Dismissed

U.S.Gunasekaran v. the Chief Engineer (Personal)

Madras HC6 Sept 2011WP(MD)/10037/2011

Case brief

AI extract

What is this about?

This judgment dismissed a writ petition against a transfer order of a Tamil Nadu Generation and Distribution Corporation employee. The court held that absent proof of malafides or violation of rules, transfer orders on administrative grounds are not amenable to judicial review, rejecting claims of victimization or hardship.

What did the court decide?

Permission granted to make a representation to the competent authority for retention till the end of the academic year.

U.S.Gunasekaran Vs the Chief Engineer (Personal) — Service and Employment | Madras HC (2011)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED: 06/09/2011

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C O R A M

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THE HONOURABLE MR.JUSTICE S.MANIKUMAR

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W.P.(MD) No.10037 of 2011 and M.P.(MD).Nos.1 & 2 of 2011

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U.S.Gunasekaran ... Petitioner

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Vs.

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1.The Chief Engineer/Personnel,

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Tamil Nadu Generation and Distribution

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Corporation Ltd., No.144, Anna Salai,

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Chennai - 2.

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2.The Superintending Engineer,

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Tamil Nadu Generation and Distribution Corporation Ltd., Thanjavur Electricity Distribution Circle, Thanjavur.

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3.The Executive Engineer, Tamil Nadu Generation and Distribution Corporation Ltd., Kumbakonam North, Thanjuavur District.

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... Respondents

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Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorari, calling for the records pertaining to the impugned transfer order in Memo No.068631/778/G27/2011-1, dated 24.08.2011, issued by the first respondent and quash the same.

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For petitioner .. Mr.C.Dhanaseelan For 1st respondent .. Mr.B.Pugalenthi, Special Government Pleader

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ORDER

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The impugned order of transfer, dated 24.08.2011, passed by the Chief Engineer (Personal), Tamil Nadu Generation and Distribution Corporation Limited, Chennai, reads as follows;

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"Thiru.U.S.Gunasekaran, Accounts Supervisor, Thanjavur Electricity Distribution Circle is transferred and posted to superintending Engineer/Perambalur Electricity Distribution Circle on Administrative Grounds.

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He should await further reposting orders from the Superintending Engineer/Perambalur Electricity Distribution https://hcservices.ecourts.gov.in/hcservices/ Circle and should join duty in the new station forthwith after getting proper relief from the present station."

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2.Assailing the correctness of the order, Mr.C.Dhanaseelan, learned counsel for the petitioner raised the following points;

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(a) Being a member of a recognized labour union called Tamil Nadu Electricity Workers Progressive Union, affiliated with DMK party and holding a post of Divisional Secretary of the said Union, North Division, are the causes for the impugned order of transfer. According to him, a ruling party MLA has prepared a list of persons to be transferred from the present station and that therefore, the impugned order is actuated by malice and the arbitrary exercise of power is due to influence exerted by the external agency. Therefore, though the order is passed citing "administrative grounds", there is no such contingency.

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(b)Learned counsel for the petitioner further submitted that the said order could have been passed also at the instance of the consumers against whom the petitioner has taken prompt action to prevent the revenue loss to Tamil Nadu Generation and Distribution Corporation Limited, Chennai.

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(c)He further submitted that the impugned order of transfer, dated 24.08.2011, has been passed by the first respondent, even without indicating the place of posting, which would go to show that there was no such contingency .

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(d)He further submitted that the impugned order of transfer has been passed during the middle of the academic year and that it would affect the interest of the children. According to him, the petitioner has got only two more years of service, for attaining the age of superannuation. For the abovesaid reasons, he prayed to quash the impugned order.

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3.Heard the learned counsel for the parties and perused the materials available on record.

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4.The contention that the petitioner and others, being members of an union called Tamil Nadu Electricity Board Workers Progressive Union, are victimized and transferred, have not been proved. Except a representation, dated 22.06.2011, said to have been made by the General Secretary of the said Union, no materials have been placed on record to substantiate the contention that a ruling party member had given a letter to the Chairman of the Tamil Nadu Generation and Distribution Corporation Limited, Chennai, to transfer the members of the above said Union. However, it is well settled that when mala fides are alleged against the authorities or the persons, who are instrumental in issuing transfer order, they should be impleaded as party respondent and the act of mala fide has to be specifically pleaded and proved. When the petitioner has alleged mala fide , on the part of the Chief Engineer (Personal), alleging that an MLA belonging to the ruling party has given a letter, the petitioner ought to have proved the same. Expect the above said letter, dated 22.06.2011, stated supra, there is no other supporting material to prove mala fides .

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5.The contention that the impugned order of transfer could have https://hcservices.ecourts.gov.in/hcservices/ been passed due to the affected consumers, against whom preventive measures were taken to prevent the revenue loss, is also not supported by any material documents. The averments are vague.

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6.The contention that the word "administrative ground" is only camouflaged to shift the petitioner away from Thanjavur Electricity Board Distribution Circle, also cannot be countenanced for the reason that it is for the appointing/competent authority to decide as to whether an employee has to be retained in a particular station. The desirability, suitability of a person to be posted in a particular place is left to the discretion of the appointing authority or the competent authority who has to decide the place of posting. Once an employee has taken up a transferable post under the recruitment rules, he cannot claim any indefeasible right to squat in a particular place. Transfer is only an incidence of service and it is not a service condition. In these circumstances, when a Government servant/employee is transferred on administrative grounds, it is not for the Court to conduct a roving enquiry into the same. In the absence of any strong evidence or materials to infer that there was mala fides in the action of the authority, transferring an employee, an order of transfer cannot be interfered in a routine manner. It is useful to refer to the decisions relating to the power of the Court to interfere with the orders of transfer, which are as follows;

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(i) In B.VARADA RAO v. STATE OF KARNATAKA reported in 1986 (II) LLJ 516, the Supreme Court has held that it is well understood that transfer of Government servant, who is appointed to a particular cadre of transferable post from one place to another is an ordinary incident of service and therefore, does not result in any alteration of any of the conditions of service of his disadvantage. The Supreme Court declined to accept the case of the petitioner therein, that he should not be transferred.

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(ii) In 1995 (I) LLJ 854 (N.K.SINGH v. UNION OF INDIA) , the Hon'ble Supreme Court while dealing with the correctness of the order, has observed that no roving inquiry into the matter is called for or justified within the scope of judicial review of a transfer scrutinized with reference to the private rights of an individual. It was further held that transfer of a Government servant in a transferable service is a necessary incident of the service career and that assessment of the quality of men is to be made by superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration.

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(iii) IN THE REGISTRAR, HIGH COURT, MADRAS v. VASUDEVAN, A.K. AND OTHERS reported in 1996 MLJ 153, a Division Bench of this Court, while considering the scope of judicial review in matters of transfers of the Government servant to an equivalent post, at paragraph Nos.19 and 36 has held as follows:-

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“19. The scope of judicial review in matters of transfer of a government servant to an equivalent post without any adverse consequence on the service or career prospects is very limited being confined only to the grounds mala fides and violation of any specific provision or guideline regulating such transfers amounting to arbitrariness. It is also settled https://hcservices.ecourts.gov.in/hcservices/ law that for the said purpose, no roving inquiry into the matter is called for or justified within the scope of judicial review of a transfer scrutinized with reference to the private

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rights of an individual. In N.K.Singh V. Union of India and others, (1994)6 S.C.C. 98 at 108, their Lordship said:

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“...Assessment of worth must be left to the bona fide decision of the superiors in service and their honest assessment accepted as a party of service discipline. Transfer of a government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of a subjective opinion in that sphere may be involved, at times. The only realistic approach is to leave it to the wisdom of that hierarchical superiors to make that decision. Unless the decision is vitiated by mala fides or infructuous of any professed nor on or principle governing the transfer, which alone can be scrutinized judicially, there are no judicially manageable standards for scrutinising all transfers and the courts lack the necessary expertise for personnel management of all government departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated.

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In the same decision, further down, in paragraph 24, they have said thus:

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“...Challenge in courts of a transfer when the career prospects remain unaffected and there is no detriment to the government servant must be eschewed and interference by courts should be rare.... ... ... ....”

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In this connection, it is also better to remember a decision of this Court reported in Dr.M.Krishnamoorthy v. The State of Madras, (1951) 1 M.L.J. 709: A.I.R. 1951 Mad. 882: 1951 M.W.N. 410. That was a case where the petitioner therein challenged his dismissal. While considering the same, this Court held that the Government or management is entitled to consider the question of inefficiency, insubordination and general reputation of corrupt conduct of a Government servant. As stated earlier, the relationship of Master and Servant is being put an end to by the order of dismissal. When the Government is competent to consider the efficiency and reputation of a Government servant, it is not only for the purpose of taking punitive action, but also to consider whether he should be allowed to continue in a particular place of employment. In the said decision, it was stated thus:

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“It is however contended by learned counsel for the petitioner that there is another implied requirement that civil servants in the position of the petitioner can https://hcservices.ecourts.gov.in/hcservices/ be dismissed or removed only for misconduct and at one stage of the argument he even went to the extent of contending that in the case of a charge like corruption,

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the petitioner must have been convicted by a criminal court for that offence, or, in any event, that this Court must be satisfied in the exercise of criminal appellate jurisdiction so to say, that there was evidence on which a conviction could be supported. We see nothing of this sort laid down in Art.311 or in any other article of the Constitution. It is nowhere stated on what ground a civil servant might be dismissed or removed. One can conceive of a dismissal or removal being justified on grounds of inefficiency, insubordination of (sic) general reputation of corrupt conduct. ... (Italics supplied)

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An employee is expected to work with all devotion, honestly and integrity. The employer is also entitled to assess the performance of the employee. It cannot be disputed that the employer is entitled to consider the suitability of the person to a post. Similarly the employer is also entitled to consider whether his employee is suitable to work in a particular place or to continue there. If, during the assessment, the employer finds that the work or the performance of the employee is not satisfactory, or in case where the employee, while discharging his duties, has to mingle with the members of the public (in this case, the litigant public), which gives room for complaints in the nature of bad faith, corruption, etc., that will also be an added reason for the employer to find that his staff can discharge his duties in a better way in another place. Such an assessment is not in the nature of any punishment. It is only to avoid or minimise any future complaint or give the employee a better opportunity in a better atmosphere, he is asked to work in a different place, under an order of transfer. Such an order cannot be considered as a punishment, nor can the same be characterised as a stigma cast on him, as alleged by the petitioner in each one of these writ petitions under consideration.”

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(iv) IN PUBLIC SERVICES TRIBUNAL BAR ASSOCIATION v. STATE OF U.P AND ANOTHER, reported in 2003 (4) SCC 104 , the Supreme Court has reiterated that the scope of Judicial Review in transfer is very limited as it is an incidence of service and normally should not be interfered with by Courts.

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(v) IN STATE OF U.P. AND ANOTHER v. SIYA RAM AND ANOTHER, reported in 2004(7) SCC 405, the Supreme Court held that no Government servant or employee of the 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 https://hcservices.ecourts.gov.in/hcservices/ 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

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passed in the interest of administrative exigencies of the service concerned.

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(vi) A Division Bench of this Court while considering the contentions of the petitioner that two children were studying in Class IX and if any transfer is effected that would cause hardship, in PALANISAMY v. THE GENERAL MANAGER, TAMIL NADU STATE TRANSPORT CORPORATION LIMITED, reported in 2005 (4) LW 604 , at paragraph No.4 has held as follows:-

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“4.Learned counsel for the appellant then submitted that the transfer order does not contain reasons. This argument is also based on a misconception. A transfer order is a purely administrative order and not a judicial or quasi judicial order. The Writ Petition is dismissed.”

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(vii) In a recent decision of the Hon'ble Supreme Court in STATE OF HARYANA AND OTHERS v. KASHMIR SINGH AND ANOTHER, reported in 2010 (13) SCC 306, the Supreme Court has held as follows:-

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“12.Transfer ordinarily is an incidence of service, and the courts should be very reluctant to interfere in transfer orders as long as they are not clearly illegal. In particular, we are of the opinion that transfer and postings of policemen must be left in the discretion of the State authorities concerned which are in the best position to assess the necessities of the administrative requirements of the situation. The administrative authorities concerned may be of the opinion that more policemen are required in any particular district and/or another range than in another, depending upon their assessment of the law and order situation and/or other considerations. These are purely administrative matters, and it is well settled that courts must not ordinarily interfere in administrative matters and should maintain judicial restrain, vide Tata Cellular v. Union of India.

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In our opinion, the High Court has taken a totally impractical view of the matter. If the view of the High Court is to prevail, great difficulties will be created for the State administration since it will not be able to transfer/deploy its police force from one place where there may be relative peace to another district or region/range in the State where there may be disturbed law and order situation and hence requirement of more police. Courts should not, in our opinion, interfere with purely administrative matters except where absolutely necessary on account of violation of any fundamental or other legal right of the citizen. After all, the State administration cannot function with its hands tied by judiciary behind its back. As Holmes, J. of the US Supreme Court pointed out, there must be some free play of the joints provided to the executive authorities.”

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https://hcservices.ecourts.gov.in/hcservices/

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(viii) In a Division Bench Judgment of this Court in GENERAL MANAGER (PERSONNEL), NATIONAL INSURANCE COMPANY LIMITED, HEAD OFFICE,

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KOLKATA AND ANOTHER v. DR.S.ASHOK KUMAR, reported in 2010 (4) MLJ 433, the Hon'ble Mr.Justice H.L.Gokhale, sitting along with another learned Judge, considered a query as to whether an order of transfer could be interfered with, when there is an allegation of mala fide and after considering the decision of the Hon'ble Supreme Court in RAJENDRA SINGH RAJESH v. STATE OF U.P. AND OTHERS reported in (2009) 10 SC 187, held as follows:-

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“14. Keeping in view the above legal position as well as facts and circumstances of the case, we are of the view that the allegation made in respect of the non-consideration of the confidential report by the respondent in favour of K.Inbaraj, is a matter of administrative work and it cannot be attributed to the mala fide intention of the appellant Company in order to interfere with the same. In fact, during the year 2008, the station-wise list of Officers was drawn and this respondent was considered as senior most Officer and on that basis, while adopting the transfer policy, when he was transferred to Hyderabed Region, the respondent himself made a representation to the appellant Company to exempt him from the transfer policy and retain him at Chennai for one year. While that being so, it cannot be contended that the present impugned order of transfer is tainted with mala fide intention and inflicted against the respondent. Further, in fact, the learned single Judge has not dealt with the issue regarding mala fide but set aside the order of transfer only on humanitarian grounds. Even for this also, we are not in agreement with the learned single Judge as having regard to the fact that the respondent had been in Chennai Region for more than 17 years depriving of other incumbent of the appellant Company to function in the said place and further he was already let off from being considered for transfer by exempting him from Transfer Mobility Police in the year 2008. Therefore, having already availed the benefit of exemption from being considered for transfer and remained himself for one year, there is no justification on the part of the respondent now in assailing the impugned order of transfer.

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Therefore, having regard to the above proposition laid down by the Hon'ble Supreme Court, we are of the view that the learned single Judge ought not to have shown any indulgence even on humanitarian grounds to the respondent who keeps on agitating the transfer orders by remaining himself in Chennai for years together. In such view of the matter, we are unable to confirm the order of the learned single Judge.”

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7.The contention that the impugned order of transfer reflects mala fides on the ground that the place of posting has not been even indicated also cannot be countenanced for the reasons that, it is for the Chief Engineer (Personal), and the Superintending Engineer/Electricity Distribution Circle, Thanjavur, to decide appropriate posting. "Administrative ground" is broader connotation which gives latitude to the appointing/competent authority, to consider https://hcservices.ecourts.gov.in/hcservices/ the suitability, desirability and need to shift a person from one station to another. The contention that due to transfer in the middle of the academic year, the interests of the family members is likely to

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be affected, is not a ground to interfere with the order of transfer. In this regard, useful reference can be made to a Division Bench judgment of this Court in PALANISAMY v. THE GENERAL MANAGER, TAMIL NADU STATE TRANSPORT CORPORATION LIMITED, reported in 2005 (4) LW 604, cited supra.

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8. In view of the decisions cited supra, it is well settled that an order of transfer can be interfered only on the following grounds:

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(i) if it is tainted with mala fide ;

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(ii) if it is in violation of any statutory rules;

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(iii) if the authority, who has passed the order of transfer, has no jurisdiction to do so.

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9.For the abovesaid reasons, the impugned order of transfer passed on administrative ground cannot be interfered with. Hence, the writ petition is liable to be dismissed.

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10.After disposal of the writ petition, Mr.C.Dhanaseelan, learned counsel for the petitioner submitted that at-least the petitioner may be permitted to make a representation to the concerned respondent seeking for retention till the end of the academic year. Permission is granted. The petitioner can make a representation, if he so pleases, to the competent authority, who shall consider the same on merits.

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11.With the above observation, the writ petition stands dismissed. Consequently, connected miscellaneous petitions are also dismissed. No costs. `

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Sd/Assistant Registrar (RTI)

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/True Copy/

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Sub Assistant Registrar

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1.The Chief Engineer/Personnel,

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Tamil Nadu Generation and Distribution

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Corporation Ltd., No.144, Anna Salai, Chennai - 2.

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2.The Superintending Engineer,

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Tamil Nadu Generation and Distribution

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Corporation Ltd., Thanjavur Electricity

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Distribution Circle, Thanjavur.

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3.The Executive Engineer,

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Tamil Nadu Generation and Distribution

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Corporation Ltd., Kumbakonam North,

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Thanjuavur District.

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https://hcservices.ecourts.gov.in/hcservices/

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W.P.(MD) No.10037 of 2011 06.09.2011

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gcg NSV/8.9.11/8P/4C

U.S.Gunasekaran v. the Chief Engineer (Personal)

Case brief

What is this about?

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U.S.Gunasekaran v. the Chief Engineer (Personal)

Case brief

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