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D.SHANMUGAM versus THE DEPUTY DIRECTOR OF HORTICULTURE

High Court of Madras

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D.Shanmugam v. The Deputy Director of Horticulture - WRIT PETITION (MD) No.4542 of 2007 [2007] RD-TN 2084 (27 June 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 27/06/2007

CORAM:

THE HONOURABLE MR. JUSTICE K.CHANDRU

WRIT PETITION (MD) No.4542 of 2007

and

M.P.(MD) No.1 of 2007

D.Shanmugam .. Petitioner vs.

1.The Deputy Director of Horticulture,

Pudukottai District.

2.The Assistant Director of

Horticulture (Incharge),

Kudumiyanmalai,

Pudukottai. .. Respondents Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus calling for the records relating to the impugned order of the transfer by the 2nd respondent in his proceedings Semuka.N.AA.995/2007 dated 8.5.2007 and quash the same and consequently direct the 2nd respondent to retain the petitioner as Assistant Agriculture Officer in Vallathirakottai in Pudukottai District For petitioner : Mr. K.Mahendran For respondents: Mr. S.C.Herold Singh

Government Advocate

:ORDER



The petitioner was working as Assistant Agriculture Officer. Before his transfer under the impugned order, he was working in a Government Horticulture Farm in Vallathiragottai, Pudukottai District.

2. By the impugned order, he was transferred from the said form to Kannangudi, Devakottai Division of Sivaganga District. This order is under challenge in the Writ Petition.

3. The Writ Petition was called on 24.5.2007. On the basis of the additional affidavit filed by him alleging mala fide, the matter was directed to be listed on 18.6.2007 and interim stay was granted till 18.6.2007 and thereafter, the matter was listed before this Court on 27.6.2007. In the mean while, the respondents have filed a counter affidavit and also typed set of papers and with the consent of both the parties, the writ petition itself is taken up for hearing.

4. Heard the arguments of Mr.K.Mahendran, learned counsel for the petitioner and Mr. S.C.Herold Singh, learned Government Advocate for the respondents and have perused the records.

5. The major grounds of attack on the transfer orders are that the petitioner has not completed two years of service and his son is studying in a college at Pudukottai and also in the affidavit allegations are made that the respondents have decided to eliminate him from the said place so that they can carry on the activities of carrying sampling from Government Agriculture Farm to private farms.

6. This has been stoutly denied by the counter affidavit filed by the first respondent. He has also stated that the transfer was made because there was a complaint sent to the Hon'ble Chief Minister's Cell against the petitioner and an enquiry is also pending. In the typed set of papers, the allegations made by the farm members of the farm in which the petitioner was working is also enclosed and the endorsement of the Hon'ble Chief Minister's Cell is also furnished. The Deputy Director sought for explanation on the said allegations. Apart from this, a number of allegations have been made against the petitioner's commissions and omissions and in view of the same, transfer was effected.

7. Taking advantage of this Counter, the learned counsel for the petitioner submitted that the allegations against the petitioner should be enquired into and he cannot be subjected to transfer at this stage and it would amount to punishing the petitioner for a misconduct.

8. A perusal of the impugned transfer order clearly says that the transfer was effected pursuant to the order passed by the Deputy Director dated 7.5.2007. In that, it was clearly stated that the transfer was made on administrative grounds. Along with the petitioner, several other persons were also transferred. The fact that the petitioner has completed only two years and based on certain guidelines, he cannot be transferred, can never be accepted. It is not for this Court to enforce such guidelines. So long as the power of transfer is vested on the authorities and its exercise is proper and in a boana fide manner, the Court cannot interfere with the order of transfer. His son is studying in a local Polytechnic College cannot invalidate the order of transfer and if there is any personal inconvenience, it is for the authorities to take note of the same and take appropriate action.

9. Therefore, the only remaining question is whether there was any mala fide against the respondents and while the allegations pending against the petitioner, can be transferred from the present station.

10. The allegations made against the petitioner to the highest authority of the State cannot be brushed aside. In case it requires that he should be kept out of the station pending enquiry, it is a relevant consideration for effecting administrative transfer. In the absence of the impugned order showing any stigma, the petitioner cannot challenge the same. The allegation of mala fide has been denied by the respondents in the counter affidavit. At this juncture, the Court cannot go into any other allegations. Even otherwise, there is no particular allegation against any officer and allegations are in general nature.

11. Therefore, the Court is unable to interfere with the order of transfer. In this context, it is relevant to refer to the decision of the Supreme Court reported in (2004) 7 Supreme Court Cases 405 (State of U.P. and another vs. Siya Ram and another). In paragraph No.5, it has been held as follows:

"The High Court while exercising jurisdiction under Article 226 and 227 of the Constitution of India had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corpn.Ltd., v. Shri Bhagwan (2001) 8 SCC 574."

12. Similarly, it is also relevant to refer to the Judgment reported in (2004) 11 Supreme Court Cases 402 (State of U.P. and others vs. Gobardhan Lal) and in paragrah No.7, it has been held as follows: "7. It is too late in the day for any government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provisions (an Act or rule or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision."

13. In the light of the decisions of the Hon'ble Supreme Court, this Court is unable to interfere with the impugned order of transfer. Therefore, the Writ Petition will stand dismissed. No costs. Interim stay granted already is vacated and connected miscellaneous petitions are closed. asvm

To

1.The Deputy Director of Horticulture,

Pudukottai District.

2.The Assistant Director of

Horticulture (Incharge),

Kudumiyanmalai,

Pudukottai.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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