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2018 DIGILAW 1792 (MAD)

Leela Simon v. Secretary to Government of Tamilnadu Education, Science and Technology Department

2018-06-07

M.V.MURALIDARAN

body2018
ORDER : The petitioner has filed this writ petition seeking issuance of a writ of certiorarified mandamus to call for the records relating to the impugned order passed by the first respondent in G.O. (1D) No.153, dated 22.07.2004, to quash the same as illegal, arbitrary and consequently direct the respondents to treat the period between 01.07.1996 to 09.04.2001 as one spent on duty with all attendant benefits thereto, including monetary benefits. 2. The facts in a nutshell are as under: The petitioner, who was working as a Lecturer (Selection Grade) in Presidency College, Chennai, was transferred to Ulaganatha Narayanaswamy Government Arts College, Ponneri, by an order dated 28.06.1996. It is the case of the petitioner that the said order of transfer was in violation of various government orders. 3. The petitioner is stated to have challenged the said order of transfer before the Administrative Tribunal in O.A.No.3693 of 1996 and the Tribunal, on 25.07.1996, granted interim stay, which was extended periodically. Even though the petitioner made representations to the respondents referring to the order of interim stay and requesting to permit her to join duty in the place from which she was transferred, the petitioner was not allowed to join duty. 4. As the order of the Tribunal was violated, the petitioner filed a Contempt Application in C.A.No.418 of 1996 before the Tribunal. In that contempt application, the first respondent appeared in person and informed the Tribunal that they had complied with the order of the Tribunal by allowing the petitioner to join duty in the Presidency College with effect from 09.04.2001. The petitioner was permitted to join duty by an order dated 04.04.2001 passed by the Director of Collegiate Education. Thereafter, recording the stand of the first respondent that the petitioner was permitted to join duty, the Tribunal by order dated 17.04.2003 dismissed the original application as infructuous. 5. It is the case of the petitioner that she was not allowed to join duty for the period from 01.07.1996 to 09.04.2001 only at the instance of the respondents. The petitioner sent representations on 10.02.2003 and 07.07.2003 to treat the period of four years and nine months as duty and to release the salary. 5. It is the case of the petitioner that she was not allowed to join duty for the period from 01.07.1996 to 09.04.2001 only at the instance of the respondents. The petitioner sent representations on 10.02.2003 and 07.07.2003 to treat the period of four years and nine months as duty and to release the salary. As the said representation did not evoke any response, the petitioner filed O.A.No.2944 of 2003, which was dismissed by the Tribunal by order dated 29.08.2003 observing that the petitioner cannot be granted relaxation to treat the period as duty and that the same could be granted only by way of leave on loss of pay, while directing the respondents to consider the representation of the petitioner. 6. Assailing the observation made by the Tribunal, as aforesaid, and alleging that the same would prejudice the mind of the appointing authority, the petitioner filed W.P. No. 27066 of 2003, wherein this Court, by order dated 17.10.2003, directed the Government to consider the representation of the petitioner on merits and in accordance with law, while setting aside the observation of the Tribunal. 7. It is stated that thereafter the first respondent by order dated 22.07.2004, which is under challenge in this writ petition, rejected the request of the petitioner. Hence, the present writ petition for the relief stated supra. 8. It is the contention of the learned counsel appearing on behalf of the petitioner that the first respondent ought to have granted pay and all consequential benefits for the period from 28.06.1996 to 09.04.2001, since the petitioner had obtained an order of interim stay of the transfer in O.A.No.3693 of 1996 and the same had not been vacated by the Tribunal. 9. Per contra, the learned Government Advocate appearing on behalf of respondents 1 and 2 submitted that there is nothing illegal or improper about the transfer order and suppressing the fact that the petitioner was relieved from the Presidency College, the Tribunal had granted stay. 10. I heard Mr. K. Srinivasamurthy for M/s. Row and Reddy, learned counsel appearing for the petitioner and Mrs. K. Bhuvaneswari, learned Government Advocate appearing on behalf of the respondents 1 and 2 and perused the documents available on record. No representation on behalf of the 3rd respondent. 11. 10. I heard Mr. K. Srinivasamurthy for M/s. Row and Reddy, learned counsel appearing for the petitioner and Mrs. K. Bhuvaneswari, learned Government Advocate appearing on behalf of the respondents 1 and 2 and perused the documents available on record. No representation on behalf of the 3rd respondent. 11. The Hon'ble Supreme Court time and again held that the Courts should not interfere with a transfer order which is made in public interest and for administrative reasons, unless the transfer order is 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 the legal rights of the employee. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order and instead the 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 complete chaos in the Administration which would not be conducive to public interest. 12. In the case on hand, it is beyond any cavil that the petitioner was transferred from Mayiladuthurai to Presidency College, Chennai on 23.01.1995. Thereafter, within one and half years, by order dated 28.06.1996, she was proposed to be transferred to Ulaganatha Narayanaswamy Government Arts College. The Tribunal, by order dated 25.07.1996, granted interim stay of the order of transfer. Admittedly, the said order of interim stay was not vacated. 13. Even though the grant of stay by the Tribunal was communicated to the respondent authorities, the petitioner was not permitted to join. From a perusal of the averments and the orders passed by the Tribunal, it is patently clear that only when a contempt petition was filed by the petitioner and the first respondent was directed to be appear in person that the Tribunal was informed by the first respondent that the petitioner was permitted to join duty with effect from 09.04.2001. 14. It is apparent on the face of the records that the respondents had violated the interim order passed by the Tribunal in not permitting the petitioner to join duty. 14. It is apparent on the face of the records that the respondents had violated the interim order passed by the Tribunal in not permitting the petitioner to join duty. Despite series of representations sent by the petitioner to the respondents requesting to permit her to join duty, it was the respondents who denied employment to her during the disputed period. The respondents cannot plead that the petitioner had been relieved and the said factor was suppressed by the petitioner before the Tribunal. Once the Tribunal granted an interim order of stay of the order of transfer, the same will relate back to the date of transfer and relieving of the petitioner does not matter. 15. Moreover, it is seen that the third respondent, by order dated 11.04.2004, recommended that the disputed period can be treated as compulsory wait and petitioner's service can be regularized. 16. For the foregoing reasons: (a) the writ petition is allowed and the impugned order in G.O. (1D) No.153, dated 22.07.2004 is set aside; (b) the respondents are directed to treat the period between 01.07.1996 to 09.04.2001 as one spent on duty with all attendant benefits thereto, including monetary benefits; (c) the said exercise shall be done within a period of four weeks from the date of receipt of a copy of this order. No costs.