that the word 'consult' or 'consultation' is different from 'consent'. 9. Advancing his arguments, the Learned Counsel for the Petitioner strenuously referred to the decision of the Hon'ble Supreme Court in COMMISIONER OF POLICE V. GORDHANDAS BHANJI, AIR 1952 SUPREME COURT AT PAGE 16(1), whereby and whereunder in paragraph-9, it is observed as follows: "9. An attempt was made by referring to the Commissioner's affidavit to show that this was really an order of cancellation made by him and that the order was his order and not that of Government. We are clear that public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself." 10. By placing reliance on the decision of the Hon'ble Supreme Court as referred to supra, the Learned Counsel for the Petitioner submits that except the mentioning of Petitioner being transferred based on administrative interest, no other reasons were assigned in the impugned transfer order dated 02.01.2012 of the 1st Respondent and since, transfer order does not refer to the reasons for transfer being effected, the same is not a valid one in the eye of law. 11. 11. The Learned Counsel for the Petitioner brings to the notice of this Court that the Third Respondent had addressed a communication dated 12.01.2012 to the Block Development Officer of Panchayat Union, Chennimalai and to the First Respondent/District Collector, Erode, inter alia stating that the Secretary of the Panchayat was to be transferred only after obtaining the consent of the Inspector of Panchayats in terms of Section 104 of the Tamil Nadu Panchayats Act, 1994, etc. 12. Per contra, the Learned Additional Government Pleader for Respondents contends that the Petitioner has filed the present Writ Petition based on misconception and in the instant case, section 104 (1) of Tamil Nadu Panchayat Act, 1994 is not applicable and per contra only Rule 11 of Tamil Nadu Panchayat Secretaries (Conditions of Service) Rules, 2013, is applicable. 13. Added further, the Learned Additional Government Pleader submits that the Petitioner was transferred for administrative reasons and the 1st Respondent/District Collector, Erode, being the Inspector of Panchayat under Section 205 of the Tamil Nadu Panchayats Act, 1994, is empowered to transfer the Petitioner on administrative reasons/grounds and in such a contingency, the consultation to be done/made either with the Commissioner or the Executive Authority concerned does not arise on any score. 14. The substratum of the plea taken on behalf of the 1st Respondent is that the Petitioner's transfer was effected (based on complaint) in the interest of administration and further more, it is well within the ambit of the powers of the 1st Respondent/District Collector, Erode. In this connection, this makes an useful reference to Rule 11 of Tamil Nadu Panchayats Act, 1994 (Tamil Nadu Act 21 of 1994), which runs as follows: "11. Transfer : (1) Transfer of a person holding the post shall be made only on administrative grounds supported by valid reasons and after proper enquiry by the authorities concerned. (2)Transfer and postings within the Block shall be made by the Block Development Officer (Village Panchayats) of the Panchayat Union concerned. Transfer and postings to other Blocks within the District shall be made by the Personal Assistant (Development) to the Collector. All transfers and postings within the Block and the District shall be done in consultation with the Executive Authority of the Village Panchayat concerned. Transfer and postings to other Blocks within the District shall be made by the Personal Assistant (Development) to the Collector. All transfers and postings within the Block and the District shall be done in consultation with the Executive Authority of the Village Panchayat concerned. The Commissioner/Director of Rural Development and Panchayat Raj is the Competent Authority to make transfer from one District to another District based on the specific report from the Collector." 15. A perusal of the contents of the Tamil Nadu Village Panchayat Secretaries (Conditions of Service) Rules, 2013 indicates that the said Rules have come into force on 09.07.2013 [published in G.O.Ms.No.72, Rural Development & Panchayat Raj (E5), July 9, 2013 in Tamil Nadu Government Gazette, Part III, Section 1(a), Issue No.29, Page 42-44, dated July 24, 2013]. 16. Repelling the stand taken by the Respondents, the Learned Counsel for the Petitioner by means of reply submits that the Rules of Tamil Nadu Village Panchayat Secretaries (Conditions of Service) Rules, 2013, have come into force on 09.07.2013 and in the present case on hand, the impugned transfer order made against the Petitioner was passed on 02.01.2012 by the 1st Respondent/District Collector, Erode and in these circumstances, Tamil Nadu Village Panchayat Secretaries (Conditions of Service) Rules, 2013, do not apply to the case of the Petitioner. 17. This Court very pertinently extracts Section 104(1) of Tamil Nadu Panchayat Act, 1994, which runs as follows: "104. Transfer of officers and servants of Village Panchayats and Panchayat Union Councils.-- (1) Any officer or servant of a Village Panchayat may be transferred to the service of any Panchayat Union Council or any other Village Panchayat by the Inspector: Provided that no officer or servant shall be so transferred except after consulting the Commissioner or the Executive Authority concerned: Provided further that in making a transfer under this sub-section, the Inspector may issue such general or special directions as may in his opinion be necessary for the purpose of giving due effect to such transfer." 18. It is to be pointed out that 'Transfer' is often described as a synonym of 'posting'. It is an incidence of service. Transfer can be effected for administrative interest like maintaining discipline in office/work place. If the transfer is mala fide and penal in nature and also made not in public interest, then a Court of law can interfere with the same. It is an incidence of service. Transfer can be effected for administrative interest like maintaining discipline in office/work place. If the transfer is mala fide and penal in nature and also made not in public interest, then a Court of law can interfere with the same. Also that a Court of law is not an appellate forum to decide an order of transfer when made on administrative grounds. In an appropriate case, a Court of law has a right to enforce the 'transfer order'. 19. It is to be pointed out that mere absence of reasons in the order will not make the 'transfer order' a mala fide one as per decision of the Hon'ble Supreme Court in TARACHAND KHATRI V. MUNICIPAL CORPORATION OF DELHI, AIR 1977 SUPREME COURT AT PAGE 567. That apart, in the decision of the Hon'ble Supreme Court in UNION OF INDIA V. E.G.NAMBUDRY, (1991) 3 SUPREME COURT CASES AT PAGE 38, it is held that 'order of an administrative authority', which has no statutory or implied duty to state reasons on the grounds of its decision is not rendered illegal merely on account of absence of reasons. It has never been a Principles of Natural Justice that the reasons should be assigned for such decision. 20. It is to be noted that in transfer the jural relationship of master and servant or employer and employee is not affected in any manner. It is to be borne in mind that in exigencies of administration, the employer can deviate executive instructions or guidelines. The exigencies of an administration mean, the demand for running a good administration. Ordinarily, the employer is the best judge at the first instance as to whether in public interest or exigencies of administration transfer of a person is to be effected or not. The term 'public interest and 'exigency' can be employed in a pragmatic sense, as opined by this Court. 21. In the decision of HINDUSTAN LEVER LIMITED V. THE WORKMEN, AIR 1974 SUPREME COURT PAGE 17, the Hon'ble Supreme Court observed that if the transfer is prima facie valid, the burden of proving that it is invalid lies on the workman. One cannot ignore a very vital fact that the power of the 1st Respondent/ Inspector of Panchayats under Section 205 of the Tamil Nadu Panchayats Act, 1994, is quasi-judicial in character, in the considered opinion of this Court. One cannot ignore a very vital fact that the power of the 1st Respondent/ Inspector of Panchayats under Section 205 of the Tamil Nadu Panchayats Act, 1994, is quasi-judicial in character, in the considered opinion of this Court. Moreover, the word 'sanction' occurring in Section 230 of the Act refers to the prior sanction being obtained for prosecution from the Government in respect of the President, or the Executive Authority or the Chairman, etc. 22. Be that as it may, on a careful consideration of respective contentions and also this Court taking note of the attendant facts and circumstances of the case, in an encircling fashion, is of the considered view [although Section 104 (1) of the Tamil Nadu Panchayats Act, 1994 enjoins that no officer or servant shall be so transferred except after consulting the Commissioner or the Executive Authority concerned] that the 1st Respondent/District Collector, Erode, as the Inspector of Panchayats under Section 205 of the Tamil Nadu Panchayats Act, 1994 has overall power, superintendence and control over the Panchayats under his domain and pass an order of transfer in respect of the Petitioner based on administrative exigency/public interest concerned and that too, without obtaining the consent or prior consent of the Executive Authority under Section 104 of the Tamil Nadu Panchayats Act, 1994. Viewed in that perspective, the impugned order of the First Respondent/District Collector, Erode, dated 02.01.2012 could not be found fault with and consequently, the Writ Petition fails. 23. In the result, the Writ Petition is dismissed, leaving the parties to bear their own costs. Consequently, connected miscellaneous petition is closed.