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Judgment
K. Chandru, J.—These Writ Petitions came to be posted on being specially ordered by the Hon''ble Chief Justice vide order dated
3.2.2011.
The Petitioner is the one and the same person in both the Writ Petitions. The first Writ Petition No. 46823of 2006 arose out of O.A. No. 4438
of 2000 filed by the Petitioner before the Tamil Nadir Administrative Tribunal, who was working as a Deputy Inspector of Survey, Taluk Office,
Chengam, Tiruvannamalai District. In the Original Application, the Petitioner challenged an order dated28.6.1999 and after setting aside the same
he sought for a direction to regularize the service for the period from9.3.1996 to 3.3.1997 as duty. The said Original Application was admitted by
the Tribunal on 11.7.2000. On notice from the Tribunal, the Respondents have filed reply affidavit dated 7.3.2001. Though the Petitioner sought
for an interim direction pending the Original Application, the Tribunal did not grant any such interim order. In view of the abolition of the Tribunal,
the matter stood transferred to this Court and was renumbered as W.P. No. 46823 of 2006. Even while the Original Application was pending
before the Tribunal, the Petitioner filed a Writ Petition before this Court in W.P.2513 of 2005 for a prayer that the interregnum period, namely
9.3.1996 to3.3.1997 should be treated as duty for all purposes.
This action of the Petitioner was highly reprehensible because in the earlier Original Application, the Petitioner''s specific request was denied by
an order dated 28.6.1999 and that was the subject matter of challenge in that Original Application. When that order was the subject matter of
challenge, the Petitioner cannot file another Writ Petition seeking for a fresh direction to treat the period as duty as if there was no order passed
against him earlier. In the Writ Petition, except in paragraph 10 making a brief reference by stating that the earlier Original Application was still
pending and as it could not be listed for final disposal, he having got retired from service on 31.5.2003, he chose to file the second Writ Petition,
there is no other averment. Even otherwise, such a course is not open to the Petitioner. The Petitioner should have got the transfer of his Original
Application to this Court or should have moved the Tribunal for an early disposal of the Original Application. When by an order dated 28.6.1999
the Respondent had declined to treat the period as duty for all purposes, in the absence of a challenge to that main order, a writ in the nature of a
direction is clearly not permissible. In any event, the grievance projected by the Petitioner that the period from9.3.1996 to 3.3.1997 should be
treated as a compulsory wait was on the premises that the Petitioner had challenged the order of transfer in the earlier round of litigation, i.e., in
O.A. No. 1639 of 1996. The Tribunal finally disposed of the matter on 12.2.1997 directing that the order impugned therein would take effect from
the date of commencement of the transfer period in 1997.
It is seen from the records that the Petitioner was working in Survey and Land Records Department and was initially allotted to the undivided
North Arcot District. Due to the bifurcation of the District, the Petitioner was allotted to Tiruvannamalai District. On 22.2.1996, he was transferred
to the District. The Petitioner contending that the transfer was affected during the middle of the academic year and there was a contravention to
G.O. Ms. No. 10P&AR Department moved the Tribunal. The Tribunal granted an interim order on 22.3.1996. Subsequently, the said Original
Application was disposed of by a final order dated12.2.1997. In the final order, the Tribunal did not agree with the Petitioner''s contention that the
transfer was illegal. In the operative portion of the order, the Tribunal observed as follows:
The only grievance of the applicant seems to be that his disturbance in the middle of the academic year causes hardship. That he has given his
option to work in the new District is not disputed. It appears that he gave his consent twice. First time, he expressed his consent five years ago
when the District was bifurcated. Again on 21.12.95 also he has expressed his consent. Considering the fact that orders regarding distribution of
staff were passed only on 23.11.95, it cannot be said that there is infirmity in the transfer order. However, taking into account, the hardship caused
to the applicant in view of disturbance in the middle of the academic year and that the interim stay for the impugned order is in force from
22.3.1996, we direct that the impugned order is to take effect from the commencement of the transfer period in1997. Respondents are to issue
suitable joining instructions within three weeks.
(emphasis added)
Therefore, it cannot be said that the Petitioner had succeeded in setting aside the transfer order. On the other hand, the Petitioner''s specific
request not to transfer him in the middle of the academic year was considered and the Tribunal directed to give effect to the impugned order during
the commencement of the transfer period in 1997. If at all any relief was given to the Petitioner, it was only to protect him from his service being
treated as break in service. By the Tribunal''s order even in the absence of the Petitioner succeeding, he got the interim order to be treated as a
new transfer order and a direction was given to the Respondents to give an appropriate posting order. After the Petitioner joined at the new station
he sent a representation for treating the period from 1.3.1996 to 3.3.1997 as compulsory wait. When there was no order passed, he filed O.A.
No. 8538 of 1998before the Tamil Nadu Administrative Tribunal and soughtfor a direction to regularise his period. The Tribunal gave a direction
to pass appropriate orders by another order dated 29.10.1998. It is pursuant to the order, the impugned order came to be passed.
In the impugned order, the Respondents have stated that as per Fundamental Rules, there was no scope for treating the period as compulsory
wait for the period during which the Petitioner did not work. In the reply affidavit in W.P. No. 46823 of 2006, it was stated that the Petitioner was
relieved from Tirupathur Town on 8.3.1996. But he had not joined at Tiruvannamalai and it is only to obey the order of the Tribunal, subsequent
posting order came to be issued to him. It was also stated that the Petitioner did not submit any leave application for regulating the period of his
absence.
In the counter affidavit filed in W.P.2513 of 2005, it was alleged that when the Petitioner was relieved from service in Tirupathur, another
person joined his post byname S. Sugumar and therefore there was no scope for giving further posting to the Petitioner. Though the said. Sugumar
was originally imp leaded as 4th Respondent in W.P. No. 46823 of 2006; the Petitioner deleted the said Sugumar from being the 4th Respondent
in that Writ Petition. It is also stated that the Petitioner had opted to go to Tiruvannamalai and thereafter he had not joined despite the transfer
order was issued to him. Though the Petitioner was directed to submit an appropriate leave application for regulating the period, he had not done
so.
The short question that arises for consideration is whether the Petitioner''s absence during the relevant period should be treated as compulsory
wait or should be regulated in any other manner. It is the case of the Petitioner that subsequently he had retired from service on31.5.2003. It is not
clear as to whether after his retirement, he has given appropriate letter seeking treating the period as leave to which he is eligible, without which he
could not have drawn pension. In any event, the contention raised by the Petitioner cannot be countenanced for more than one reasons.
Unless the Petitioner succeeds in setting aside the transfer order, the question of treating the said period of his absence as duty or in the
alternative as a compulsory wait will not arise. Merely because the Petitioner had got an interim order and subsequently due to threat of contempt,
he got a posting order, will not make the transfer invalid.
This Court had an occasion to consider as to how the period of absence should be treated during the tendency the proceedings before the
court, challenging the transfer order by a Government servant, vide judgment ink. Pandi and Ors. v. State rep. by the Secretary to Government,
Finance Department, Chennai reported in (2009) 7 MLJ 1191
In the present case, the Petitioner relied upon a judgment of the Supreme Court in Electronics Corporation of India Limited and Ors. v.
Sateesh S. Rao Sonawalkar reported in (2004) 11 SCC 550. The said judgment came to be considered in Pandi''s case (cited supra) in
paragraph 20. This Court in paragraph 21 in Pandi''s case observed that direction in the Electronics Corporation case was by virtue of power
exercised under Article 142 and that cannot be cited for exercising such power under Article 226 of the Constitution by this Court. The power of
the High Court under Article 226 is only to see whether an impugned order can be judicially reviewed. This Court also held that if any order of
stay of transfer was passed, the said order will necessarily lapse with the final decision in the main proceedings and that will not enure any benefit to
any Government servant.
In the light of the above, no case is made out. Hence, both the Writ Petitions are dismissed. No costs.