N.A. MOHAN Vs. THE STATE OF TAMIL NADU, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT, OF EDUCATION, SCIENCE AND TECHNOLOGY, FORT ST. GEORGE AND ORS.

JUDGEMENT

(1.) Petitioner is presently working as an Assistant in the office of the Regional Director of Government Examination Madurai. He was working as an Assistant in the office of the second Respondent at Madras. This writ petition is filed claiming that the order of transfer, dated 20th September, 1981, transferring him from Madras to Madurai, is to be quashed, because it was ordered due to the vindictiveness, maliciousness and mala fide intentions of the third Respondent, and that it may act as a punishment upon him. In the affidavit he states that, there are more than 350 staff members in the office of the second Respondent and none of them is liable for transfer, unless it is a request transfer or transfer on promotion. He was the Secretary of the Staff Association of the Directorate of Government Examination On 18th September, 1981, Petitioner along with other office -bearers of the said Association held discussions with regard to certain affairs of the Association with the third Respondent, and at that time the malpractice committed by Palaniswamy, which was not one of the items connected with the discussions, was breached by the third Respondent (Additional Director) and that he commented that the Association was unnecessarily intervening in administrative matters. During the discussions, quite unreason ably he got into a fit of temper and shouted at them and claimed that he would cut the Association into size. Eventhough Petitioner tries to impress upon him that the Association had brought to the notice of the management about the culprit and it cannot be interference in the administration of the office, third Respondent pounced upon the Petitioner claiming that there is unnecessary interference in administration by the Association. In view of the attitude adopted by him, the office -bearers immediately met the second Respondent, the Director of Government Examinations and represented to him about the behaviour of the Additional Collector in humiliating them for no fault. On 18th September 1981 itself, a written memorandum, stating about the unseemly behaviour of the third Respondent was handed over to the second Respondent. On 19th September, 1981, as proposed a meeting of the Union was called and the attitude of the third Respondent was condemned, since he had asked the office -bearers to get out of the office. Obviously provoked by those factors, on 20th September 1981, a Sunday third Respondent passed an order transferring Petitioner to Madurai and it was signed by him on behalf of the second Respondent On the same day, one Mr. K. Gopal, another of officer -bearer of another Association was also transferred to Coimbatore. Later on he appears to have apologized and got his transfer revoked, on 28th September 1981, third Respondent wrote is D.O. letter to Regional Deputy Director of Government Examinations, Madurai requesting him to somehow or other see that the Petitioner is accommodated in some leave vacancy at Madurai. This D.O. letter as well as the transfer memo served on him, were dealt with in F -2 Section, whereas as per the office orders in force, it could have been done only by F -1 Section. Petitioner then made representations against the transfer to which third Respondent has stated that he would revoke the order in a couple of months. He went and took charge at Madurai on 1st October 1981, and in spite of repeated representations, he had not been re -transferred to Madras. In the meanwhile, on 1st October, 1981, third Respondent, framed certain charges against him under Rule 17(b) of Civil Service (Classification, Control and Appeal), Rules, relating to certain activities of the Association and consequent to that enquiry it resulted n stoppage of his increment and the matter is pending in appeal. In the light of what has been done by the third Respondent, since transfer had been effected due to the vindictiveness and mala fide intentions of the third Respondent, the impugned order deserves to be set aside.

(2.) A counter -affidavit is filed by Thiru K.K. Goplan, who was the Additional Director at the time when the impugned order was passed. He had refuted the claim that the posts of Assistants are not transferable, and claims that several persons have been transferred since 1980, after opening of the Regional Offices at Coimbatore and Madurai. Prior to it, there was no question of any transfer because the only office of the Director, was situate at Madras, There was no assurance ever giver, earlier, that transfer would be effected only after securing the consent of the concerned Assistant. In the meeting held on 18th September, 1981 there was no question of himself getting to a (sic) of temper not shouting at any one as alleged. It was the Petitioner who took up the issue of Thiru Palaniswamy and he was told that the matter relating to him was under enquiry by the Vigilance Department and hence, no discussion can take place at that stage. It was only the office bearers of the Union, particularly the Petitioner, who exhibited a defiant behaviour. Not only that he exhibited such a temperament, but he also conducted the meeting of the Association during office hours on 10th August, 1981 without obtaining permission for using the office premises. To the hearing of the deponent, certain derogatory statements were made against Minister of Education. Regarding the manner in which the office bearers were making representations, even his predecessor have brought to the notice of the Government that there has been interference by them in the smooth functioning of the office. It was after the incident on 19th September, 1981, he bona fide, thought that to tone up and in the interests of the administration the Petitioner should be transferred out of Madras City, and hence the transfer order is not a punishment nor has it caused any stigma on the Petitioner. The allegations of mala fides against him are baseless end vague. The order is passed only due to administrative exigency and not to punish the Petitioner. Admitting the letter, dated 28th September, 1981 written by him, he states that, it was done more in the interests of the Petitioner to get his salary etc. without delay and not with any mala fide intention. The memo of transfer issued by F 2 Sec. was not irregular since the Head of the Office can get the work done by any Sec. in the interests of efficient administration. As for the charge framed for defamatory speech made by him, it has nothing to do with the order of transfer. No pre -condition regarding transfers, as pleaded by the Petitioner, had ever existed. The very fact that Petitioner had not gone to Court soon after his transfer to Madurai shows that he had no cause to object. The order of transfer was not issued in haste, and there is no hard and fast Rule that it should be done only on the form of a proceeding or memo, and it is enough if it is done as an executive order setting out the contents clearly, and in this case it was done. Since the vacancy position in the Regional Office is not clearly known, letter, dated 29th September, 1981 was written, so that he would not be sent back by Madurai Office, if sent back then would have been unnecessary delay in the claim of his salary etc., after being relieved at Madras. The so called oral agreement pleaded about transfers was refuted, by stating that there have been large, number of transfers of both Assistants and Superintendents, to Regional Offices, during 1980, 1991 and also in 1982.

(3.) This counter -affidavit resulted in a reply affidavit being filed by the Petitioner to the following effect; The Staff Association passed a resolution on 9th December, 1980 which was recorded on 16th December, 1980 stating that only willing promotees and persons with their consent or at their request who have got their native places in or near the Regional Offices should be transferred and that there should not be any transfer against the consent of any Assistant. This resolution was communicated to the then Director and there was a tacit understanding that transfer would not be effected without the consent of the individual. Hence there can be no routine administration transfer, as normally happens in Government Department. It is incorrect to state that it was the Petitioner who raised the issue involving Mr. Palaniswami. The agenda of the Association never included it, as one of the subjects to be discussed on 18th September 1981. The allegation that the Association has interfered with day to day administration, etc., is totally false. It is wrong to claim that the meeting held on 19th September, 1981 was without obtaining the prior permission, because on 18th September 1981, a letter had been given to the second Respondent that a meeting was going to be held on 19th September, 1981 after lunch hour. Reliance is placed on G.O. Ms. No. 1875, Public (Services C) Department, dated 10th November 1961 to contend that, no prior permission is required to conduct a meeting on each occasion. The order of transfer has caused a stigma on him and having been passed on Sunday by directing F 2 Sec. to deal with the matter speaks volumes of vengeance and vendetta of third Respondent against him, because no administrative exigency necessitated transfer. The confidential letter, dated 28th September, 1981, which had followed it, amply justified this allegation. As far the knowledge acquired by him about this letter, it was seen by him by sheer accident, and it is not a confidential one, and hence, no irregularity had been committed by him by relying upon the said letter. It was only on seeing the letter, it dawned on him that third Respondent was not a gullible and responsible person as he pretends to be, but a person with vengeance and vindictiveness. Who knows how to spoil a person who has crossed swords with him. His explanation given for writing the said letter is unconvincing, since on issue of a certificate regarding last pay drawn, he would automatically get his salary and in his case, the certificate dated, 17th October 1981 had been issued, and therefore, there was no necessity to write a strictly confidential letter if the only purpose was to secure his salary on time. The usual procedure adopted in the office regarding transfers by F2 Sec. is referred to and claimed that, what has happened was contrary to office order No. 4/80 dated 4th March, 1980. The transfer was made only in a fit of temper and at a time when no vacancy existed at Madurai, and the request of the third Respondent to create a vacancy to accommodate him clearly shows that there was no necessity for the transfer effected. Except for the transfer of the Petitioner and Mr. K. Gopal, no one had been transferred unless they have asked for a request or an account of promotion. The oral agreement or assurance given by the then Directors in 1980 had been strictly followed till this date, pertaining to transfers.