Madras High Court
The Principal Secretary / Member ... vs Dr.A.Jayachitra on 8 September, 2021
W.A.No.7/2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.09.2021
CORAM
THE HONOURABLE Mrs. JUSTICE PUSHPA SATHYANARAYANA
and
THE HONOURABLE Mr.JUSTICE KRISHNAN RAMASAMY
W.A.No.7 of 2021
The Principal Secretary / Member Secretary,
Sports Development Authority of Tamil Nadu,
Periyar EVR Road, Nehru Park,
Chennai-600 084. .. Appellant
Vs.
Dr.A.Jayachitra .. Respondent
***
PRAYER : Writ Appeal filed under Clause 15 of the Letters Patent
against the order dated 11.12.2020 passed in W.P.No.12252 of 2020.
***
For Appellant : Ms.Narmadha Sampath,
for Mr.I.Sathish
For Respondents : Mr.V.Vijayshankar
JUDGMENT
PUSHPA SATHYANARAYANA, J.
Laying challenge to the order of the learned Single Judge in
allowing W.P.No.12252 of 2020, the Sports Development Authority of
Tamil Nadu has instituted this appeal.
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2. By virtue of the impugned order, the transfer order passed
by the appellant dated 25.08.2020 in Proceedings No.192/AO.1/2020,
was quashed by the writ Court insofar as the writ
petitioner/respondent herein is concerned.
3. The respondent is a first woman in Fencing coaching in the
State of Tamil Nadu and first person in India to be conferred with a
Doctorate in sports coaching in the said discipline. She is a recipient of
cash award from the Hon'ble Chief Minister of the State for having
imparted coaching to the Gold Medalists in the National Games. She
obtained several Diplomas and certificates in the field of sports and
coaching. She has many research articles and papers to her credit,
besides participation in many international seminars and conferences.
She joined the appellant authority as Fencing Coach on 09.05.2012,
after serving in an aided school for a few years. She was promoted to
the post of District Sports and Youth Welfare Officer on 09.02.2019
and posted at Tirunelveli. On 12.09.2019, she was transferred to the
post of Manager-IV in the appellant authority to look after the Amma
Youth Sports Scheme. Before even completing an year, she was
transferred to the Women Sports Hostel, Tiruvannamalai on
25.08.2020 and she was relieved on 03.09.2020. The only reason
assigned for such transfer is "administrative reasons". Hence, she
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questioned the same in W.P.No.12252 of 2020. When the said writ
petition came up for hearing on 07.09.2020, this Court stayed the said
transfer order and ordered notice to the appellant/the respondent
therein.
3.1. Since the interim order of stay was not complied with, she
also filed Cont.P.No.825 of 2020.
3.2. The Writ Court heard both the petitions together and
passed the impugned common order setting aside the order of transfer
impugned therein and closing the contempt petition.
3.3. Aggrieved by the said order, the appellant filed this intra-
court appeal.
4. The learned counsel for the writ petitioner / the respondent
herein contended before the Writ Court that the order of transfer of the
writ petitioner is not based on administrative reasons, but for achieving
a collateral purpose. It was contended that one Ms.Geetha, who is a
colleague of the writ petitioner, was sexually harassed by their male
colleague and on the guidance of the writ petitioner, she lodged a
complaint against the erring official. Though an Internal Complaints
Committee was constituted, as mandated under the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 (in short, "POSH Act"), since the said Committee
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had conducted the proceedings in a partisan manner, the said Geetha
filed a writ petition and obtained an interim order of status quo on
19.08.2020. According to the learned counsel for the writ petitioner,
fearing that the respondent herein, who was the writ petitioner, may
depose against the errant staff, she was threatened not to do so and
she having refused to oblige for the coercion, the transfer order was
inflicted upon her. The learned counsel also relied upon the
G.O.Ms.No.249, dated 21.05.2020 and contended that against the
guidelines stated therein, the order of transfer was issued. It was also
the contention of the learned counsel that when the officers of the
same cadre are permitted to continue in Chennai for more than 15
years, her transfer to far-off place, that too, within an year of her
request transfer from Tirunelveli to Chennai, after serving only around
seven months at Chennai, is nothing, but a vindictive action. It was
also the contention of the learned counsel for the writ petitioner that
the request for transfer from Tirunelveli was made by the writ
petitioner on the sole ground that she is a single woman now and she
has to look after her two grown up daughters, who are studying in
Chennai, one Medicine and the other school final.
5. The learned counsel for the Sports Development Authority
of Tamil Nadu (SDAT) contended that the order of transfer was issued
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to the writ petitioner to accommodate an experienced coach at the
Women's Hostel in Tiruvannamalai, wherein around 120 inmates are to
be imparted training in various disciplines but no regular officer is
posted recently. The learned counsel denied the allegation that the
transfer is on account of the involvement of the writ petitioner in
guiding Ms.Geetha in the sexual harassment complaint. On the other
hand, it was her submission that the writ petitioner, being Group B
Officer, should be ready to serve anywhere in the State, but she had
only thrown aspersions on the appellant without any material and
basis. It was also submitted that the writ petitioner was relieved from
the post and the next officer also joined duty and therefore, she
sought to sustain the transfer order.
6. After considering the rival submissions, the writ Court set
aside the order impugned therein and issued consequential directions.
Though the writ petitioner instituted contempt proceedings for non-
compliance of the interim order, the same was closed, in view of the
fact that the transfer order itself is quashed. Thus, the appellant is
before this Bench in this appeal.
7. When this appeal was taken up for hearing on 02.08.2021,
it was stated that the writ petitioner was accommodated in one of the
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vacant posts in Nehru Stadium, vide order dated 23.07.2021, which
arose on account of leave vacancy of an another officer. Therefore,
learned counsel for the appellant was directed to produce the copy of
the transfer order. Subsequently, the learned counsel produced the
proceedings of the appellant dated 05.08.2021 posting the writ
petitioner in a regular vacancy as Stadium Officer, Nehru Park Sports
Complex, Chennai, and the operative portion of the said order reads as
follows :
The following transfer and posting order is issued.
2) Thiru N.Nagarathinam who was holding the post of
Stadium Officer, Nehru Park Sports Complex and additional charge
of the post of District Sports and Youth Welfare Office, Chennai
District and also incharge of Boys Sports Hostel for Cricket, Pudur,
Chennai, had proceeded on Medical Leave for three weeks from
12.07.2021.
3) Subsequently, Tmt.A. Jayachitra, former Manager-IV,
SDAT Head Office, Chennai, was posted as Stadium Officer, Nehru
Park Sports Complex, Chennai vide reference second cited.
4) Since Thiru N. Nagarathinam had joined duty on 2.82021
after completion of Unearned Leave on Medical Certificate vide
reference third cited, he is posted as District Sports and Youth
Welfare Officer, Chennai vide Tr. G. Premkumar, holding additional
charge.
5) He will also be incharge of Boys Sports Hostel for Cricket,
Pudur vice Thiru M.Senthil holding additional charge.
6) The date of relief and joining of the officials in the
respective places shall be informed to the Head Office promptly."
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8. Heard the learned counsel on either side and perused the
materials placed before this Court.
9. It is true that the transfer is an exigency of service and while
dealing with the petition questioning transfer, the principle of restraint
will come into play before the judicial fora. However, if the order of
transfer was an act of unfair treatment and is vitiated by malafides, the
exception to this rule could be carved out and such transfer order has
to be interfered with.
10. In a recent judgment, the Hon'ble Supreme Court while
dealing with the transfer of a Bank Officer, who was also a victim of
sexual harassment, reiterated this position. In this regard, it is
apposite to refer to the judgment in Punjab and Sind Bank and
Others V. Durgesh Kuwar, 2020 SCC OnLine SC 774, wherein, it
has been held as follows :
"17. We must begin our analysis of the rival submissions by
adverting to the settled principle that transfer is an exigency of
service. An employee cannot have a choice of postings.
Administrative circulars and guidelines are indicators of the
manner in which the transfer policy has to be implemented.
However, an administrative circular may not in itself confer a
vested right which can be enforceable by a writ of mandamus.
Unless an order of transfer is established to be malafide or
contrary to a statutory provision or has been issued by an
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authority not competent to order transfer, the Court in exercise of
judicial review would not be inclined to interfere. These principles
emerge from the judgments which have been relied upon by the
appellants in support of their submissions and to which we have
already made a reference above. There can be no dispute about
the position in law."
11. The learned counsel for the appellant placed reliance on the
decision of the Hon'ble Supreme Court in Mohd. Masood Ahmad V.
State of U.P., (2007) 8 SCC 150, to contend that the instant
transfer order ought not to have been interfered with by the writ Court
in exercise of its discretionary jurisdiction under Article 226 of the
Constitution. In the said judgment, relying upon a catena of earlier
decisions, the Hon'ble Supreme Court held as follows :
"4. ..... Since the petitioner was on a transferable post, in
our opinion, the High Court has rightly dismissed the writ petition
since transfer is an exigency of service and is an administrative
decision. Interference by the courts with transfer orders should
only be in very rare cases. As repeatedly held in several decisions,
transfer is an exigency of service vide B. Varadha Rao v. State of
Karnataka (1986) 4 SCC 131, Shilpi Bose v. State of Bihar 1991
Supp (2) SCC 659, Union of India v. N.P. Thomas AIR 1993 SC
1605, Union of India v. S.L. Abbas (1993) 4 SCC 357.
5. In State of Punjab v. Joginder Singh Dhatt, AIR 1993 SC
2486, this Court observed :
“3. We have heard learned counsel for the parties. This
Court has time and again expressed its disapproval of the
courts below interfering with the order of transfer of public
servant from one place to another. It is entirely for the
employer to decide when, where and at what point of time a
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public servant is transferred from his present posting.
Ordinarily the courts have no jurisdiction to interfere with the
order of transfer. The High Court grossly erred in quashing the
order of transfer of the respondent from Hoshiarpur to
Sangrur. The High Court was not justified in extending its
jurisdiction under Article 226 of the Constitution of India in a
matter where, on the face of it, no injustice was caused.”
6. In Abani Kanta Ray v. State of Orissa, 1995 Supp (4)
SCC 169, this Court observed :
“10. It is settled law that a transfer which is an incident
of service is not to be interfered with by the courts unless it is
shown to be clearly arbitrary or vitiated by mala fides or
infraction of any professed norm or principle governing the
transfer. (See N.K. Singh v. Union of India (1994) 6 SCC 98.”
7. The scope of judicial review of transfer under Article 226
of the Constitution of India has been settled by the Supreme Court
in Rajendra Roy v. Union of India, (1993) 1 SCC 148, National
Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan (2001) 8 SCC
574, State Bank of India v. Anjan Sanyal (2001) 5 SCC 508.
Following the aforesaid principles laid down by the Supreme Court,
the Allahabad High Court in Vijay Pal Singh v. State of U.P. (1997)
3 ESC 1668 and Onkar Nath Tiwari v. Chief Engineer, Minor
Irrigation Deptt. (1997) 3 ESC 1866 has held that the principle of
law laid down in the aforesaid decisions is that an order of transfer
is a part of the service conditions of an employee which should not
be interfered with ordinarily by a court of law in exercise of its
discretionary jurisdiction under Article 226 unless the court finds
that either the order is mala fide or that the service rules prohibit
such transfer, or that the authorities who issued the orders, were
not competent to pass the orders."
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12. On the other hand, learned counsel for the respondent relied
upon the judgment of the Hon'ble Apex Court in Ravi Yashwant
Bhoir V. District Collector, Raigad (2012) 4 SCC 407, to buttress
the submission that the impugned order of transfer is an outcome of
colourable exercise of power and sought to sustain the interference
with the same by the writ Court. The Hon'ble Supreme Court in the
said judgment held as follows :
"47. This Court has consistently held that the State is under
an obligation to act fairly without ill will or malice in fact or in law.
Where malice is attributed to the State, it can never be a case of
personal ill will or spite on the part of the State. “Legal malice” or
“malice in law” means something done without lawful excuse. It is
a deliberate act in disregard to the rights of others. It is an act
which is taken with an oblique or indirect object. It is an act done
wrongfully and wilfully without reasonable or probable cause, and
not necessarily an act done from ill feeling and spite.
48. Mala fide exercise of power does not imply any moral
turpitude. It means exercise of statutory power for “purposes
foreign to those for which it is in law intended”. It means conscious
violation of the law to the prejudice of another, a depraved
inclination on the part of the authority to disregard the rights of
others, where intent is manifested by its injurious acts. Passing an
order for unauthorised purpose constitutes malice in law. (See
ADM, Jabalpur v. Shivakant Shukla (1976) 2 SCC 521, Union of
India v. V. Ramakrishnan (2005) 8 SCC 394 and Kalabharati
Advertising v. Hemant Vimalnath Narichania (2010) 9 SCC 437."
13. There is no quarrel qua the aforementioned propositions. Be
that as it may, the undisputed fact remains that the writ petitioner said
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to have guided one Ms.Geetha to lodge the sexual harassment
complaint against the errant officials. The enquiry on the said
complaint is surrounded with certain unforeseen circumstances
leading to the filing of the writ petition before this Court. The appellant
claimed that the writ petitioner herein was not arrayed as witness in
the said proceedings and hence, her transfer cannot be linked with the
sexual harassment complaint. Even assuming that the appellant has
no intention to summon the writ petitioner /respondent herein to be a
witness in the sexual harassment complaint of Ms.Geetha, Ms.Geetha
may choose to examine the writ petitioner / respondent. In such an
event, in terms of Section 19 of the POSH Act, it is the duty of the
employer to assist in securing the attendance of witnesses before the
Internal Committee or the Local Committee, as the case may be. The
said provision reads as follows:
"19. Duties of employer.— Every employer shall—
.....
(e) assist in securing the attendance of respondent and
witnesses before the Internal Committee or the Local Committee,
as the case may be;"
14. This Court is well aware of the fact that the presumption
cannot be allowed to substitute legal or factual position. Still, the writ
petitioner should be allowed to assist Ms.Geetha, who fights against
the sexual harassment complaint. We need not delve upon this aspect,
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as this is the domain of the Committee constituted under the Statute.
We would only say that the appellant, being instrumentality of the
State, should behave like a model employer and it should give
protection to the victim and the witness in a complaint of this nature.
15. Besides the above, as has been pleaded before the writ Court
as well as before us, the writ petitioner / respondent is a single woman
and she is taking care of two grown up daughters, who are studying
Medicine and school final respectively in Chennai. Applying the
guidelines governing transfer of Government servants, the appellant
could have considered her retention at Chennai. As mentioned supra,
since the respondent has already been posted as Stadium Officer,
Nehru Park Sports Complex, Chennai, vide order dated 05.08.2021,
the same need not be disturbed.
16. For the foregoing reasons, without throwing aspersions on
any of the officials and though it was contended that there were other
officials, who are serving in Chennai for longer years than that of the
writ petitioner, without delving into that, we are of the view that ends
of justice would be served, if the writ petitioner / respondent is allowed
to continue in Chennai, for the present.
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17. Accordingly, the appeal of the SDAT is dismissed, affirming
the order of the writ Court. However, there is no order as to costs.
[P.S.N., J.] [K.R., J.]
08.09.2021
Index : Yes / No
Internet : Yes / No
gg
To
The Principal Secretary / Member Secretary,
Sports Development Authority of Tamil Nadu,
Periyar EVR Road, Nehru Park,
Chennai-600 084.
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PUSHPA SATHYANARAYANA, J.
AND
KRISHNAN RAMASAMY, J.
gg
W.A.No.7 of 2021
08.09.2021
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