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Judgment
Sathiadev, J.—Petitioner is presently working as an Assistant in the office of the Regional Director of Government Examination Madurai. He
was working as an Assistant in the office of the second Respondent at Madras. This writ petition is filed claiming that the order of transfer, dated
20th September, 1981, transferring him from Madras to Madurai, is to be quashed, because it was ordered due to the vindictiveness,
maliciousness and malafide intentions of the third Respondent, and that it may act as a punishment upon him. In the affidavit he states that, there are
more than 350 staff members in the office of the second Respondent and none of them is liable for transfer, unless it is a request transfer or transfer
on promotion. He was the Secretary of the Staff Association of the Directorate of Government Examination On 18th September, 1981, Petitioner
along with other office-bearers of the said Association held discussions with regard to certain affairs of the Association with the third Respondent,
and at that time the malpractice committed by Palaniswamy, which was not one of the items connected with the discussions, was breached by the
third Respondent (Additional Director) and that he commented that the Association was unnecessarily intervening in administrative matters. During
the discussions, quite unreason ably he got into a fit of temper and shouted at them and claimed that he would cut the Association into size.
Eventhough Petitioner tries to impress upon him that the Association had brought to the notice of the management about the culprit and it cannot be
interference in the administration of the office, third Respondent pounced upon the Petitioner claiming that there is unnecessary interference in
administration by the Association. In view of the attitude adopted by him, the office-bearers immediately met the second Respondent, the Director
of Government Examinations and represented to him about the behaviour of the Additional Collector in humiliating them for no fault. On 18th
September 1981 itself, a written memorandum, stating about the unseemly behaviour of the third Respondent was handed over to the second
Respondent. On 19th September, 1981, as proposed a meeting of the Union was called and the attitude of the third Respondent was condemned,
since he had asked the office-bearers to get out of the office. Obviously provoked by those factors, on 20th September 1981, a Sunday third
Respondent passed an order transferring Petitioner to Madurai and it was signed by him on behalf of the second Respondent On the same day,
one Mr. K. Gopal, another of officer-bearer of another Association was also transferred to Coimbatore. Later on he appears to have apologized
and got his transfer revoked, on 28th September 1981, third Respondent wrote is D.O. letter to Regional Deputy Director of Government
Examinations, Madurai requesting him to somehow or other see that the Petitioner is accommodated in some leave vacancy at Madurai. This D.O.
letter as well as the transfer memo served on him, were dealt with in F-2 Section, whereas as per the office orders in force, it could have been
done only by F-1 Section. Petitioner then made representations against the transfer to which third Respondent has stated that he would revoke the
order in a couple of months. He went and took charge at Madurai on 1st October 1981, and in spite of repeated representations, he had not been
re-transferred to Madras. In the meanwhile, on 1st October, 1981, third Respondent, framed certain charges against him under Rule 17(b) of Civil
Service (Classification, Control and Appeal), Rules, relating to certain activities of the Association and consequent to that enquiry it resulted n
stoppage of his increment and the matter is pending in appeal. In the light of what has been done by the third Respondent, since transfer had been
effected due to the vindictiveness and mala fide intentions of the third Respondent, the impugned order deserves to be set aside.
A counter-affidavit is filed by Thiru K.K. Goplan, who was the Additional Director at the time when the impugned order was passed. He had
refuted the claim that the posts of Assistants are not transferable, and claims that several persons have been transferred since 1980, after opening
of the Regional Offices at Coimbatore and Madurai. Prior to it, there was no question of any transfer because the only office of the Director, was
situate at Madras, There was no assurance ever giver, earlier, that transfer would be effected only after securing the consent of the concerned
Assistant. In the meeting held on 18th September, 1981 there was no question of himself getting to a (sic) of temper not shouting at any one as
alleged. It was the Petitioner who took up the issue of Thiru Palaniswamy and he was told that the matter relating to him was under enquiry by the
Vigilance Department and hence, no discussion can take place at that stage. It was only the office bearers of the Union, particularly the Petitioner,
who exhibited a defiant behaviour. Not only that he exhibited such a temperament, but he also conducted the meeting of the Association during
office hours on 10th August, 1981 without obtaining permission for using the office premises. To the hearing of the deponent, certain derogatory
statements were made against Minister of Education. Regarding the manner in which the office bearers were making representations, even his pre-
decessor have brought to the notice of the Government that there has been interference by them in the smooth functioning of the office. It was after
the incident on 19th September, 1981, he bonafide, thought that to tone up and in the interests of the administration the Petitioner should be
transferred out of Madras City, and hence the transfer order is not a punishment nor has it caused any stigma on the Petitioner. The allegations of
mala fides against him are baseless end vague. The order is passed only due to administrative exigency and not to punish the Petitioner. Admitting
the letter, dated 28th September, 1981 written by him, he states that, it was done more in the interests of the Petitioner to get his salary etc.
without delay and not with any mala fide intention. The memo of transfer issued by F 2 section was not irregular since the Head of the Office can
get the work done by any Section in the interests of efficient administration. As for the charge framed for defamatory speech made by him, it has
nothing to do with the order of transfer. No pre-condition regarding transfers, as pleaded by the Petitioner, had ever existed. The very fact that
Petitioner had not gone to Court soon after his transfer to Madurai shows that he had no cause to object. The order of transfer was not issued in
haste, and there is no hard and fast Rule that it should be done only on the form of a proceeding or memo, and it is enough if it is done as an
executive order setting out the contents clearly, and in this case it was done. Since the vacancy position in the Regional Office is not clearly known,
letter, dated 29th September, 1981 was written, so that he would not be sent back by Madurai Office, if sent back then would have been
unnecessary delay in the claim of his salary etc., after being relieved at Madras. The so called oral agreement pleaded about transfers was refuted,
by stating that there have been large, number of transfers of both Assistants and Superintendents, to Regional Offices, during 1980, 1991 and also
in 1982.
This counter-affidavit resulted in a reply affidavit being filed by the Petitioner to the following effect; The Staff Association passed a resolution on
9th December, 1980 which was recorded on 16th December, 1980 stating that only willing promotees and persons with their consent or at their
request who have got their native places in or near the Regional Offices should be transferred and that there should not be any transfer against the
consent of any Assistant. This resolution was communicated to the then Director and there was a tacit understanding that transfer would not be
effected without the consent of the individual. Hence there can be no routine administration transfer, as normally happens in Government
Department. It is incorrect to state that it was the Petitioner who raised the issue involving Mr. Palaniswami. The agenda of the Association never
included it, as one of the subjects to be discussed on 18th September 1981. The allegation that the Association has interfered with day to day
administration, etc., is totally false. It is wrong to claim that the meeting held on 19th September, 1981 was without obtaining the prior permission,
because on 18th September 1981, a letter had been given to the second Respondent that a meeting was going to be held on 19th September,
1981 after lunch hour. Reliance is placed on G.O. Ms. No. 1875, Public (Services C) Department, dated 10th November 1961 to contend that,
no prior permission is required to conduct a meeting on each occasion. The order of transfer has caused a stigma on him and having been passed
on Sunday by directing F 2 Section to deal with the matter speaks volumes of vengeance and vendetta of third Respondent against him, because
no administrative exigency necessiated transfer. The confidential letter, dated 28th September, 1981, which had followed it, amply justified this
allegation. As far the knowledge acquired by him about this letter, it was seen by him by sheer accident, and it is not a confidential one, and hence,
no irregularity had been committed by him by relying upon the said letter. It was only on seeing the letter, it dawned on him that third Respondent
was not a gullible and responsible person as he pretends to be, but a person with vengeance and vindictiveness. Who knows how to spoil a person
who has crossed swords with him. His explanation given for writing the said letter is unconvincing, since on issue of a certificate regarding last pay
drawn, he would automatically get his salary and in his case, the certificate dated, 17th October 1981 had been issued, and therefore, there was no
necessity to write a strictly confidential letter if the only purpose was to secure his salary on time. The usual procedure adopted in the office
regarding transfers by F2 Section is referred to and claimed that, what has happened was contrary to office order No. 4/80 dated 4th March,
1980. The transfer was made only in a fit of temper and at a time when no vacancy existed at Madurai, and the request of the third Respondent to
create a vacancy to accommodate him clearly shows that there was no necessity for the transfer effected. Except for the transfer of the Petitioner
and Mr. K. Gopal, no one had been transferred unless they have asked for a request or an account of promotion. The oral agreement or assurance
given by the then Directors in 1980 had been strictly followed till this date, pertaining to transfers.
First Respondent filed an adoption counter affidavit stating that the transfer was done only in the interests of public servant and was not intended
as a punishment.
The first contention of Mr. T.S. Subramanian, learned Counsel for the Petitioner, is that, the Petitioner is not liable to be transferred as per his
service conditions. He submits that the office of the Director of public Instructions was divided into three separate directorates viz, Directorate of
School Education, Directorate of College Education and Directorate of Government Examinations. Till the two Regional Offices were created at
Coimbatore and Madurai in 1980 there was no transfer effected in respect of the personnel working in Directorate of Government Examinations,
Madras. It is claimed by the Petitioner that in 1980, two resolutions were passed by the Staff Association to the effect that only willing persons,
promotees and those who give their consent because their native places are nearer to the Regional Office alone should be transferred and that no
one should be transferred against his will. A plea is made to the effect that consequent to the resolution passed, the then Director had accepted the
aforesaid proposition and had followed it strictly. In support of this claim certain Annexures are filed to show the manner in which transfers have
been effected hitherto. Hence the contention put forth is that, there being a tacit acceptance in this regard, the Respondents have no jurisdiction or
powers vested in them, to transfer Assistant and others from Madras to other places. It is lastly claimed that except the Petitioner and K. Gopalan,
none had been transferred without obtaining their consent.
On behalf of the Respondents, it is clearly stated that there was no such under standing ever arrived at and that several transfers have been
effected since 1980, and at no point of time, it was done after securing the consent of the concerned persons. No need arose prior to 1980 for
transfer of personnel because the only Directorate functioning in the entire State was at Madras. When the Rules envisage transfer having been
passed, Petitioner cannot claim any right contrary to the Rules applicable to him.
Rule 40 of Tamil Nadu State and Subordinate Service Rules provides that all transfers and postings shall be made by the appointing authority. In
respect of the Petitioner, second Respondent being the constituted authority and the Petitioner being bound by the said Rules, he is liable to be
transferred to any place in the State. When statutory Rules applicable to him provide for transfers, to contend that there has been a different tacit
understanding arrived at could never be entertained. Petitioner is unable to rely on any written communication sent by the second Respondent,
agreeing to the resolution passed by the Staff Association. No tacit oral agreement could ever be put against statutory Rules, which are in force.
Even on the plea raised that except for the Petitioner and another, in respect of others, transfers were effected only after securing consent; no
supporting affidavit is filed by any such persons to that effect nor orders of transfer passed in their favour had been filed. On behalf of the
Respondent, earlier orders have been called for and they do not indicate that transfers have been effected only after securing the consent of the
personnel. Hence, it is held that the Petitioner, as per the statutory, Rules, is liable to be transferred to any place in the State, where the Directorate
of Government Examinations has an office.
Mr. T.S. Subramaniam, learned Counsel for the Petitioner then takes up the only other important point, it being that due to the mala fides of the
third Respondent, the impugned order came to be passed, and hence it is invalid. To call out the principles and the factors which will be relevant
for construing mala fides, he relies upon the following decisions. He first refers to S. Pratap Singh Vs. The State of Punjab, where in it was held
that it is for the person who alleges mala fides to establish that at the instance of the authority who was personally hostile to him by reason, of
certain incidents and circumstances sent out in the affidavit, the impugned order came to be passed prompted by the desire of the authority to
wreak personally his vengeance to him. It was further held therein as follows (at page 74):
The Courts have on occasions, resolved the difficulty by finding out the eminent purpose which impelled the action and where the power itself is
conditioned by a purpose, have proceeded to invalidate the exercise of the power when any irrelevant parpse is proved, to have entered, the mind
of the authority� This is on the principle that if in such a situation the dominant purpose is unlawful then the act itself is unlawful and it is not cured
by saying that they had another purpose which was lawful.
The nature of the power thus discloses its purpose. In that context the use of that power for achieving an alie purpose wreaking the ministers
vengeance on the officer would be mala fide and a colourable exercise of that power, and would therefore be struck down by the Courts.
Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by Government of its
powers. While the indirect motive or purpose, or bad faith or personal ill will is Hot to be held established except on clear proof thereof, it is
obviously difficult to establish the state of a man''s mind, for that is what the Appellant has to establish in this case, though this may sometimes be
done (See Edgington v. Fitzimaurice (1884) 28 Ch.D. 459). The difficulty is not lessened when one has to establish that a person in the position of
a minister apparently acting in the legitimate exercise of power has, in fact, been acting mala fide, in the sense of pursuing on illegitimate aim. We
must however, demur to the suggestion that, mala fide in the sense of improper motive should be established only by direct evidence that is that it
must be discernible from the nothings in the file which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be
deduced as a reasonable and in escapable inferences from proved facts.
The only question which could be considered by the Court is whether the authority vested with the power has paid attention to or taken into
account circumstances, events or matters wholly extraneous to the purposes for which the power was vested, or whether the proceedings have
been initiated mala fide for satisfying a private or personal grudge of the authority against the officer. If the act is in excess of the power granted or
is an abuse of misuse of power, the matter is capable of interference and rectification by the Court. In such an event the fact that the authority
concerned denies the charge of mala fides, or asserts the absence of motives or of its having taken into consideration improper or irrelevant matter
does not preclude the Court from enquiring into the truth of the allegations made, against the authority and affording appropriate reliefs to the party
aggrieved by such illegality or abuse of power in the event of the allegations being made out.
The constitution enshrines and guarantees the Rule of law and Article 226 is designed to ensure that each and every authority in the State, including
the Government acts bonafide and within the limits of its power and we consider that when a Court is satisfied that there is an abuse or misuse of
power and its jurisdiction is invoked, it is incumbent on the Court to afford justice to the individual.
We therefore held that the impugned orders were vitiated by malafides, in that they were motivated by an improper purpose which was outside
that for which the power or discretion was conferred on Government and the said orders should therefore be set aside.
It was found that the impugned order was passed with a view to inconvenience and humilite the Appellant therein and deprive him of his practice
at Jullundur.
He then refers to S.G. Jaisinghani Vs. Union of India (UOI) and Others, wherein it was held that if a decision is taken without any principle s
or without any Rule, it is unpredictable, and such a decision is the antithesis of a decision taken in accordance with the Rule of law. Where
discretion is absolute man has always suffered. It is in this sense that the Rule of law may be said to be the sworn enemy of caprice. Discretion
means sound discretion guided by law and it must be governed by Rule, not by humour it must not be arbitrary vague and fanciful.
In Smt. S.R. Venkataraman Vs. Union of India (UOI) and Another, it was held, that malice in its legal sense means malice such as maybe
assumed from the doing of a wrongful act intentionally but without just cause or excuse or for want of reasonable or probable cause, are that, if a
discretionary power has been exercised for an authorised purpose., it is generally immaterial whether its depository was acting in good faith or in
bad faith. It was a case in which it was held that the order of compulsory retirement was passed for an unauthorised purpose.
As to what would be the proper test to be applied in a case in which there is a mixture of authorised, and unauthorised purpose, it was held in
P.V. Jagannath Rao and Others Vs. State of Orissa and Others, that the dominant purpose for which the administrative power was exercised is the
determinative factor. If the administrative authority construes two or more purposes of which one is authorised and the other unauthorised, then the
legality of the administrative act should be determined by reference to the dominant purpose. The following passage in Earl Fitzwilliams Wentworth
Estate Co. Ltd. v. Minister of Town and Country Planning [1951] 2 K.B. 284 was relied upon in the said decision:
So also, the validity of government action often depends on the purpose with which it is done. There, too, the same principle applies. If Parliament
grants a power to a government department to be used for as authorised purpose, then the power is only validly exercised when it is used by the
department genuinely for that purpose as its dominant purpose. If that purpose is not the main purpose, but is subordinated to some other purpose
which is not authorized by law, then the department exceeds its ''powers and the action is invalid, (page 807in 1968 3 S.C.R.)
He then refers to the following treatises. At page 24 in Judicial Review of Administrative Action by S.A. de Smith (third edition), it is stated as
follows:
Subject to these reservations, it may be said that the Courts may award relief where an administrative body has acted without authority or has
stepped outside the limits of its authority or has failed to perform its duties that bodies exercising certain types of functions impinging directly on
legally recognised interests will be required to act judicially in accordance with the Rules of nature justice�those basic principles of fair procedure
which demand freedom from interest or loss and the light to a fair hearing for those who are immediately affected by its decisions that a statutory
discretion may be held to have been invalidly exercise if its repository acts in bad faith, capriciously, in furtherance of an unauthorised purpose,
without regard to relevant considerations or on the basis of irrelevant considerations, or if it fails to exercise an independent discretion in a
particular case that in the absence of statutory provision for appeal, errors of law and fact committed by an administrative body do not, in general,
afford grounds for relief unless they have caused it to go outside its jurisdiction or to misconceive the scope of its discretionary powers, or unless
an error of law is disclosed by the ""record"" of the determination issued by it; bat that in practice a Court will find a principle justifying its
intervention if it is satisfied that an administrative body has perpetrated any material error of law.
Again at page 285 it is stated:
If a discretionary power is conferred without reference to purpose, it must still be exercise in good faith and in accordance with such implied
purposes was the Courts attribute to the intention of the Legislature. The Minister who, in reliance on any ostensibly unfettered discretionary
power, refused to refer a complaint by milk producers to a committee of investigation because this might lead him into economic and political
difficulties, was held to have violated the unexpressed purpose for which the power of reference had been conferred and (according to a
somewhat hyperbolical interpretation of their Lordships comments) was foundly rebuked by the House of Lords for his impudence.
As to what is bad faith, at page 293 it is stated:
The concept of bad faith eludes precise definition, but in relation to the exercise of statutory powers it may be said to comprise dishonesty (or
fraud) and malice. A power is exercised fraudulently if its repository intends to achieve an object other than that of which he believes the power to
have been conferred. His intention may be to promote another public interest or private interests. A power is exercised maliciously if its repository
is motivated by personal animosity towards who are directly affected by its exercise.
If a discretionary power has been exercised for an unauthorised purpose it is generally immaterial whether its repository was acting in good faith or
in bad faith.
Administrative law by Wade (second, edition, page 63) is referred to, on the aspect of motives, and it is stated therein as follows:
In all the law of judicial control perhaps the central topic is the question how far the Courts will go in investigating the motives and merits of
government action. Abuse of newer is not confined to cases where the wrong thing is come, or the right thing is done by the wrong procedure the
right thing may be done by the right procedure, but on the wrong grounds. Connection with this is the question of reasonableness can the law
prevents powers being exercised, unreasonably. Here the Courts meet many difficult conundrums. The doctrines of law are, once again, easy to
state. The difficulty lies in applying them.
Bad faith, dishonesty�those of course stand by themselves unreasonableness, attention given to extraneous circumstances discharged of public
policy and things like that have all been referred to, according to the facts of individual cases, as being matters which are relevant to the question. If
they cannot all be confined under one head, they at any rate ever lap to very great extent for instance, we have heard in his case a great deal about
the meaning of the word ''unreasonable''.
It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with phraseology commonly used in relation to
exercise of statutory discretions often used the word ''unreasonable'' in a rather comprehensive sense. It has frequently been used and is frequently
used as a general description of the things that must not be done. For instance, a person, entrusted with a discretion must, so to speak, direct
himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration
matters which are irrelevant to what he has to consider. If he does not obey those Rules, he may truly be said and often is said to be acting
''unreasonably''. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority.
Warrington L.J., in Short v. Poole Corporation [1926] Ch. 66 gave the example of the red-haired teacher, dismissed because she had redhair.
That is unreasonable is one sense. In another it is taking into consideration extraneous matters. It is so unreasonable that it might almost be
described as being done in bad faith, and in fact, all these things run into one another.
He then refers to Garner on Administrative Law (page 138) It is stated:
It is by no means clear that an English Court would be prepared to go so far as this: ''bad faith'' in this country is recognised as a vitiating element in
an administrative decision only, it seems, as a special facet of the ultra vires doctrine. This attitude is perhaps due to the great respect shown to the
ipsissima verba of a statute, which itself comes from the doctrine of the supremacy of Parliament. Another and what appears to be more
appropriate, name for this variety of ultra vires, is wrong motive'' it is sometimes described as ''abuse of power'', but if the inferior administrative
authority is acting completely within its powers, there seems to be no question of its decision, being excluded on the ground of that power having
been abused.
Relying on the aforesaid decision and the relevant extracts in the treatises as extracted above, he contents that in the instant matter, the
dominant purpose that prevailed with the third Respondent was to transfer the Petitioner on a Sunday without even verifying whether vacancy is
available in Madurai or not. The hasty impugned order was passed because of the fit of temper into which he got into while discussing with the
members of the Association on 18th September, 1981, followed by the statement made by him that he would cut the Association to its size. He
relies upon the following factors as censtituting the mala fide intentions of the third Respondent.
(1) Impugned order was passed on a Sunday.
(2) It was not drawn as a proceeding by the Director, but as an office order signed by the third Respondent on behalf of the second Respondent.
(3) Transfer is a subject dealt with in F.1 Section as per office Order No. 480, dated 4th March, 1980, whereas it was processed in F.2 Section,
which is contrary to established procedure in the office.
(4) Except in the case of the Petitioner and Mr. K. Gopal no other transfer order hitherto had been processed by F.2 Section.
(5) When no vacancy existed at Madurai, a hasty order of transfer had been passed and later on attempts were made to secure a posting for him.
(6) When Staff Association office bearers met the third Respondent on 18th September, 1981, be exhibited a fit of temper and asked them to get
out of his office which was the main reason for instantaneous transfer, because he was felt his pride wounded for reasons best known to him.
(7) Letter dated 28th September 1981 written by him exposes his anxiety to get the Petitioner a posting at Madurai, even of somebody is to rejoin
duty and such a person to be posted elsewhere.
(8) Except for Petitioner and Mr. K. Gopal. another office bearer of another association, no other Assistant had ever been transferred, without
securing their consent.
(9) No circumstances are made out in the counter affidavit as to what administrative exigency existed for the transfer.
(10) The reason given for writing letter dated 28th September, 1981 to the effect that it was done to enable the Petitioner to secure his salary
without any delay, shows that this imaginary ground could have never existed while writing the said letter and hence the false excuse trotted out
shows that third Respondent had ulterior motives and vindictiveness as against him.
Relying on these factors it is contended that the dominant purpose was the personal prejudicies entertained by Respondent and therefore when
the orders of transfer, had been resorted, to satisfy his personal feelings it is vitiated by malafides.
On behalf of the Respondents it is admitted that on 18th September 1981, discussions were held the office bearers of the Staff Association by
the Third Respondent and that no incident of flaring up or any shouting as alleged ever took place, where it was the Petitioner who exhibited
defiant behavior. Apart from it, a meeting was held on 19th September 1981 without obtaining permission and it was conducted in office premises.
It was the Petitioner who made certain derogatory remarks against the Minister for Education, and consequently, the entire work of the office had
come to a stand still. When it was felt that the smooth functioning of the office got hampered, and when the work to, be discharged had to be done
with strict discipline and integrity in the face of the incident on 19th September 1981 third Respondent bona fide thought that to tone up the
administration and in the interests of the administration the Petitioner should be transferred out of Madras. As for the letter dated 28th September
1981 it is claimed that such a letter was written mere in the interests of the Petitioner to get his salary etc., without delay and nor with any mala fide
intention. As for the other claims made it was stated that there was no legality in passing the order on Sunday and issue of a memo of transfer
processed through F. 1 Section, was part of the functioning of the office and there is no hard and fast Rule that by processing such papers and
different Section it would result in any legality, and that, no assurance was ever, given for the Petitioner to be retransferred in and the impugned
order was only an administrative action on and was not intended as a punishment.
Applying the decision above referred to the dominant purpose for the transfer has to be determined. It can no longer be disputed by Petitioner
that he is not liable to be transfer in the light of what has been already pointed out. Therefore, second Respondent had the necessary jurisdiction to
transfer him on administrative grounds. In the counter affidavit it is asserted that the impugned order was passed for the following reason.
After the incident on 19th September 1981 referred to above I bonafide thought that to tone up the administration and in the interests of the
administration the Petitioner should be transferred out of Madras City.
The preceding vents, as pointed out above, go to show that the Staff Association had asked for a discussion with the author ties in letters dated 1st
August 1981, 28th August 1981 and 14th September 1981. On 18th September 1981 the discussions were held. Immediately after the discuss on
a letter was sent by the Association to the second, Respondent stating that the third Respondent herein had threatened them by stating that if he is
so minded he can do anything with them and also used impolite words and that if such an approach is made, the functioning of the office would be
hampered and that to condemn the aggressive attitude of the third Respondent, an 19th September 1981 during lunch hour it has been resolved to
hold a meeting. It was on 19th September 1981 the Petitioner had conducted the meeting and addressed the gathering during lunch time, without
obtaining permission. The effect of the meeting was immediately felt in the office, in that, the entire work of the office had come to a stand still.
When such was the resultant, effect, on what had been done by the Petitioner, third Respondent had thought t necessary, as an administrative
exigency, to transfer the Petitioner. It is not denied by the Petitioner that a meeting was held during lunch time on 19th September, 1981.
The specific averment made about holding of the meeting without prior permission, is sought to be refuted by relying upon G.O. Ms. No.
1875, (Public Services B), dated 10th November, 1961 and by claiming that there is no need to get prior permission and it is enough if the
Director is informed about the same. It is further claimed that the Director without knowing that there was a G.O. had come forward, to claim
about an irregularity committed by the Association. In the G.O. it is stated that before holding a meeting the prior permission must be obtained and
there can be no objection to grant a standing permission, subject to compliance with such condition as may be specified. As far as this Association
is concerned, no standing permission had been ever, issued, nor is it in a position to produce an order to that effect. Hence the holding of the
meeting on 19th September 1981, and particularly during lunch time without prior permission was highly an improper act. Petitioner ought not to
have indulged in holding a meeting and addressing the gathering during lunch time. When asked as to which is the lunch time for the office it is
admitted that there is no fixed lunch hour in the office. If so, he has addressed a meeting which had disturbed the normal functioning of the office.
Added to it, immediately, after the meeting, the entire work in the office had come to a stand-still. It is nothing uncommon for such a situation to
develop, because after hearing explosive speeches, the personnel in an office seldom settled down to normally. When it is an office, where time
bound work had to be preformed with strict discipline and integrity, and because of the activities of the Petitioner, it was disturbed, administrative
exigency had set in for posting him to another place. For what he had done, nothing could have precluded the authorities to initiate disciplinary
action. Perhaps it was thought that what was immediately required was that, by Monday morning when the office assembles, the contended
presence of the Petitioner in the office would further affect its work and hence urgent orders of transfer be passed on Sunday. When such incidents
occur, administrative exigency sets in and then it cannot be assailed that the transfer was effected without any cause whatsoever or due to non
existing factors. When a relevant purpose for the transfer had been made out in the light of the decisions above referred to, it must be further seen
whether irrelevant purposes have come into play and whether they have assumed the dominant role.
It will be useful to refer to each one of the factors adverted to by the Petitioner to constitute mala fides and to find out whether in totality they
constitute a dominant purpose for transfer. First, it is stated that the order was passed on a Sunday. There is no illegality in passing an emergent
order of transfer on a Sunday. There have been instances, where telegraphic transfers have been effected. For routine functioning of the
Government, certain convenient hours of business have been evolved, but it does not preclude a governmental authority to exercise powers day
and night i.e., all the 24 hours. Rather, so far as a Government servant is concerned, heirs duty-bound to be called for duty, irrespective of the
fixed office hours, which have been evolved only for convenient discharge of Governmental functions vis a vis members of public.
Regarding the transfer order being processed by F. 1 Section instead of F. 2 Section, it is open to the Head of the Department to get the
administrative work arrived out by any Section in his office. Office Order No. 480, dated 4th March, 1980, does not stand in the way of having
the transfer order processed by F.2 Section, on a Sunday. No illegality exists in anyone of the Sections in an office dealing with any of the matters
pertaining to the office, contrary to internal arrangements.
The next objection is that, the order of transfer is in the form of a memo and not as proceeding issued by the Director as has happened
hitherto. On Sunday, the order having been passed, it was not put in the format of a proceeding, because third Respondent was taking decision on
what is to be done urgently.
The transfer of two of the office-bearers of the two associations, cannot be highlighted as visited with mala fides when, in so far as the
Petitioner is concerned as stated above, his activities had resulted in the working in the office being affected. One of them being sent to Coimbatore
and the other to Madurai, they being the only places available for transfer, cannot be a factor for construing mala fides.
It is then stated that, on 18th, September, 1981 itself Association had given in writing to the second Respondent about the behaviour of the
third Respondent during the course of the discussions held on that day, and that the transfer was effected out of vindictiveness of the third
Respondent. Even assuming that be had behaved in a fit of temper, which could have to a certain extent existed because even according to him, he
found the Petitioner exhibiting a very defiant behaviour. Naturally be had, reacted to such a behaviour by the Petitioner. If the earlier listed several
factors have co-assisted, as vitiating factors, then the alleged conduct of the third Respondent could have been one of the relevant factors. But on
what has been stated and in the background of the circumstances of the case the third Respondent might have reacted sharply to the manner in
which the Petitioner behaved during discussions, but, by itself it cannot be taken as a dominant ground which had resulted in the transfer order
being passed.
Considerable emphasis was laid on the letter written by third Respondent to the Regional Director at Madurai on 28th September, 1981
requesting him to allow the Petitioner to join duty, on the day when he reports, even if somebody else is due Back from Heave on the same day.
He has sought to impress upon him that Petitioner should positively be permitted to join duty when he turns up and if any other person returns from
leave and is not in a position to be accommodated in Madurai, because of the transfer of the Petitioner, then the third Respondent may be
informed, so that he may issue the necessary posting order for the other person. It is claimed that the wordings used and the emphasis laid, for
somehow allowing the Petitioner to join duty at Madurai go to show that third Respondent was personally motivated. It is contended by learned
Advocate-General that, having passed an order of transfer because of an administrative exigency that had existed in the Madras office, naturally
the third Respondent thought it fit to write the said letter, so that there may not be any dislocation caused on the impugned order having been
passed. Quite rightly he contends that, having issued an order of transfer in an emergency naturally the office at Madras, which alone monitors the
transfers, had to ascertain in about the staff position prevailing in the other offices, so that follow up orders could be passed, if circumstances
warrant.
There is considerable force in the submission by the learned Advocate-General, because a need was felt by the Madras Office that the
continued pressure of the Petitioner in the office would affect its normal working and once such an assessment had been made, he had a duty to
avoid dislocation in the other offices, consequent to the two order of transfer passed on the same day. Apart from Madras office, only in
Coimbatore and Madurai Regional Offices exist there these personnel could be posted. When such a limited area of posting exists naturally the
third Respondent felt that the Petitioner should be accommodated in Madurai office, and if anybody is dislocated in the said office, then suitable
order of transfers could be passed by him for the other assistants. When the entire endeavour of the third Respondent was to get the works in the
office done by the staff he had evidently thought that the dislocated personal in the Regional Office could be taken into Madras office or sent to
Coimbatore office, depending upon the work requirements. But for passing the impugned order, he would not have written the letter, dated 28th
September, 198]. If the Petitioner had not, created the situation in the office, which warranted certain quick action to be taken, certainly, as
centended by him, the transfer order would have been passed only after ascertaining vacancy position at Madurai. Having been forced to take a
quick decision, the third Respondent had to write the said letter to bring the order of transfer into effect, rather then allow it to be delayed by other
causes. Hence, the attempt made to spell out mala fides out of this letter, necessarily fails.
Lastly it is pleaded that no circumstances are made out in the counter-affidavit as to what are the administrative exigencies which existed. This
claim is made, overlooking the firm claim made in the counter affidavit that it is after the incident on 19th September 1981, and when, the entire
work of the office had come to a stand-still, the bona fide opinion had been arrived at that in the interests of the administration the Petitioner should
be transferred. The proceeding events, as narrated earlier, justify the claim that the decision to transfer was arrived at on bona fide considerations.
If order by Director had been passed on Monday, by issuing the usual proceedings, perhaps many to these claims of attributing motives could not
have been made. If at all anything could be said, it can only refer to the behaviour which he had exhibited when the discussions were held, of which
the Association had put it on record on 18th September 1981 itself. To a limited extent, there is acceptable material about the temper exhibited by
the third Respondent provoked only by the conduct of Petitioner, but in taking the totality of circumstances, whatever feeling he had entertained on
the outcome of the meeting of 18th September, 1981 and on what he witnessed on 19th September, 1981 during lunch time, would not constitute
the dominant purpose to infer mala fides.
If a transfer order had been passed, immediately following the discussions on 18th, them it would have been, for satisfying the personal desires
or hostilities of the third Respondent, who got enraged during the meeting on being provoked by the behaviour of Petitioner, which will be a totally
extraneous factor, and which cannot be a ground for transfer. When the work of the office got affected an holding an unauthorised meeting at a
time when it should not have been held, it is the Petitioner who had brought about an administrative exigency to pass the order of transfer which
has turned out to be the dominent purpose.
The learned Advocate-General pleads that the writ petition ought to have been dismissed in limine, it having been filed on28th July, 1982
challenging the transfer order passed a year earlier on 20th September 1981, The writ petition having been entertained without going into this point
on this sole ground, at the stage, it cannot be dismissed. It might have been a relevant factor when the petition came up for admission. Petitioner
claims that it was only just before the filing of the petition, he came across the confidential letter, dated 28th September, 1981, and it made him to
realise the vindictive and mala fide acts committed by the third Respondent. At the same time, he pleads that, immediately after the transfer order
as passed, he was auured by the third Respondent that he would be re transferred within, two months. If the order had been passed with
malafides, zas alleged, no such assurance could have been extracted from third Respondent. According to the Petitioner, he was making
representations and hoping to be re-transferred to Madras, and that only after coming across the letter, dated 28th September, 1981, he realised
that there is no scope for him to get a re-transfer. Filing a petition challenging an order as illegal or mala fide, within a period of one year, cannot be
rejected on the ground of laches. Perhaps the Petitioner was entertaining fond hopes that, in spite of whatever had happened, he may get a re-
posting, and there may not be any need for him to indulge in litigation. Perhaps he had taken a longer time to realise what course of action he could
pursue. Hence, on this ground, this petition cannot be dismissed.
Since Petitioner had also claimed that in any event the impugned order passed by Additional Director styled as for Director is illegal in the
concluding stages, it was felt that it would be necessary to find out as to whether on earlier occasions, it was the Director, who passed orders of
transfer or it was done by the Additional Director as claimed, and whether he was authorised to pass orders. This has resulted in the Respondents
coming forward to clarify this position, by filing a supplemental counter-affidavit, dated 21st October, 1982 stating the circumstances under which
the then Additional Director came to he conferred with powers to pass then impugned order of transfer. The present Director, who was then
Additional Director, has sworn to the counter-affidavit stating that he was appointed zas Additional Director with effect from 27th August, 1981
and from that date he was asked by the then Director to the in overall charge of the office administration. The matter of giving powers was decided
by the then Director even when he joined the post of Additional Director though it too some time for the matter to be processed and powers
delegated to him through the Office order No. 14/81, dated 21st September, 1981. When Director had empowered him as a higher authority to
pass orders under Rule 40 of Tamil Nadu Services Manual�Volume I�State and Subordinate Services, he had passed the impugned order of
transfer. This was done because Secretary to the Director of Government Examinations was only in the rank of a District Educational Officer and
hence it was thought that the powers should be exercised by a higher grade officer consequent to the creation of the post of Additional Director.
All transfer orders have been signed by him For Directior and no transfer order of an Assistant had been ever signed by the Director personally.
The order of transfer was done only with the concurrance of the Director, and it was signed by him based on the powers delegated to him. Apart
from the confidential letter addressed to Regional Director, Madurai a similar letter was also sent to Coimbatore Office requesting to permit Mr.
K. Gopal to re-join duty without delay.
This supplemental counter-affidavit necessarily resulted in a lengthy reply-affidavit being filed claiming that two authorities could not have
exercised the same functions, and if permitted to be done, it would work at cross purposes. When no written office note had existed on the date of
the impugned order, the Additional Director did not have the authority to transfer the Petitioner. When Director had realised as early as 11th July,
1980 the Secretary to Director of Government Examinations alone could exercise powers of transfer and had sought for permission from the
Government to enable the Joint / now Additional Director to exercise the power of transfer, etc., in then meanwhile he could not have delegated his
powers to any other person when the only other person who could have done it was Secretary. When orders of transfer have been hitherto passed
only after securing the individual willingness or otherwise of the concerned person, the exception made in the case of the Petitioner clearly shows
the mala fide intention of the third Respondent. When the transfer order had not been passed by the secretary to Director, and now that it is
admitted by third Respondent that he had done it based on the powers delegated to him orally, the impugned order is illegal. The supplemental
counter-affidavit clearly shows that Thiru K. Gopalan had taken upon himself the responsibility to pass the order in a hurry on a Sunday, and it
being a motivated action, on the ground of illegality also, the order is invalid.
Mr. T.S. Subramaniam, learned Counsel for the Petitioner, contends that: (1) When statutory Rules have been framed under Article 309 of the
Constitution, conferring powers of transfer and posting only on the Secretary to Director, unless and until the Rules are amended, such powers
could not have been exercised by third Respondent. (2) when the office order No. 14/81 had been passed only on 21st September, 1981, it
cannot have retrospective effect, as to enable the third Respondent to pass the order on 20th September 1981. (3) There cannot be any oral
delegation of power by Director to Additional Director when it pertains to exercise of statutory functions. (4) G.O. Ms. No. 508, Education (A-1)
Department, dated 24th March, 1982 clearly shows that at the relevant point of time, only Secretary to Director was invested with powers of
transfer and posting in respect of Assistants (5) When Director had called for the list of persons, who were willing to be posted to the two
Regional Offices and acted upon the representations made by the Association, a tacit understanding was arrived at precluding Respondents from
transferring any unwilling Assistants outside Madras.
On the first point taken, undoubtedly when statutory Rules are in force, there can be no delegation of powers effected, unless the Rules
contemplated such application. Under Rule 40(b) all transfers and postings are to be effected by the appointing authority. Proviso to Rule 40(b)
enables any authority, to whom the appointing authority is administratively subordinate, and also be competent to effect transfers and postings
within the jurisdiction provided the appointing authority is not the State Government. On behalf of the Respondents, learned Advocate-General
submits that, when the proviso enables the administratively superior authorities to the appointing authority to exercise the powers of transfer and
posting, alongside the powers that could be exercised by the appointing authority the impugned order passed by the Additional Director was quite
valid, irrespective of any delegated powers he may claim, or even in the absence of G.O. Ms. No. 508, Education, dated 24th March 1982. He
submits that the expression any authority will included multiplicity of authorities who are all superior to the appointing authority. Therefore, when
Additional Director is administratively superior to Secretary to Director, who is the constituted authority under the Rules, the impugned order is
called, irrespective of the claim made by him that he had passed the impugned order, by virtue of the delegated powers given to him by the
Director.
If such a construction is put on the said proviso, it would lead to situations wherein conflicting orders would be passed by different authorities
without any restraint, resulting in administrative inefficiency. The proviso should receive strict construction and it is not for the Court to add words
to a proviso with a view to enlarge the scope, of it. It must be interpreted in a harmonious and reasonable manner and as conveyed by the words
used therein. The object of introducing a proviso, is to cut down or qualify something which has gone before it. It is in variously construed as
restricting the main provision or as a substantial clause. It cannot be diversed from the provisions to which it is attached, and hence invariably, an
harmonious construction is arrived at, bearing in mind what is contained in the main Section.
Therefore, when the proviso had to be read as a whole along with the main provision and also bearing in mind what would be the outcome of
an interpretation which would lead to an irrational application of the Rule, this Court considers that if the contention of the learned Advocate-
General is accepted, it would create more problems to the Administration than what is sought to be resolved by the said Rule. The power of
transfer and posting is initially conferred on the appointing authority. By envisaging certain difficulties that may be faced in the absence of the
appointing authority for one reason or other from Head quarters and the like in respect of those appointing authorities, who are not State
Government, the proviso had stepped in to state that such powers can also be exercised By any authority to whom the appointing authority is
administratively subordinate. The word any could not in the context in which it is placed include innumerable authorities who are all administratively
superior to the particular appointing authority,
Even in respect of postings and transfers there has to be consistency, and co-ordination. Orders emanating from different quarters without any
coordinating would lead to complications and also seriously affect, the service prospects of the personnel working in Government Offices. Merely
because an appointing authority happens to be administratively subordinate to innumerable superior officers, it would not confer power on each
one of them to exercise the powers under the proviso. The proper construction that could be put is to hold that only such authority, who is the main
administrative superior to all other superior authorities to whom the appointing authority is subordinate can alone exercise the powers of the
appointing authority. That was why Director delegated it to Additional Director on 21st September, 1981, thinking that it would be in order.
Otherwise third Respondent would not claim that he functioned as a delegated, authority. Secretary to Director is administratively subordinate only
to the Director, for the purposes of Rule 40, read with the Madras Ministerial Service Rules, which names him as the appointing authority in
respect of Assistants in the office of the Commissioner for Government Examinations. There are several office where innumerable Addition al
Directors, Joint Directors, Deputy Directors and Assistant Directors function under the Director and they are administratively superior to an
appointing authority in that office. Municipality of superiors may exist over a particularly authority, but other powers exercised would not enable
them to exercise the powers of transfers and postings also. The mischief which would ensue, by a wider interpretation being put upon it would be
far reaching. Therefore, the only reasonable manner of construing the provisions to hold that there can be only one name administratively superior
officer to the appointing authority for the purposes of Rule 40 (b) of the Rules. When the appointing author it is the Secretary to Director, it is only
the Director, who could be the authority under whom the appointing authority is administratively subordinate for Rule 40(b). Hence, the impugned
order passes on 20th September, 1981 by the third Respondent claiming that he had passed the impugned order based on the power delegated to
mi is illegal.
On the next point as to whether Director could have oral conferred powers on third Respondent to exercise powers under Rule 40(b) on such
oral instructions would ever be accepted in the parlance of Government Administration, particularly, when the power exercised is a statutory
power under the Rules framed under Article 309 of the Constitution. Claim of delegation itself show that Director is the only superior officer to
Secretary for Rule 40. No Director could have ever delegated his power orally, as claimed in the counter-affidavit. On the date when the order
was passed third Respondent could not have exercised any delegated powers in the supplemental counter-affidavit it is claimed as follows the
transfer orders was signed by me based on the powers delegated to me. When the power conferred or him is claimed to be on oral instructions
and particularly when Director had no jurisdiction to delegate his powers, it has to be held that he had no lawful authority to issue the impugned
order.
It is then contended on behalf of the Respondents that the order had the concurrence of the then Director, but he had not come forward to
swear in support of any such far reaching claims made by the present incumbent, who is the present Director, and who was the then Additional
Director. No affidavit had been sworn to by Mr. J.A. Rayan that he had issued any oral instructions or concurred with Mr. K. Gopala at the time
when the impugned order was passed. At one stage it was said that notes file would be produced when it suits authorities make this offer. When a
sworn statement is made that as delegated authority he passed orders then approval is uncalled for. Any entry in notes file of approval if
contradictory cannot be acted upon, as correct. Additional Director had been directed in clause No. 2 of Office Order No. 14/18 to send the files
for transfers and postings through the Secretary This shows that the then Director was quite aware of the nature of the statutory Rules and to what
extent the Additional Director could not exercise powers of transfers and posting. That had been done was to enable him to process the palers as
his subordinate but send these files through the Secretary, because he was the statutory authority, who could exercise the powers of transfers and
postings, apart from the Director. When such is the limitation of powers conferred on the Additional Director, he had hastened to pass orders on a
Sunday, when he had no authority to pass such orders. Signing it as for Director would not make it valid when the power under Rule 40 cannot be
exercised by him. It is claimed that several orders have been signed by him for Director and that the former Director had not signed any orders of
transfers, after the Additional Director was appointed. Merely, because illegalities and irregularities have been perpetrated hitherto in several
orders, it would not confer power on such an authority, who had no right to pass orders of transfers or postings under the so called delegated
powers.
As for the contention that G.O. Ms. No. 608, Education dated 24th March, 1982, itself clearly discloses that until the said G.O. was passed,
only the Secretary could have passed orders of transfer, this contention overlooks the scope of the said G.O. It was riot a G.O. seeking for
permission of the Government to confer power to transfer on the Additional Director to be exercised along with the Secretary to Director. The
proposal was to amend the statutory Rule so that the power of transfer on the Secretary can be taken away and conferred on the Additional
Director. Once the Rules are framed, then in the place of Secretary it would be the Additional Director, who would be the appointing authority
under Madras Ministerial Subordinate Service Rules. Therefore, this G.O. could have not bearing on the points already considered. On the Rules
being amended, the appointing authority will be Additional Director and his superior Officer being the Director, he would also exercise the powers
of transfer end posting as per the proviso to Rule 40(b).
On the last contention, raised that a tacit understanding has come by because the then Director had by a circular called the names to be
furnished for transfers to be effected to the Regional Offices, this Court considers that, when Government as per the statutory Rules, has the
authority to transfer Assistants to any office of the department anywhere situate, such an act if any done by him in the past cannot be construed as
any acquiescence on the part of the Government. If such thing had been, done by the Director, it was a thoughtless manner of exercising powers of
transfer. When the power of posting and transfer is conferred on the statutory authority under the Rules, it will have to be enforced without going
through such exercise. If done, it would lead to embarrassing claims being made leading to a situation in which the constituted authority cannot
transfer unless the incumbent''s willingness is secured. Whatever has happened, and whatever is claimed to have been done by the then Director
not being sanctioned by Rules, the plea of acquiesce or estoppel, is not accepted by this Court. Hence, the impugned order is illegal having been
passed by third Respondent without authority. He had the power to process papers for decision to be taken by appointing authority by forwarding
the required particulars which call for transfer orders to be passed, due to administrative exigencies. He can get them done in any Section of the
office on a Sunday etc. After Secretary to Director or the Director as the case may be passes orders, he can follow it up for quick implementation
by addressing Regional Offices. Except the decision taken, follows by the impugned order, all other preparations and follow up acts done, were
part of his duties.
Before concluding, there are certain aspects which require to be referred to. It is claimed by Respondents that a confidential letter dated,29th
September,1981 should not have been relied upon by the Petitioner, in this writ petition. Petitioner states that such letters are found in the files and
they are not so confidential, as claimed to be. It is for the Government to decide as to which of the categories of letters are to be treated as
confidential, and whether this letter falls under a category which should not have been got at by the Petitioner This aspect is not dealt with in this
order, and depending upon, Rules and other regulations, it is for the Respondents to decide on any course of action which they may choose to
take. As for Courts, they would never encourage nor condone contraventions of Rules and regulations pertaining to correspondence which require
to be treated as inaccessible to certain categories of Government employees.
Petitioner relies upon G.O. Ms. No. 1875 and claims that a blanket permission could be secured. Securing permission for each meeting from
the authority having administrative control over premises, would sufficiently safeguard the interests of the administration. A standing permission
would result in holding meeting at any time, which would inconvenience members of the public who would have access to public offices. Learned
Advocate-General was asked as to why such a permission should be extended which would disrupt the normal functioning of the offices, without
the Officer in charge of the office being aware of what was happening or likely to happen. It is seen that a meeting was held during lunch hour on
19th September 1981 which had ultimately disrupted work in the office. There is no fixed lunch hour for the offices. Holding of meeting during
working hours inconveniences member of the public considerably and if unsocial elements take advantage of the situation, it may even result in
valuable records being destroyed, apart from other forceable consequences. When an enablement is made to get permission on each occasion a
standing permission would only result in what had happened in the instant case being repeated. Only when such things happen it gives an
opportunity to Government to rethink as to whether the G.O. passed 20 years back calls for revision or not, on this aspect.
In the counter affidavit filed by Respondents 2 and 3, it has been sworn to by Director of Government Examinations. But both the deponent
and the attestor have signed below the jurat and the words before me. He cannot plead that he is ignorant of the place where he should affix his
signature, having been acquainted with the filing of a counter-affidavits in Courts during all these years. Even for a small error committed by a
student un submitting applications, they are rejected and no opportunity is given for correction the applications. When such is the situation, he had
executed to counter affidavit, in an improper manner. The fallacy of it is in the adoption of counter affidavit, Deputy Secretary to Government and
attestors have put their signatures above the jurat. This sort of filing counter-affidavits with other errors as well was pointed out to the learned
Advocate-General. This is not the only occasion when such errors are noticed. Government Pleader while filing counter-affidavit ought to have
checked it since the learned Advocate-General had stated that he would, address the Government to avoid such errors being committed, though
for such errors committed cost is awarded, in this case no such order is passed on that ground.
Hence, for all these reasons, the writ petition is allowed with costs. Re-posting order to be passed before 6th December, 1982. Post on 8th
December, 1982, to report about compliance of this order.