Madras High Court
The Commissioner Of Fisheries vs M.B. Jerolin Vincent on 25 November, 2014
Author: Satish K. Agnihotri
Bench: Satish K. Agnihotri, K.K. Sasidharan
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON: 21.11.2014 DATE OF DECISION: 25.11.2014 CORAM: THE HON'BLE MR. JUSTICE SATISH K. AGNIHOTRI and THE HON'BLE MR. JUSTICE K.K. SASIDHARAN W.A. Nos.1422 and 1450 of 2014 and M.P. Nos.1 of 2014 The Commissioner of Fisheries Department of Fisheries Chennai 600 006 Appellant in W.A. No.1422 of 2014 vs. 1 M.B. Jerolin Vincent 2 P.D. Mathivanan Personal Assistant O/o the Joint Director of Fisheries Nagapattinam now at Personal Assistant (Accounts) O/o the Commissioner of Fisheries Chennai 600 006 Respondents in W.A. No.1422/2014 P.D. Mathivanan Appellant in W.A. No.1450/2014 vs. 1 M.B. Jerolin Vincent 2 The Commissioner of Fisheries Chennai 600 006 Respondents in W.A.No.1450/2014 Writ Appeals filed under Clause 15 of the Letters Patent challenging the order dated 24.09.2014 passed in W.P. No.19615 of 2014. For appellant in Mr.P.S.Sivashanmugasundaram W.A. No.1422 of 2014 Special Government Pleader For R1 in W.A. No.1422 of 2014 Mr. P. Chandrasekar For R2 in Mr.R.Singaravelan W.A. No.1422 of 2014 for Mrs. R. Srividhya - - - - For appellant in Mr.R.Singaravelan W.A. No.1450 of 2014 for Mrs. R. Srividhya For R1 in W.A. No.1450 of 2014 Mr. P. Chandrasekar For R2 in Mr.P.S.Sivashanmugasundaram W.A. No.1450 of 2014 Special Government Pleader - - - - - COMMON JUDGMENT
Since both the instant writ appeals are directed against the order dated 24.09.2014 passed by the Writ Court in W.P.No.19615 of 2014, they are being considered and decided by this common judgment.
2 For the sake of brevity and better understanding of the issue, the parties are referred to as per their litigative status in W.A. No.1422 of 2014.
3 The writ petitioner/first respondent herein, while working as Personal Assistant (Accounts) in the Head Office, was transferred and posted as Personal Assistant to the Joint Director of Fisheries (Regional), Nagapattinam, in place of the second respondent herein, who was transferred from Nagapattinam to the Head Office at Chennai, vide order dated 16.07.2014. The first respondent herein, feeling aggrieved by the said order, preferred a writ petition, being W.P. No.19615 of 2014, questioning the legality and validity of the same, on the ground that it was passed ignoring her physical condition, which is contrary to G.O.Ms. No.10 dated 07.01.1994 and also in order to accommodate the second respondent herein. Thus, the transfer order was vitiated and as such, deserves to be quashed.
4 The appellant/first respondent in the writ petition, viz., the Department, submitted before the Writ Court that on account of administrative reasons, the writ petitioner/first respondent herein was transferred to Nagapattinam and in her place, the second respondent herein was transferred from Nagapattinam to the Head Office in Chennai in the Office of the Commissioner of Fisheries. Thus, there is no mala fides and it is a clear case of administrative exigency to improve administrative efficiency.
5 The Writ Court, observing that it is a settled law that transfer order can be challenged on the grounds of mala fides and/or for want of competence of the authority to issue the same and if the same is in violation of any statutory provisions of law, held that since the transfer order was to accommodate the second respondent herein, it was a case of mala fide exercise of power and that the transfer order was not based on administrative reasons. Accordingly, the transfer order was quashed.
6 Mr. P.S. Sivashanmugasundaram, learned Special Government Pleader appearing for the appellant-Department, would submit before us that in the process of posting the employees, one person has to be placed against the other person. The basic relevant material is only the exigency, which the employer has to ensure, keeping in view, the administrative efficiency. There was no mala fides in transferring the writ petitioner/first respondent herein in place of the second respondent herein. He would further contend that the writ petitioner/first respondent herein was posted throughout in Chennai; in effect, the present order of transfer is the second order, whereby, the writ petitioner/first respondent herein had been posted out of Chennai, that too, only to improve administrative efficiency.
7 Per contra, the learned counsel for the writ petitioner/first respondent herein would submit that the transfer order was passed, not only in exercise of mala fides, but, it also amounts to frequent transfers as the writ petitioner/first respondent herein was earlier transferred on 03.03.2014 from Thoothukudi to Chennai and thereafter, within a period of four months, the impugned transfer order has been passed shunting the writ petitioner/first respondent herein from Chennai to Nagapattinam. Initially, the writ petitioner/first respondent herein was transferred by order dated 07.12.2012 on promotion. Thereafter, by order dated 20.06.2013 to Thoothukudi and on 03.03.2014 from Thoothokudi to Chennai.
8 On the other hand, Mr. R. Singaravelan, learned counsel for the second respondent herein, would submit that the second respondent herein was posted outside Chennai throughout for a long period of time. The post of Personal Assistant is a transferable post and all employees have to be posted in the entire State of Tamil Nadu and not at a particular place. The allegation of mala fides levelled by the writ petitioner/first respondent herein, on the part of the appellant-Department to accommodate the second respondent herein, is unsubstantiated and sans any basis.
9 We have heard the learned counsel for the respective parties, perused the pleadings and also the documents appended to the writ appeals.
10 There is no dispute that the writ petitioner/first respondent herein, from the day she was appointed, continued to be posted at Chennai even after promotion, when, in normal course, an employee is posted at some other place, after promotion. The writ petitioner/first respondent herein was promoted to the post of Personal Assistant by order dated 07.12.2012 and posted at Chennai only. Thereafter, the writ petitioner/first respondent herein was transferred for the first time, from Chennai on 20.06.2013 to Thoothukudi as Personal Assistant to Joint Director of Fisheries and she was re-transferred back to Chennai, vide order dated 03.03.2014, that too, at her request. Subsequently, the writ petitioner/first respondent herein was transferred by the impugned transfer order to Nagapattinam.
11 The term frequent transfers does not mean one or two transfers within a period of four months. The term frequent transfers means there should be more than three transfers within a short span of time, which dislocates an employee and his family set up, as well. In the case on hand, there are only two transfers, one is from Thoothukudi to Chennai and the other is from Chennai to Nagapattinam, within a period of one year, which cannot fall under the ambit of the term frequent transfers. Thus, the contention of the writ petitioner/first respondent herein that she is suffering from the vice of frequent transfers, does not merit acceptance.
12 The second aspect to be looked into is mala fides as to whether there was sufficient material which is for the writ petitioner/first respondent herein to establish, to infer that there was a mala fide exercise of power by the appellant-Department. It is true that there may not be a direct evidence to establish mala fides. However, there must be sufficient materials to deduce reasonable and inescapable inference of mala fides. The mere fact that the writ petitioner/first respondent herein was transferred in place of the second respondent herein is not the enough material to establish that it is a mala fide exercise of power to accommodate the second respondent herein. It is for the employer to ensure working efficiency, working atmosphere and administrative necessity, which constitute administrative exigency. It is a well settled principle of law that the Court or Tribunal cannot go into the reason of administrative exigency, unless it is attacked on the ground of mala fides. Thus, if there is well established mala fides, the reason of administrative exigency cannot be held good. In the case on hand, the writ petitioner/first respondent herein had failed to establish any mala fides on the part of the appellant-Department, except contending that the impugned order of transfer was passed to facilitate the accommodation of the second respondent herein.
13 The law in respect of judicial intervention in case of transfer, is no longer res integra. Indisputably, transfer is an incidence of service and it is made according to the administrative requirement and exigency. The Courts should not interfere with the administrative exigency of the employer, unless it is tainted with mala fides.
14 In Rajendra Roy vs. Union of India and another [(1993) 1 SCC 148], the Supreme Court held as under:
7. x x x x x It is true that the order of transfer often causes a lot of difficulties and dislocation in the family set-up of the concerned employees but on that score the order of transfer is not liable to be struck down. Unless such order is passed mala fide or in violation of the rules of service and guidelines for transfer without any proper justification, the Court and the Tribunal should not interfere with the order of transfer. In a transferable post an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department. x x x x x 15 Further, in State of Uttar Pradesh and another vs. Siya Ram and another, [(2004) 7 SCC 405], the Supreme Court held as under:
5. x x x x x 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 of 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. x x x x 16 Besides, in State of Uttar Pradesh vs. Gobardhan Lal, [(2004) 11 SCC 402], the Supreme Court held as under:
7. x x x x x 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 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. 17 That apart, in Rajendra Singh vs. State of Uttar Pradesh, [(2009) 15 SCC 178], the Supreme Court held that transfer of an employee is not only an incident inherent in terms of appointment, but also, implicit as an essential condition of service in the absence of any specific indication to the contrary.
18 As a sequel, having considered the afore-stated facts of the case and well established law, we are of the considered view that the Writ Court fell in error in quashing the impugned transfer order dated 16.07.2014. Accordingly, the order dated 24.09.2014 passed by the Writ Court is set aside and the transfer order is upheld.
19 Resultantly, both the writ appeals are allowed. No costs. Connected Miscellaneous Petitions are closed.
(S.K.A.J.) (K.K.S.J.) 25.11.2014 cad Index:Yes To The Commissioner of Fisheries Department of Fisheries Chennai 600 006 SATISH K. AGNIHOTRI, J. and K.K. SASIDHARAN, J. cad Pre-delivery common judgment in W.A. Nos.1422 and 1450 of 2014 25.11.2014