Madras High Court
The Director Of Public Libraries And The ... vs T. Arivarasu Pandian And The Registrar, ... on 30 April, 2004
Author: P.K. Misra
Bench: P.K. Misra
ORDER M. Thanikachalam, J.
1. The respondents in O.A. No. 1915 of 2003 on the file of the Tamil Nadu Administrative Tribunal, Chennai, aggrieved by the order dated 21.10.2003, have preferred this writ petition.
2. The first respondent in this writ petition is working in the District Library Office, Theni, as Accountant. He has been transferred from Theni to the Office of the Director of Public Libraries, Chennai, as per the proceedings in Rc. No. 415/A1/2003-2 dated 14.5.2003. Aggrieved by the transfer order, he questioned the same before the Tribunal contending, that the Director of Public Libraries is not a competent authority to transfer him, whereas only the District Library Authorities are competent to transfer him, in their respective District Library Units, since the applicant has been initially appointed by the District Library Authority. It is the further contention of the applicant/first respondent, that the Office of the Director of Public Libraries and District Library Authorities are separate units and if at all, transfer could be effected only at the request of the employees concerned, from one District unit to other and to the Directorate of Public Libraries and vice versa. It is the further case of the applicant/first respondent, that since he did not submit any written request, for his transfer, from Theni District Unit to Directorate of Public Libraries, Chennai, the transfer is violative of the rules, which even affects his promotional avenue, since promotion is considered in the District Units. It is the further case of the applicant/first respondent, that he had joined duty at Theni only in the month of April 2002 and his transfer from Theni within a year, is violative of the guidelines issued in G.O.Ms. No. 10, Personnel and Administrative Reforms Department dated 7.1.1974. On the above grounds, he would contend, that since he is on the verge of promotion as Superintendent, his transfer would badly affect his seniority, for such promotion. In this view, praying to quash the above proceedings, the original application came to be filed, before the Tribunal.
3. The writ petitioners as respondents opposed the application contending, that the Local Library Authorities of each Revenue District is under the control of the Director of Public Libraries, that the services of the employees are provincialised, as per G.O.Ms. No. 820/Education Department dated 3.5.1982 and State seniority in respect of the staff working in the Local Library Authorities, including the Directorate of Public Libraries, was introduced to provide fair and equal promotion opportunities, with effect from 1.4.1982 and that the competent authority, as per the rules framed, to effect transfer of the staff, is the Directorate of Public Libraries and in that capacity, the transfer is made, that too on the basis of the combined seniority, giving no room, for loss, either in emoluments or seniority and, that the applicant was transferred in the public interest, under administrative grounds, which cannot be termed as violation of rules. In this view, they prayed for the dismissal of the original application.
4. Upon consideration of the rival claims of the parties, the Tribunal came to the conclusion, that in the service rules, the Directorate of Public Libraries is stated to be the appointing authority of staff, only in respect of Head Clerk, Accountant, Junior Assistant, Typist and none else, that the service rules notified are not applicable to Assistants, that the applicant who is working as an Accountant cannot be transferred and posted as Assistant, because of the fact special rules do not cover the post of Assistant. In this view, the Tribunal came to an irresistible conclusion, that the transfer is violative of the provisions of the Act and Rules, thereby constrained to set aside the transfer order, giving option to the respondents, to pass appropriate orders, considering the personal inconvenience caused to the applicant. The said order is under challenge in this writ petition.
5. Heard the learned counsel for the petitioners, Mrs. Thenmozhi Shivaperumal, Special Government Pleader and the learned counsel for the respondents, Mr. Ajmal Khan.
6. The learned counsel for the petitioners submits, that as per the rules framed, all the staff of the District Library Authorities are made as Government Servants and therefore, they are governed by the Director of Public Libraries and in that capacity alone, the Director of Public Libraries had transferred the first respondent from Theni District Library Authority to the Office of the Director of Public Libraries, Chennai and therefore, setting aside the transfer is incorrect, because of the fact, there is no violation of any of the provisions of the Act or Rules, as the case may be.
7. Opposing the above contention, the learned counsel for the first respondent/applicant would submit, that the applicant/first respondent was appointed originally only by the District Library Authority, Virudhunagar, that as per G.O.Ms. 1034, School Education Department dated 5.7.1972 and G.O.Ms. No. 1892 Education Department dated 30.11.1972, for the purpose of transfer, promotion, the Office of the Director of Public Libraries and the District Library Authorities are separate units and in this view, transfer could be effected, even as per the G.O.Ms.No.1386 School Education Department dated 7.7.1981, from one unit to other, only at the request of the employees and not suo moto, even on administrative grounds by the Director of Public Libraries. It is the further submission of the learned counsel, that even after the Act 5/2001, under which all persons employed in every Local Library Authority have been treated as whole time Government Servants, since no rule is framed, the old G.Os. are applicable, under which the Director of Public Libraries have no authority or power to effect transfer, from one unit to another unit, without the request of the individual concerned.
8. The Public Library Department of the State at present, includes the Directorate of Public Libraries, Connemara Public Library and Local Library Authorities, which were functioning in every District. Under G.O.Ms.No.1735 dated 11.12.1989, a direction was issued that Connemara Public Library shall be kept as separate unit, merging the Directorate of Public Libraries and Local Library Authorities as single unit, describing that seniority of the staff shall be fixed as on 1.4.1982 i.e. the date on which the staff of the Local Library Authorities were provincialised. A direction was also issued to the Directorate of Public Libraries to draw a common seniority list in respect of these two units, probably to provide adequate promotional opportunities etc. Originally, because of some original applications filed by some of the staff, in the Tamil Nadu Administrative Tribunal, which reached the finality, by the refusal of SLP by the Supreme Court, a direction had been issued that no promotion should be given to any staff of the Public Library Department based on District seniority, till the adhoc rules for implementing the State seniority is framed. Then the administration felt some difficulty and therefore issued G.O.Ms. No. 161 Education Science and Technology (K1) Department dated 7.3.1996, cancelling the previous order, accepting the proposal of the Director of Public Libraries, to effect promotion in the Department of Public Libraries, based on District seniority, so as to enable the authorities concerned, to fill up the vacancies, till such time adhoc rules for various posts in the Public Library Department are issued by the Government. The adhoc rules were framed as per G.O.Ms. No. 105 dated 19.4.1999, wherein the general and the special rules applicable to the holders of permanent post are made applicable to the holders of temporary post of head clerk, accountant, junior assistant and typist, in the office of the District Library of Local Library authorities, wherein we do not find 'Assistant' in which post the applicant was transferred. Therefore, as rightly observed by the Tribunal, the adhoc rules are not applicable to the post of Assistant, which should follow, the Director of Public Libraries cannot be the appointing authority or the transferring authority, as the case may be, for the post of Assistant. In that case we have to fall back upon the old rules applicable to this kind of persons, who have been appointed by the District Library authority.
9. Under Rule 42 of the Madras Public Library Rules, the Secretary of the Local Library Authority, who is equivalent to District Library Authority is the person responsible, for the appointment of the staff, proper control and supervision of the office of the Local Library Authority. The power of the Director of Public Libraries, on that score could not be undermined and if at all, he could direct the District Library Authority to effect transfer, probably within that unit and not outside, unless the applicant himself had requested transfer. As aforementioned, even in the adhoc rules, the post of Assistant is not included and therefore, in the absence of any provision, empowering the Director of Public Libraries directly to make transfer from one unit to another, it should be construed that he had violated the rules, while transferring the first respondent from Theni to Madras.
10. True transfer is an incident to the post and it cannot be challenged, unless it is shown that it is violative of rules, coupled with causing depravation of certain right to the individual concerned. As aforementioned, promotions are given within the District Unit. If a person, who is on the verge of the promotion is transferred, without his consent, to some other unit, his promotion will be affected and in the transferred unit, even he may be treated as junior. Though it is said a common seniority list is prepared, nothing is placed before the Tribunal, showing that by the transfer, the right of promotion to the individual would not be affected. Considering this fact as well as the absence of rules, the Tribunal had set aside the order of transfer, in which we are unable to find any error of law, warranting our interference. It is also made clear in the Tribunal's order that it is open to the respondents to pass appropriate order, considering the inconvenience caused to the applicant and therefore, the grievance of the writ petitioners is not justified, based on any legal ground. For the foregoing reasons, we find no infirmity in the order passed by the Tribunal and in this view, the same is confirmed.
In the result, the writ petition is dismissed. No costs.