Madras High Court
2 The Commissioner Of Municipal ... vs 3 M.Venkatesan on 8 January, 2021
W.A.No.1142 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.01.2021
CORAM :
THE HON'BLE MR.SANJIB BANERJEE, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
W.A.No.1142 of 2020
1 THE STATE OF TAMILNADU
REP. BY ITS SECRETARY TO GOVERNMENT
MUNICIPAL ADMINISTRATION AND WATER SUPPLY
DEPARTMENT, SECRETARIAT
CHENNAI - 600009.
2 THE COMMISSIONER OF MUNICIPAL ADMINISTRATION
NO.75, SANTHOME HIGH ROAD
RAJA ANNAMALAIPURAM
CHENNAI – 600028. .. Appellants
Vs
1 P.SUBBUTHAI
2 THE COMMISSIONER
AVADI CITY MUNICIPAL CORPORATION
AVADI
CHENNAI - 600054.
3 M.VENKATESAN .. Respondents
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W.A.No.1142 of 2020
Prayer: Appeal filed under Clause 15 of the Letters Patent against the
order dated 10.9.2020 in W.P.No.7692 of 2020 passed by the learned
Single Judge.
For Appellants : Mr.V.Jayaprakash Narayanan
State Government Pleader
For Respondents : Mr.S.N.Ravichandran
for 1st respondent
Mr.P.Srinivas
for 2nd respondent
JUDGMENT
(Delivered by the Hon'ble Chief Justice)
The appeal arises out of an order dated September 10, 2020 by
which the writ petitioner/respondent's transfer from Avadi Municipal
Corporation to Kancheepuram Municipality has been annulled.
2. There is no dispute that the writ petitioner was an employee
of the erstwhile Avadi Municipality. The Municipality was thereafter
converted into a Corporation and, in accordance with Section 9(6) of
the applicable notification, all employees of the erstwhile Municipality
were deemed to be employees of the Corporation. By an office
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W.A.No.1142 of 2020
memorandum of May 8, 2020, the writ petitioner was transferred and
posted as Town Planning Officer in the Kancheepuram Municipality “on
deputation basis due to administrative reason.” It is such
memorandum of transfer that was challenged by way of the petition
under Article 226 of the Constitution. In passing the judgment and
order impugned, the learned Single Bench noticed the provisions of the
Tamil Nadu Municipal Corporation Service Rules, 1996 and particularly
a rule therein that recognised that for the purpose of appointment,
promotion, reversion, transfer and discharge from service, each
Municipal Corporation ought to be regarded as a separate unit. The
learned Single Bench also referred to Rule 110 of the Tamil Nadu
Fundamental Rules, 1922 which mandates as follows:
“No Government servant may be transferred to foreign
service against his will.”
3. The principal ground urged on behalf of the appellants herein
before the Court of the first instance was the limited extent of the
authority available to the employer under Section 116 of the
Coimbatore City Municipal Corporation Act, 1981. The entire provision
is set out in the impugned judgment and only the material part thereof
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W.A.No.1142 of 2020
may be noticed herein:
“116. Power of Government to transfer officers
and servants of the corporation or
municipalities:-
Notwithstanding anything contained in this Act or in the
Tamil Nadu District Municipalities Act 1920 (Tamil Nadu
Act V of 1920), the Government shall have power -
(a) .....
(b) .....
(c) to transfer any Officer or servant of the Corporation
to the service of any Municipality constituted under the
Tamil Nadu District Municipalities Act, 1920 (Tamil
Nadu Act V of 1920) or
(d) ......”
4. It is evident, on a plain reading of the aforesaid provision, that
any officer or servant of any Corporation may be transferred to a
Municipality and for such purpose the employer does not require the
permission or the consent of the concerned officer or employee.
5. It appears that a case was made out before the learned Single
Bench that the fourth respondent to the writ petition had been
accommodated in the Municipality and, as a consequence, the writ
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W.A.No.1142 of 2020
petitioner had to be thrown out and parked in the municipality. It also
appears that a completely unnecessary case was run in the affidavit
filed by the State or the relevant Corporation to the effect that there
were certain complaints against the writ petitioner, which necessitated
the transfer of the writ petitioner from the Corporation to the
Municipality. It is elementary that transfer cannot be used as a tool of
oppression or punishment and it is only for the better administration of
the functioning of the employer that a transfer may be effected.
6. The office memorandum of May 8, 2020 duly cited
“administrative reason” as the ground for transfer. When an
employer, even a government employer, cites administrative reasons
for effecting a transfer and such transfer is otherwise not
impermissible in law, such transfer is scarcely justiciable unless an
egregious case of malice or hostile discrimination is made out. A mere
allegation or a speculation that someone else had to be accommodated
in the place of the transferred employee would not be such a ground
that would excite a Court in exercise of its authority under Article 226
of the Constitution to interfere into the functioning of a government
body and sit in judgment over the administrative reasons for which the
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W.A.No.1142 of 2020
government employer seeks to transfer any employee.
7. In the light of the clear power given for any officer or servant
of a Corporation to be transferred to a Municipality and such power
being without any fetters, the 1922 Rules or guidelines could not have
been used as a mechanism to create any impediment in the way of
such unbridled authority as conferred by Section 116 of the guiding
statute.
8. In the impugned judgment, the learned Single Judge
exercised veritable appellate authority in going into the reasons for the
transfer of the writ petitioner from the Corporation to the Municipality.
Ordinarily, such is not the nature of the power of judicial review that is
exercised under Article 226 of the Constitution. The exercise of
judicial review in such context has more to do with the
decision-making process than the reasons for the decision. If the
decision-making process is found to be permissible and the employer
cites administrative grounds to be the basis for the transfer, there is
hardly any scope for interference by the writ Court in such a scenario.
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W.A.No.1142 of 2020
9. Certain imaginary grounds appear to have weighed with the
learned Single Judge while allowing the writ petition. At several places
the writ Court has found that there must be compelling grounds for a
transfer of the present kind to be effected or there must be
unavoidable necessity for such purpose. Nothing in the applicable law
or the governing guidelines provides any of such grounds which have
been read into the provisions.
10. For the reasons aforesaid, the judgment and order impugned
dated September 10, 2020 cannot be sustained. Unless exceptional
grounds are made out, an order of transfer ought not to be interfered
with in the extraordinary jurisdiction under Article 226 of the
Constitution. The judgment and order impugned stand set aside.
W.A.No.1142 of 2020 succeeds. The writ petition stands dismissed.
There will, however, be no order as to costs. Consequently,
C.M.P.No.14023 of 2020 is closed.
(S.B., CJ.) (S.K.R., J.)
08.01.2021
Index : Yes/No
sasi
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W.A.No.1142 of 2020
To:
THE COMMISSIONER
AVADI CITY MUNICIPAL CORPORATION
AVADI
CHENNAI - 600054.
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W.A.No.1142 of 2020
THE HON'BLE CHIEF JUSTICE
AND
SENTHILKUMAR RAMAMOORTHY, J.
(sasi)
W.A.No.1142 of 2020
08.01.2021
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