Madras High Court
K.Sarathy vs The Commissioner Of Most Backward ... on 12 September, 2022
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
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1/12
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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.
Writ Petition No.9139 of 2016
12.09.2022
https://www.mhc.tn.gov.in/judis
