Madras High Court
V.Gunasekaran vs The Director General Of Police on 24 September, 2019
Author: M.Dhandapani
Bench: M.Dhandapani
W.P.No.28224 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.09.2019
CORAM
THE HON'BLE MR.JUSTICE M.DHANDAPANI
W.P.No.28224 of 2019
and
W.M.P.Nos.27887 & 27889 of 2019
V.Gunasekaran ... Petitioner
Vs.
The Director General of Police,
Tamil Nadu,
Dr.Radhakrishnan Salai,
Mylapore, Chennai – 4. ... Respondent
Prayer:- Writ petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus, calling for the records of
the respondent in connection with the impugned order passed by him in
Rc.No.16753/NGB IV(2)/2019, dated 17.09.2019, quash the same and direct
the respondent to retain the petitioner in the same post and station and
grant such other further relief.
For Petitioner : Mr.K.Venkataramani
Senior Counsel for
Mr.M.Muthappan
For Respondent : Mrs.A.Sri Jayanthi
Additional Government Pleader
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W.P.No.28224 of 2019
ORDER
By consent, this writ petition is taken up for final disposal at the admission stage itself.
2.The petitioner entered into service as Grade II Police constable through a selection conducted by the Recruitment Board and appointment to service in the District Armed Reserve on 15.04.1997. After institutional training, the petitioner opted to serve in the Armoury wing of the Armed Reserve during the year 2002 and thereafter promoted as Havildar in the year 2005. By seniority and merit, the petitioner was promoted as Reserve Sub-Inspector in Armoury in June 2017 with retrospective effect from February 2017. While so, the petitioner has been issued with an impugned transfer dated 17.09.2019, transferring him from Tiruppur District to Tirunelveli Range in South Zone on administrative grounds and orders have been issued to relieve him immediately. Aggrieved by the order of transfer, the petitioner has filed the present petition.
3.The learned counsel for the petitioner submitted that the impugned transfer order on administrative grounds is illegal as the petitioner has not been served with the impugned order and not been 2/10 http://www.judis.nic.in W.P.No.28224 of 2019 relieved so far. He further submitted the petitioner was not issued with any notice and the order was issued during the middle of the academic year. The petitioner's family is residing at Coimbatore and his children are studying at Coimbatore and moreover, the petitioner is a hear patient with pace maker fitted, would be difficult to stay away from the family.
4.The learned Additional Government Pleader submitted that the grounds raised by the petitioner are not valid and it does not stand to scrutiny by this Court.
5.Heard the submissions made by Mr.K.Venkataramani, Senior Counsel appearing for the petitioner and Mrs.A.Sri Jayanthy, learned Additional Government Pleader appearing for the respondents.
6.In this context, it is relevant to refer to two decisions of the Supreme Court. The first relates to E.P.Royappa Vs. State of Tamilnadu reported in 1974 (4) SCC 3. The relevant passages found in paras 91 and 92 are reproduced below:
"91....The only question before us is whether the action taken by the respondents includes any component of mala fides; whether hostility and malus animus against the petitioner were the 3/10 http://www.judis.nic.in W.P.No.28224 of 2019 operational cause of the transfer of the petitioner from the post of Chief Secretary.
92. Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Here the petitioner, who was himself once the Chief Secretary, has flung a series of charges of oblique conduct against the Chief Minister. That is in itself a rather extraordinary and unusual occurrence and if these charges are true, they are bound to shake the confidence of the people in the political custodians of power in the State, and therefore, the anxiety of the Court should be all the greater to insist on a high degree of proof. In this context it may be noted that top administrators are often required to do acts which affect others adversely but which are necessary in the execution of their duties. These acts may lend themselves to misconstruction and suspicion as to the bona fides of their author when the full facts and surrounding circumstances are not known. The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charge of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life or administrative set up—these considerations are wholly irrelevant in judicial approach—but because otherwise, functioning effectively would become difficult in a democracy. It is from this standpoint that we must assess the merits of the allegations of mala fides made by the petitioner against the second respondent.” 4/10 http://www.judis.nic.in W.P.No.28224 of 2019
7. The second decision relates to M.Sankaranarayanan, IAS Vs. State of Karnataka and others (1993) 1 SCC 54. The following passage found in para 12 is worthy of reproduction here:
“12.After considering the respective contentions of the learned counsels appearing for the parties, it appears to us that the appellant has not been able to lay any firm foundation warranting a finding that the impugned order of transfer was passed mala fide and/or for an oblique purpose in order to punish the appellant and/or to humiliate him. The pleadings of the appellant before the Central Administrative Tribunal only indicate that some of his suggestions in the matter of posting of senior bureaucratic officers of the State had not been accepted by the present Chief Minister of the State. Such facts alone do not constitute any foundation for a finding that because the appellant was not agreeable to oblige the Chief Minister by accepting all his suggestions and putting up notes to that effect, he had incurred the displeasure of the Chief Minister and the impugned orders had been passed not on administrative exigencies but only to malign the appellant and to humiliate him. It may not always be possible to demonstrate malice in fact with full and elaborate particulars and it may be permissible in an appropriate case to draw reasonable inference of mala fide from the facts pleaded and established. But such inference must be based on factual matrix and such factual matrix cannot remain in the realm of insinuation, surmise or conjecture. In the instance case, we are unable to find that there are sufficient materials from which a reasonable inference of malice in fact for passing the impugned order of transfer can be drawn. It is an admitted position that the Chief Secretary and the Chief Minister had differences of opinion on a number of sensitive matters. If on that score, the Cabinet and the Chief Minister had taken a decision to relieve the appellant from the post of Chief Secretary and post a very senior officer of their confidence to the post of Chief Secretary, it cannot be held that such decision is per 5/10 http://www.judis.nic.in W.P.No.28224 of 2019 se illegal or beyond the administrative authority. The position in this regard has been well explained in Royappa case1 by this Court.”
8.In both the cases, the issue related to transfer orders of the highest officials of the State Government i.e. Chief Secretary to the Government.
9.Since the transfer was made on administrative grounds, the Court cannot go behind the said reason so long as the power has been exercised properly by the authorities. Even following of the guidelines are not required when transfer is made on administrative grounds.
10.As admittedly, since the petitioner belong to a State Service created under Article 309 of the Constitution of India and they are entitled to serve wherever a posting is given to them. Therefore, the basic question is whether the petitioner is entitled to resist an order of transfer or in the alternative, through the Court, can get the posting to a particular place in the absence of Rules. Under the Rules framed under Article 309 of the Constitution of India being a State Service, transfer is an incidence of service of any service personnel and unless the transfer is made on the ground of mala fide or for extraneous reasons, the Court cannot go behind the power of the authorities in effecting transfer. 6/10 http://www.judis.nic.in W.P.No.28224 of 2019
11.In this context, it is necessary to refer to the decision of the Hon'ble Supreme Court reported in State of U.P. Vs. Siya Ram and another (2004 (7) SCC 405). In paragraph 5 observed as follows:
“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 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. This position was highlighted by this Court in National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan.”
12.Further, the Hon'ble Supreme Court in yet another decision reported in 2004 (11) SCC 402 (State of U.P. Vs. Gobardhan Lal), in paragraph 7 observed as follows:-
“7.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 7/10 http://www.judis.nic.in W.P.No.28224 of 2019 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 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.”
13.In the absence of any valid legal grounds and factual pleadings regarding mala fides, the Writ petition deserves to be dismissed and accordingly, dismissed. However, liberty is granted to the petitioner to submit fresh representation to the respondent seeking for transfer to a near 8/10 http://www.judis.nic.in W.P.No.28224 of 2019 by place. No costs. Connected miscellaneous petitions are also closed.
24.09.2019
Internet: Yes/No
Index: Yes/No
rm
To
The Director General of Police,
Tamil Nadu,
Dr.Radhakrishnan Salai,
Mylapore, Chennai – 4.
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W.P.No.28224 of 2019
M.DHANDAPANI,J.,
rm
W.P.No.28224 of 2019
24.09.2019
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