J. Alex Dorai Vetha Sam vs The District Educational Officer (in-charge), The Headmaster, Kamaraj Municipal Higher Secondary School and The Headmaster, Govt. Higher Secondary School

P. Jyothimani, J.—The writ petition is filed challenging the impugned order of transfer effected by the first respondent, dated 29.06.2009,

transferring the petitioner, who is working as Record Clerk, in Kamaraj Municipal Higher Secondary School, Pettai to the Government Higher

Secondary School, Veerasigamani, which is stated to be 60 kms away from the place where the petitioner is working.

Normally in cases of transfer on administrative grounds, the scope of interference by this Court exercising the jurisdiction under Article 226 of

the Constitution of the India is very limited, since in service jurisprudence it is clear that transfer is incident of service. It is not the case of the

petitioner also that he is not liable for transfer. But, on the facts and circumstances of the case, especially taking note of the contents of the counter

affidavit filed by the first respondent, this Court has to take a different stand in respect of the impugned transfer effected herein.

The petitioner was originally working as Assistant in the Municipality and thereafter, as Office Assistant in the Tirunelveli Municipality having

been appointed on sponsor by the employment exchange on 11.12.1986 and thereafter, he was posted as Attender in the second respondent

school, by way of transfer of service on 17.03.1987. He was subsequently promoted as Record Clerk on 04.11.1990 and still working in the

second respondent school in the same capacity. Under the impugned order, the first respondent has transferred the petitioner from the second

respondent school to the Government Higher Secondary School, Veerasigamani which is stated to be 60 kms away from the present school.

It is the case of the petitioner that the impugned order itself came to be served only on 01.07.2009 along with the reliving order. The petitioner is

stated to be a physically challenged person. Since he is suffering from his disability, he was unable to join in the transferred school. The petitioner

has been taking treatment in Sushrushah Hospital at Nagercoil for Poly Arthiritis from 12.12.2008 till date. The medical certificate issued by the

competent authorities also revealed that the petitioner is suffering from permanent disability to the extent of 40% and the same has been forwarded

to the Director of School Education also. It is stated that the wife of the petitioner is also working as a Teacher in Government School at Tirunelveli

Town and the petitioner along with his family settled at pettai and his daughter aged 20 years is also physically challenged and both the petitioner as

well as his daughter are unable to move without the assistance of the petitioner''s wife. The petitioner is stated to be on medical leave. The

impugned order of transfer is challenged on various grounds including that even though it is stated to be on administrative reason, but there is

nothing in the impugned order, but the same is punitive and it is on the basis of certain remarks on the petitioner''s service in the second respondent

school, which is possible only after giving opportunity to the petitioner and in the present case no opportunity was given before punitive transfer is

effected.

In the counter affidavit filed by the first respondent, even though the first respondent has stated that the impugned order of transfer is on

administrative in nature, the various averments contained in the affidavit would go to show in categorical term that the transfer was effected on a

complaint from various teachers of the second respondent school. In fact, in the counter affidavit, the first respondent has chosen to state that on

the basis of the complaint received from various teachers to the effect that the petitioner has not been discharging the official duty properly and

based on that the first respondent, the District Educational Officer, has in fact conducted an enquiry with teachers and headmaster of the said

school and found that some substance in the complaint given by them against the petitioner and it was therefore, the transfer order came to be

passed. Following is the relevant portion of the counter affidavit for the purpose of this case;

The first respondent after conducting preliminary enquiry with teacher and headmaster of Kamaraj Municipal Higher Secondary School, Pettai

issued the transfer order.

Therefore, it is clear that the impugned transfer order has been passed by the first respondent on the basis of certain complaint given in respect of

functioning of the petitioner as Record Clerk in the second respondent school. If that is so, law requires that the petitioner should be given an

opportunity before passing such order. Since the petitioner is transferred based on a complaint, it certainly cast a sitgma on the service condition of

the petitioner. That was also the view of this Court in a decision reported in 2006 (2) CTC 468 (S. Sevvgan v. The Chief Educational Officer,

Viruthunagar District, Virudhunagar and Anr.), wherein this Court has held that it is seen from the impugned order of transfer that it is passed on

administrative ground, but it appears that the order was passed by way of punishment and based on the complaint against the conduct of the

petitioner. If that be so, the petitioner is certainly entitled for proper opportunity to defend himself as to whether the complaints against him by the

Public or by the Headmaster is proper or not by way of an enquiry.

It is also brought to the notice of this Court that while entertaining this writ petition, by an order dated 15.07.2009 an order of interim stay for a

period of four weeks has been granted on the condition that if the petitioner was not already relived and somebody is posted in his place. It is not

the case of the petitioner or the respondent that some third party has been posted in the place of the petitioner in the second respondent school.

However, it is seen that the reliving order has been given to the petitioner on 01.07.2009 and therefore, the interim order dated 15.07.2009 was

not able to be complied with.

Be that as it may, the fact remains based on the interim order came to be passed, the petitioner was not allowed to be joined in the second

respondent school as record clerk. Since the transfer is effected on the basis of a complaint, it certainly cast a stigma on the service condition of the

petitioner, which certainly requires an opportunity to be given. In the absence of such opportunity being given, it is not possible to accept the

contention of the learned Special Government Pleader that the impugned order of transfer has to be sustained. The further contention of the learned

Special Government Pleader that due charge will be framed, during which time, an opportunity will be given, has no meaning. It is open to the

respondent to proceed against the petitioner if the petitioner has acted himself against the code of conduct which the petitioner is expected to

follow. That is not the ground and the transfer order is made based on a complaint given by the teachers. In such view of the matter, the impugned

order stands set aside and the writ petition is allowed. Consequently, the connected miscellaneous petitions are closed. No costs.