Madras High Court
The Tamil Nadu Agricultural ... vs Dr. R. Agila on 30 June, 2022
WA Nos. 1498, 1499, 1500, 1501, 1502 and 1503 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.06.2022
CORAM
THE HONOURABLE MR. JUSTICE R. MAHADEVAN
and
THE HONOURABLE MR. JUSTICE J.SATHYA NARAYANA PRASAD
Writ Appeal Nos. 1498, 1499, 1500, 1501, 1502 and 1503 of 2021
and
CMP. Nos.9588, 9591, 9592, 9593, 9594 and 9597 of 2021
---
WA No. 1498 of 2021
1. The Tamil Nadu Agricultural University
rep. by its Registrar
Maruthamalai Road
Coimbatore - 641 003
2. The Professor and Head
Tamil Nadu Agricultural University
Rice Research Station
Tirur - 602 025
Thiruvallur District .. Appellants
Versus
Dr. R. Agila .. Respondent
WA No. 1499 of 2021
1. The Vice Chancellor
Tamil Nadu Agricultural University
Coimbatore - 641 003
2. The Registrar
Tamil Nadu Agricultural University
Coimbatore - 641 003 ..
Appellants
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WA Nos. 1498, 1499, 1500, 1501, 1502 and 1503 of 2021
Versus
Dr. R. Radhajeyalakshmi ..
Respondent
WA No. 1500 of 2021
1. The Vice Chancellor
Tamil Nadu Agricultural University
Coimbatore - 641 003
2. The Registrar
Tamil Nadu Agricultural University
Coimbatore - 641 003 .. Appellants
Versus
Dr. A. Baskaran .. Respondent
WA No. 1501 of 2021
1. The Vice Chancellor
Tamil Nadu Agricultural University
Coimbatore - 641 003
2. The Registrar
Tamil Nadu Agricultural University
Coimbatore - 641 003 .. Appellants
Versus
Dr. M. Rajakumar ..
Respondent
WA No. 1502 of 2021
1. The Vice Chancellor
Tamil Nadu Agricultural University
Coimbatore - 641 003
2. The Registrar
Tamil Nadu Agricultural University
Coimbatore - 641 003 .. Appellants
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WA Nos. 1498, 1499, 1500, 1501, 1502 and 1503 of 2021
Versus
1. Dr. S. Natarajan
2. State of Tamil Nadu
rep. by its Agricultural Production Commissioner
and Principal Secretary to Government
Department of Agriculture
Fort St. George
Chennai - 600 009 .. Respondents
WA No. 1503 of 2021
1. The Vice Chancellor
Tamil Nadu Agricultural University
Lawley Road
Coimbatore - 641 003
2. The Registrar
Tamil Nadu Agricultural University
Lawley Road
Coimbatore - 641 003
3. The Head of the Department of Pulses
Tamil Nadu Agricultural University
Lawley Road
Coimbatore - 641 003 .. Appellants
Versus
1. Dr. D. Rajabaskar
2. The Government of Tamil Nadu
rep. by its Agricultural Production Commissioner
and Principal Secretary to the Government
Wallajah Road, PWD Eestate
Chepauk, Triplicane
Chennai - 600 005
3. Dr. P.S. Shanmugam
Assistant Professor (Agricultural Entomology)
Department of Pulses
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WA Nos. 1498, 1499, 1500, 1501, 1502 and 1503 of 2021
Tamil Nadu Agricultural University
Lawley Road
Coimbatore - 641 003 .. Respondents
WA No. 1498 of 2021:- Appeal filed under Clause 15 of Letters Patent
against the order dated 25.03.2021 passed in WP No. 10411 of 2020 on the
file of this Court.
WA No. 1499 of 2021:- Appeal filed under Clause 15 of Letters Patent
against the order dated 25.03.2021 passed in WP No. 10753 of 2020 on the
file of this Court.
WA No. 1500 of 2021:- Appeal filed under Clause 15 of Letters Patent
against the order dated 25.03.2021 passed in WP No. 10757 of 2020 on the
file of this Court.
WA No. 1501 of 2021:- Appeal filed under Clause 15 of Letters Patent
against the order dated 25.03.2021 passed in WP No. 14200 of 2020 on the
file of this Court.
WA No. 1502 of 2021:- Appeal filed under Clause 15 of Letters Patent
against the order dated 25.03.2021 passed in WP No. 8650 of 2020 on the file
of this Court.
WA No. 1503 of 2021:- Appeal filed under Clause 15 of Letters Patent
against the order dated 25.03.2021 passed in WP No. 10081 of 2020 on the
file of this Court.
For Appellants : Mr. A.L. Somayaji, Senior Advocate
for Mr. Abdul Saleem
in all the Writ Appeals
For Respondents : Mr. N.G.R. Prasad
for M/s. Row & Reddy for R1 in WA No. 1498/2021
Mr. Sathia Chandran for R1 in WA No.1502/2021
Mr. G. Velu, Additional Government Pleader
for R2 in WA No.1502 and 1503 of 2021
Mr. P. Manoj kumar for R1
in W.A. Nos. 1499, 1500 & 1501 of 2021
Mr. R. Singaravelan, Sr. Counsel
for Mr. Adith Narayanan Vijayaraghavan
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WA Nos. 1498, 1499, 1500, 1501, 1502 and 1503 of 2021
for R1 in W.A. No. 1503 of 2021
COMMON JUDGMENT
R. MAHADEVAN, J.
The first respondent(s) herein, who are working as Assistant Professors,
Associate Professors and Professors in the Tamil Nadu Agricultural University,
have challenged their respective transfer orders by filing WP Nos. 10411,
10753, 10757, 14200, 8650 and 10081 of 2020, under Article 226 of the
Constitution of India. The learned Judge, upon considering the common
arguments made both on factual and legal aspects, has allowed the said writ
petitions thereby setting aside the transfer orders as illegal and void, by a
common order dated 25.03.2021. Aggrieved over the same, the appellants /
Tamil Nadu Agricultural University, have preferred these appeals before this
court.
2.At the first instance, it is to be pointed out that the learned Judge has
allowed the writ petitions only on the basis of common legal grounds urged by
the first respondent(s) and has not gone into the merits of the cases
individually questioning the respective transfers. Paragraph 2 of the order
impugned herein reads as follows:
“2.These writ petitioners belong to the faculty of the University
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working as Assistant Professors, Associate Professors and Professors.
Broadly, the challenges in the writ petitions premised on two legal
grounds, apart from certain other individual grievances expressed in the
respective writ petitions. However, without first delving into the
individual grievances of assailment, in the fitness of things, this court felt
that the principal contentions need to be dealt with, which are common to
all the writ petitions and in the event of this court agreeing with the
contentions of the writ petitioners, there may not be any necessity to
appreciate the individual pleas. In that view of the matter, these writ
petitions are dealt with commonly as under.”
Therefore, this court is required to examine the validity and correctness of the
order of the learned Judge, to that extent alone.
3.Though the learned counsel appearing for both sides contested the
appeals both legally and factually, this court restricted the same only to the
legal points raised by them, as already stated in the earlier paragraph, the
learned Judge has decided the issue legally and has not gone into the individual
factual matrix projected by the parties. Now, let us see the arguments made by
the learned counsel on either side in these writ appeals.
4.1. Mr.A.L.Somayaji, learned senior counsel appearing for the
appellants presented a brief background and took this court through important
documents based on which the entire case relies. According to him, G.O. Ms.
No. 249 Finance (Budget General-I) Department, Dated 21.05.2020
(hereinafter shortly referred to as “G.O.Ms.No.249 dated 21.05.2020”) in
short, was notified as an economic measure to tackle the consequences of
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Covid – 19 and it sought to minimize the expenditure of the Government
through various measures, one of which is to minimize general transfers. This
provision was applicable to all Government Institutions, including the appellant
University. Hence, the same cannot be treated as immunity to the first
respondent(s) from transfers. Adding further, he submitted that the University
after having set out the reasons, sought permission from the Government to
transfer the first respondent(s) to various places. In response to the same, the
Principal Secretary to Government accorded concurrence and stated that the
transfers “may be made” with minimum possible expenditure. As a
consequence of the same, the first respondent(s) were ordered to be transferred
and therefore, no mala fides attributed to the same, as alleged by the first
respondent(s).
4.2. The learned senior counsel appearing for the appellant University
also submitted that the Vice Chancellor of the University has powers to effect
transfers and the transfer orders were issued, only after obtaining the approval
from the Government and therefore, the same cannot be subjected to judicial
scrutiny. Without considering the same in a proper perspective, the learned
Judge erred in observing that the G.O. issued was to minimize the expenditure
of the Government and the University cannot take advantage of the same by
stating that it did not lay any embargo on transfers, but only sought to
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minimize the expenditure and that, the G.O can be modified, whereas in the
present case, it has been diluted through letters and transfers.
4.3. It is also contended by the learned senior counsel for the
appellants that the decisions relied on by the learned Judge may not be
applicable as the appeals arising out of the same, are pending before the
Supreme Court and stay orders have also been granted. In such circumstances,
the case of the first respondent(s) will have to be considered independently. For
example, in K.Sampath v State of Tamil Nadu [MANU/TN/9958/2006], this
court held that G.O. issued by exercising the executive power of the state in the
name of the governor cannot be clarified by a letter of the Secretary to the
government and the said order was challenged in W.A. No. 1326 of 2005 and
the same was dismissed. Subsequently, an SLP was filed and stay was
obtained from the Hon'ble Supreme Court and the main case is pending.
Similarly, the judgments of the Patna and Kerala High courts have also been
stayed by the Hon'ble Supreme Court and hence, the same are not binding.
4.4. Referring to the decision of the Kerala High Court in Haridasan
v. State of Kerala [2007 SCC Online Ker 130], the learned senior counsel for
the appellants submitted that an executive letter cannot dilute Article 166 and it
need not be authenticated by the governor. Under Article 166(3), the governor
allocates business of the state government for the sake of convenience. Reliance
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was placed on the decision in A. Sanjeevi Naidu v. State of Madras, [(1970)
1 SCC 443], which was affirmed by seven judge bench of the Supreme Court
in Samsher Singh v. State of Punjab, [(1974) 2 SCC 83]. It is submitted that
the six judges of the Supreme Court in Sanjeevi Naidu case held that when a
civil servant is empowered to take decisions, he/she does not take decisions as
a delegate of the minister, rather as a wing of the government. Therefore,
according to the learned senior counsel, the Secretary to the government, who
is a civil servant can very well issue a clarification and the same can be treated
as that issued by the government. Further, relying on the judgment of five
judge bench of the Supreme Court in R. Chitralekha v. State of Mysore,
[(1964) 6 SCR 368], the learned senior counsel submitted that under Article
166(2), when orders made in the name of the governor are authenticated in the
manner as specified in the rules and the same cannot be called into question.
4.5. The learned senior counsel appearing for the appellant University
further submitted that in the absence of any malafide, the transfer orders
cannot be interfered with, whereas the learned Judge has erroneously set aside
those transfer orders by the order impugned herein. In support of the same, he
placed reliance on the following decisions:
(i)State of Madhya Pradesh & Anr v. S.S. Kourav & Ors [(1995) 3
SCC 270)], in which, in paragraph 4, it was held as follows:
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“4. It is contended for the respondent that the respondent had already
worked at Jagdalpur from 1982 to 1989 and when he was transferred to
Bhopal, there was no justification to re-transfer him again to Jagdalpur.
We cannot appreciate these grounds. 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 mala fides or by extraneous
consideration without any factual background foundation.”
(ii)State of Uttar Pradesh & Ors vs Gobardhan Lal [(2004) 11 SCC
402)] wherein, the Hon'ble Supreme Court at para 7 held as follows:
“7. It is too late in the day for any Government Servant to contend that
once appointed or posted in a particular place or position, he should
continue in such place or position as long as he desires. Transfer of an
employee is not only an incident inherent in the terms of appointment but
also implicit as an essential condition of service in the absence of any
specific indication to the contra in the law governing or conditions of
service. Unless the order of transfer is shown to be an outcome of a
mala fide exercise of power or violative of any statutory provision (an Act
or Rule) or passed by an authority not competent to do so, an order of
transfer cannot lightly be interfered with as a matter of course or routine
for any or every type of grievance sought to be made. Even administrative
guidelines for regulating transfers or containing transfer policies at best
may afford an opportunity to the officer or servant concerned to approach
their higher authorities for redress but cannot have the consequence of
depriving or denying the competent authority to transfer a particular
officer/servant to any place in public interest and as is found necessitated
by exigencies of service as long as the official status is not affected
adversely and there is no infraction of any career prospects such as
seniority, scale of pay and secured emoluments. This Court has often
reiterated that the order of transfer made even in transgression of
administrative guidelines cannot also be interfered with, as they do not
confer any legally enforceable rights, unless, as noticed supra, shown to
be vitiated by mala fides or is made in violation of any statutory
provision.”
It is ultimately submitted that in order to strengthen the research activity at
Krishi Vigyan Kendras (KVK), the transfer of the first respondent(s) has
become necessary and that, they have been working in the appellant University
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for more than 10 years and if they take up extension activity, it would benefit
the farming community as a whole. Thus, by virtue of the orders of transfer,
the first respondent(s) were given an opportunity to expand their scope of
research activity and it would inter alia help them to progress in their career.
Stating so, the learned senior counsel prayed to allow these appeals by setting
aside the order of the learned Judge passed in the writ proceedings.
5.1. Opposing the submissions made on the side of the appellants,
Mr.R.Singaravelan, learned senior counsel for the first respondent in
WA.No.1503 of 2021 vehemently contended that the issue involved herein is
not about the dilution of Article 166. Relying of the decision of five judge
bench of the Hon'ble Supreme Court in E.P. Royappa v. State of T.N., [(1974)
4 SCC 3], the learned senior counsel contended that transfer can be challenged
on the ground of malafide or violation of rules. Adding further, the learned
senior counsel submitted that the G.O. mandates the transfers to be done by
the authorities higher than those who are normally empowered to do so.
Accordingly, the transfer orders should have been passed by the Vice
Chancellor, whereas, in the present case, the same were initially passed by the
Registrar and were merely signed by the Vice Chancellor by way of ratification
without effectively participating in the whole process, which is in violation of
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the statutory rules. It is also submitted by the learned senior counsel that the
transfers have not been authenticated by the Government at all and the letter to
the Chief Secretary was to fill up “vacant” posts to reduce the budget burden,
that too within the same campus through deployment and mutual transfers.
Further, the letter of the government to the appellant University expressly
stated that the transfers must be to the minimum extent possible. On the other
hand, the present transfers go beyond the concurrence, which was sought from
the Government.
5.2. The learned senior counsel further submitted that in the course of
the agricultural research, funds amounting to Rs.1 crore have already been
sanctioned, and the same was, though brought to the notice of the authorities,
stating that the transfer would render the research so far done futile, the same
was not considered by the appellant authorities. This aspect is a vital issue, as
the purpose for which the Government issued the said G.O. i.e., to save money,
will be defeated. It is also submitted that while the University contends that the
transfers will ensure public interest, in reality, it is against the same. Thus,
according to the learned senior counsel, it is unnecessary to go into, whether a
G.O. can be overridden by a letter, because in the present case, the letter itself
stands violated as the transfers are beyond the scope from which concurrence
was obtained from the government and the transfers do not fall under any of
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the categories for which concurrence was sought.
5.3. That apart, the learned senior counsel placed reliance on the
judgment of the Hon'ble Supreme Court in State of U.P. v. Gobardhan Lal,
[(2004) 11 SCC 402], wherein, it was held as follows:
“7. It is too late in the day for any Government Servant to contend that
once appointed or posted in a particular place or position, he should
continue in such place or position as long as he desires. Transfer of an
employee is not only an incident inherent in the terms of appointment but
also implicit as an essential condition of service in the absence of any
specific indication to the contra, in the law governing or conditions of
service. Unless the order of transfer is shown to be an outcome of a mala
fide exercise of power or violative of any statutory provision (an Act or
Rule) or passed by an authority not competent to do so, an order of
transfer cannot lightly be interfered with as a matter of course or routine
for any or every type of grievance sought to be made. Even
administrative guidelines for regulating transfers or containing transfer
policies at best may afford an opportunity to the officer or servant
concerned to approach their higher authorities for redress but cannot
have the consequence of depriving or denying the competent authority to
transfer a particular officer/servant to any place in public interest and as
is found necessitated by exigencies of service as long as the official status
is not affected adversely and there is no infraction of any career
prospects such as seniority, scale of pay and secured emoluments. This
Court has often reiterated that the order of transfer made even in
transgression of administrative guidelines cannot also be interfered with,
as they do not confer any legally enforceable rights, unless, as noticed
supra, shown to be vitiated by mala fides or is made in violation of any
statutory provision.”
Thus, it is submitted that even in the context of transfers necessitated in the
light of public interest and administrative exigencies, regard should be given to
effect on official status, career prospects etc. Taking note of all these aspects,
the learned Judge has rightly set aside the transfer orders by the order
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impugned herein, which does not call for any interference by this court.
5.4. The learned senior counsel submitted that as per the G.O.,
representation was preferred by the first respondent. However the same has
not been disposed of, till date. Further, even after passing of the order of the
learned judge in favour of the first respondent, the TNAU instead of complying
with the same, preferred writ appeal and the non-compliance continued,
despite the fact that no stay was granted at any stage. Thus, in the light of the
statutory representation and non-compliance of the order of the learned judge,
the first respondent should be granted with monetary benefits.
6.In addition to the above, Mr.N.G.R.Prasad, learned counsel appearing
for the first respondent in WA.No.1498 of 2021 submitted that there was no
bona fide in passing the transfer order, as the place to which the respondent
was transferred has sufficient teaching faculty. This showed that there was no
exigency warranting such transfer. The learned counsel further submitted that
while it is agreeable that power to transfer is the appellants' prerogative right,
such power cannot be exercised arbitrarily. Thus, according to him, transfer
was effected with malafide intention.
7.Heard Mr.P.Manoj Kumar, learned counsel for the respondents in
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W.A.Nos.1499, 1500 and 1501 of 2021 and Mr.Sathia Chandran, learned
counsel for the first respondent in W.A. No. 1502 of 2021, who made
submissions supporting the order of the learned Judge in setting aside the
orders of transfer, besides prayed for a direction to the appellant University to
consider the claim of the first respondent(s) relating to all the benefits.
8.This court has also perused the materials placed before this court, more
particularly, the order of the learned Judge, which is impugned herein.
9.As mentioned earlier, in the writ proceedings initiated by the first
respondent(s), the action of the University in transferring them to different
places, was questioned, as the same is malafide and violative of statutory rules.
Upon considering the rival submissions and legal provisions, the learned Judge
has allowed the writ petitions and set aside the orders of transfer mainly on the
ground that the same have been passed in contravention of G.O. Ms. No.249,
Finance (Budget General-I) Department, dated 21.05.2020 and the findings of
the learned Judge are quoted below, for ready reference:
"40. In the opinion of this Court the orders of transfer must
disclose that the competent authority was behind the transfers not only in
form but its substance as well. A reference to the approval of the Vice
Chancellor in the orders of transfer must be supported by the relevant
documents. In the absence of any modicum of participation on the part of
Vice Chancellor, the impugned orders are liable to be declared as not
having been passed legally, meeting the mandatory procedural
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requirements in terms of the University statute and regulations. This Court
is unable to persuade itself to accept the disjunctive tabulated sheets
containing the names of the transferees and the signatures of the Vice
Chancellor underneath the column “Approved" as valid material for
sustaining the orders of transfer. The contention that the transfer orders
are not passed in terms of the procedure contemplated in the Statute
governing the University administration is to be held as well founded,
borne out by the records. Citations relied on by the learned senior Counsel
for the petitioners on this legal issue would fully support the present case
in terms of factual matrix as revealed and discovered from the files
produced by the University.
41. In the absence of any material to show that the proposal of en
masse transfer emanated from the desk of the Vice Chancellor, the
impugned transfer orders are to be held as having passed in contravention
of the statutory regulations. Therefore, no amount of inference in favour of
the University stand with reference to the Letter of the Vice Chancellor
dated 23.05.2020 seeking concurrence from the Government for the
transfers would vouch for the fact of the Vice Chancellor-s participative
role in the impugned action of the University, as revealed from the
records.”
The aforesaid order of the learned Judge in setting aside the transfer orders is
questioned by the appellants / University in these writ appeals.
10.At the outset, be it noted, the law is well settled that the
Constitutional Courts must exercise restraint and have to be very slow, while
interfering with an order of transfer; and the order of transfer shall be
interfered only if it is established that the same has been passed malafidely or
without jurisdiction. Taking note of the same, the learned Judge has rightly not
gone into the merits of the cases, but has only examined the validity of the
transfer orders on legal grounds. In this regard, the observation of the learned
Judge at paragraph 17 of the impugned herein is usefully quoted hereunder:
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individual grievances of the respective writ petitioners, this court,
however, did not wish to get embroiled into any factual controversy by
venturing into the area of individual concerns, as scope of interference in
transfer orders is very limited and narrow and in that legal context, the
validity of the transfer orders can be examined or appreciated only on
exceptional legal contentions, as the judicial rule is that no transfer order
ought to be subjected to judicial intervention as a matter of routine and
any intervention is an exception to the rule.”
This court also need not be gone into the factual issues involved herein and
hence, the claim of the first respondent(s) relating to all the benefits pursuant
to the order of the learned Judge in setting aside the transfer orders, cannot be
taken into consideration in these appeals, leaving the same open for
determination by the authority concerned.
11.In the present case, it is the specific stand of the appellants /
University that in accordance with G.O. Ms. No.249, dated 21.05.2020, due to
administrative exigencies, they sought approval of the State Government to
effect transfer and only after obtaining approval from the Government vide
letter dated 19.06.2020, the transfer orders were passed against the first
respondent(s), which are not in contravention of the G.O. Ms. No.249, dated
21.05.2020 passed by the Government and therefore, the learned Judge ought
not to have set aside the transfer orders, while allowing the writ petitions. The
appellants further stated that even though an executive decision taken under
Article 162 of The Constitution of India cannot be superseded by an
administrative decision of the Government or by another executive order, the
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letter dated 19.06.2020 was not passed to supersede G.O. Ms. No.249, dated
21.05.2020, but it was issued only with an intent to achieve the purpose and
concept with which the said G.O. came to be issued. Thus, on the basis of the
approval accorded by the Government in its letter dated 19.06.2020, the Vice
Chancellor of the University, who is the competent authority, issued the orders
of transfer and the same was communicated by the Registrar of the University
individually to each of the transferees. While so, there is no contravention of
the order passed in G.O. Ms. No.249, dated 21.05.2020, while effecting
transfer of the first respondent(s), however, which was not properly
appreciated by the learned Judge.
12.On the other hand, the orders of transfer were challenged in the writ
proceedings by the first respondent(s) herein, who were employed as Assistant
Professors, Associate Professors and Professors in the appellant University, on
the ground that the same are in contravention of the G.O. Ms. No.249 dated
21.05.2020, by which the Government has restricted the routine or normal
transfer; and it was specifically stated that an order of transfer, if required, has
to be passed by an authority higher than the authority normally empowered to
transfer. Notwithstanding the restrictions imposed in the said G.O. to effect
general or routine transfers, the first respondent(s) were issued with orders of
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transfer from the present stations, stating that the same were passed after
obtaining approval and concurrence from the Government by letter dated
19.06.2020. According to the first respondent(s), the Government Order issued
by the Governor of the State cannot be superseded by an executive order issued
by the Secretary to the Government under the guise of clarification and
therefore, the Government letter dated 19.06.2020, through which, the
so-called approval given to the Vice Chancellor of the appellant University to
effect transfer of the employees of University, is contrary to the G.O. Ms. No.
249 dated 21.05.2020. Pointing out the same, the learned Judge has rightly set
aside the transfer orders and allowed the writ petitions.
13.Before proceeding further, it would be appropriate to look into the
G.O. Ms. No.249, Finance (Budget General-I) Department dated 21.05.2020,
the relevant paragraphs of which may be set out below:
"The Revenue Receipts and the Revenue Expenditure assumed in
the Budget Estimates 2020-21 have been drastically affected by the
unprecedented COVID-19 outbreak since March 2020. The Government is
facing a huge shortfall in the receipts due to the COVID-19 pandemic and
the consequent measures to contain the pandemic. There are mounting
additional expenditure commitments towards containment, prevention,
relief and mitigation activities. The Government have made a detailed
study of the current situation and are taking necessary action to minimize
fiscal stress so that expenditure on welfare schemes and capital works are
ensured to revive the economy.
2. As part of the economic measures and resource
mobilization efforts, the Government have decided to curtail certain
avoidable items of expenditure during the current financial year.
Accordingly, the Government hereby direct that the allocation in the
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Budget Estimates 2020-21, under all the demands for grants shall be
reduced as per the cuts imposed against each object head indicated below:
......
g) General transfers shall be kept on hold for 2020-21 to
minimise expenditure on transfer travel expenses. Only transfers on
administrative grounds by an authority higher than the authority normally
empowered to transfer and mutual request transfers will alone be
allowed."
It is evident from the aforesaid G.O., that the Government had ordered to keep
the general transfers for the academic year 2020-2021 on hold with a view to
minimise expenditure on travel expenses. It was also mentioned in the said
G.O. that the transfer order, if warranted, shall be passed by an authority
higher than the authority normally empowered to transfer, however, exemption
was given to mutual request transfers. Such a direction to freeze the routine
transfers, was issued taking note of the prevailing Covid-19 pandemic
situation. Despite the same, the orders of transfer were issued by the
appellants, against the first respondent(s) citing administrative reasons.
14.This court is of the opinion that the twin requirements imposed in the
said G.O.Ms.No.249 dated 21.05.2020 have not been followed while passing
the orders of transfer. Firstly, it was merely cited as transfer on administrative
exigency, which is akin to a general or routine order of transfer. Secondly, the
orders of transfer have not been passed by a higher authority, as enunciated in
the G.O. Though it was contended on the side of the appellants that before
https://www.mhc.tn.gov.in/judis
WA Nos. 1498, 1499, 1500, 1501, 1502 and 1503 of 2021
passing the orders of transfer, they obtained approval from the Government
vide letter dated 19.06.2020, the same cannot be accepted in view of the fact
that such a communication is admittedly a clarificatory in nature and the same
will not empower the appellants to issue such transfer orders by overlooking
the specific requirements as contained in the said G.O. As such, the learned
Judge has rightly observed that when G.O. has been issued and is in force
providing prohibition of general transfers, such prohibition is meant to be
followed during the pandemic times and there cannot be a deviation from the
instructions on the basis of a letter of clarification issued by the Government,
overriding the executive order of the Government issued in the name of His
Excellency the Governor of the State; and therefore, it cannot be accepted that
the letter dated 19.06.2020 issued by the Principal Secretary to Government
would have equal force as that of G.O.Ms.No.249 dated 21.05.2020.
Accordingly, the learned Judge has held that the orders of transfer have been
passed by violating the guidelines given in the said G.O. and hence, they are
not legally tenable.
15.It is also seen that while examining the validity of the transfer orders
in the face of G.O.Ms.No.249 dated 21.05.2020, leaving the issue as to who is
competent to transfer the University officials during the pandemic times, open,
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WA Nos. 1498, 1499, 1500, 1501, 1502 and 1503 of 2021
the learned Judge, in the light of the relevant provisions of the statutes, has
found two discrepancies in the approval of the transfer orders by the Vice
Chancellor - (i)the Vice Chancellor signed the same much before the letter of
permission and concurrence given by the Government on 19.06.2020 viz., in
the month of May, 2020 itself, in all the cases except Dr.S.Natarajan, which
shows that the decision of transfer was taken before obtaining permission from
the Government; and (ii)the signatures of the Vice Chancellor had been
obtained under the caption “approved” without any proceedings along with the
tabulated sheets containing the names of the transferees, which does not
indicate the participation of the Vice Chancellor in the decision making
process. Pointing out the same, the learned Judge has correctly opined that
when en masse transfer is being effected particularly during the turbulent times
of Covid crisis, what is expected of the competent authority is his effective
participation in the decision making exercise demonstrating his involvement,
otherwise, the orders of transfer would not pass the test of judicial scrutiny, as
the same would be construed as orders not passed by the competent authority.
This court does not find any reason to disagree with the findings so rendered
by the learned Judge.
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WA Nos. 1498, 1499, 1500, 1501, 1502 and 1503 of 2021
16.At this juncture, it is appropriate to refer to the decisions of the
Hon'ble Supreme Court in Kunwar Pal Singh (dead) by LRs v. State of U.P.
and others [2007 (5) Supreme Court Cases 85] and (ii)Mackinnon
Mackenzie & Co. Ltd v. Mackinnon Employees Union) [2015 (4) Supreme
Court Cases 544], wherein it was observed that “the principle is well settled
that where any statutory provision provides a particular manner for doing a
particular act, then, that thing or act must be done in accordance with the
manner prescribed therefor in the Act”. Whereas, in the present case, the
appellants contrary to G.O.Ms.No.249 dated 21.05.2020, have transferred the
first respondent(s) from the present places to different places, citing
administrative reasons, which are not legally sustainable. Therefore, this court
is of the opinion that the learned Judge is wholly justified in setting aside the
transfer orders, while allowing the writ petitions and the same does not call for
interference.
17.Accordingly, all the writ appeals fail and are dismissed. No costs.
Consequently, connected miscellaneous petitions are closed.
(R.M.D.,J.) (J.S.N.P.,J.)
30.06.2022
rsh
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WA Nos. 1498, 1499, 1500, 1501, 1502 and 1503 of 2021
Index : Yes / No
Internet : Yes / No
R. MAHADEVAN, J.
and
J. SATHYA NARAYANA PRASAD, J.
rsh/rk
To
1. The Professor and Head
Tamil Nadu Agricultural University
Rice Research Station
Tirur - 602 025
Thiruvallur District
2. The Vice Chancellor
Tamil Nadu Agricultural University
Coimbatore - 641 003
3. The Registrar
Tamil Nadu Agricultural University
Coimbatore - 641 003
WA Nos. 1498, 1499, 1500,
1501, 1502 and 1503 of 2021
30.06.2022
https://www.mhc.tn.gov.in/judis
