Kumari S.S. Sreeja vs Director General, Highways Department and Others

Vinod K. Sharma, J.—The petitioner prays for the issuance of a writ in the nature of certiorari to quash the order Se.Mu.Aa.N. No. 3 (1)

1.12.120 dated 1.6.2012 canceling the order of transfer, at the instance of the fifth respondent. The petitioner was appointed as Junior Assistant-

cum-Typist on 1.3.1996 in the office of the Superintending Engineer, Tirunelveli. The petitioner was thereafter, transferred as Junior Assistant-

cum-Typist to Thuckalai Sub-Division, Nagercoil on 1.7.1997.

On 2.4.2002, she was transferred to N.R.E.P Thuckalai as Assistant, thereafter, transferred to Rural Roads Sub-Division, Thuckalai. After two

years, she was again transferred to Rural Roads Sub-Division Thuckalai.

On 8.11.2010, the petitioner was transferred to Divisional Engineer Office, Highways Department, Nagercoil. Thereafter, on promotion, she

was transferred to Kovilpatti Regular Sub-division on 9.12.2010 as Superintendent.

The petitioner belongs to Kanyakumari District and her husband is working as Assistant at Neyyatinkara Munsif Court, Kerala State.

The petitioner requested the respondents to transfer the petitioner from Thoothukudi District to Kuzhithurai Sub-Division, Kanyakumari District.

The request of the petitioner was accepted and she was posted to Kuzhithurai Sub-Division office, but she was not immediately relieved to join

the new place of posting.

It is submitted that before the order of transfer could be implemented, the order of transfer was arbitrarily cancelled to make room for the fifth

respondent to join there.

The learned counsel for the petitioner has challenged the impugned order of cancellation of transfer on the ground of legal mala fide.

The learned counsel for the petitioner vehemently contended, that the impugned order canceling her transfer on the asking of the fifth

respondent, cannot be sustained in law as it is not open to the respondents to transfer an employee on the request of other employee. The transfer

can be ordered on administrative ground or in public interest.

On notice, the counter has been filed.

The learned Government Advocate appearing on behalf of the Respondents 1 to 4 fairly conceded that the impugned order has not been

passed on the administrative exigency of service or in public interest but to accommodate the fifth respondent who had made a request for transfer

but was transferred to Kuzhithurai Sub-Division, Kanyakumari District. The reason for transfer is the fifth respondent has a better claim for transfer

to Kanyakumari District. This contention is misconceived, there cannot be a better claim for transfer, as guidelines issued by Government regarding

transfer have no force of Law.

The learned counsel for the fifth respondent opposed this writ petition on the ground of locus standi of the petitioner to challenge the order of

transfer.

It is contended by the learned counsel that it was for the respondents to post an employee on administrative exigency of service and interest of

administration. The Respondent Nos. 1 to 4, rightly considered the representation filed by the fifth respondent and cancelled the transfer of the

petitioner to transfer the fifth respondent at her place of posting.

In view of the fair stand taken by the official respondent, it can safely be said that the order of cancellation of transfer is not for the

administrative exigency of service, but on consideration which is not sustainable in law. It is settled law that though it is not open to Courts to

interface with order of transfer, as the guidelines of Government regarding transfer have no force of law, but is also well settled that when order of

transfer scatters from mala fide, the Courts are bound to quash it. In this case, there is fair admission by Government advocate that impugned order

is not on administrative grounds but to help the fifth respondent. Therefore, the order suffers from legal mala fide.

The contention of the learned counsel for the fifth respondent cannot be accepted, in view of the fair stand taken by the respondents 1 to 4,

admitting that the impugned order was not passed on administrative exigencies, but on the representation filed by the fifth respondent.

Consequently, this writ petition is allowed. The impugned order is set aside. No costs. Consequently, the connected miscellaneous petitions are

closed.