Madras High Court
T.Tamilselvan vs The State Of Tamil Nadu on 24 January, 2022
W.P(MD)No.442 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 24.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P(MD)No.442 of 2022
and
W.M.P.(MD)No.344, 346 and 906 of 2022
T.Tamilselvan ... Petitioner
versus
1. The State of Tamil Nadu,
Rep. by its Additional Chief Secretary
to Government,
Home (Prison-I) Department,
Secretariat, Chennai – 9.
2. The Director General of Police
Director General of Prisons and
Correctional Service,
Chennai – 8.
3. The Deputy Inspector General of Prisons,
Deputy Inspector General of Prisons and
Correctional Service,
Arasaradi, Madurai,
Madurai District. ... Respondents
1/16
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W.P(MD)No.442 of 2022
Writ Petition filed under Article 226 of the Constitution of India,
seeking for the issuance of Writ of Certiorari, to call for the records
relating to the impugned transfer order passed by the first respondent in
his proceedings in G.O.(Rt).No.652, Home (Prison-I) Department
dated 28.12.2021 and consequential order passed by the second
respondent in his proceedings in No.33526/CS2/2021, dated
29.12.2021 and quash the same as illegal.
For Petitioner : Mr.M.Ajmal Khan,
Senior Counsel
assisted by Mr.C.Venkatesh Kumar
For Respondents : Mr.Veera Kathiravan,
Additional Advocate General
assisted by Mr.J.Ashok
Additional Government Pleader
ORDER
The petitioner, who is working as a Superintendent of Prison,
was transferred from Central Prison, Madurai to Central Prison,
Cuddalore, vide G.O.(Rt).No.652, Home (Prison-I) Department, dated
28.12.2021. This Government Order dated 28.12.2021 and the
consequential order passed by the second respondent in his proceedings
in No.33526/CS2/2021 dated 29.12.2021 are the subject matter of this
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W.P(MD)No.442 of 2022
writ petition.
2. Mr.M.Ajmal Khan, learned Senior Counsel, assisted by
Mr.C.Venkatesh Kumar, learned counsel appearing for the petitioner
submits that the petitioner, who is aged about 59 years, in his verge of
retirement, was transferred from Central Prison, Salem to Central
Prison, Madurai, only on 24.06.2021. However, within six months, the
petitioner is again transferred from Central Prison, Madurai to Central
Prison, Cuddalore, by the orders impugned in this writ petition. The
petitioner is also taking care of his aged parents and he is now
transferred to a far away place, which is approximately 300 kms, from
the present station. This order is passed without any reason for such
transfer and also in violation of the transfer policy as enunciated in
G.O.Ms.No.10, Personnel and Administrative Reforms (PER S)
Department, dated 07.01.1994. Though the transfer is an incident of
service, the petitioner is transferred indiscriminately twice within six
months. Considering the age of the petitioner, his dependents and the
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W.P(MD)No.442 of 2022
frequent transfer made within six months, this Court, at the time
entertaining this writ petition, granted an order of interim stay on
11.01.2022.
3. The learned Additional Advocate General, assisted by
Mr.J.Ashok, learned Additional Government Pleader, objects the order
of interim stay and submits that due to his mismanagement,
maladministration, the administration in the Central Prison is very
much affected and a riot had also taken place in the Central Prison and
therefore, in order to ensure an effective administration in a prison,
like, the Central Prison, Madurai, the petitioner has been transferred
from Madurai to Cuddalore. He requested for a short accommodation
and also filed counter affidavit on behalf of the respondents on
19.01.2022. Apart from the counter affidavit, the report of Deputy
Inspector General of Prisons, Madurai, to the Director General of
Prisons is also placed before this Court in a sealed cover.
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W.P(MD)No.442 of 2022
4. The learned Additional Advocate General, by referring the
counter affidavit filed by the respondents, submits that the Central
Prison, Madurai, is one of the oldest prison lying in the middle of the
city and it is prone to the communal clashes. Though the capacity of
prison is to hold upto 1252 prisoners, there are more than 1800 inmates
inside the Central Prison, Madurai, which requires vigilant supervision.
But, the same is lacked in Madurai Central Prison, due to the lethargic
attitude of the petitioner. The third respondent has received more than
ten individual complaints as against the petitioner on his activities and
performance and the third respondent has also submitted a report to the
first respondent. In order to avoid security / administrative lapses, the
petitioner was transferred from Madurai to Cuddalore.
5. The learned Additional Advocate General further submits that
during his administration, a riot had taken place inside the Central
Prison and the petitioner has failed to prevent the same effectively. In
order to avoid any major untoward incidents in the Central Prison,
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W.P(MD)No.442 of 2022
Madurai and to avoid any further embarrassment to the Department of
Prison, as a precautionary measure, the petitioner was transferred from
the Central Prison, Madurai. The learned Additional Advocate General
has also relied upon the following Judgments of the Hon'ble Supreme
Court and this Court in support of his submissions:
(i) Registrar General, High Court of Judicature of Madras vs.
R.Perachi and others, reported in (2011) 12 SCC 137, and
(ii) R.Anitha vs. Commissioner of Police and others, reported in
2019 SCC Online Mad 19061.
6. In response to the counter and the submissions of the learned
Additional Advocate General, Mr.M.Ajmal Khan, learned Senior
Counsel submits that the order of transfer is made without any reason
and it must be either on administrative reasons or on public grounds.
By the counter affidavit, the respondents are attempting to attribute
certain reasons, which would expose that the impugned order of
transfer is passed only as an order of punishment and therefore, the
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W.P(MD)No.442 of 2022
impugned order is liable to be set aside. The learned Senior Counsel
has also relied upon the Judgment of the Hon'ble Supreme Court in
Somesh Tiwari vs. Union of India and others, reported in (2009) 2
SCC 592, in support of his submissions.
7. This Court paid its anxious consideration to the rival
submissions made and also perused the materials available on record.
8. Transfer is an incident of service and the scope of Judicial
review is very limited. If the transfer is made on administrative
grounds, the Courts are not supposed to substitute their own decision,
without knowing the exact requirement of particular Department.
Before deciding the issue involved in this case, it is useful to refer the
ratio laid down by the Hon'ble Supreme Court on the scope of judicial
review by the Courts on transfer.
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W.P(MD)No.442 of 2022
9. In N.K.Singh vs. Union of India, reported in 1994 6 SCC 98,
the Hon'ble Supreme Court has held as follows:
“23. ...... Transfer of a government servant in a
transferable service is a necessary incident of the service
career. Assessment of the quality of men is to be made by
the superiors taking into account several factors
including suitability of the person for a particular post
and exigencies of administration. Several imponderables
requiring formation of a subjective opinion in that sphere
may be involved, at times. The only realistic approach is
to leave it to the wisdom of that hierarchical superiors to
make the decision. Unless the decision is vitiated by mala
fides or infraction of any professed norm of principle
governing the transfer, which alone can be scrutinised
judicially, there are no judicially manageable standards
for scrutinising all transfers and the courts lack the
necessary expertise for personnel management of all
government departments. This must be left, in public
interest, to the departmental heads subject to the limited
judicial scrutiny indicated.”
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W.P(MD)No.442 of 2022
10. In State of M.P. vs. S.S.Kowrav reported in (1995) 3 SCC
270, the Hon'ble Supreme Court has held as follows:
“4. .... The courts or Tribunals are not appellate
forums to decide on transfers of officers on
administrative grounds. The wheels of administration
should be allowed to run smoothly and the courts or
tribunals are not expected to interdict the working of the
administrative system by transferring the officers to
proper places. It is for the administration to take
appropriate decision and such decisions shall stand
unless they are vitiated either by malafides or by
extraneous consideration without any factual background
foundation. In this case we have seen that on the
administrative grounds the transfer orders came to be
issued. Therefore, we cannot go into the expediency of
posting an officer at a particular place.”
11. In Airports Authority of India vs. Rajeev Ratan Pandey
reported in (2009) 8 SCC 336, the Hon'ble Supreme Court has held as
follows:
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W.P(MD)No.442 of 2022
“10. .... In a matter of transfer of a government
employee, [the] scope of judicial review is limited and
the High Court would not interfere with an order of
transfer lightly, be it at interim stage or final hearing.
This is so because the courts do not substitute their own
decision in the matter of transfer.”
12. In Somesh Tiwari vs. Union of India and others, reported in
(2009) 2 SCC 592, the Hon'ble Supreme Court has held as follows:
“16. Indisputably an order of transfer is an
administrative order. There cannot be any doubt
whatsoever that transfer, which is ordinarily an incident
of service should not be interfered with, save in cases
where inter alia mala fide on the part of the authority is
proved. Mala fide is of two kinds - one malice in fact and
the second malice in law. The order in question would
attract the principle of malice in law as it was not based
on any factor germane for passing an order of transfer
and based on an irrelevant ground i.e. on the allegations
made against the appellant in the anonymous complaint.
It is one thing to say that the employer is entitled to pass
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W.P(MD)No.442 of 2022
an order of transfer in administrative exigencies but it is
another thing to say that the order of transfer is passed by
way of or in lieu of punishment. When an order of
transfer is passed in lieu of punishment, the same is liable
to be set aside being wholly illegal.”
13. In Registrar General, High Court of Judicature of Madras
vs. R.Perachi and others, reported in (2011) 12 SCC 137, the Hon'ble
Supreme Court has held as follows:
“As seen above, the transfer was purely on the
administrative ground in view of the pending complaint
and departmental enquiry against first respondent. When
a complaint against the integrity of an employee is being
investigated, very often he is transferred outside the unit
concerned. That is desirable from the point of view of the
administration as well as that of the employee. The
complaint with respect to the first respondent was that he
was dominating the administration of the District
Judiciary, and the District Judge had reported that his
retention in the district was undesirable, and also that
departmental enquiries were pending against him and
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W.P(MD)No.442 of 2022
other employees, with respect to their integrity. In the
circumstances the decision of the then Chief Justice to
transfer him outside that district could not be faulted.”
14. This writ petition is filed as against the order of transfer. The
scope of judicial review is very limited as stated supra. The grievance
of the petitioner is that within six months, he was transferred twice.
The petitioner, who is working as Superintendent of Prison, was
transferred from Central Prison, Salem, to Central Prison, Madurai,
only on 24.06.2021 and by the order impugned in this writ petition, he
is again transferred from Madurai to Cuddalore. The petitioner, who is
taking care of his parents, is now posted approximately 300 kms. away
from the present station.
15. The respondents take a stand that serious complaints were
received against the petitioner and due to the lethargic attitude in
performing his duties and certain incident had taken place in Madurai
Prison and in order to avoid security /administrative lapses and to avoid
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W.P(MD)No.442 of 2022
any major untoward incident, as a precautionary measure, the petitioner
was transferred from Central Prison, Madurai to Central Prison,
Cuddalore in the interest of Prison administration.
16. Apart from the counter affidavit, the report of Deputy
Inspector General of Prison, Madurai, to the Director General of Prison
is also placed before this Court in a sealed cover. The incidents
referred in the report are very shocking and it is the duty of the
respondents to rectify those incidents mentioned in the report. Since
the report is submitted in a sealed cover as a confidential document,
this Court is not elaborating more on the report. However, it exposes
the manner in which the Department is functioning and it is the
responsibility of the Head of the Department to ensure that the majesty
and the integrity of the Department is upheld. Every Government
servant is expected to discharge his duty diligently and effectively and
to ensure the same that there is a hierarchy in the administration. The
higher officials are expected to extract work from their subordinates
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W.P(MD)No.442 of 2022
and to ensure that they are discharging their duty diligently and
efficiently. While ensuring so, it is also the responsibility of the higher
officials that their subordinates are working in a comfortable zone.
17. Keeping this in mind, the Government has also framed certain
guidelines for transfer. If Government servants are transferred in the
middle of the Academic year, they have to search for suitable schools
or colleges to their wards and they have to find out suitable hospitals
for treatment, if any required for their family members. Transfer is not
the only way for an effective administration and it can also be extracted
by proper supervision.
18. The petitioner is working as Superintendent of Prison. The
Superintendent is the officer-in-charge of a prison. Under Rules 20 and
21 of the Tamil Nadu Prison Rules 1983, certain duties and
responsibilities are imposed on the Superintendent of Prison. It is also
the duty of the higher officials, namely, the respondents 1 and 2 to
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W.P(MD)No.442 of 2022
ensure that the Superintendent of Prison is discharging his duty
diligently. As rightly pointed out by the learned Additional Advocate
General, the Madurai Central Prison is a sensitive place, where there
are more than 1800 inmates and it requires effective administration and
the petitioner was transferred in the process of administration.
19. In view of decision rendered by the Hon'ble Apex Court, in
Registrar General, High Court of Judicature of Madras vs.
R.Perachi and others, reported in (2011) 12 SCC 137, this Court is not
inclined to interfere with the orders impugned in this writ petition.
20. Accordingly, the writ petition is dismissed. No costs.
Consequently, connected miscellaneous petitions are closed.
24.01.2022
Index : Yes / No.
Internet: Yes / No.
ogy
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W.P(MD)No.442 of 2022
B.PUGALENDHI, J.
ogy
To
1. The Additional Chief Secretary
to Government,
Home (Prison-I) Department,
Secretariat, Chennai – 9.
2. The Director General of Police
Director General of Prisons and
Correctional Service,
Chennai – 8.
3. The Deputy Inspector General of Prisons,
Deputy Inspector General of Prisons and
Correctional Service,
Arasaradi, Madurai,
Madurai District.
W.P(MD)No.442 of 2022
24.01.2022
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