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Judgment
K.P. Sivasubramaniam, J.—The petitioner a Class IV employee of the first respondent seeks for the issue of a writ of certiorarified
mandamus to call for the order of the first respondent dated 15.3.2002, to quash the same and to direct the respondent to retransfer him from
Bangalore to Chennai.
The petitioner states that he was appointed as a Ward Boy on 11.4.1979. He was elected as the Executive Member of the Technical Teachers
Training Institute, Chennai Employees Association. He exposed the commissions and omissions of respondents and hence the respondents took
vindictive action and transferred all the office-bearers to far off places. The petitioner also belongs to Scheduled Caste and hence transfer hence to
outside the State was not proper in terms of the guidelines issued in the said context. His post was not a transferable post. But as a dutiful servant
he obeyed the order and joined duty at Bangalore and the respondent had assured that transfer order would be revised after one year. He sent
representation on 21.8.2002 requesting for re-transfer to Chennai. As the same was not accepted, the petitioner has come forward with the above
writ petition.
In the counter affidavit filed by the respondents, it is stated that the petitioner has not been appointed as against any vacancy reserved for
scheduled caste community. The Government of India had imposed a ban on filling up of vacancies in the non-teaching category to which the
petitioner belongs to, due to economy measures. The Government has directed the Institute not to fill up vacant posts in the non-teaching category.
As the Institute has constructed its new building at its Extension Centre at Bangalore, a Hostel and a Guest House have been set up in the new
building and since the petitioner was having working knowledge of Hindi, he has been temporarily transferred to look after the Guest House and
the Hostel. Therefore, administrative exigency required the petitioner to be transferred to Bangalore. However, the petitioner without complying
with the same, made serious allegations against the Institute alleging harassment and discrimination, before the National Commission for Scheduled
Castes and Scheduled Tribes as he belongs to Scheduled Caste Community. The respondent had duly clarified the issues to the Commission. It is
further stated that the transfer of the petitioner was only due to administrative exigencies and not by way of victimisation or harassment.
The petitioner joined the Extension Centre on 14.6.2002 and he was permitted to retain his family quarters at Chennai as a special case and
allowed to stay in the office premises at Bangalore without any rent. He had earlier given a notice of voluntary retirement and subsequently
withdrew the same. Even though the offer of voluntary retirement was accepted by the respondents, taking a humanitarian view he was continued
in service. He was appointed on regular basis with effect from 11.4.1979 as a Ward Boy. The claim that he was an office-bearer of the
Association is denied and it is contended that there has never been any such Association recognised by the Institute.
It is further reiterated that the transfer was only due to administrative reasons and as there was a ban on filling up of vacant posts in the non-
teaching category as an economic measure it was not possible to fill up the post at Bangalore. As the new building at Bangalore had been
constructed and the petitioner who was well experienced and had working knowledge in Hindi, had been temporarily transferred to Bangalore.
There was no basis for the allegation that the respondents had acted in a prejudicial manner as the petitioner belongs to Scheduled Caste
community.
An additional counter has also been filed by the respondents. The allegation regarding non-compliance of reservation was denied. It is further
stated that the respondent has not given any undertaking to the National Commission on S.C. and S.T., Chennai. The Institute has merely stated
that it would consider the request of the petitioner after the Guest House and Hostel facilities are properly established and made operational.
However, the petitioner after his transfer was remaining absent from duties continuously and not attending to the work assigned to him. The details
of leave taken by him are as follows:-
(i) 56 days commuted leave to full pay from 17.6.2002 to 14.7.2002.
(ii) 126 days commuted leave to full pay from 10.10.2002 to 11.12.2002.
(iii) 17 days Earned Leave from 5.2.2003 to 21.2.2003.
(iv) 43 days Earned Leave from 2.6.2003 to 14.7.2003.
(v) 135 days Medical leave from 20.8.2003 to 1.1.2004.
The respondents submit that the said facts would disclose that the petitioner was not discharging his duties with devotion. The allegation that the
respondents were not adopting human approach, was also denied.
Mr. R. Sankarasubbu appearing for the petitioner contends that both the Central and State Governments have been cautioned against transfer of
class IV employees having regard to the poor financial background of the said individuals. More so, in the case of employees belonging to S.C.
and S.T. they cannot be subjected to transfer in a discriminatory manner. Even the initial transfer was only due to vindictive reasons as the
petitioner was an active office-bearer of the Union. Even so he had obeyed the order of transfer as a disciplined employee with the hope that he
would be transferred after one year. As this did not happen and also as there was response for several representations, there was no other
alternative except to seek for the said relief from this Court.
Mr. K.V. Subramanian appearing for the respondents contends that transfer to Bangalore was only due to genuine administrative exigencies and
reasons. There was no victimisation. He would further state that the petitioner was frequently going on leave and he would not even report to duty
even for considering the request for retransfer. Learned counsel also refers to the general ban order for any new recruitment issued by the Central
Government and hence it was not possible to recruit any one at Bangalore in the place of the petitioner. Therefore, the petitioner''s continuance at
Bangalore was very much required. Learned counsel relies on the following judgments in support of his contention that transfer effected to
administrative exigencies, cannot be interfered with by the Courts.
(i) Chief General Manager (Telecom), N.E. Telecom Circle and another Vs. Rajendra Ch. Bhattacharjee and others, .
(ii) State of Uttar Pradesh v. Dr. D.N. Prasad .
(iii) State of Madhya Pradesh, and Another Vs. S.S. Kourav and Others,
(iv) BALUSAMY, M. v. THE ASSISTANT GENERAL MANAGER, STATE BANK OF INDIA & ANR. 1996 W.L.R. 423.
(v) Laxmi Narain Mehar Vs. Union of India and others, .
(vi) Mohd. Sultan Ganai Vs. State of Jammu and Kashmir and Others, .
(vii) VELAYUDHAM v. DEPUTY DIRECTOR (TRAINING), C.R.P. FORCE ETC. 1998 W.L.R. 261.
(viii) State of Orissa and Others Vs. Kishore Chandra Samal and Others,
(ix) W.P. Nos. 16659 and 16660 of 1999 dt. 16.12.1999.
(R. SETHURAMAN v. THE MANAGING DIRECTOR, POOMPUHAR SHIPPING CORPORATION LTD.).
(x) Public Services Tribunal Bar Association Vs. State of U.P. and Another, .
(xi) M/s. PEARLITE LINERS PVT. LTD. v. MANORAMA SIRSI 2004 (1) C.T.C. 544.
(xii) UNION OF INDIA v. SRI JANARDHAN DEBENATH 2004 (2) M.L.J. 165 (S.C.).
(xiii) STATE OF RAJASTHAN v. ANAND PRAKASH SOLANKI 2004 (1) M.L.J. 6 (S.C.).
(xiv) K. Kandasamy, Assistant Manager, UCO Bank, Korattur Branch Vs. The Chairman and Managing Director, UCO Bank, Personnel
Department, The General Manager (Personnel), UCO Bank, Personnel Department and The Deputy General Manager, UCO Bank, .
I have heard both parties. There can be no quarrel over the well accepted legal position that transfer is an incident of service and as long as the
transfer is effected on genuine administrative grounds and not due to any mala fide or vindictive reasons the same cannot be questioned. The
Courts will be reluctant to interfere with the orders of transfer except where grave injustice is shown or mala fides are demonstrated as against the
order of transfer. It is equally an accepted principle that Class IV employees shall not be unnecessarily subjected to transfer having regard to their
poor financial status and that disturbing them from their normal place of living would cause very adverse consequences on their family life. Though
the claim that staff belonging to S.C. and S.T. should not be transferred, cannot be accepted blindly without reference to facts, a sympathetic
approach should be adopted in the case of all Class IV employees. Evenwhile highly placed officials with high salary and perquisites find transfer
very burdensome, transfer of Class IV employees should be resorted only as a punishment in the case of highly corrupt or indisciplined employees.
It cannot be resorted to for filling up of a vacancy in the category of a Ward-boy as in this case.
In this case, though the petitioner states that he was transferred because of active involvement in the Union, the same was denied by the
respondents and it is stated that the transfer was only due to administrative exigencies in order to look after the newly set up office at Bangalore
and that the petitioner had working knowledge of Hindi.
I am also unable to sustain the second reason which is stated by the respondents to deny the request of retransfer, namely, the ban order for
fresh recruitment. Such an excuse is very casually stated by all authorities/offices of the Government/undertakings etc., without any regard to the
genuine difficulties expressed in the matter of transfers and also for refusing confirmation and grant of permanency for temporary employees even
after they complete several years of service. The policy of the Government not to make any fresh recruitment cannot be put higher than the
recognised rights of citizens and thus result in failure to consider human problems and normal conventions such as that Class IV employees should
not be subjected to transfer. Even though the ban order is cited by the authorities to suit their convenience, the fact also remains that the
Governments both Central and State, as well as public bodies do indulge in fresh recruitment as and when necessary as could be seen from
advertisements in the news papers. Therefore, citing the ban order as an excuse for not doing justice to a Class IV employee cannot at all be
countenanced. The fact that the petitioner has working knowledge of Hindi does not mean that the respondents cannot find and appoint a person
having the same qualifications at Bangalore.
It is true that the respondents also allege that after his transfer, the petitioner was very irregular. A perusal of the leave particulars mentioned
above would disclose that after each spell of two or three months, the petitioner has been going on leave frequently. The reason is presumably
because he is required to be with his family and having regard to the financial status, he cannot take his family with him to Bangalore. Having regard
to the aforesaid circumstances, there is no justification for the respondents to refuse to retransfer the Class IV employee in spite of his repeated
requests. It is certainly open to the respondents to take appropriate action against the petitioner if he had violated the Leave Rules. Therefore, I am
inclined to pass the following order:-
The petitioner is directed to forthwith report for duty at Bangalore and shall join duty without any delay. On his reporting to duty and joining at
Bangalore, the respondents shall issue orders of retransfer within a period of four weeks thereafter which should be sufficient for the respondent to
make alternate arrangements. The Writ Petition is ordered accordingly. No costs.