{"id":223893,"date":"2011-11-01T00:00:00","date_gmt":"2011-10-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-anbalagan-vs-the-director-of-elementary-on-1-november-2011"},"modified":"2018-10-15T08:16:39","modified_gmt":"2018-10-15T02:46:39","slug":"k-anbalagan-vs-the-director-of-elementary-on-1-november-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-anbalagan-vs-the-director-of-elementary-on-1-november-2011","title":{"rendered":"K.Anbalagan vs The Director Of Elementary … on 1 November, 2011"},"content":{"rendered":"
Madras High Court<\/div>\n
K.Anbalagan vs The Director Of Elementary … on 1 November, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 01\/11\/2011\n\nCORAM\nTHE HONOURABLE MR.JUSTICE K.N.BASHA\nand\nTHE HONOURABLE MR.JUSTICE M.VENUGOPAL\n\t\t\t\t\t\t\t\t\t\nWrit Appeal (MD)No.994 of 2011\n\nK.Anbalagan \t\t\t\t..  Appellant\n\nVs\n\n1.The Director of Elementary Education,\n   Chennai.\n\n2.The District Elementary Educational Officer,\n   District Elementary Education Office,\n   Thanjavur.\n\n3.The Assistant Elementary Educational Officer,\n   Assistant Elementary Education Office,\n   Sethubavachathiram Union,\n   Thanjavur District. \t\t\t.. Respondents\n\n\tWrit Appeal filed under Clause 15 of Letters Patent against the order\npassed by this Court in W.P.(MD)No.10742 of 2011 dated 21.09.2011.\n\n!For Appellant \t... Mr.A.Chandrakumar for\n\t\t    Mr.Veera Kathiravan\n^For Respondents... Mr.V.Pandi,\n\t\t    Government Advocate\n\n:JUDGMENT\n<\/pre>\n
(Judgment of the Court was delivered by K.N.BASHA, J.)
\n\tThis writ appeal is preferred by the appellant challenging the order of
\nthe writ Court dated 21.09.2011 passed in W.P.(MD)No.10742 of 2011 dismissing
\nthe writ petition filed by the appellant herein challenging the impugned order
\nof transfer dated 15.09.2011.\n<\/p>\n
\t2.The case of the appellant is that he was working as Headmaster in
\nKuruvikarambai Panchayat Union Elementary School, Sethubavachathiram Union,
\nThanjavur District. He was appointed on 28.07.1999 as Secondary Grade Teacher in
\nthe Manakadu Panchayat Union Elementary School. Subsequently, on 05.11.2007, he
\nwas promoted as Headmaster and transferred to R.K.Nagar Panchayat Union
\nElementary School. On 18.09.2008, he was again transferred to Kuruvikarambai
\nPanchayat Union Elementary School, Sethubavachathiram Union, Thanjavur District.
\nThe appellant is having unblemished record of service.\n<\/p>\n
\t3.The third respondent has preferred a complaint against the appellant on
\n22.09.2010 with a mala fide intention and ulterior motive. Thereafter, the
\npetitioner was asked to submit his explanation by the second respondent, and
\nafter he submitted his explanation, the second respondent, passed an order dated
\n10.11.2010 and dropped the complaint preferred by the third respondent.
\nThereafter, the third respondent developed vengeance against the appellant and
\ncontinuously preferred complaints against him before the second respondent.
\nSubsequently, on 22.03.2011, the appellant preferred an application under the
\nRight to Information Act, before the third respondent, requesting to furnish
\nsome details about the school. As the said request was not considered, he has
\npreferred an appeal before the second respondent on 15.04.2011. On his
\napplication, the second respondent directed the third respondent to consider the
\nrequest of the appellant and to answer the queries. After the said direction,
\nthe third respondent has not considered the request of the appellant. When such
\nbeing the position, the appellant was served with the impugned order of transfer
\ndated 15.09.2011 passed by the second respondent, transferring him from
\nKuruvikarambai Panchayat Union Elementary School to Chellapillaiyar Kovil Union
\nElementary School. The reason assigned in the impugned transfer order is to the
\neffect that the appellant had intervened in the smooth functioning of the office
\nadministration and repeatedly filed applications under the Right to Information
\nAct and there was no cordial relationship between himself and the third
\nrespondent and as such, the impugned order of transfer was passed. Being
\naggrieved over the said transfer order, the appellant preferred a writ petition
\nin W.P.(MD)No.10742 of 2011 and the writ Court, dismissed the writ petition at
\nthe admission stage itself by order dated 21.09.2011. Being aggrieved against
\nthe said order, the present writ appeal has been filed by the appellant.\n<\/p>\n
\t4.Learned counsel for the appellant vehemently contended that the impugned
\norder of transfer was not passed on the ground of administrative reasons and the
\nsame is one of punitive order as the reasons assigned in the impugned order of
\ntransfer is to the effect that the appellant was interfering in the smooth
\noffice administration and repeatedly making applications under the Right to
\nInformation Act and that he was not having cordial relationship with the third
\nrespondent. Learned counsel for the appellant would contend that in view of the
\nimpugned order of transfer passed due to the mala fide exercise and on the
\nground of allegations, the same is liable to be quashed. It is contended that,
\nif at all any allegation is levelled against the appellant, the authority could
\nhave very well initiated disciplinary proceedings by issuing charge memo and
\ngetting explanation and thereafter, conducting proper enquiry in the manner
\nknown to law. It is submitted that instead of resorting to such legal<\/p>\n
action, the impugned order of transfer was passed only at the behest of the
\nthird respondent herein and that the reasons also assigned in the impugned order
\nto the effect as stated above.  Learned counsel for the appellant would also
\nplace reliance on the decision of the Hon’ble Apex Court in Somesh Tiwari v.
\nUnion of India,<\/a> reported in (2009) 3 MLJ 727 (SC) and also the judgment of this
\nCourt in R.Mohanasundaram v. The Principal Chief Conservator of Forests,<\/a>
\nreported in 2009 (5) CTC 231. It is submitted that the writ Court has not
\nconsidered the said points, and dismissed the writ petition.\n<\/p>\n
\t5.Per contra, Mr.V.Pandi, learned Government Advocate would contend that
\nthere is no infirmity or illegality in the impugned order of transfer passed by
\nthe second respondent herein. It is contended that only with an object of smooth
\nfunctioning of the institution, the appellant has been transferred. Learned
\nGovernment Advocate would further contend that the order of transfer is an
\nadministrative order and the same cannot be challenged as a matter of right by
\nthe appellant. It is pointed out by the learned Government Advocate that the
\nwrit Court has elaborately dealt with the points raised by the appellant by
\nconsidering the decisions cited by the appellant, holding that those decisions
\nare not helpful to advance the contentions put forward by the appellant, and
\nrightly dismissed the writ petition.\n<\/p>\n
\t6.We have carefully considered the rival contentions put forward by either
\nside and perused the entire materials available on record including the impugned
\norder of transfer and the order passed by the writ Court.\n<\/p>\n
\t7.At the outset, it should be stated that a perusal of the impugned order
\nof transfer passed by the second respondent dated 15.09.2011 reveals that the
\nsaid order of transfer was passed mainly on the ground of smooth functioning of
\nthe office administration meaning that the appellant causing hindrance for the
\nsmooth functioning of the administration and as well as on the ground of the
\nconduct of the petitioner by making subsequent applications under the Right to
\nInformation Act and the strained relationship between the appellant and the
\nthird respondent and as such, it is crystal clear that the impugned order of
\ntransfer was not passed on any administrative ground and on the other hand, it
\nis nothing but a punitive order.\n<\/p>\n
\t8.The appellant raised the main contention before the writ Court that the
\norder of transfer is not an administrative order and on the other hand, it is an
\norder passed by way of punishment, on the ground of certain allegations which
\nwere mentioned even in the impugned order of transfer. Though the appellant
\nrelied on certain decisions of the Hon’ble Apex Court and this Court, the writ
\nCourt has rejected the same and held that those decisions are not helpful to
\nadvance the contentions put forward by the appellant. With respect, we are
\nunable to agree with the view expressed by the writ Court as it is very much
\nevident from the perusal of the impugned transfer order that such order had been
\npassed not on any administrative ground and on the other hand, by way of
\nawarding punishment, the said order was passed on certain allegations in respect
\nof the conduct of the appellant herein. At this juncture, it is relevant to
\nrefer to the principles laid down by the Hon’ble Apex Court in its decision,
\nSomesh Tiwari vs. Union of India,<\/a> reported in (2009) 3 MLJ 727 (SC). The Hon’ble
\nApex Court, in the said decision, held in paragraphs-19 and 20 as follows:-\n<\/p>\n
\t“19.Indisputably, an order of transfer is an administrative order. There
\ncannot be any doubt whatsoever that transfer, which is ordinarily an incident of
\nservice should not be interfered with, save in cases where inter alia mala fide
\non the part of the authority is proved. Mala fide is of two kinds – one malice
\nin fact and the second malice in law.\n<\/p>\n
\t20.The order in question would attract the principle of malice in law as
\nit was not based on any factor germane for passing an order of transfer and
\nbased on an  irrelevant ground i.e. on the allegations made against the
\nappellant in the anonymous complaint. It is one thing to say that the employer
\nis entitled to pass an order of transfer in administrative exigencies but it is
\nanother thing to say that the order of transfer is passed by way of or in lieu
\nof punishment. When an order of transfer is passed in lieu of punishment, the
\nsame is liable to be set aside being wholly illegal.”\n<\/p>\n
\t9.Learned counsel for the appellant also heavily placed reliance on the
\ndecision of this Court in R.Mohanasundaram v. The Principal Chief Conservator of
\nForests,<\/a> reported in 2009(5) CTC 231. In the said decision, this Court also
\nplaced reliance on the decision of the Hon’ble Supreme Court in Somesh Tiwari v.
\nUnion of India<\/a> (cited supra) and also placed reliance on an unreported decision
\nof a Division Bench of this Court in A.Micheal Raj v. Director General of
\nPolice, Chennai in W.A.No.1138 of 2008 dated 20.04.2009. In Michael Raj’s case,
\nit has been held as under:-\n<\/p>\n
\t“12.Though in the impugned order of transfer it is stated as if the
\ntransfer has been effected on administrative grounds, the same has been given a
\ngo-by in the counter affidavit filed by the respondents as stated above. As per
\nthe averments contained in the counter affidavit the transfer was passed on some
\nadverse remarks \/ Complaints received against the appellant and also on the
\nbasis of the report sent by the Director General of Police to the Inspector
\nGeneral of Police, West Zone, and in such circumstances we are of the considered
\nview that the order of transfer passed against the appellant is by way of
\npunishment and that too without giving any opportunity of hearing to the
\npetitioner.”\n<\/p>\n
This Court also referred to another decision of this Court in Sevugan, S. v. The
\nChief Educational Officer, Virudhunagar District,<\/a> reported in 2006 (2) CTC 486,
\nwherein this Court has held as follows:-\n<\/p>\n
\t“7.It is seen from the impugned order of transfer that it is passed on
\nadministrative ground, but it appears that the order was passed by way of
\npunishment and based on the complaint against the conduct of the petitioner. If
\nthat be so, the petitioner is certainly entitled for proper opportunity to
\ndefend himself as to whether the Complaints against him by the Public or by the
\nHeadmaster is proper or not by way of an enquiry.”\n<\/p>\n
Yet another Division Bench decision of this court in W.A.(MD)Nos.5 and 7 of 2007
\ndated 09.01.2007, was also referred in that decision wherein it was held that
\nthough in the impugned order of transfer it was stated that the transfer was
\neffected on administrative ground, it is made clear in the counter affidavit
\nfiled in the Writ Petition that the petitioner had not taken any efforts to
\ncollect the sale proceeds of Fair Price Shops as detailed therein and
\naccordingly further held as under:-\n<\/p>\n
\t“5.From the counter affidavit filed by the first respondent, it is clear
\nthat by virtue of the report received from the Circle Deputy Registrar,
\nParamakudi who is the Supervisory authority of all Co-operative Societies
\nfunctioning in Paramakudi Circle recommending for the writ petitioner’s transfer
\nand further it is seen that due to improper management by the petitioner, there
\nis a loss to the tune of Rs.2,96,959.30 to the Society funds, the first
\nrespondent transferred the petitioner on administrative grounds to safeguard the
\ninterest of the society. Considering the facts and circumstances of the case,
\nthe learned Single Judge came to the conclusion that it is not a transfer
\nsimpliciter, but it is a transfer with stigma. Therefore, the petitioner is
\nentitled for opportunity of enquiry to establish his case.”\n<\/p>\n
\t10.We are of the considered view that the above settled principles of law
\nlaid down by the Hon’ble Supreme Court and this Court are squarely applicable to
\nthe facts of the case on hand, as in this case also, as already pointed out, the
\nimpugned order of transfer was passed not on administrative ground, but on the
\nother hand, the same was passed only by way of punishment on certain allegations
\nlevelled against the petitioner, as stated in the impugned order of transfer
\nitself.\n<\/p>\n
\t11.In view of the aforesaid reasons, we are inclined to set aside the
\norder of this Court passed in W.P.(MD)No.10742 of 2011 dated 21.09.2011 impugned
\nin this writ appeal, as well as the impugned order of transfer dated 15.09.2011.
\nAccordingly, the writ appeal is allowed. Consequently, M.P.(MD)No.1 of 2011 is
\nclosed. No costs.\n<\/p>\n
\t12.It is now brought to the notice of this Court that in spite of the
\norder of status quo in this matter, the respondents have not allowed the
\nappellant to join in the original place and as such, the appellant has joined in
\nthe transferred place, after the filing of the writ appeal. Such being the
\nposition, the respondents herein are hereby directed to restore the original
\nposition to the appellant, by transferring the appellant from Chellapillaiyar
\nKovil Union Elementary School to the original school, viz. Kuruvikarambai
\nPanchayat Union Elementary School. Such exercise shall be completed within a
\nperiod of three weeks from the date of receipt of a copy of this order.\n<\/p>\n
KM<\/p>\n
To<\/p>\n
1.The Director of Elementary Education,
\n   Chennai.\n<\/p>\n
2.The District Elementary Educational Officer,
\n   District Elementary Education Office,
\n   Thanjavur.<\/p>\n
\n\n3.The Assistant Elementary Educational Officer,\n   Assistant Elementary Education Office,\n   Sethubavachathiram Union,\n   Thanjavur District. \t\t\t\t<\/pre>\n","protected":false},"excerpt":{"rendered":"
Madras High Court K.Anbalagan vs The Director Of Elementary … on 1 November, 2011 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01\/11\/2011 CORAM THE HONOURABLE MR.JUSTICE K.N.BASHA and THE HONOURABLE MR.JUSTICE M.VENUGOPAL Writ Appeal (MD)No.994 of 2011 K.Anbalagan .. Appellant Vs 1.The Director of Elementary Education, Chennai. 2.The District Elementary Educational Officer, District […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-223893","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nK.Anbalagan vs The Director Of Elementary ... on 1 November, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/k-anbalagan-vs-the-director-of-elementary-on-1-november-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"K.Anbalagan vs The Director Of Elementary ... on 1 November, 2011 - 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