G. Natarajan vs The Secretary to Government, Health and Family Welfare (A1) Department and Others

S. Manikumar, J.—1. W.A.(MD) No. 195 of 2016 is filed against the observation of the learned single Judge made in W.P.(MD) No. 9784 of 2015 dated 18.09.2015. W.P.(MD) No. 9784 of 2015 has been filed to issue a Writ of Certiorari, to call for the records relating to G.O.(D) No. 617, Health and Family Welfare (A1) Department dated 12.06.2013, by which, the appellant/petitioner, Professor/Associate Professor and Head of the Department, Forensic Medicine, Madurai Medical College, Madurai, has been transferred and posted as Professor/Associate Professor of Forensic Medicine, Thanjavur vice Dr. Gandhi retired.

The appellant/petitioner has also filed W.P.(MD) No. 9020 of 2013 for a Writ of Certiorari, to call for the records relating to the impugned notice in Roc. No. C3/27969/2013 dated 16.05.2013 issued by the District Collector, Madurai District, Madurai, first respondent therein, and the consequential notice of the first respondent therein in Roc. No. 21489/2013/C3 dated 20.05.2013 and to quash the same.

The appellant/petitioner has also filed W.P.(MD) No. 10449 of 2013, for a Writ of Certiorari, to call for the records relating to the impugned charge memo issued by the second respondent therein/The Director of Medical Education, Chennai, in Ref. No. 28330/SCI/3/2013 dated 05.06.2013.

By notices dated 16.05.2013 and 20.05.2013, the District Collector, Madurai District, has directed the appellant/petitioner to appear for an enquiry.

All the three writ petitions have been taken up together and after hearing the learned counsel for the petitioner and the learned Additional Advocate General for the State, vide common order dated 18.09.2015, a learned single Judge of this Court quashed the notices dated 16.05.2013 and 20.05.2013 impugned in W.P.(MD) No. 9020 of 2013.

W.P.(MD) No. 10449 of 2013 filed challenging the impugned charge memo dated 05.06.2013, has been allowed and charge memo has been quashed. However, in so far as the challenge regarding transfer made in W.P.(MD) No. 9784 of 2015, at paragraph 27 of the common order made in W.P.(MD) Nos. 9020, 9784 and 10449 of 2013 dated 18.09.2015, a learned single Judge has ordered as follows:-

"27. Secondly, at the cost of reception, it may be mentioned that the petitioner has served for about nine years in one place. In the matter of transfer of Government Servants, the law is well settled that the Courts should not interfere with transfer orders which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory Rule or on the ground of mala fide. A Government servant holding a transferable post cannot have vested right to remain posted at one place or the other, for he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order, instead the affected party should approach the higher authorities in the Department. If the Courts continue to interfere with day-to-day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest. Therefore, this Court taking into account that the petitioner has served for nine long years, namely, from 20.09.2006 till date, the Secretary to Government is at liberty to pass appropriate orders of transfer on administration ground, if so warranted."

Summing up, W.P.(MD) No. 9784 of 2014 has been disposed of giving liberty to the Secretary to Government to pass appropriate orders of transfer on administration ground, if so warranted, as the petitioner has completed nine long years of service in Madurai Medical College.

Thereafter, vide G.O.(D) No. 1248, Health and Family Welfare (A1) Department, dated 06.10.2015, the appellant/petitioner has been transferred and posted as Professor of Forensic Medicine, Government Vellore Medical College, Vellore. The Director of Medical Education has sent a letter dated 06.10.2015 to the Dean, Madurai Medical College, Madurai, for communication and to issue necessary orders relieving the appellant/petitioner. Accordingly, orders have been issued on the same date. The above cause of action has given rise to the appellant/petitioner to file W.P.(MD) No. 19234 of 2015, wherein, the petitioner has sought for a Writ of Certiorari, to quash G.O.(D) No. 1248, Health and Family Welfare (A1) Department, dated 06.10.2015 and the consequential order issued by the Dean, Madurai Medical College in Ref. No. 10090/E1/1/2015 dated 06.10.2015.

Counter affidavit has been filed. Adverting to the grounds of challenge, and taking note of the submissions of the respondents therein that the appellant/petitioner had completed nine years of service in Madurai Medical College, Madurai, and having regard to the observations made in W.P.(MD) No. 9784 of 2015 dated 18.09.2015, a learned single Judge has ordered as follows:-

"3. It is well settled legal position that transfer is not only an incident of service but an essential condition of service and no Government Servant or employee of public undertaking has legal right for being posted at any particular place. While such being the settled legal position, in the case on hand, the petitioner, having been worked for more than 9 years, has no locus-standi to question the impugned order transferring him from Madurai Medical College to Vellore Medical College. On this count, the writ petition fails and the same is dismissed. No costs. Consequently, connected miscellaneous petitions are closed."

As against the observation of this Court in W.P.(MD) No. 9784 of 2015 dated 18.09.2015, granting liberty to the Secretary to the Government to pass appropriate orders of transfer on administration ground, if so warranted, W.A.(MD) No. 195 of 2016 has been filed.

Being aggrieved by the dismissal of W.P.(MD) No. 19234 of 2015 dated 30.10.2015 filed challenging the order of transfer dated 06.10.2015 passed in G.O.(D) No. 1248, Health and Family Welfare (A1) Department and the consequential order issued by the Dean, Madurai Medical College in Ref. No. 10090/E1/1/2015 dated 06.10.2015, W.A.(MD) 125 of 2016 has been filed. Thus both the writ appeals are listed today.

Reiterating the grounds of challenge made in the writ petitions, arguments were advanced.

Before adverting to the above, this Court deems it fit to consider few decisions relating to transfer.

(i) In B. VARADA RAO v. STATE OFKARNATAKA reported in 1986 (II) IT] 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.

(ii) In 1995 (I) EEJ 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.

(iii) IN THE REGISTRAR, HIGH COURT, MADRAS v. VASUDEVAN, A.K. AND OTHERS reported in 1996 ME] 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:-

"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 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 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:

"... 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.

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

"... 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.............."

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:

"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 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, 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)

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."

(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.

(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 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.

(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:-

"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."

(vii) In a recent decision of the Hon''ble Supreme Court in STATE OF HARYANA AND OTHERS v. KASHMIR SINGH AND ANOTHER, reported in 2020 (13) SCC 306, the Supreme Court has held as follows:-

"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.

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."

(viii) In a Division Bench Judgment of this Court in GENERAL MANAGER (PERSONNEL), NATIONAL INSURANCE COMPANY LIMITED, HEAD OFFICE, KOLKATA AND ANOTHER v. DR. S. ASHOK KUMAR, reported in 2020 (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:-

"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 Hyderabad 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.

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."

During the course of arguments, Mr. K. Govindarajan, learned counsel for the appellant/petitioner was posed with a question as to whether the appellant/petitioner has made any specific allegation of mala fide against the Government, who had issued the order of transfer or against other official respondents. Reply of the learned counsel was in affirmative that no specific allegations have been made.

Competency of the Government to issue an order of transfer is not disputed. Per se, the order of transfer cannot be said to be contrary to the statutory rules or the Government orders prescribing tenure in a station. The contention of the appellant is that there are others working in Madurai Medical College and Hospital for many years and that they have not been disturbed. The other contention of the learned counsel for the appellant/petitioner is that the Government have taken undue advantage of the observation of this Court, while ordering transfer. When the appellant has not made any specific allegation of mala fide and proved the same and the order being passed by a competent authority not against the statutory rules or the guidelines, challenge to transfer cannot be entertained, as it is an incident of service. Merely because others are working in the same station for a longer period that would not be a ground to set aside the order of transfer.

Further, reading of G.O.(D) No. 1248, Health and Family Welfare (A1) Department, dated 06.10.2015 shows that earlier, the appellant/petitioner was transferred to Thanjavur Medical College & Hospital. After quashing of the proceedings, the department has noticed that the post of Professor (Forensic Medicine), Vellore Medical College and Hospital was vacant.

Thus having regard to the need in the said college, transfer order has been issued. The appellant is stated to have joined in the said station. The resultant vacancy at Madurai Medical College has also been filled up subsequently.

At this juncture, Mr. K. Govindarajan, learned counsel for the appellant/petitioner has submitted that though the appellant is posted as Professor at Government Medical College, Vellore, invariably, he has been attending courts in Madurai, in connection with the postmortems that he had conducted for over many years, within the jurisdiction of Madurai District and for few days in a month, he is at Vellore. The abovesaid contention cannot be a ground to set aside the order of transfer, for the reason that as a Doctor, who had conducted postmortem, he has to adduce evidence, wherever he is summoned.

In the light of the discussion and the decisions cited supra, this Court is not inclined to interfere with the orders of the learned single Judge made in W.P.(MD) No. 19234 of 2015 dated 30.10.2015 and W.P.(MD) No. 9784 of 2015 dated 18.09.2015 respectively. Accordingly, both the Writ Appeals are dismissed. No costs. Consequently, C.M.P.(MD) Nos. 953 and 568 of 2016 are closed.