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Judgment
K. Kannan, J.—By consent of all the parties, the writ petition is taken up for final disposal.
The petitioner, who has been working in Tamil Nadu Housing Board, challenges the order of transfer issued by the first respondent on two
folds;
i. the petitioner belongs to ''Group D'' cadre and a person in such cadre is not liable to be transferred.
ii. the order has been issued due to mala fide of the second respondent who has prevailed on the first respondent to pass the orders.
Both the respondents 1 & 2 filed their objections. It is contended by the respondents that as per G.O.Ms. No. 190, dated 30.07.1998, issued
by the Personnel and Administrative Reforms (S) Department, Government of Tamil Nadu, the grouping has been done on the basis of scale of
pay and ''group C'' employee is a person who holds the post on pay scale among the minimum of which is Rs. 2,610/- and above but below Rs.
5,500/-. The respondents contend that the petitioner falls within the said scale and therefore, he must be taken as a ''Group C'' employee.
As regards the contention of the mala fide, the objection is that the order of transfer has been made by the first respondent and there is no
imputation of mala fide against the first respondent. Even the allegation made against the second respondent is vague. The transfer is made
according to the respondents, purely on an administrative exigencies and the Court shall not interfere in the matter of regular transfer.
The learned Counsel for the petitioner does not seriously dispute the Grade ""C"" status, having regard to the documentary proofs adduced by the
respondents. Mr. Vijayakumar, learned Counsel appearing for the petitioner however, argues strenuously that the petitioner had been transferred
only because the petitioner is being an office bearer of ""Pattali Labour Association"" and because of the phamlets which issued after the office
hours. The contention of the petitioner is that the second respondent had adopted the vindictive attitude to punish the employees attached to a
particular party, at the instance of the ruling party Union. He referred to the particular hints since when he given a call for ''Dharna'' on 10.07.2008
and arrange for a gate meeting outside the office premises, the impugned order of transfer was passed on the same date i.e., on 10.07.2008 to be
posted to Thirunelveli Housing Unit for the existing vacancy. The proximate of time to the date of proposed meeting and the order of transfer
would clearly indicate the mala fide on the part of the respondents. According to him, he had been transferred to K.K.Nagar Division, to the high
level Committee section only very recently on 04.01.2007 and he had worked hardly for ninth months before he received another order of
transfer.
It has been repeatedly held that the transfer is a necessary incident of service and the Court will not exercise its jurisdiction unless a clear case of
mala fides is made out or the relevant rules do not permit the transfer. As regard the contention of the mala fides, apart from a bald allegation that
the second respondent was prevailed the first respondent to pass an order, it is not possible to take the averment in the affidavit is sufficient to
uphold his contention. The order itself has not been passed by the second respondent but only by the first respondent and as stated already, there
is no specific allegation of mala fide against the first respondent. The first respondent has done no more than to prepare an Office Note to the
second respondent and that the Note prepared by the second respondent cannot be said to be in any way prompted by mala fides at his own
instance. The contention regarding his proposed participation in ''Dharna'' on 10.07.2008 and the order of transfer was issued on the same date as
an incident of mala fides is concerned, it is pointed out to me that the respondents themselves have not prevented the ''Dharna'' taking place but
they have informed on 09.07.2008 to the Commissioner of Police that bandobust may be given in view of the fact that ""Pattali Labour Association
had proposed to conduct the gate meeting at 3.00 p.m. It is not therefore, a case of an attempted act of prevention of the gate meeting but an
endorsement for the same. A proper preparation for a meeting any untoward contingency.
Both sides have relied on the decisions of the Hon''ble Supreme Court and cited instances of when transfer orders have been interfered with and
when Courts have adopted a hands-off approach to orders of transfer, Predictably, the petitioner relies on the decisions, where the Courts have
interfered with the orders of transfer by referring me to the decision of this Court in M. Arundathi v. The Director of Medical Education, Madras
and Anr. reported in 1996 T.N.L.J. 179, which was a case of a Staff Nurse being transferred from one hospital in the city to yet another hospital,
when the Court said that a person was transferred but an imputation of misconduct or illicit conduct with a Doctor, who carry with a batch of
stigma and it was no conciliation to state that the Doctor involved was also sought to be transferred because it was the imputation against the
character that was involved and not merely a transfer. In this case, who have no instance of any imputation of misconduct as resulting in the
transfer.
The counsel also refers me a decision of the Hon''ble Supreme Court in B. Varadha Rao v. State of Karnataka and Ors. reported in 1986 SC
516, where the Hon''ble Supreme Court intervened the casem where the order of transfer varied the conditions of service and that it could not
varied with disadvantage the conditions of service. We have no such situation here of any variation of conditions of service to apply the dictum of
the Supreme Court.
Yet another decision which has been referred to by the petitioner is a decision reported in Union of India and Another Vs. Ashutosh Kumar
Srivastava and Another, which is to the effect that in the matters of transfer the presumption of exercise of the power being good faith and for
public benefit always arises in favour of administration and the burden of proof of mala fides lies on the person alleging the same. The law in its
perspective that the petitioner alone shall prove the mala fides attributed to the respondents, which in my considered view the petitioner is not
discharged.
Yet another decision is of the Supreme Court in E.P. Royappa Vs. State of Tamil Nadu and Another, particular reference to paragraph 92
which also sets out that the burden of establishing mala fide always from a person who alleges the same.
In National Hydroelectric Power Corporation Ltd. Vs. Shri Bhagwan and others, , the Hon''ble Supreme Court laid down that the transfer of
an employee is not only an incident but a condition of service that unless it is shown to be an outcome of mala fide exercise of power or violative of
any statutory provision it could not be subject to judicial interference as a matter of routine.
In B. Damodaran v. The Joint Managing Director, State Express Transport Corporation, Chennai is a judgment in W.P. Nos. 7183 and 7184
of 1998 rendered on 02.06.1998 this Court has stated that the Court may examine whether the order of transfer has been actuated by any malice
or intent to punish the employee. And should the Court''s examination reveal that any extraneous considerations or oblique motives were at play in
the making of the order, it would be legitimate for it to interfere.
The position is too well established that a writ challenging the order of transfer itself cannot be thrown out as not maintainable. If we have a
power to examine to come to a conclusion whether the plea of mala fide is established or not. In this case, such a plea has not been made out by
adducing any substantial materials.
A recent decision of this Court in P. Vasu v. Tamil Nadu State Transport Corporation reported in 2008 4 MLJ 1288 (Mad-NOC) was a
case, where the Court intervene when the reasons stated in the charge memo related to participation in an agitation for starting a disciplinary action.
This judgment again does not held that the petitioner or its nobodies case that any disciplinary action was initiated for the planned gate meeting at
office premises.
There are no materials to persuade to me to accept the petitioner''s contention that there are any mala fide in the order of transfer. I am
informed that the petitioner is already joined his place of transfer and there are no circumstances to justify to amendment of transfer order. The
petition is therefore dismissed. No costs.