Madras High Court
B.Selvam vs The Secretary To Government on 5 October, 2009
Author: S. Manikumar
Bench: S. Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.10.2009
CORAM:
THE HONOURABLE MR. JUSTICE S. MANIKUMAR
W.P.No.3949 of 2009
M.P.Nos.1 and 3 of 2009
B.Selvam ... Petitioner
Versus
1. The Secretary to Government,
State of Tamil nadu,
Water Supply Department,
Secretariat, Fort St. George,
Chennai-9.
2. The Commissioner of Municipal
Administration, Chepauk, Chennai-5.
3. The Commissioner,
Tiruchirappalli City Municipal
Corporation, Tiruchirappalli 620 017.
4. V.Balagangadharan ... Respondents
Writ Petition is filed under Article 226 of the Constitution of India praying for a Writ of Certiorari, to call for the records relating to the impugned order of the first respondent issued in G.O.(D)No.30, MA & WS, dated 02.02.2009 and quash the same.
For Petitioner : Mr.Vijayanarayan, SC
for Mr.R.Parthiban
For 1st Respondent : Mr.P.Subramanian,
Addl. Government Pleader
For Respondents 2 & 3 : Mr.S.Ramasamy,
Addl. Advocate General I
Assisted by Mr.P.Srinivas
O R D E R
The petitioner, an Assistant Executive Engineer, working in Tiruchirappalli Municipal Corporation, has challenged the order of transfer issued by the Government in G.O.(D)No.30, MA & WS Department, dated 02.02.2009, transferring from Municipal Corporation to a Municipality.
2. Facts leading to the Writ Petition are as follows:
The petitioner was appointed as Junior Engineer in the Municipal service on 14.01.1988 and he worked in various municipalities. During 1994, the Government have upgraded Tiruchirappalli Municipality along with three other Municipalities as Municipal Corporation. The petitioner was absorbed in Tiruchirappalli City Municipal Corporation and thereafter, promoted as Assistant Executive Engineer in the year 2007 and posted in Golden Rock Zone of Tiruchirappalli Corporation. While so, the Secretary to the Government, Water Supply Department, first respondent, issued orders in G.O.(D)No.542, MA & WS Department, dated 29.12.2008, transferring the petitioner from Tiruchirappalli City Municipal Corporation to Municipal Service and posted him in the Office of the Regional Director of Municipal Administration, Tirunelveli, as Assistant Executive Engineer. The said order was challenged in W.P.No.285 of 2005 and while entertaining the Writ Petition, this Court in M.P.No.2 of 2009, dated 20.01.2009, has granted interim stay. When the said Writ Petition was pending, the first respondent suo-moto cancelled the order of transfer, dated 29.12.2008 and issued another Order in G.O.(D)No.30, MA & WS Department, dated 02.02.2009, in exercise of its powers, under Section 116(1)(d) of the Coimbatore City Municipal Corporation Act, 1981 and Section 73-A(1) of the Tamil Nadu District Municipalities Act, 1920, transferring him to Arani Municipality as Municipal Engineer, Grade II. Aggrieved by the same, the petitioner has preferred the present Writ Petition.
3. The Commissioner, Tiruchirappalli City Municipal Corporation, third respondent herein, in his counter affidavit, has submitted that the Government in G.O.Ms.No.542, MA & WS Department, dated 29.12.2008, issued orders, transferring and posting the petitioner to the office of the Regional Director of Municipal Administration, as Assistant Executive Engineer, in which, it was clearly indicated that the said order of transfer is for conducting a free and fair enquiry initiated against him with regard to the disproportionate assets to the known sources of income. Accordingly, the petitioner was relived from the duties on the Forenoon of 10.01.2009. In the mean while, the Director of Municipal Administration, in his proceedings, dated 09.01.2009, has issued orders, transferring Mr.V.Balagangadharan, Assistant Executive Engineer (TSUNAMI) of Vedharanyam Municipality as Assistant Executive Engineer in Tiruchirappalli City Municipal Corporation on deputation basis in the vacant post due to the transfer of the petitioner to the Office of the Regional Director, Tirunelveli, on the ground of disbandment of the post of Assistant Executive Engineer under TSUNAMI Scheme. Accordingly, the said Mr.V.Balagangadharan, Assistant Executive Engineer was permitted to join duty on deputation basis, vide proceedings, dated 10.01.2009.
4. The third respondent has further submitted that in the mean while, the petitioner filed W.P.No.285 of 2009 before this Court, challenging G.O.Ms.No.542, MA & WS Department, dated 29.12.2008, on the ground inter alia that the Government have got powers only to transfer an officer or employee of the Corporation to any Municipality and vice versa as per Section 73-A of the Tamil Nadu District Municipalities Act, and cannot transfer an officer or employee of the Corporation to Government service (viz., the Regional Directorate of Tirunelveli). In the above Writ Petition, this Court, by order, 20.01.2009, has granted interim stay. Consequently, the Government in G.O.(D)No.30, Municipal Administration and Water supply Department, dated 02.02.2009, cancelled the earlier orders issued in G.O.Ms.No.542, and issued a fresh order, transferring the petitioner to Arani Municipality as Municipal Engineer, Grade II (in the cadre of Assistant Executive Engineer) in the existing vacancy duly as per the provisions laid under Section 116(1)(d) of the Tamil Nadu Municipal Corporation Act, 1981 and Section 73-A(1) of the Tamil nadu District Municipalities Act, 1920.
5. The third respondent has further submitted that the Vigilance authorities have filed a FIR in Trichy in Cr.No.7/08 and it is in progress. Further, only for conducting a free and fair enquiry, the Government have issued orders, transferring the petitioner to a new station, for which, the Government have got powers, as stated supra. The third respondent has further submitted that the resolution of the Council is not necessary for effecting transfer of an employee from one place to another, when the Government invokes power under Section 116 of the Coimbatore City Municipal Corporation Act, 1981 r/w 73 of the Tamil Nadu District Municipalities Act, 1920.
6. The third respondent has further submitted that following a house search and seizure of certain documents by the Vigilance and Anti-Corruption Department, a case has been registered and based on the recommendation of the investigating authorities, the Government have issued orders in public interest, transferring the petitioner from one place to another, in order to enable the authorities to conduct a free and fair enquiry, which cannot be said to be arbitrary.
7. Mr.Vijayanarayanan, Learned Senior Counsel for the petitioner submitted that inspite of an interim order granted by this Court, the respondents have failed to issue appropriate postings to the petitioner in Tiruchirappalli Municipal Corporation, even to a non-sensitive post. He also brought to the notice of this Court that in Contempt Application No.506 of 2009, the respondents have taken time for compliance of the interim order, but they have chosen to file an application for vacating the interim stay granted by this Court. Therefore, as a preliminary submission, learned Senior Counsel submitted that the respondents are bent upon in not providing a suitable place, even non-sensitive, which would exhibit the mala fide intention of the respondents, in somehow transferring the petitioner out of Tiruchirappalli Municipal Corporation.
8. Without prejudice to the above submissions, learned Senior Counsel submitted that the first respondent has erred in invoking Section 116(1)(d) of Coimbatore City Municipal Corporation Act, 1981 and Section 73-A(1) of the Tamil Nadu District Municipalities Act, 1920, for transferring the petitioner out of the Corporation.
9. Referring to Section 116 of the Coimbatore City Municipal Corporation Act, 1981 and Section 8 of the Tiruchirappalli City Municipal Corporation Act, 1994, learned Senior Counsel submitted that, save as otherwise expressly provided in the latter Act, all the provisions of the 1981 Act shall apply mutatis-mutandis to the Tiruchirappalli Corporation and provisions of Tiruchirappalli City Municipal Corporation Act, 1994 should be read and construed, as if the provisions of the latter Act had formed part of the 1981 Act.
10. Inviting the attention of this Court to Section 9(6) of the Trichirapalli City Municipal Corporation Act, 1994 and in particular, to the second proviso, learned Senior Counsel for the petitioner submitted that the said proviso speaks about transferrable cadre, by which, an option is given to an officer or employee serving in the Municipality, either to be absorbed in the service of the Corporation or to be retained in the service constituted under Section 74 of the Tamil Nadu District Municipalities Act, 1920. He therefore submitted that transfer of an officer or employee from Municipal Corporation to the service constituted under the Municipalities Act, will arise only when, an option is obtained from the officer or employee of the Corporation and therefore, the first respondent has no jurisdiction to invoke Section 116(1)(d) of the Coimbatore City Municipal Corporation Act, 1981 to terminate the vested rights in Trichirapalli Municipal Corporation.
11. Learned Senior Counsel for the petitioner further submitted that by exercising the power under Section 116(1)(d) of Tiruchirappalli City Municipal Corporation Act, 1981 and Section 73-A(1) of the Tamil Nadu District Municipalities Act, 1920, there cannot be any change of an employer at the whims and fancies of the Government. According to him, if the Government is empowered to transfer an employee from the Corporation to any Municipality on the sole ground that a Vigilance enquiry is pending, then the purpose of obtaining consent or option from the officer or employee under Section 9(6) of the Tiruchirappalli City Municipal Corporation Act, 1994, would stand negated.
12. Referring to Section 116(1)(d) of the Tiruchirappalli City Municipal Corporation Act and Section 73(A)(i) of the Tamil Nadu District Municipalities Act, 1920, learned Senior Counsel for the petitioner submitted that both the provisions are pari materia in nature. Having regard to the adverse effects of transfer of an officer or employee from one service to another, with a difference in the organisational set-up, downgrading the position in the new service to which an officer or employee is transferred and the reduction of status and chances of promotion in the parent department, he submitted that when the Government decides to transfer an employee from the Municipal Corporation to any Municipality, the same cannot be done without obtaining option or consent from the said officer or employee.
13. Learned Senior Counsel further submitted that the word "transfer" employed in Section 116(1)(d) of Coimbatore City Municipal Corporation Act, 1981 should be interpreted to mean only as "deputation of service" and in these circumstances, terminating the lien and vested rights of the petitioner in Tiruchirappalli Municipal Corporation, is illegal and contrary to the provisions of the statute referred to earlier.
14. Learned Senior Counsel for the petitioner further submitted that Section 116 of the Coimbatore City Municipal Corporation Act, 1981 does not lay down any guidelines, as to when the power can be exercised. According to him, in the absence of any guidelines, the power can arbitrarily be exercised by the Government and there is nothing in the said provision or in any other provision of the Act, determining the rights of such transferred employees in the transferred department, i.e., if the Government decides to deny promotion to an officer or employee of a Corporation, it can always bring any another person from any one of the Municipalities and thereby, deny his promotion in the parent unit, viz., Corporation. Similarly, if the Government intends to deny promotion to an officer or employee of a Corporation, at the time when he was legitimately expecting promotion, he can be transferred under Section 116(1)(d) of the Coimbatore City Municipal Corporation Act, 1981. In these circumstances, he submitted that the term "transfer" employed in Section 116(1)(d), should be interpreted only to mean as, "deputation" for a specific period, in the order, where a tri-parte agreement is required.
15. Referring to Rule 38 of the Tiruchirappalli City Municipal Corporation Service Rules, 1996, learned Senior Counsel for the petitioner submitted that when the rules contemplate that each Corporation is a separate unit for the purpose of appointment, promotion, seniority, etc., transfers could be effected only within the Corporation and if it is outside the Tiruchirappalli Municipal Corporation, it can be done only by way of deputation, retaining the lien in the parent department, viz., Tiruchirappalli Municipal Corporation.
16. Placing reliance on a decision in D.M.Bharati v. L.M.Sud and others reported in 1991 Supp. (2) SCC 168, learned Senior Counsel for the petitioner submitted that if an officer or employee of Municipal Corporation is transferred to an excadre post, without clearly specifying the nature of transfer, then such transfer has to be held only as deputation.
17. Relying on a decision reported in U.P.Gram Panchayat Adhikari Sangh v. Daya Ram Saroj reported in 2007 (2) SCC 138, learned Senior Counsel submitted that while interpreting the word "transfer" occurring in Section 116 of the Coimbatore City Municipal Corporation Act, 1981, one has to read the Section as a whole and by effecting transfer, in exercise of the power conferred on the Government under the said Section, the service conditions in the parent department cannot be altered, which has got the effect of changing the employer.
18. Referring to the proceedings in Roc.No.003/2009/C1(Main), dated 31.08.2009, of the Commissioner, Tiruchirappalli Corporation, Tiruchirappalli, learned Senior Counsel for the petitioner further submitted that when the Commissioner of Tiruchirappalli City Municipal Corporation has himself admitted that the petitioner, who is now posted to Arani Municipality as Municipal Engineer, Grade-II, (in the cadre of AEE), would not lose his seniority in the City Municipal Corporation, Tiruchirappalli, if he is otherwise eligible for further promotion, the impugned order of transfer has to be interpreted and meant only as an order of deputation.
19. Pointing out the case of several individuals against whom, action has been taken by the Director of Vigilance and Anti-Corruption Department for possession of disproportionate assets to the known sources of income, learned Senior Counsel for the petitioner further submitted that the impugned action taken against the petitioner exhibits gross discrimination, arbitrariness and mala fide to somehow transfer the petitioner from Tiruchirappalli City Municipal Corporation to Arani Municipality.
20. In response to above submissions, Mr.S.Ramasamay, learned Additional Advocate General submitted that Section 116 of the Coimbatore City Municipal Corporation Act, 1981, by virtue of its applicability to Tiruchirappalli City Municipal Corporation Act, 1994, empowers the Government to transfer any officer or servant of the Municipal Corporation to any Municipality. Referring to the Second Proviso to Sub-Section (6) of Section 9 of the Tiruchirappalli City Municipal Corporation, 1994, he further submitted that the said provision is attracted only when there is a transition or a change, where an option is required to be exercised by any officer or other employee serving in the Municipality, either to be absorbed to the service of the Corporation or to be retained in service constituted under Section 73-A of the Tamil nadu District Municipalities Act, 1920 or to be retrenched from service of the Municipality. He further submitted that Section 9(6) of the Tiruchirappalli City Municipal Corporation Act, 1994 has no application to the facts of this case, as the petitioner had been absorbed as an employee of the Corporation.
21. By referring to the proceedings in Roc.No.003/2009/C1(Main), dated 31.08.2009, of the Commissioner of Tiruchirappalli Corporation, Tiruchirappalli, learned Additional Advocate General further submitted that the apprehension of the petitioner that he would be losing his seniority, status and other privileges attached to the office of the Assistant Executive Engineer, which he was holding in the Corporation, pursuant to the transfer, is not well founded for the reason that the seniority of the petitioner, now posted as Municipal Engineer, Grade II (in the cadre of AEE) in Arani Municipality, which is an equivalent cadre, would be protected and that he would be considered for promotion if he is otherwise eligible.
22. Learned Additional Advocate General further submitted that the preliminary enquiry conducted by the Vigilance and Anti-Corruption Department would go to show that the petitioner has got disproportionate assets to the known sources of his income and therefore, in order to facilitate a free and fair enquiry, the Government have transferred the petitioner out of the Corporation, which is in in public interest and therefore, it cannot be termed as arbitrary or mala fide exercise of power.
23. Placing reliance on a decision in Union of India v. Janardhan Debanath and another reported in 2004 (4) SCC 245, learned Additional Advocate General submitted that the question of any downgradation of seniority or promotional prospects, are the aspects, which can be gone into in an appropriate proceedings and when the allegations made against an officer of the Municipal Corporation are of serious nature, there is no need to conduct a roving enquiry at the time of effecting transfer and it is suffice that if the order is issued in public interest or exigencies of administration to enforce decorum and ensure probity.
24. Placing reliance on a decision in T.V.Subramaniam v. The State of Tamil Nadu reported in 2001 (3) MLJ 476, learned Additional Advocate General further submitted that the power of the Government to transfer an employee from a Municipality to a City Municipal Corporation has already been confirmed by this Court and therefore, the contention that the petitioner that he should be treated only as a deputationist is liable to be rejected. He also submitted that the decision relied on by the learned Senior Counsel for the petitioner in U.P.Gram Panchayat Adhikari Sangh v. Daya Ram Saroj reported in 2007 (2) SCC 138, is apposite to the facts of this case. For the above said reasons, he prayed for dismissal of the Writ Petition.
Heard the learned counsel for the parties and perused the materials available on record.
25. In order to examine the rival submissions of the Senior Counsel as to whether the word "transfer" employed in Section 116 of the Coimbatore City Municipal Corporation Act, 1981 and Section 73-A of the Tamil Nadu District Municipalities Act, 1920, convey a meaning, "deputation" or "transfer", by which, the lien in the parent department is once in for all terminated, it is necessary to extract the above Sections.
"116. Power of Government to transfer officers and servants of the corporation or municipalities:- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force, the Government shall have power-
(a) to transfer any officer or servant of the corporation to the service of the Municipal Corporation of Madras Constituted under the Madras City Municipal Corporation Act, 1919 (Tamil Nadu Act IV of 1919) or the Municipal Corporation of Madurai constituted under the Madurai City Municipal Corporation Act, 1971 (Tamil Nadu Act XV of 1971) or any other municipal corporation be constituted under any law for the time being in force; or
(b) to transfer any officer or servant of the Municipal Corporation of Madras Constituted under the Madras City Municipal Corporation Act, 1919 (Tamil Nadu Act (IV of 1919) or the Municipal Corporation of Madurai constituted under the Madurai City Municipal Corporation Act, 1971 (Tamil Nadu Act XV of 1971) or any other municipal corporation constituted under any law for the time being in force, to the service of the corporation; or
(c) to transfer any officer or servant of the corporation to the service of any municipality constituted under the Tamil Nadu District Municipalities Act, 1920 (Tamil Nadu Act V of 1920);
(d) to transfer any officer or servant of any municipality constituted under the Tamil nadu District Municipalities Act, 1920 (Tamil Nadu Act V of 1920) to the service of the Corporation."
"73-A. Power of State Government to transfer officers and servants of municipalities or corporations:- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force, the State Government shall have power-
(a) to transfer any officer or servant of a municipality to the service of the Municipal Corporation of Chennai Constituted under the Chennai City Municipal Corporation Act, 1919 (Tamil Nadu Act IV of 1919) or the Municipal Corporation of Madurai constituted under the Madurai City Municipal Corporation Act, 1971 (Tamil Nadu Act XV of 1971) or the Municipal Corporation of Coimbatore constituted under the Coimbatore City Municipal Corporation Act, 1981 (Tamil Nadu Act 25 of 1981) or any municipal corporation constituted under any law for the time being in force; or
(b) to transfer any officer or servant of any of the municipal corporation referred to in Clause (a), to the service of any municipality; or
(c) to transfer any officer or servant of any municipality to the service of any municipality.
(2) The State Government shall have power to issue such general or special directions as they may deem necessary for the purpose of giving due effect to any transfer made under sub-Section (1)."
26. As per Section 8(1) of the Trichirappalli City Municipal Corporation Act, 1994, save as otherwise expressly provided in the Act, all the provisions of 1981 Act, i.e., Coimbatore City Municipal Corporation Act, 1981, including the provisions relating to the levy and collection of any tax or fee are hereby extended to and shall apply, mutatis mutandis to the corporation (i.e., Trichirappalli City Municipal Corporation) and the 1981 Act (Coimbatore City Municipal Corporation Act, 1981) shall, in relation to the Corporation (i.e., Trichirappalli City Municipal Corporation) be read and construed as if the provisions of the Act had formed part of the 1981 Act. Therefore, by virtue of Section 8(1) of the Trichirappalli City Municipal Corporation Act and Section 116 of the Former Act, 1981 is applicable to the petitioner.
27. Sub-Section 6 of Section 9 of the Trichirappalli City Municipal Corporation Act, 1994, reads as follows:
"(6) Notwithstanding anything contained in this Act, every officer or employee who, immediately before the date of such commencement was in the service of the municipality shall, on and from the date of commencement of this Act, be deemed to be an officer or employee of the corporation:
Provided that-
(a) the terms and conditions applicable to such officers and employees consequent on their absorption in the service of the corporation shall not be less favourable than those applicable to such employees immediately before the date of such commencement, as regards pay and allowance, leave, pension, gratuity, provident fund and age of superannuation; and
(b) the service rendered by any such officer or other employee under the municipality upto the date of such commencement shall be deemed to be service under the corporation and shall be entitled to count that service for the purpose of increments, leave pension, provident fund, and gratuity;
Provided further that any officer or other employee serving in the municipality shall be given an option to be exercised within such time and such manner as may be prescribed either to be absorbed in the service of the Corporation or to be retained in the service constituted under Section 73-A of the District Municipalities Act, or to be retrenched from the service of the Municipality on such retrenchment benefits as may be prescribed."
28. Section 116 of the Coimbatore City Municipal Corporation Act, 1981 is pari-materia to Section 73-A of the Tamil nadu District Municipalities Act, 1920, which states that notwithstanding anything contained in this Act or in any other law for the time being in force, the Government shall have power to transfer any officer or servant of the municipal corporation to the service of any municipality constituted under the District Municipalities Act, 1920 and vice versa. As per Section 73-A of the Tamil nadu District Municipalities, 1920, the State Government shall have the powers to issue such general or special directions, as the case may, deem necessary for the purpose of giving due effect to any transfer made under sub-Section (1) of the said Section.
29. Before adverting to the contentions that the word, "transfer" employed in Section 116(1)(d) of the Coimbatore City Municipal Corporation Act, 1981 and Section 71-A of the Tamil Nadu District Municipalities Act, 1920, convey the meaning only "deputation" or "permanent transfer", it is useful to extract few decisions of the Supreme Court on the principle of interpretation to a statutory provision.
30. In Anwar Hasan Khan v. Mohd. Shafi reported in 2001(8) SCC 540, the Supreme Court, at Paragraph 8, held as follows:
"For interpreting a particular provision of an Act, the import and effect of the meaning of the words and phrases used in the statute have to be gathered from the text, the nature of the subject-matter and the purpose and intention of the statute. It is a cardinal principle of construction of a statute that effort should be made in construing its provisions by avoiding a conflict and adopting a harmonious construction. The statute or rules made thereunder should be read as a whole and one provision should be construed with reference to the other provision to make the provision consistent with the object sought to be achieved. The well-known principle of harmonious construction is that effect should be given to all the provisions and a construction that reduces one of the provisions to a "dead letter" is not harmonious construction."
31. In R.S. Pillai v. M.L. Peratchi, reported in (2000) 4 CTC 543, a Division Bench of this Court, at Paragraphs 23 held as follows:
"23. Before we take up such an exercise, the settled legal position in interpreting the statutes has to be borne in mind. It is settled law that the statute must be read as a whole and this principle equally applies to different parts of the same Section The Balasinor Nagrik Co-op. Bank Ltd., v. Babubhai, AIR 1987 SC 849.
No provision in the statute and no word in the Section may be construed in isolation Syed Hasan Rasul Numa v. Union of India , AIR 1991 SC 711.
Where the language of the provision is plain, clear and unambiguous, only the plain meaning of the provision is to be adopted so as to avoid any hardship or absurdity resulting therefrom R.S.Raghunath v. State of Karnataka, 1992 (1) SCC 335 and Mohammed All Khan v. W.T. Coinmr., AIR 1997 SC 1165."
32. Again in M. Sathyanathan v. The District Collector, reported in (2006) 1 CTC 328 , this Court held that, "8. It is well-settled principle of interpretation that a statute is to be interpreted on its plain reading; in the absence of any doubt or difficulty arising out of such reading of a statute defeating or frustrating the object and purpose of an enactment, it must be read and understood by its plain reading. However, in case of any difficulty or doubt arising in interpreting a provision of an enactment, courts will interpret such a provision keeping in mind the objects sought to be achieved and the purpose intended to be served by such a provision so as to advance the cause for which the enactment was brought into force. If two interpretations are possible, the one which promotes or favours the object of the Act and purpose it serves, is to be preferred. At any rate, in the guise of purposive interpretation, the courts cannot rewrite a statute. A purposive interpretation may permit a reading of the provision consistent with the purpose and object of the Act, but the Courts cannot legislate and enact the provision either creating or taking away substantial rights by stretching or straining a piece of legislation. Vide Sri Ram Saha v. State of W.B. , 2004 (11) SCC 497."
33. In R.Sridharan v. Presiding Officer reported in 2008 (6) MLJ 1181, at Paragraph 41, this Court has held that, "41. Interpretation of a Statutory provision should be to find out the intention of the legislature and that has to be understood with due regard that the object of the legislation also. The word employed in the Statute will acquire meaning and content depending upon the context in which they are used. The word should not be torn out by the context and by interpretation, it would make another provision Otiose/redundant and such interpretation should not be adopted."
34. In the case on hand, the petitioner was recruited as Junior Engineer in Municipal service on 14.01.1988 and he had worked in various municipalities. During 1994, the Government have upgraded Trichirapalli Municipality along with three other municipalities. A bare reading of Section 9(6) of the Trichirapalli City Municipal Corporation Act, 1994, makes it clear that every officer or employee who, immediately before the date of such commencement, was in the service of the municipality shall, on and from the date of commencement of the Act, be deemed to be an officer or employee of the corporation. Proviso to the said Section states that the terms and conditions applicable to such officers and employees consequent on their absorption in the service of the corporation shall not be less favourable than those applicable to such employees immediately before the date of such commencement, as regards pay and allowance, leave, pension, gratuity, provident fund and age of superannuation. The service rendered by any such officer or other employee under the Municipality upto the date of such commencement shall be deemed to be in service under the corporation and shall be entitled to count that service for the purpose of increments, leave pension, provident fund, and gratuity. Provided further that any officer or other employee serving in the Municipality shall be given an option to be exercised within such time and such manner as may be prescribed either to be absorbed in the service of the Corporation or to be retained in the service constituted under Section 73-A of the District Municipalities Act, or to be retrenched from the service of the Municipality on such retrenchment benefits as may be prescribed.
35. As stated supra, Tiruchirappalli Municipality was upgraded as Tiruchirappalli Corporation in the year 1994 and that the petitioner has been absorbed as an Officer in the said Corporation. Thereafter, he was promoted as Assistant Executive Engineer in the said Corporation in the year 2007. Therefore, it is evident that he has become a permanent employee of the Corporation and does not retain his lien or vested rights in the Municipality.
36. Section 9(6) of the Tiruchirappalli City Municipal Corporation Act, 1994 enables an officer or employee serving in the Municipality, to exercise his option either to be absorbed in the service of the Corporation or to be retained in the service constituted under Section 73-A of the District Municipalities Act, or to be retrenched in the service of the Municipality. The power conferred on the Government, after the commencement of Tiruchirappalli City Municipal Corporation Act, 1994, to effect transfer of an officer or an employee serving in the Corporation, subject to the option to be exercised by the officer or employee is only a transitional power, whereas, the power conferred on the Government under Section 116(1)(d) of the Coimbatore City Municipal Corporation Act, 1981 and Section 73-A of the Tamil Nadu District Municipalities Act, 1920, after absorption to the Corporation or Municipality is entirely different. If the Government intends to transfer an officer or an employee from the Municipal Corporation to any service in the Municipality, constituted under the Tamil nadu District Municipalities Act, 1920 or vice versa, on deputation, then it requires a consent to be obtained from the concerned officer or employee, sought to be deputed, because he must be willing to work in another service or establishment created under another enactment.
37. It is well known that when a person is deputed to a foreign service, he retains his lien in the parent department and that he is entitled to claim seniority and consequential notional promotion in the post, which he was holding at the time of deputation. But when he is permanently transferred and absorbed in another service or establishment, he permanently loses his lien and all rights in the parent department and cannot stake his claim for seniority or promotion in the parent department. The case of the petitioner itself can be cited as an example, as he has lost all his vested rights in the Municipality, when he was permanently absorbed in the Municipal Corporation. Power conferred on the Government under Section 116 of the Coimbatore City Municipal Corporation Act, 1981 and Section 73-A of the Tamil Nadu District Municipalities Act, 1920, is different and to effect an order of transfer, the Government can issue general or special orders, as may deem it necessary. The powers conferred on the Government under Section 9(6) of the Tiruchirappalli City Municipal Corporation Act, 1994 and Sections 116(1)(d) of the Coimbatore City Municipal Corporation Act, 1981 and 73-A of the Tamil Nadu District Municipalities Act, 1920, operate in different sphere. Section 9(6) of the Tiruchirappalli City Municipal Corporation Act, 1994, cannot be read into the provisions of Sections 116(1)(d) of the Coimbatore City Municipal Corporation Act, 1981 and 73-A of the Tamil Nadu District Municipalities Act, 1920. It could be seen that the option exercised at the time of commencement of the Act is for permanent transfer or retrenchment from Municipality to the Corporation or for retention in Municipality. Such a contingency does not continue to operate once the officer or employee is permanently absorbed in the Corporation or Municipality.
38. A bare reading of Section 116 of the Coimbatore City Municipal Corporation Act, 1981 and Section 73-A of the Tamil nadu District Municipalities Act, 1920 does not make any distinction that such power conferred on the government could be exercised, only in the case of "deputation" and not in the case of permanent transfer to any service in the Municipality, constituted under the Tamil Nadu District Municipalities Act. The statutory provisions give wide powers to the Government to transfer an officer or employee from the Corporation to Municipality or vice-versa. If provisions under Section 116 of the Coimbatore City Municipal Corporation Act, 1981 and Section 73-A of the Tamil nadu District Municipalities Act, 1920, are to be interpreted in a manner as suggested by the learned Senior Counsel for the petitioner, then it can be exercised only for "deputation" and not for permanent transfer, in which event, the words employed in the statute, ie., notwithstanding anything contained in the Act or in any other law for the time being in force, the Government shall have power to transfer, cannot be given effect at all and the powers of the Government would eventually be emasculated. Therefore, this Court is of the considered view that, Section 9(6) of the Tiruchirappalli City Municipal Corporation Act, cannot be pressed into service to the facts of this case. The proper interpretation to the term "Transfer" employed under Section 116 of the Coimbatore City Municipal Corporation Act, 1981 and Section 73-A of the Tamil Nadu District Municipalities Act, would mean "transfer on deputation" as well as "permanent transfer" from one service to another service or establishment, as the case may be.
39. The contention that no specific guidelines have been given under the statute for giving effect to the provisions and therefore, it could be arbitrarily exercised by the Government, cannot be countenanced in law for the reason that on mere apprehension that there is every likelihood of arbitrary exercise would not invalidate the statute or the rule and therefore, it cannot be contended that the Government have no powers to transfer an officer or an employee permanently to another service or establishment. Accepting the interpretation of the petitioner would make the provisions under Section 116 of the Coimbatore City Municipal Corporation Act, 1981 and Section 73-A of the Tamil Nadu District Municipalities Act, 1920, redundant and otiose. Useful reference can be made to the decisions of the Supreme Court and this Court.
40. The next contention to be considered on the facts of the present case is whether the order passed by the Government transferring the petitioner from Tiruchirappalli City Municipal Corporation to Arani Municipality as Municipal Engineer, Grade II (in the cadre of Assistant Executive Engineer) in the existing vacancy can be construed as "deputation" or as "permanent transfer". The averments in the counter affidavit filed by the Additional Director of Municipal Administration, Chennai, disclose that the Director of Vigilance and Anti Corruption, has registered a criminal case against the petitioner in Cr.No.7/08/AC/TR, regarding disproportionate assets to the known sources of his income and by letter, dated 19.09.2008, has requested to transfer the petitioner to a far off place to enable them to conduct a free and fair enquiry. It is further stated that when the proposal was sent to the Government to transfer the petitioner to the Office of the Regional Director of Tiruchirappalli, the Government issued orders in G.O.Ms.No.542, MA & WS Department, dated 29.12.2008, transferring the petitioner, formally Assistant Executive Engineer, Tiruchirappalli Corporation in the vacant post of Assistant Executive Engineer (JNNURM), in the Office of the Regional Director of Municipal Administration. Thereafter, when the said order was stayed by this Court in M.P.No.2 of 2009, on 21.02.2009, the Government have examined the proposals and cancelled earlier order of transfer and passed a fresh order, transferring the petitioner to Arani Municipality as Municipal Engineer, Grade II (in the cadre of Assistant Executive Engineer). As I have already held that the power of the Government to transfer an officer or an employee of the Municipal Corporation to a service in the municipality, can be effected both for deputation as well as for permanent transfer. In the case of deputation, a consent is required and for permanent transfer, it is not required. In the given case, the reason for transfer, as could be deduced from the counter affidavit, is only for the purpose of conducting a free and fair enquiry.
41. In the supporting affidavit, the petitioner has contended that the following individuals have been alleged to have possessed assets disproportionate to the known sources of their income and none of them have been transferred from Tiruchirappalli City Municipal Corporation to any other Corporations or to any municipal service, 1 2 Chennai Corporation Thiru.Ramesh, Executive Engineer Continues in Chennai City Municipal Corporation Madurai Corporation Thiru.P.Murugesan, Assistant Executive Engineer Planning Continues in Madurai City Municipal Corporation Coimbatore Corporation Tmt.R.Premaleela, Junior Assistant, Coimbatore Thiru.R.Prabakaran, Assistant Commissioner Both continues in Coimbatore City Municipal Corporation
42. Though the respondents have contended that many corporation employees, against whom criminal cases were pending, have been transferred from Corporation to Municipality or from Municipality to Corporation, no materials have been placed before this Court to substantiate their contention. The contention of the petitioner that he had already disclosed all his movable and immovable assets to the Commissioner, Tiruchirappalli City Municipal Corporation, in the annual statement and that he is ready to produce the same before any other authority at any point of time, is also not disputed.
43. Pleadings further disclose that the Commissioner, Tiruchirpalli City Municipal Corporation, has also recommended that the petitioner may be posted in the main Office of the Tiruchirappalli City Municipal Corporation in a non-sensitive post till the completion of the enquiry. At more than one places in the counter affidavit, both the Additional Director of Municipal Administration, Chennai and the Commissioner of Tiruchirappalli Corporation have reiterated that the order of transfer is for conducting a free and fair enquiry, into the allegations of possession of assets disproportionate to the known sources of income. The contentions regarding recommendations to post the petitioner in a non-sensitive post has not been refuted by the respondents, whereas, it could be deduced that the transfer of the petitioner to the municipality is purely based on the recommendation of investigating authorities. An enquiry into an allegation of assets disproportionate to the known sources of income, can be conducted even by retaining an officer or an employee in the same service or establishment in an insignificant or non-sensitive post or if the allegations are so serious in nature, it is left to the appointing/disciplinary authorities to place such an officer or employee under suspension for the purpose of conducting a free and fair enquiry. Though the petitioner has alleged that others, who were involved in Director of Vigilance and Anti Corruption enquiries, were not transferred to other Corporations or any Municipality, no special reasons have been furnished in the counter affidavit, excepting reiterating the exclusive power of the Government to transfer an employee or an officer out of the Corporation. It could be reasonably inferred that the transfer is only for the inter-regnum period, till the enquiry is completed and it is not intended to made on permanent basis. This is no averment in the counter affidavit, as to the status of the petitioner after the enquiry is over.
44. It could be further seen that the Government, which issued orders in G.O.Ms.No.542, MA & WS Department, dated 29.12.2008, transferring the petitioner out of the Municipal Corporation, coming to know of the order of stay, have cancelled the earlier order of transfer and passed a fresh order, transferring him to Arani Municipality. Courts have consistently held that an order of transfer can be interfered with, if there is an element of mala fide, pleaded and proved. In the case on hand, going by the sequence of events, i.e., following a search in the petitioner's house, the Government have passed orders in G.O.Ms.No.542, transferring him to a vacant post of Assistant Executive Engineer in the Office of the Regional Director of Municipal Administration, which was stayed by this Court on 20.01.2009 in M.P.No.2 of 2009 in W.P.No.285 of 2005, resulting in impugned order of transfer in G.O.Ms.No.30, dated 02.02.2009 and considering the totality of the circumstances under which, the petitioner has been transferred to a Municipality, where other persons stated supra, who are also facing enquiries in similar nature, are retained, this Court is of the considered view that the element of mala fide on the part of the respondents stands proved. If for the purpose of conducting a free and fair enqury into the allegations, a person can be transferred from Municipal Corporation to a Municipality in any service constitutes under the Tamil nadu District Municipalities Act, or vice versa, then the same yardstick has to be applied uniformly to all similarly placed persons. But in the case on hand, arbitrariness is per se apparent.
45. In Union of India v. Janardhan Debanath reported in 2004 (4) SCC 245, the respondents, employees of postal department, were alleged to have, not only misbehaved with the Director of Postal Service, a senior Lady Officer, she was also confined and dragged from one room to another and this was done with a view to force her to withdraw the charge sheet filed against the Deputy Postmaster. She was abused in filthy language and was physically manhandled. In the above background, the respondents-employees were transferred from Agartala Division to Meghalaya Division. Being aggrieved by the same, the employees preferred Writ Petitions before the High Court, contending inter alia that the transfer orders of the two respondents therein were in violation of the provisions of Rule 37 of the Posts and Telegraphs Manual, Vol.IV read with DG Posts Letter, dated 23.08.1990. It was further contended that the orders of transfer is in violation of Rule 15 of the Fundamental Rules. The Union of India took the stand that the transfer was done in public interest and on account of exigencies of administration. Besides, it was also submitted that as the conduct was unbecoming and with a view to enforce discipline and to avoid recurrence of such unfortunate incident, they were transferred. There was no violation of Rule 37 of the Manual or FR 15. High Court accepted the case of the employees and set aside the order of transfer. Testing the correctness of the order and having regard to the seriousness of the allegations, the Supreme Court, at paragraph 14, held as follows:
"14. The allegations made against the respondents are of serious nature and the conduct attributed is certainly unbecoming. Whether there was any misbehaviour is a question which can be gone into in a departmental proceeding. For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was misbehaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complianed of and if the requirement, as submitted by learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether the respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for this Court to direct one way or the other. The judgment of the High Court is clearly indefensible and is set aside. The Writ Petitions filed before the High Court deserve to be dismissed which we direct. The appeals are allowed with no order as to costs."
46. In the above reported case, while answering to the plea of loss of seniority or promotional prospects, the Apex Court further held that these are all matters, which can be gone into in appropriate proceedings, if at all there is any adverse orders in the lack of seniority of promotion. In view of the dictum laid down by the Supreme Court, this Court is not going into the contentions raised by the petitioner regarding loss of status, privileges, etc., on account of transfer of the petitioner.
47. In U.P.Gram Panchayat Adhikari Sangh v. Daya Ram Saroj reported in 2007 (2) SCC 138, the Government of Uttar Pradesh issued orders transferring 55,548 employees from eight department to Gram Panchayats. The employees so transferred were to serve Gram Panchayats (Gps) as multi-purpose workers or Gram Panchayat Evam Vikas Adhikaris (GPVAs). The aforesaid orders were challenged by filing writ petitions on the grounds of (i) arbitrariness and (ii) executive interference with the statutory rights of government employees under the service rules made Article 309 of the Constitution. The basic grievance raised was that whereas in the parent department, they were governed by respective service rules framed under Article 309 of the Constitution, they were being transferred to Gram Panchayats were there were no service rules governing the service conditions and their services became insecure. On the aforesaid premise, the Government, by an order, dated 27.06.1999, brought up an ordinance followed by the Amendment Act (U.P.Act 27 of 1999). Sections 25 and 25-A of the U.P. Panchayat Raj Act, 1947 were substituted by new Sections 25 and 25-A. Thereafter, by G.O., dated 12.4.1999, 30.6.1999 and 29.04.1999 were revoked and the Government have issued a fresh G.O., dated 01.07.1999, transferring the services of 55,548 employees from eight departments, including tubewell operators (Tos), from irrigation Department to Gram Panchayats for providing multi-purpose workers to Gram Panchayat Evam Vikas Adhikaris (GPVAs). Aggrieved by the transfer and putting them under the control of Gram Panchayat, writ petitions were filed, challenging Sections 25 and 25-A of the Act and also G.O., dated 01.07.1999. The High Court upheld the validity of the above statutory provisions and the Government Order and further held that such employees transferred as GPVAs., would continue to remain as government servants, to be governed by the original and respective service rules. It was also held that they were on deputation to Gram Panchayats. Subsequently, by another G.O., dated 06.06.2001, 10,102 employees of two Departments. Similarly, on 21.09.2001, 479 employees of Land Development and Water Resources Department, were also repatriated/called back. The aforesaid G.O., was challenged. A learned single Judge dismissed the Writ Petition and upheld the Government Order. It was inter alia held that their original cadres were not dead and they continued in their original cadres. It was held that they had been sent only on deputation to Gram Panchayats, they were merely redesignated as GPVAs., and they had never been absorbed into any new cadre of GPVAs and they could always be repatriated to their orignal cadres. The said decision has been confirmed by the Division Bench. The whole controversy about the status of transferred employees as to whether their service conditions were well protected under the rules governing them in the parent department and whether they were permanently transferred to GPVAs or on deputation has been set at rest and it has become final. Thereafter, G.O., dated 20.07.2004 was again issued for repatriation of the employees of three departments, viz., Agriculture (5322 employees), Cane Development (2593 employees) and Rural Development (6906 employees)(totalling 14,821 employee) to their parent department. A writ petition was filed by one Guari Shanker, challenging the said Government order and the same was dismissed by the learned Single Judge on 06.08.2004. Special Appeal against the order of the above said order, was dismissed on 25.08.2004, holding that the transferred employees remained government servants and retained lien in the posts in their original departments and they could always be repatriated. Several writ petitions were also filed. Section 25 of the U.P Co-operative Societies Act, deals with the transfer of employees. The Supreme Court, after going through the provisions, found that, "transfer and posting in Gram Panchayat shall be made by such authority in such manner, as may be notified by the State Government, would be under the supervision and control of the Gram Panchayat. The service conditions of the employee shall be on the same terms and conditions and with the same rights and privileges as to retirement benefits and other matters, including promotion, as would have been applicable to him immediately before such transfer; while in service in Gram Panchayat, they shall perform such duties as may be specified from time to time by the State Government."
Paragraph 9 of Section 25 of the U.P., Co-operative Societies Act, which came up for consideration before the Supreme Court, reads as follows:
"9. Disbursement of salary of all the employees referred to in Para 4 & 6 and working under the control of Gram Panchayat would be done by the departments in the same manner as is being done at present, but the salary of the next month would be disbursed on the basis of attendance verification and monthly report of the Gram Panchayat Committee concerned. Deductions would be made from the salary of employees who are unauthorizedly absent."
On the facts of that case, the Supreme Court, found that, "There is no dispute that while working under Gram Panchayats, the Tube-well Operators were continued to be paid salaries by the Irrigation Department. They were under the disciplinary control of the Irrigation Department and also got promotions in the Irrigation Department. There is also no dispute that their service conditions were governed by the Service Rules framed under Article 309 of the Constitution. The expression "Supervision and Control of the Gram Panchayat" only means to the extent of transfer of supervision to the Gram Panchayat. The expression "shall serve under the supervision and control of the Gram Panchayat" would only mean supervisory powers and control of the Gram Panchayat. The overall control of the employee was still with the Government when Section 25(1)(b) unequivocally provides that they shall perform such duties as may be specified form time to time by the State Government. This would clearly show that they were working under the supervisory control of Gram Panchayat keeping lien with the Parent Department, which is the Irrigation Department. It is clear that they were sent on deputation."
At Paragraph 54, the Supreme Court held that, "54. It is true that the language used in Section 25 is "Transfer", but one has to read the Section as a whole, to get the real meaning. The pay and allowances are paid by the parent department. Their service conditions are governed by the Service Rules in their respective Parent Departments framed under Article 309 of the Constitution. The over all control was vested in the respective Departments. It is also true that in the Govt. Order various expressions have been used like transfer, repatriation, dead cadre etc., which have been subsequently clarified in the counter of the Government. Hundred errors do not make one right. By reading Section 25 as a whole and understanding the language employed therein, it is clear that the employees of various Departments were sent to gram-panchayats on deputation pure and simple. They kept their lien in their respective Departments. This is the correct reading of the Section and nothing more."
48. Reverting back to the facts of this case, in order to consider as to whether the impugned order convey "deputation" or "permanent transfer", it is relevant to consider the proceedings in Roc.No.003/2009/C1(Main), dated 31.08.2009 of the Commissioner, Tiruchirappalli Corporation, Tiruchirappalli, addressed to the Additional Advocate General of Tamil nadu, High Court, Madras. The contents of the said letter are as follows:
"With reference to Paragraph 6 of the affidavit, I am to state that Thiru.B.Selvam, formerly Assistant Executive Engineer, Tiruchirappalli Corporation now posted to Arani Municipality as Municipal Engineer, Grade-II (in the cadre of AEE) will not lose his seniority in the City Municipal Corporation, Tiruchirappalli, if he is otherwise eligible for further promotion."
49. The contention of the petitioner that the impugned order of transfer could be termed only as deputation and not as permanent transfer, is fortified by the letter of the Commissioner, Tiruchirappalli Corporation, Tiruchirappalli. The letter makes it clear that the seniority of the petitioner in the City Municipal Corporation, Tiruchirappalli, would be retained and that if he is otherwise eligible for promotion, his case would be considered for promotion to higher post in the Corporation. The letter is self-explanatory that the lien of the petitioner in the parent department, i.e., Tiruchirappalli Municipal Corporation, is retained for the purpose of seniority and promotion and in such an event, the transfer effected by the Government by the impugned order, cannot be construed to be mean that it was made on permanent basis. On facts, it could be construed only as a stop-cap arrangement to facilitate a free and fair departmental or Vigilance enquiry and that is why, the Government wanted to keep him out of the Corporation. When the person is not permanently transferred to another service, the only other alternative is deputation. Taking into consideration the effects of permanent transfer of an officer or employee from one to another, provisions of 116(1)(d) of the Coimbatore City Municipal Corporation Act, 1981 and Section 73-A of the Tamil nadu District Municipalities Act, 1920, cannot be said to confer on the Government, the power to transfer an officer or employee to a foreign service, just for the purpose of facilitating a free and fair enquiry. In such view of the matter, when a person is deputed to a Foreign Service or another establishment, the consent of such servant must be obtained. In the case on hand, no such consent has been obtained. Therefore, this Court is of the considered view that the Government has arbitrarily exercised the power and transferred the petitioner out of the Corporation.
50. As rightly contended by the learned Senior Counsel for the petitioner that the scope and power of the Government to transfer an officer or an employee of the Corporation to any service in a Municipality or vice versa has not been adjudicated in T.V.Subramaniam v. The State of Tamil Nadu reported in 2001 (3) MLJ 476, and the said judgment cannot be made applicable to the facts of this case. Although the learned Additional Advocate General submitted that the order of transfer was not a result of mala fide or was violative of statutory provisions and placed reliance on a decision of the Supreme Court in Rajendra Singh v. State of U.P., reported in JT 2009 (10) SC 187, this Court is unable to subscribe to the said submission for the reasons recorded in the forgoing paragraphs.
51. Reading of the judgment in U.P.Gram Panchayat Adhikari Sangh v. Daya Ram Saroj reported in 2007 (2) SCC 138 in entirety shows that several employees were transferred from Irrigation Department to Gram Panchayats, but subsequently repatriated to parent department. Though the control and supervision was with the Gram Panchayat, the employees were paid salaries in the Irrigation Department and they earned their promotion in the parent department. The lien was retained in the respective department. In the said context, the Supreme Court held that "transfer" employed in Section 25 of the U.P. Co-operative Societies Act, to mean as "deputation". The above said judgment, may not in strict sense be applicable to the case on hand, insofar as the interpretation of the word "transfer" as employed in Section 116(1)(d) of the Coimbatore City Municipal Corporation Act, 1981 and Section 73-A of the Tamil Nadu District Municipalities Act, 1920 is concerned. Unlike in the above judgment, an officer or employee, who is transferred from Municipal Corporation to any one of the services, constituted in the municipalities or vice versa, in exercise of the powers conferred on the Government, does not in all cases, retain their lien in the parent department. Therefore, this Court is of the considered view that the term "transfer" employed in the above Sections, cannot in all cases be interpreted to mean only "deputation". If such an interpretation is given, then the Government would be powerless to transfer an officer or employee from the Municipality to Municipal Corporation and vice versa.
52. In the result, the Writ Petition is allowed. No costs. Consequently, connected Miscellaneous Petitions are also closed.
.10.2009 Index: Yes skm To
1. The Secretary to Government, State of Tamil nadu, Water Supply Department, Secretariat, Fort St. George, Chennai-9.
2. The Commissioner of Municipal Administration, Chepauk, Chennai-5.
3. The Commissioner, Tiruchirappalli City Municipal Corporation, Tiruchirappalli 620 017.
S. MANIKUMAR, J.
Skm W.P.No.3949 of 2009 .10.2009