Order dated : 12.09.2022
Writ Petition No.9139 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.09.2022
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
Writ Petition No.9139 of 2016
and
W.M.P.No.8141 of 2016
K.Sarathy
S/o.Kannan ... Petitioner
Vs.
1.The Commissioner of Most Backward Classes
and Denotified Communities Welfare,
Office at Chepauk,
Chennai - 600 005.
2.The Commissioner,
Adi Dravidar Welfare Department,
Office At Chepauk,
Chennai - 600 005. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus calling for the entire
records which culminated in issuing the proceedings in Letter
No.C1/5781/2014 dated 13.10.2015 on the file of the first respondent, quash
the same and consequently, direct the first respondent to issue necessary orders
transferring the petitioner from Adi Dravidar and Tribal Welfare Department
and to post him as Secondary Grade Assistant in the Backward Classes and
Minority Welfare Department by transfer of service as per Rules 2 and 4 of the
https://www.mhc.tn.gov.in/judis
1/12
Order dated : 12.09.2022
Writ Petition No.9139 of 2016
Tamil Nadu Backward Classes and Minorities Welfare Department in the light
of the recommendation made by the second respondent in his proceedings in
Na.Ka.No.T2/9709/12 dated 20.07.2012 within a time stipulated by this Court.
For Petitioner : Mr.S.Mani
For Respondents : Mr.B.Vijay,
Additional Government Pleader
*****
ORDER
The order of rejection rejecting the claim of the petitioner to transfer him from Adi Dravidar and Tribal Welfare Department to Backward Classes and Minorities Welfare Department is under challenge in the present writ petition.
2. The petitioner states that he was appointed as Secondary Grade Assistant in the Adi Dravidar and Tribal Welfare Department on 28.08.2006 and his services were regularized. The petitioner states that he made an application to transfer him to the Backward Classes and Minorities Welfare Department. The petitioner submitted his application for transfer due to the education of his children and other attendant family circumstances. The application was forwarded by the District Adi-Dravidar Welfare Officer to the Commissioner, Adi-Dravidar Welfare Department on 20.07.2012 and no further action was taken. Thus, the petitioner filed W.P.No.26054 of 2013 and this Court directed the respondents to consider the case of the petitioner and pass https://www.mhc.tn.gov.in/judis 2/12 Order dated : 12.09.2022 Writ Petition No.9139 of 2016 orders. The case of the petitioner was not considered and his claim for transfer was rejected. Challenging the said order, the petitioner filed another writ petition in W.P.No.585 of 2014 and the said writ petition was allowed by this Court on 07.10.2014 and the matter was remanded back to the authorities for re-consideration. Accordingly, the second respondent Commissioner forwarded the proposal to the Government in proceedings dated 06.01.2015. The petitioner relied on the case of one J.Anbarasi whose case was considered by the Government and she was transferred to the department of Backward Class and Minority Welfare Department. Since the case of the said Anbarasi was considered by the Government, the petitioner states that his case also is to be considered.
3. Learned counsel submitted that the Government cancelled the order passed in favour of the said Anbarasi and she was reverted back to the parent department on the ground of want of requisite qualification. The case of the petitioner was also rejected by the Government in letter dated 06.10.2015 and reverting the said order of the Government, the second respondent issued the impugned order in proceedings dated 13.10.2015.
4. Learned counsel for the petitioner states that the said Anbarasi filed a https://www.mhc.tn.gov.in/judis 3/12 Order dated : 12.09.2022 Writ Petition No.9139 of 2016 writ petition before the Madurai Bench of Madras High Court and interim stay was granted and the writ petition is pending.
5. Learned Additional Government Pleader appearing on behalf of the respondents opposed the said contention stating that pendency of the writ petition filed by another employee cannot be a ground to consider the merits in the present case. Learned Additional Government Pleader reiterated that the case of Anbarasi was erroneously considered and the Government rejected the proposal sent by the Commissioner and she was reverted back to the parent department. Thus, the Government had not considered the cases of transfer from Adi Dravidar and Tribal Welfare Department to Backward Classes and Minorities Welfare Department.
6. The order impugned states that the Government vide G.O (2D) No.45 dated 07.09.2015 reverted the said Anbarasi from Backward Classes and Minorities Welfare Department to her parent department, i.e. Adi Dravidar and Tribal Welfare Department with immediate effect. The Government vide letter dated 06.10.2015 has instructed the Commissioner of Most Backward Classes and Denotified Communities Welfare to decide the request of transfer to the https://www.mhc.tn.gov.in/judis 4/12 Order dated : 12.09.2022 Writ Petition No.9139 of 2016 petitioner K.Sarathy from Adi Dravidar and Tribal Welfare Department to Backward Welfare Department Hostel citing that the said J.Anbarasi has been reverted back to her parent department i.e. Adi Dravidar and Tribal Welfare Department. Hence, the petitioner’s prayer for transfer cannot be considered on par with the said Anbarasi.
7. This Court is of the considered opinion that transfer from one department to another department can never be claimed as an absolute right by an employee. Transfer is incidental to service, more so, a condition of service. The petitioner admittedly appointed as Secondary Grade Assistant in the department of Adi Dravidar and Tribal Welfare Department and therefore, he is an employee of such department. A mere application seeking transfer to another department cannot be considered in the manner as considered in the case of J.Anbarasi. However, the said transfer was found to be irregular and illegal by the Government and the Government issued an order of reversion in G.O (2D) No.45 dated 07.09.2015. Thus, the Government took a decision that the proposal sent by the Commissioner was not in accordance with the rules in force and transfer of department cannot be granted in a routine manner. An employee working in one department cannot be transferred to another https://www.mhc.tn.gov.in/judis 5/12 Order dated : 12.09.2022 Writ Petition No.9139 of 2016 department merely based on application. Such transfer orders are to be issued only by taking administrative decision by way of a policy or if the rule permits otherwise. Even in such cases, the other administrative exigencies are to be considered. Even if rule permits, an employee cannot seek transfer as a matter of right. This being the principles to be adopted, this Court does not find any infirmity in respect of the order of rejection.
8. There is a growing trend that the Government employees citing one case claiming equality in the matter of illegality and irregularity. Courts are also issuing directions to consider such applications and such directions are leading to further irregularity in perpetuity and paving way for corrupt activities in Government departments. Therefore, the rights of the parties are also to be crystalized by High Court while entertaining a writ petition under Article 226 of the Constitution of India. It is not as if an application is filed merely based on the case of other person and if the other person was found to be not eligible or the transfer issued to the other person is found to be illegal then such Court orders are also become improper in view of the fact that the rights of the parties have not been ascertained while issuing such orders. Therefore, it is not as if the High Court can entertain a writ petition and issue orders based on the similarity of other cases. Similarity can be adopted only if a https://www.mhc.tn.gov.in/judis 6/12 Order dated : 12.09.2022 Writ Petition No.9139 of 2016 person could able to establish that the order passed in favour of such persons are in accordance with law and in a legal manner. Only after ascertaining the legality, the Court has to issue a direction but not otherwise. In this regard, the Supreme Court in the case in Basawaraj & another v. Special Land Acquisition Officer [2013 (14) SCC 81], held that "It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/ benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a Judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order."
9. Therefore, it is not as if the petitioner can claim the benefit of transfer https://www.mhc.tn.gov.in/judis 7/12 Order dated : 12.09.2022 Writ Petition No.9139 of 2016 from one department to another department which was granted in favour of other person. The Government itself subsequently found that such a transfer is illegal and issued an order of reversion reverting the said employee to her parent department. That apart, learned counsel for the petitioner states that the said J.Anbarasi filed a writ petition, which is pending. The pendency of a writ petition would not be a ground to continue the irregularity in perpetuity in view of the principles settled by the Supreme Court in the judgment cited supra.
10. The Division Bench of this Court in the case of The Director of Sericulture Department, Salem v. K.Kumar [2015 (4) CTC 241], reiterated that when it is brought to the notice of the Court that on most of the earlier occasions, several similarly placed employees obtained orders at the stage of admission, on the ground that the issue is already covered by a decision of this Court and that it was only in this manner that several employees got a benefit that was not legitimately due to them, the Court cannot shut its eyes and choose to prefer maintenance of discipline rather than upholding public interest. As a matter of fact, the greatness of the Court lies only in its courage and ability to correct its mistakes. Justice is more precious than discipline. This was the principle that the Supreme Court highlighted in A.R.Antulay vs. https://www.mhc.tn.gov.in/judis 8/12 Order dated : 12.09.2022 Writ Petition No.9139 of 2016 R.S.Nayak [AIR 1988 SC 1531]. It was observed in the said decision that "in rectifying an error, no personal inhibitions should debar the Court because no person should suffer by reason of any mistake of the Court." The Supreme Court focused on the elementary rule of justice that no party should suffer due to the mistake of the Court. Therefore, this Court should not feel shackled either by the rules of procedure or by the principles of propriety, when it is so glaring that a gross injustice has been done to the State (1) by writ petitions getting allowed at the stage of admission and (2) by getting those orders implemented under threat of contempt. This is especially so when the earliest decision that was followed in all other cases, did not decide the scale of pay to be granted for Selection and Special Grades. Hence, the contention of the petitioners was rejected by the Court in the said decision.
11. The above principles unambiguously enumerates that the Courts are not expected to follow similar orders in a routine manner. While adopting the similarity, the rights, legality and correctness of such similarity is to be ascertained and in the event of considering such cases in a routine manner, the same will lead to illegality in perpetuity, which will result in miscarriage of justice. Therefore, this Court is of the considered opinion that transfer being not https://www.mhc.tn.gov.in/judis 9/12 Order dated : 12.09.2022 Writ Petition No.9139 of 2016 an absolute right of an employee and incidental to service they cannot cite the case of any person and seek transfer from one department to another department, which is otherwise impermissible.
12. In the present case, the Commissioner himself realized the mistake committed in the other case and issued an order of reversion. That being the case, any application, if at all submitted by any other person for such transfer from Adi Dravidar and Tribal Welfare Department to Backward Classes and Minorities Welfare Department is not entertainable.
13. During the course of argument, this Court found that the District Level Officers and the Commissioner of respective Heads of Department are either submitting proposals or considering the cases for such transfers. Whenever such illegalities committed by District Welfare Officers, the Government and Commissioner are bound to initiate proper action. The District Welfare Officers are bound to verify the rule position and the correctness and the rights of the employees for the purpose of submitting a proposal for such transfer from one department to other department. In the event of any request, proposal or recommendation made on certain favouritism is to be dealt with https://www.mhc.tn.gov.in/judis 10/12 Order dated : 12.09.2022 Writ Petition No.9139 of 2016 seriously and the Commissioner or the Government are bound to initiate appropriate disciplinary proceedings against such officials whenever they commit such illegal or irregular proposal. In most of the cases, such proposals forwarded or recommended by the District Welfare Officer are relied upon by the individuals before the Court of law for the purpose of obtaining orders. Illegal proposals recommended, if any, submitted by the sub-ordinate officials, should be considered as lapse, negligence or indiscipline and all appropriate actions are to be initiated. In view of the above, this Court does not find any infirmity in the order impugned passed by the respondents.
Accordingly, this Writ Petition is dismissed. No costs. Connected miscellaneous petition is closed.
12.09.2022 Index : Yes Speaking order gm S.M.SUBRAMANIAM., J https://www.mhc.tn.gov.in/judis 11/12 Order dated : 12.09.2022 Writ Petition No.9139 of 2016 gm To
1.The Commissioner of Most Backward Classes and Denotified Communities Welfare, Office at Chepauk, Chennai - 600 005.
2.The Commissioner, Adi Dravidar Welfare Department, Office At Chepauk, Chennai - 600 005.
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