BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21/04/2010
CORAM
THE HONOURABLE MR.JUSTICE P.JYOTHIMANI
Writ Petition (MD).No.6220 of 2009
&
M.P.(MD).No.1 of 2009
M.P.(MD).No.2 of 2009
M.P.(MD).No.3 of 2009
J.Alex Dorai Vetha Sam . . Petitioner
vs
1.The District Educational Officer (in-charge)
Tirunelveli District,
Tirunelveli.
2.The Headmaster,
Kamaraj Municipal Higher Secondary School,
Pettai,
Tirunelveli-10.
3.The Headmaster,
Govt.Higher Secondary School,
Veerasigamani,
Tirunelveli District. .. Respondents
Prayer
Writ petition is filed under Article 226 of the Constitution of India
to issue a writ of Certiorarified Mandamus to call for the records on the file
of the first respondent in connection with the impugned order of transfer passed
by him in his proceedings No.Na.Ka.1122/A1/2009, dated 29.06.2009 and
consequential order of relieving passed by the second respondent vide
Na.Ka.193/2009, dated 01.07.2009 respectively and quash the same as illegal and
consequently direct the respondents 1 and 2 to retain him in the second
respondent school, i.e., Kamaraj Municipal Higher Secondary School, Pettai,
Tirunelveli-10.
!For Petitioner ... Mr.G.Thamalimutharasu
^For Respondents ... Mr.V.Rajasekaran for R1
Special Government Pleader
No appearance for R2 & R3
:ORDER
The writ petition is filed challenging the impugned order of transfer
effected by the first respondent, dated 29.06.2009, transferring the petitioner,
who is working as Record Clerk, in Kamaraj Municipal Higher Secondary School,
Pettai to the Government Higher Secondary School, Veerasigamani, which is stated
to be 60 kms away from the place where the petitioner is working.
2. Normally in cases of transfer on administrative grounds, the scope of
interference by this Court exercising the jurisdiction under Article 226 of the
Constitution of the India is very limited, since in service jurisprudence it is
clear that transfer is incident of service. It is not the case of the petitioner
also that he is not liable for transfer. But, on the facts and circumstances of
the case, especially taking note of the contents of the counter affidavit filed
by the first respondent, this Court has to take a different stand in respect of
the impugned transfer effected herein.
3. The petitioner was originally working as Assistant in the Municipality
and thereafter, as Office Assistant in the Tirunelveli Municipality having been
appointed on sponsor by the employment exchange on 11.12.1986 and thereafter, he
was posted as Attender in the second respondent school, by way of transfer of
service on 17.03.1987. He was subsequently promoted as Record Clerk on
04.11.1990 and still working in the second respondent school in the same
capacity. Under the impugned order, the first respondent has transferred the
petitioner from the second respondent school to the Government Higher Secondary
School, Veerasigamani which is stated to be 60 kms away from the present school.
4. It is the case of the petitioner that the impugned order itself
came to be served only on 01.07.2009 along with the reliving order. The
petitioner is stated to be a physically challenged person. Since he is suffering
from his disability, he was unable to join in the transferred school. The
petitioner has been taking treatment in Sushrushah Hospital at Nagercoil for
Poly Arthiritis from 12.12.2008 till date. The medical certificate issued by the
competent authorities also revealed that the petitioner is suffering from
permanent disability to the extent of 40% and the same has been forwarded to the
Director of School Education also. It is stated that the wife of the petitioner
is also working as a Teacher in Government School at Tirunelveli Town and the
petitioner along with his family settled at pettai and his daughter aged 20
years is also physically challenged and both the petitioner as well as his
daughter are unable to move without the assistance of the petitioner's wife. The
petitioner is stated to be on medical leave. The impugned order of transfer is
challenged on various grounds including that even though it is stated to be on
administrative reason, but there is nothing in the impugned order, but the same
is punitive and it is on the basis of certain remarks on the petitioner's
service in the second respondent school, which is possible only after giving
opportunity to the petitioner and in the present case no opportunity was given
before punitive transfer is effected.
5. In the counter affidavit filed by the first respondent, even though the
first respondent has stated that the impugned order of transfer is on
administrative in nature, the various averments contained in the affidavit would
go to show in categorical term that the transfer was effected on a complaint
from various teachers of the second respondent school. In fact, in the counter
affidavit, the first respondent has chosen to state that on the basis of the
complaint received from various teachers to the effect that the petitioner has
not been discharging the official duty properly and based on that the first
respondent, the District Educational Officer, has in fact conducted an enquiry
with teachers and headmaster of the said school and found that some substance in
the complaint given by them against the petitioner and it was therefore, the
transfer order came to be passed. Following is the relevant portion of the
counter affidavit for the purpose of this case;
"The first respondent after conducting preliminary enquiry with teacher
and headmaster of Kamaraj Municipal Higher Secondary School, Pettai issued the
transfer order."
Therefore, it is clear that the impugned transfer order has been passed by the
first respondent on the basis of certain complaint given in respect of
functioning of the petitioner as Record Clerk in the second respondent school.
If that is so, law requires that the petitioner should be given an opportunity
before passing such order. Since the petitioner is transferred based on a
complaint, it certainly cast a sitgma on the service condition of the
petitioner. That was also the view of this Court in a decision reported in 2006
(2) CTC 468, (S.Sevvgan Vs. The Chief Educational Officer, Viruthunagar
District, Virudhunagar and another), wherein this Court has held that it is seen
from the impugned order of transfer that it is passed on administrative ground,
but it appears that the order was passed by way of punishment and based on the
complaint against the conduct of the petitioner. If that be so, the petitioner
is certainly entitled for proper opportunity to defend himself as to whether the
complaints against him by the Public or by the Headmaster is proper or not by
way of an enquiry.
6. It is also brought to the notice of this Court that while entertaining
this writ petition, by an order dated 15.07.2009 an order of interim stay for a
period of four weeks has been granted on the condition that if the petitioner
was not already relived and somebody is posted in his place. It is not the case
of the petitioner or the respondent that some third party has been posted in the
place of the petitioner in the second respondent school. However, it is seen
that the reliving order has been given to the petitioner on 01.07.2009 and
therefore, the interim order dated 15.07.2009 was not able to be complied with.
7. Be that as it may, the fact remains based on the interim order came to
be passed, the petitioner was not allowed to be joined in the second respondent
school as record clerk. Since the transfer is effected on the basis of a
complaint, it certainly cast a stigma on the service condition of the
petitioner, which certainly requires an opportunity to be given. In the absence
of such opportunity being given, it is not possible to accept the contention of
the learned Special Government Pleader that the impugned order of transfer has
to be sustained. The further contention of the learned Special Government
Pleader that due charge will be framed, during which time, an opportunity will
be given, has no meaning. It is open to the respondent to proceed against the
petitioner if the petitioner has acted himself against the code of conduct which
the petitioner is expected to follow. That is not the ground and the transfer
order is made based on a complaint given by the teachers. In such view of the
matter, the impugned order stands set aside and the writ petition is allowed.
Consequently, the connected miscellaneous petitions are closed. No costs.
JIKR
To
1.The Director of Elementary Education
Office of the Director of Elementary Education,
College Road,
Chennai 600 006.
2.The District Elementary Educational Officer,
Office of the District Elementary Educational Officer,
Virudhunagar District.
3.The Additional Assistant Elementary Educational
Officer,
Office of the Additional Assistant Elementary
Educational Officer,
Srivilliputhur,
Virudhunagar District.
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