Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7936 OF 2011
ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 647 OF 2009
The Registrar General
High Court of Judicature at Madras ...Petitioner(s)
Versus
R. Perachi and others ...Respondent(s)
J U D G E M E N T
H.L. Gokhale, J.
Leave Granted.
2. This appeal by Special Leave seeks to challenge the judgment
and order dated 28.08.2008 passed by a Division Bench of the Madras High
Court (at Madurai Bench) in W.P. (MD) No.7121/2007. The Division Bench has
allowed the writ petition filed by the first respondent who is working as a
Sheristadar in the District Judicial Service in the State of Tamil Nadu.
3. The Division Bench by its impugned judgement and order has
quashed and set-aside the transfer of the first respondent from District
Thoothukudi to District Ramanathapuram, and directed the High Court to
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restore him in District Thoothukudi with his seniority, and confer on him the
post of Personal Assistant (P.A.) to the District Judge, Thoothukudi.
Facts leadings to this appeal are as follows -
4. The first respondent joined the Tamil Nadu Judicial Ministerial
Service as a Typist on 11.4.1979, and was initially posted in the Court of
Judicial Magistrate II Class at Kovilpatti in District Thoothukudi (formerly known
as Tuticorin). Over the period he was promoted from time to time and from
15.10.2001 onwards he was working as Sheristadar Category I in Court of
Principal District Judge, Thoothukudi. He was also holding the additional
charge of the post of P.A. to the District Judge, Thoothukudi, since that post
had fallen vacant. It is his case that he was expecting the regular promotion in
the post of P.A. to the District Judge.
5. It so transpired that the first respondent alongwith other two
employees in the District, that is one S. Kuttiapa Esakki, Sheristadar, Sub-
Court, Kovilpatti and one T.C. Shankar, Head Clerk in the Court of Principal
District Judge, Thoothukudi came to be transferred outside the district by order
dated 19.9.2006 issued by the appellant on behalf of the High Court on
administrative grounds. These other two employees filed writ petitions bearing
nos. WP (MD) No.9378 and 10528 of 2006 before the Madurai Bench of Madras
High Court, but the petitions came to be dismissed by the High Court by its
order dated 20.4.2007. The first respondent did not challenge his transfer at
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that time and joined at the place where he was transferred in district
Ramanathapuram.
6. The first respondent came to know that the post of P.A. to the
District Judge, Thoothukudi was being filled, and on 21.4.2007 he made a
representation to the Principal District Judge, Thoothukudi, the respondent
no.2 herein for being considered for that post. The first respondent learnt that
the fourth respondent was promoted to that post of P.A. to the District Judge
though he was due to retire shortly on 31.8.2007. He is junior to the first
respondent as well as to the third respondent. Third respondent went on
medical leave in July 2007 and that is how fourth respondent was promoted to
that post. Later on, the first respondent learnt that he was not considered for
this post for the reason that he was already transferred outside that district,
and the reasons for the decision were recorded in the proceeding of the second
respondent dated 6.6.2007.
7. At this stage the first respondent obtained necessary information
by filing an application under the Right to Information Act, 2005 and then filed
a writ petition on 24.8.2007 bearing W.P. (MD) No.7121/2007 before the
Madurai Bench, and prayed that the proceeding dated 6.6.2007 bearing
No.2697 concerning his non-consideration for that post be called from the file
of the second respondent, and be quashed and set-aside. He also prayed that
a selection panel be prepared for the post of P.A. to the District Judge,
Thoothukudi by including his name in that panel, and necessary orders be
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passed. The Principal District Judge was joined as the first respondent, the
High Court was joined as the respondent no.2, and the two concerned
employees were joined as respondent no.3 and 4 in that petition.
8. The first respondent contended in his petition that in spite of his
transfer from District Thoothukudi, he retained his lien on his post in that
district. That was the basis of his prayers. He did not challenge his transfer
from that district. It is material to note what is stated in paragraph 8 of his
affidavit in support of his writ petition. This para reads as follows:-
"8. I submit that the 2nd respondent is well within his
powers to transfer any employee from one district to another
district on administrative grounds and there was no malafide
exercise in the present transfers. However, the 3rd and 4th
respondents were left out though they too were the candidates. In
any case, one cannot challenge the transfers but the same shall
not have the effect of obliterating the lien I hold and any right to
be considered for the promotion as PA to the District Judge,
Thoothukudi."
Thus, it would be seen that the first respondent accepted that it
was within the powers of the appellant, i.e. the Registrar General representing
High Court Administration to transfer the employees from one district to
another, and there was no malafide exercise in the present transfer. His only
submission was that he retained his lien on his post in district Thoothukudi in
spite of his transfer therefrom, and he should be considered for promotion to
the post of P.A. in that district.
9. The writ petition was opposed by the second respondent herein
i.e. by the District Judge, Thoothukudi by filing an affidavit dated 20.3.2008.
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He pointed out that the first respondent was transferred outside district
Thoothukudi alongwith earlier mentioned two employees S. Kuttiapa Esakki and
T.C. Shankar by the High Court under a common order on the basis of a
confidential letter received from the then Principal District Judge, Thoothukudi.
The District Judge also pointed out in his affidavit that the first respondent can
claim appropriate promotion in the district where he was transferred on the
basis of his original seniority, but he can no longer claim it in district
Thoothukudi wherein he had lost his lien. He referred to Rule 14(A) (d) of the
Fundamental Rules of Tamil Nadu Government which lays down that the lien of
a Government servant on his post shall stand terminated on his acquiring lien
on another permanent post.
10. It was therefore, pointed out in the affidavit that after the writ
petitions filed by the earlier mentioned two employees were dismissed, the
employees who were in the zone of consideration were considered for the
promotion to the post of P.A. to District Judge, Thoothukudi, and the selection
was made after considering the merit, ability and seniority of the candidates
concerned as per rules 8 and 19 of Tamil Nadu Judicial Ministerial Service
Rules. As far as the claim of the first respondent to the lien on a post in
Thoothukudi is concerned, it was pointed out that first respondent had not
challenged his transfer from Thoothukudi. It was, therefore, submitted that
the petition be dismissed. Since, the above referred Rule 14-A was relied
upon, we may quote the same which reads as follows:-
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"14-A:
(a) Except as provided in clauses (c) and (d) of this rule,
a Government servant's lien on a post may, in no
circumstances be terminated, even with his consent,
if the result will be to leave him without a lien or a
suspended lien upon a permanent post.
(b) Deleted.
(c) Notwithstanding the provisions of Rule 14(a), the lien
of a Government servant holding substantively a
permanent post shall be terminated while on refused
leave granted after the date of retirement under Rule
86 or corresponding other rules. Vide G.O.829,
Personnel and Administrative Reforms Department,
dated 26.8.1985.
(d) A Government servant's lien on a post shall stand
terminated on his acquiring a lien on a permanent
post (whether under the Government or the Central
Government or any other State Governments) outside
the cadre on which he is borne."
11. A counter affidavit dated 18.7.2008 was filed by the then
Registrar of the High Court , and it was pointed out that the first respondent
himself had not alleged any malafides to challenge his transfer. He had also
admitted that transfer was within the powers of the High Court Administration.
The affidavit stated that the transfers were effected on the basis of the
report/directions received from the Vigilance Cell of the Madras High Court,
however, the transferred employee will retain his seniority in the
Ramanathapuram district under explanation 1 of Rule 39 of the Tamil Nadu
Judicial Ministerial Service Rule right from the date of his first appointment in
Thoothukudi district.
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12. In view of these affidavits filed in reply to his petition, the first
respondent amended his petition nearly after nine months by filing an
application dated 21.4.2008 with supporting affidavit, and now sought to add
the prayer that the records relating to the transfer order dated 19.9.2006 be
also called from the files of the High Court, and the same be quashed and set-
aside.
13. The amended petition was opposed by the then Registrar General
of the High Court by filing one more affidavit dated 1.8.2008. She pointed out
that the first respondent was transferred along with two other employees
outside the district Thoothukudi on administrative grounds by the High Court
under administrative proceeding dated 19.9.2006. She also pointed out that a
complaint had been received from the staff of the judicial department of that
district by the Vigilance department of the High Court on 2.1.2006. The
complaint stated that the first respondent along with some other employees
had formed a coterie in the District Court and they were dominating the District
Administration whereby the Court was suffering in its work, and therefore
these employees be transferred to other district. That letter was forwarded to
the District Judge, Thoothukudi for his comments, who in turn wrote back to
the High Court on 28.4.2006 placing it on record that departmental enquiries
were pending against the first respondent and three other employees on the
charges of corruption. The District Judge had also opined that if these
employees were continued in the district, the administration would be very
8
much spoiled. It is, therefore, that the High Court Administration directed that
the first respondent and the concerned employees be transferred outside the
district on administrative grounds. There was no malafide intention
whatsoever in these transfers.
14. Thereafter the first respondent sent a mercy petition to the High
Court submitting that he was on the verge of promotion to a higher post viz.,
that of P.A., and therefore, he may be promoted in district Thoothukudi and if
necessary be transferred to the nearest district Tirunelveli. The High Court
considered that representation but rejected it by its proceeding dated 8.5.2007.
Incidentally, Ramanathapuram is also a district adjoining Thoothukudi.
15. The writ petition was thereafter considered by a Division Bench of
the Madras High Court at Madurai which passed the impugned order. The High
Court did not accept the plea of the first respondent that he retained a lien in
district Thoothukudi. It held that his lien in that district stood terminated in
view of the above referred Rule 14 (A) (d) of the Fundamental Rules, and also
in view of the proposition laid down by this Court in Jagdish Lal Vs. State of
Haryana reported in [1997 (6) SCC 538], that an employee cannot
simultaneously claim a lien on two posts. The Division Bench also did not find
any error in the proceeding / order dated 6.6.2007 of the Principal District
Judge, Thoothukudi wherein he had recorded that the first respondent could
not be taken up for consideration for promotion in district Thoothukudi, since
he had been transferred outside that district.
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16. The Division Bench, however, held that although the High Court
had the power to transfer the first respondent from one District unit to another
unit, it had to be seen whether such power had been exercised by a competent
authority or not. The Division Bench further held in para 20 of its judgment
that as per Article 216 of the Constitution, High Court means `the Chief Justice
and his companion Judges and the matter should have been placed before the
full Court'. The bench also observed that in any case no committee had been
constituted by the High Court in that matter before taking the decision to
transfer, and the impugned transfer was a unilateral decision taken by the then
Honourable Chief Justice of Madras High Court. If such prior steps were taken,
the order could have been held to be valid as per the judgment of this Court in
High Court of Judicature at Bombay Vs. Shirishkumar Rangrao Patil
reported in [1997 (6) SCC 339]. At the end of para 20 of its judgment, the
Court held as follows:-
"20................At the cost of repetition it is to be held that
no such Committee has been appointed or the matter has been
placed before the Full Court and painfully the impugned decision
has been taken unilaterally by the then Honourable Chief Justice of
the Madras High Court, which has been communicated through the
second respondent/Registrar General, which cannot be said to be
satisfying the meaning of `High Court' embodied in the
Constitution. On this ground also, the impugned transfer order is
liable to be set aside."
17. The Division Bench thereafter noted that the impugned order of
transfer had been passed on an anonymous letter and thereafter on the basis
of a report from the District Judge and after ordering of a vigilance enquiry.
10
The Division Bench referred to three judgments of this Court in Ishwar Chand
Jain Vs. High Court Punjab and Haryana reported in [1988 (3) SCC
370], K.P. Tiwari Vs. State of M.P. reported in [1994 Suppl. (1) SCC
540] and Ramesh Chander Singh Vs. High Court Allahabad reported in
[2007 (4) SCC 247] and also to Centre for Public Interest Litigation Vs.
Union of India reported in [2005 (8) SCC 202] and thereafter observed in
paragraph 25 and 26 as follows:-
"25. Thus, it has been time and again held by the
Honourable Apex Court that it is the duty of the higher judiciary to
protect the officers of the lower judiciary from the persons, who
make reckless, baseless and unfounded allegations, by way of
anonymous petitions. The same reasoning would apply even in the
case of staff members. Admittedly, in the case on hand, the
impugned action has been initiated pursuant to an anonymous
petition received.........."
26. None of these aspects have been taken into
consideration before ordering transfer of the petitioner. No doubt,
transfer is an incidence of service. But, since in the peculiar facts
and circumstances of the case on hand, where the impugned order
of transfer has served as a punishment on the petitioner, that too
without conducting any enquiry, since it has impaired his chances
of promotion besides reducing his cadre to that of the Sheristadar
of the Chief Judicial Magistrate's Court from that of the P.A. to the
District Judge, which he was enjoying even though as an additional
charge, as there are many more seniors in the Ramanathapuram
District, now a question would arise as to whether such an order of
transfer which worked as a punishment on the petitioner, is
sustainable under law."
18. The appellant had drawn the attention of the Division Bench to
the judgment of another Division Bench of Madras High Court in the case of
The Registrar of High Court of Madras Vs. Vasudevan, A.K. reported in
[1996 (1) MLJ 153]. In that matter complaints were received against court
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bailiffs working in the City Civil Court at Madras. After the vigilance cell held
discreet enquiries, they were transferred to various courts outside Madras on
administrative grounds. A Single Judge had set-aside those transfers by
holding them to be punitive. Allowing the Writ Appeal, the Division Bench had
held that the employer is entitled to consider whether the particular employee
is suitable to work in a particular place or to continue there. It is however to
be seen that transfer has not affected the service conditions in any way. The
Division Bench held that the order of transfer had not affected any of the
service conditions of the bailiffs and their chances of promotion were also not
diluted. Therefore, there was no question of providing any hearing as well.
19. The impugned judgment distinguished the judgment in
Vasudevan's case by observing that the promotional prospects of the first
respondent were affected in the present matter which was not so in
Vasudevan's case. The Division Bench observed that after obtaining the
remarks of the District Judge, the appellant ought to have issued a notice and
sought the explanation from the first respondent. It was therefore, of the view
that the first respondent had not been provided with any opportunity to explain
and the transfer was punitive. The Court, therefore, passed an order setting
aside the transfer, directing the appellant and the District Judge to immediately
restore the respondent no.1 and 2 at District Thoothukudi alongwith his
seniority, and confer on him the post of P.A. in that district, since, according to
the Division Bench except the order of impugned transfer, there was no other
12
impediment for his promotion. It is this order which is challenged in this
appeal. This Court has passed an order of status quo with respect to that
order during the pendency of this appeal.
Consideration of rival submissions -
20. We have heard the counsel for the appellant and for respondent
No. 1. There is no appearance for the other respondents though served. It
was submitted on behalf of the appellant that the decision of the Division
Bench was erroneous on both the grounds on which the Division Bench decided
against the appellant viz. (i) that the transfer was punitive and (ii) that it was
not passed by a competent authority. On the other hand, the counsel for the
first respondent reiterated the submissions made on his behalf before the High
Court, and submitted that the order did not deserve to be interfered with in
any manner whatsoever.
21. We have considered the submissions of both the counsel. As far
as the action of transfer against the first respondent was concerned, the same
was on the basis of the report of the Registrar (Vigilance). Besides, the District
Judge had also opined that retention of the appellant in his district was
undesirable from the point of view of administration. Thus, it involved inter-
district transfer. The respondent no.1 had not disputed the power of the High
Court to transfer him outside the district, nor did the division bench interfere
therein on that ground. This is apart from the fact that transfer is an incident
of service, and one cannot make a grievance if a transfer is made on the
13
administrative grounds, and without attaching any stigma which was so done in
the present case.
22. In the context of transfer of a govt. servant we may refer to the
dicta of this Court in N.K. Singh Vs. Union of India reported in [AIR 1995
SC 423] where this Court observed in para 22 as follows:-
"22..... Transfer of a government servant in a transferable
service is a necessary incident of the service career. Assessment
of the quality of men is to be made by the superiors taking into
account several factors including suitability of the person for a
particular post and exigencies of administration. Several
imponderables requiring formation of a subjective opinion in that
sphere may be involved, at times. The only realistic approach is to
leave it to the wisdom of the hierarchical superiors to make the
decision. Unless the decision is vitiated by mala fides or infraction
of any professed norm of principle governing the transfer, which
alone can be scrutinized judicially, there are no judicially
manageable standards for scrutinizing all transfers and the courts
lack the necessary expertise for personnel management of all
government departments. This must be left, in public interest, to
the departmental heads subject to the limited judicial scrutiny
indicated."
23. In State of Madhya Pradesh Vs. S.S. Kourav reported in
[AIR 1995 SC 1056], the Administrative Tribunal had interfered with the
transfer order of the respondent and directed him to be posted at a particular
place. It is relevant to note that while setting aside the order of the tribunal
this Court observed in para 4 of its judgment as follows:-
"4......The Courts or Tribunals are not appellate forums to
decide on transfers of officers on administrative grounds. The
wheels of administration should be allowed to run smoothly and
the Courts or Tribunals are not expected to interdict the working of
the administrative system by transferring the officers to proper
places. It is for the administration to take appropriate decision and
14
such decisions shall stand unless they are vitiated either by mala
fides or by extraneous consideration without any factual
background foundation. In this case we have seen that on the
administrative grounds the transfer orders came to be issued.
Therefore, we cannot go into the expediency of posting an officer
at a particular place."
We may mention that this Court has reiterated the legal position recently in
Airports Authority of India Vs. Rajeev Ratan Pandey reported in [2009
(8) SCC 337] that `in a matter of transfer of a govt. employee, the scope of
judicial review is limited and the High Court would not interfere with an order
of transfer lightly, be it at interim stage or final hearing. This is so because the
courts do not substitute their own decision in the matter of transfer.'
24. The Division Bench has however interfered with the order of
transfer on the ground that the transfer order was passed by the then Chief
Justice unilaterally, and he did not have the competence therefor. In rebuttal,
the appellant relied upon a Full Court Resolution dated 19.7.1993, and the text
thereof was placed before this Court. Item 3 thereof was regarding services of
Judicial Officers, and Ministerial and Menial Staff. The subject of "Vigilance Cell"
alongwith certain other subjects was specifically included therein as falling
within the jurisdiction of the Chief Justice alone. It was submitted that all
residuary subjects not allocated to the committee of Judges or any individual
Judge, remain within the jurisdiction of Chief Justice. Further, the Chief Justice
has to supervise the administration in the subordinate Courts also and has to
take the decisions in emergencies, on all necessary matters. It was also
submitted on behalf of the appellant that the Division Bench erred in not
15
accepting the propositions emanating from the judgment of the other Division
Bench in the case of A.K. Vasudevan (supra) which judgment had been left
undisturbed by this Court when a Special Leave Petition against the same was
dismissed.
25. The other ground on which the Division bench has set-aside the
transfer of the first respondent is that the transfer affected the promotional
prospects of the first respondent, and therefore it was punitive in nature.
According to the Division Bench but for the transfer there was no impediment
for the promotion of the first respondent, and therefore it directed his
promotion. The appellant pointed out in this behalf that an employee does not
have a right of promotion as such. He has only a right to be considered for
promotion, and even in the present case the District Judge had considered a
panel of persons who came in the zone of consideration, and thereafter
effected the promotion. The first respondent could not be included in that
panel since he was already transferred outside that district. It was therefore,
submitted that the Division Bench had erred in directing the promotion of the
first respondent to the post of P.A. to the District Judge and the order deserved
to be set-aside.
26. As far as the first ground on which the High Court has interfered
with the order of transfer is concerned, namely that it was not passed by a
competent authority, the appellant has produced the relevant material before
this Court which clearly shows that the Full Court had passed a resolution
16
under which the subject of vigilance enquiries was retained with the Chief
Justice. Besides, in view of the pending inquiry against the appellant, the
District Judge of Thoothukudi had expressed that it was not desirable to retain
the appellant in that district. The control of the High Court over the subordinate
courts under Article 235 of the Constitution includes general superintendence
of the working of the subordinate courts and their staff, since their appeals
against the orders of the District Judges lie to the High Court. (see R.M.
Gurjar Vs. High Court of Gujarat reported in AIR 1992 SC 2000). `The
word control referred to in Article 235 of the Constitution has been used in the
comprehensive sense and includes the control and superintendence of the High
Court over the subordinate courts and the persons manning them both on the
judicial and administrative side'. (see para 14 of Gauhati High Court Vs.
Kuladhar Phukan reported in [2002 (4) SCC 524]. This control over the
subordinate courts vests in the High Court as a whole. `However, the same
does not mean that a Full Court cannot authorize the Chief Justice in respect of
any matter whatsoever'. (see para 18 and 19 of High Court of Rajasthan
Vs. P.P. Singh & Anr. [2003 (4) SCC 239]. The Full Court of the Madras
High Court had passed a resolution way back in the year 1993 to retain the
subject of "Vigilance Cell" with the Chief Justice. Therefore, it was fully within
the authority of the then Chief Justice to take the decision to transfer the
appellant outside district Thoothukudi. The transfer was particularly necessary
in view of the complaint that was pending against him. The Division Bench has
observed that the complaint was an anonymous one. Even so, the same had
17
been looked into by the Vigilance Cell, and the District Judge had reported that
departmental enquiries were pending against the appellant and the other
employees against whom the complaint had been made. The District Judge
had also opined that it was undesirable to retain the appellant in his district
from the point of view of the administration of that district. In view of all these
factors, the Chief Justice had to take the necessary decision. It is, therefore,
difficult to accept the view of the Division Bench that the Chief Justice
unilaterally transferred the appellant outside the district, and the decision ought
to have been taken either by the Full Court or a Committee appointed by the
Full Court. In view of what is pointed out above, there was no reason for the
Division Bench to take such a view in the facts of the present matter.
27. The other ground on which the Division Bench has interfered with
the transfer order is that according to the Division Bench, but for this transfer
order there was no other impediment for the District Judge to promote the
respondent no.1. The Division Bench was of the view that the first respondent
had lost the opportunity of getting promoted to the post of P.A. to the District
Judge on account of this transfer, and therefore the same was punitive. As far
as this finding of the bench is concerned, it ought to have noted that the
transfer is an incident of service, and the first respondent himself had clearly
stated in para 8 of his affidavit in support of the petition that there was no
malafide exercise in the present transfer. As seen above, the transfer was
purely on the administrative ground in view of the pending complaint and
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departmental enquiry against first respondent. When a complaint against the
integrity of an employee is being investigated, very often he is transferred
outside the concerned unit. That is desirable from the point of view of the
administration as well as that of the employee. The complaint with respect to
the first respondent was that he was dominating the administration of the
District Judiciary, and the District Judge had reported that his retention in the
district was undesirable, and also that departmental enquiries were pending
against him and other employees, with respect to their integrity. In the
circumstances the decision of the then Chief Justice to transfer him outside
that district could not be faulted.
28. Besides, there is no right of promotion available to an employee.
He has a right to be considered for promotion which has been held to be a
fundamental right (see para 13 of S.B. Bhattacharjee Vs. S.D. Majumdar,
[2007 (10) SCC 513]. However, though a right to be considered for
promotion is a condition of service, mere chance of promotion is not (see para
15 of the Constitution Bench judgment in Mohd. Shujat Ali Vs. Union of
India, [AIR 1974 SC 1631].
29. The fact that the first respondent could not be considered for
promotion to the post of P.A. in district Thoothukudi was undoubtedly the
consequence of this transfer outside that district. However, in view of what is
stated above, that itself cannot make his transfer a punitive one. As rightly
stated by the then Registrar General in her affidavit before the High Court, the
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first respondent would be retaining his original seniority though he was
transferred in another district. He was in the cadre of Sheristadar and he
continued in that cadre in district Ramanathapuram after he was transferred to
that district. In district Thoothukudi, he was officiating as P.A to the District
Judge since that post was vacant, but his substantive post was that of
Sheristadar. The officiating work did not create any right in him to be
continued in the post of P.A. That was not also his case, and that is how he
had sought to be empanelled for being considered for the promotion to the
post of P.A, though in district Thoothukudi. Since the first respondent was no
longer in district Thoothukudi, obviously he could not be included in the panel
prepared for consideration for the post of P.A. in that district.
30. The first respondent was contending that his transfer was
punitive only because his promotional chances were affected. This controversy
is no longer res-integra. In Paresh Chandra Nandi Vs. Controller of
Stores, N.F. Railway [AIR 1971 SC 359] the situation was almost similar
though the grievance of the appellant was that on account of transfer of
respondents 4 to 8 into his department alongwith their lien, his chances for
promotion were materially affected. The appellant was working in the stores
department of the North East Frontier Railway. This Court however, noted that
the transfer was effected under the relevant rules on administrative grounds,
and it did not affect his pay in any way. The court held that the transfer of a
permanent employee alongwith the consequent transfer of his lien cannot be
20
challenged when the transfer is to a permanent post in the same cadre not
carrying less pay, even if such transfer materially affects chances for
promotion. In the present case the pay, position and seniority of the first
respondent was not affected by the impugned transfer, and therefore, the
same could not be said to be punitive merely because his promotional chances
got affected due to the transfer. Hence, there was no question of providing
him any opportunity of hearing at that stage before effecting the transfer, and
the order of transfer could not be faulted on that count as well.
31. Noting that the respondent No. 1 was transferred on account of
an anonymous complaint the Division Bench had referred to a few judgments
wherein this Court has emphasized the responsibility of the Higher Judiciary to
guard the judicial officers in the Subordinate Courts against unjustified
complaints. Ishwar Chand Jain (supra) was a case where the Advocates
who were not satisfied with the orders passed by the Appellant Judicial Officer
had made unjustified complaints against him. This Court had set-aside the
order of termination of services of the appellant which was based on these
complaints, and in that context observed that if complaints are entertained on
trifling matters relating to judicial orders which may have been upheld by the
High Court on the judicial side, no judicial officer would feel protected. In K.P.
Tiwari (supra) the High Court had made disparaging remarks, against the
appellant, a Judicial Officer, while recalling an unjustified bail order granted by
him. This Court had deprecated attributing of improper motives to the
21
subordinate officers. In Ramesh Chandra Singh (supra) disciplinary
proceedings were initiated by the High Court against the Appellant Judicial
Officer for a bail order which order could not be said to be unjustified. The
Disciplinary action was disapproved by this Court and the matter was remitted
to the Full Court for its consideration.
32. As can be seen from these judgments, they were all rendered in
altogether different context. In the present case we are concerned with a
Sheristadar who has been transferred on receiving a complaint, although an
anonymous one, but against whom a departmental inquiry is pending. He has
been transferred to another district though retaining him in the same cadre
with the same pay as well as his seniority. Such an action was fully justified
and within the authority of the High Court. No observations were made against
him, nor was any stigma attached. The reliance on the above three judgments
to interfere in such an order clearly shows a non-application of mind by the
Division Bench to the problem which the High Court Administration was faced
with, and which was being attended in accordance with the relevant rules. In
Centre for Public Interest Litigation (supra), the grievance was with
respect to the likely appointment of respondent No. 3 to the post of Chief
Secretary, Uttar Pradesh when she was facing criminal prosecution. This Court
had therefore directed that she be transferred to some other post in the
cadre/grade to which she belonged. It was in this context that the Court made
a general observation that, postings in sensitive posts should be made in
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transparent manner so that there is no scope for making grievance, though
grievances can be made for ulterior motive with the intention of damaging the
reputation of an officer who is likely to be appointed in a sensitive post. These
observations have also no application in the present case since all that has
happened is that first respondent has been transferred from one district to
another in view of a complaint received against him and a pending inquiry. It
cannot be said that the action was with a view to deny him any post. In fact
the first respondent himself had stated in his Writ Petition to the High Court
that there was no malafide exercise in his transfer.
33. The Division Bench also erred in ignoring that the first respondent
had been transferred under a common order alongwith two other employees
i.e. S. Kuttiapa Esakki, and one T.C. Shankar. The Writ Petitions filed by them
had been dismissed. Besides, a judgment of a co-ordinate bench in A.K.
Vasudevan was cited before the Division Bench wherein the facts were almost
identical. It was therefore, not expected of the Division Bench to take a
different view from the point of view of judicial discipline. To put it in the
words of this Court in Sri Venkateswara Rice Ginning & Groundnut Oil
Mill Vs. State of Andhra Pradesh reported in [AIR 1972 SC 51], `it is
regrettable that the learned Judges who decided the latter case overlooked the
fact that they were bound by the earlier decision' (para 9 of the report in AIR).
34. We cannot ignore that the integrity of the officers functioning in
the administration is of utmost importance to retain the confidence of the
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litigants in the fairness of the judicial system. If there is any complaint in this
behalf, the Chief Justice is expected to act on behalf of the High Court to see to
it that the stream of justice does not get polluted at any level. We are pained
to observe but we must state that the decisions on the judicial side such as the
one in the present case create unnecessary difficulties for the High Court
Administration. In High Court Judicature for Rajasthan Vs. Ramesh
Chand Paliwal reported in [1998 (3) SCC 72], the order under challenge
was with respect to the issue whether the post of Deputy Registrar should be
filled from amongst the officers belonging to the establishment of the High
Court, or from the judicial side. A Division Bench of Rajasthan High Court had
opined that the subject be placed before the Full Court, since according to the
bench the Chief Justice ought not to have brought in the officers from the
judicial side for an administrative post. This Court set-aside that direction by
holding that it amounted to encroachment upon the authority of the Chief
Justice, and was contrary to the constitutional scheme. This was a matter
concerning an officer of the High Court covered under Article 229 of the
Constitution. What the Apex Court has observed in para 38 of this judgment is
quite relevant for the present matter and worth reproducing. This para 38
reads as follows:-
"38. As pointed out above, under the constitutional
scheme, Chief Justice is the supreme authority and the other
Judges, so far as officers and servants of the High Court are
concerned, have no role to play on the administrative side. Some
Judges, undoubtedly, will become Chief Justices in their own turn
one day, but it is imperative under the constitutional discipline that
they work in tranquillity. Judges have been described as "hermits".
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They have to live and behave like "hermits" who have no desire or
aspiration, having shed it through penance. Their mission is to
supply light and not heat. This is necessary so that their latent
desire to run the High Court administration may not sprout before
time, at least, in some cases."
35. Thus it is very clear that the impugned judgment and order are
wholly unsustainable, and in complete disregard of the law laid down by this
Court. This Court has, therefore, to allow this appeal and to set-aside the
judgment and order dated 28.8.2008 passed by the Madras High Court on
W.P.(MD) No. 7121 of 2007. Accordingly, this appeal is allowed and the order
dated 28.8.2008 passed by the Madras High Court on Writ Petition (MD) No.
7121 of 2007 is set-aside. The said writ petition shall stand dismissed. There
will, however, not be any order as to the costs.
.........................................J.
( J.M. Panchal )
.........................................J.
( H.L. Gokhale )
New Delhi
Dated: September 19, 2011
