Prayer in W.P(MD)No.4859 of 2008: Writ Petition has been filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus, to call for the records relating to the impugned order of transfer passed by the 1st respondent, in Na.Ka.No.3275/2008/A2, dated 23.05.2008 and quash the same and consequently, direct the 1st and 2nd respondents to retain the petitioner in the second respondent Municipality.
In W.P(MD)No.4860 of 2008:
Prayer in W.P(MD)No.4860 of 2008: Writ Petition has been filed under
Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus, to call for the records relating to the impugned order of transfer passed by the 1st respondent in Na.Ka.No.3275/2008/A2, dated 23.05.2008 and quash the same and consequently, direct the 1st and 2nd respondents to retain the petitioner in the second respondent Municipality. In W.P(MD)No.4861 of 2008:
R.Murugesan ... Petitioner vs 1.The Regional Director of Municipal Administration, Tirunelveli, Tirunelveli District. 2.The Commissioner, Rajapalayam Municipality, Rajapalayam, Virudhunagar District. 3.The Commissioner, Thuthukudi Municipality, Thuthukudi, Thuthukudi District. ... Respondents
Prayer in W.P(MD)No.4861 of 2008; Writ Petition has been filed under
Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus, to call for the records relating to the impugned order of transfer passed by the 1st respondent in Na.Ka.No.3276/2008/A2, dated 23.05.2008 and quash the same and consequently, direct the 1st and 2nd respondents to retain the petitioner in the second respondent Municipality.
In W.P(MD)No.4862 of 2008;
U.Avudaiappan ... Petitioner vs
1.The Regional Director Municipal Administration, Tirunelveli, Tirunelveli District.
2.The Commissioner, Thuthukudi Municipality, Thuthukudi, Ththukudi District.
3.The Commissioner, Rajapalayam Municipality, Rajapalayam, Virudhunagar District. .... Respondents
Prayer in W.P(MD)No.4862 of 2008; Writ Petition has been filed under
Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus, to call for the records relating to the impugned order of transfer passed by the 1st respondent in Na.Ka.No.3276/2008/A2, dated 23.05.2008 and quash the same and consequently, direct the 1st and 2nd respondents to retain the petitioner in the second respondent Municipality.
In W.P(MD)No.4863 of 2008 B.Shanmugasundaram ... Petitioner vs 1.The Regional Director of Municipal Administration, Tirunelveli, Tirunelveli District. 2.The Commissioner, Rajapalayam Municipality, Rajapalayam, Virudhunagar District. 3.The Commissioner, Kadayanallur Municipality, Tirunelveli District. ... Respondents
Prayer in W.P(MD)No.4863 of 2008; Writ Petition has been filed under
Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus, to call for the records relating to the impugned order of transfer passed by the 1st respondent in Na.Ka.No.3182/2008/A2, dated 21.05.2008 and quash the same and consequently, direct the 1st and 2nd respondents to retain the petitioner in the second respondent Municipality.
In W.P(MD)No.4864 of 2008;
S.Rajendran ... Petitioner vs 1.The Regional Director of Municipal Administration, Tirunelveli, Tirunelveli District. 2.The Commissioner, Sankarankoil Municipality, Sankarankoil, Tirunelveli District. 3.The Commissioner, Thuthukudi Municipality, Thuthukudi District. ... Respondents
Prayer in W.P(MD)No.4864 of 2008; Writ Petition has been filed under
Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus, to call for the records relating to the impugned order of transfer passed by the 1st respondent in Na.Ka.No.3183/2008/A2, dated 21.05.2008 and quash the same and consequently, direct the 1st and 2nd respondents to retain the petitioner in the second respondent Municipality.
In W.P(MD)No.4865 of 2008;
M.Jesudasan Decruz ... Petitioner vs 1.The Regional Director of Municipal Administration, Tirunelveli, Tirunelveli District. 2.The Commissioner, Thuthukudi Municipality, Thuthukudi, Thuthukudi District. 3.The Commissioner, Sankarakoil Municipality, Sankarankoil, Tirunelveli District. ... Respondents
Prayer in W.P(MD)No.4865 of 2008; Writ Petition has been filed under
Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus, to call for the records relating to the impugned order of transfer passed by the 1st respondent in Na.Ka.No.3183/2008/A2, dated 21.05.2008 and quash the same and consequently, direct the 1st and 2nd respondents to retain the petitioner in the second respondent Municipality.
In W.P(MD)No.4866 of 2008;
S.Muppidathi ... Petitioners vs. 1.The Regional Director of Municipal Administration, Tirunelveli, Tirunelveli District. 2.The Commissioner, Sankarankoil Municipality, Sankarankoil, Tirunelveli District. 3.The Commissioner, Rajapalayam Municipality, Rajapalayam, Virudhunagar District. ... Respondents
Prayer in W.P.(MD)No.4866 of 2008: Writ Petition has been filed under
Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus, to call for the records relating to the impugned order of transfer passed by the 1st respondent in Na.Ka.No.3275/2008/A2, dated 23.05.2008 and quash the same and consequently, direct the 1st and 2nd respondents to retain the petitioner in the second respondent Municipality.
In W.P.(MD)No.11544 of 2008:
S.Ramachandran ... Petitioner vs.
1.The Regional Director of Municipal Administration, Tirunelveli-2.
2. The Municipal Commissioner, Nagercoil Municipality Nagercoil-1. ... Respondents Prayer in W.P(MD)No.11544 of 2008; Writ Petition has been filed under
Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus, to call for the records relating to the impugned order of transfer passed by the 1st respondent in Na.Ka.No.3541/2008/A2, dated 05.12.2008 and the consequential order passed by the 2nd respondent in Na.Ka.No.18468/C1/2008, dated 08.12.2008 and quash the same.
In Contempt Petition (MD)No.100 of 2009 S.Ramachandran ... Petitioner vs. 1.The Regional Director of Municipal Administration, Tirunelveli-2. 2.Mrs.P.Janaki Ravindran Municipal Commissioner, Nagercoil Municipality ... Contemnors/ Nagercoil-1. Respondents [1st respondent is given up]
Contempt application has been filed under
Section 11 of the Contempt of Courts Act 1971, to punish the 2nd respondent/Contemnor for wilful disobedience of the order passed by this court in M.P.No.1 of 2008 in W.P.No.11544 of 2008, dated 20.01.2009, on the file of this court.
!For Petitioner in W.P.4859 to 4866/08 ... Mr.G.R.Swaminathan For Petitioner in W.P.11544 of 2008 & Cont.Petn.No.100 of 2009 ... Mr.C.Godwin ^For 1st respondent ... Mr.M.Rajarajan, Government Advocate For 2nd respondent ... Mrs.Srimathy For 3rd respondent ... Mr.P.Chandrabose :COMMON ORDER Heard both sides.
2.In these writ petitions, the petitioners challenged the order of transfer, by which the petitioners were transferred from one municipality to another, by the Regional Director of Municipal Administration, the 1st respondent, in all the writ petitions.
3.The averments made in the petitions in W.P.(MD)No.4859 to 4866 of 2008 are as follows: The petitioners were recruited as 'Bill Collector' on various dates and they were appointed by the Commissioner of the Municipality and they are, now known as 'Revenue Assistant' and they were not liable to be transferred outside the municipality and they did not have any promotional avenues. A Bill Collector retires as Bill Collector and he can only get selection grade or special grade. The reason for treating the post of 'Bill Collector as not transferable one is that they knew the total locality which enable them to collect tax efficiently. According to them, Rule 3 of the Tamil Nadu Municipal Service Rules set out the mode of appointment and clause 9, category 9 refers to the Bill collector. As per Rule 4 of the said Act, the appointing authority is the Commissioner of the concerned municipality and as per Rule 31(a) a member of a service or class of services may be required to service in any post borne on cadre of such service or class and as per Rule 31(b), all transfers and postings shall be made by the appointing authority.
4. Further an exception was set out under Rule 31(c) that the Director of Municipal Administration or such other authority to whom power may be delegated to transfer a member of a service from one Municipality to another. Therefore, it was stated that only in exceptional circumstances the Director of Municipalities can exercise the power of transfer and in ordinary circumstances, the appointing authority viz., the Commissioner of municipality can order transfer within the same municipality and in all these cases, the orders were passed by the Regional Director of Municipal Administration, Tirunelveli, transferring from one municipality to another municipality and no extraordinary reason has been stated for transferring the petitioners from one municipality to another municipality. Therefore, the transfer orders are illegal and liable to be quashed.
5.On the other hand, it was contended on behalf of the respective Commissioner of Municipality that the petitioners were recruited under the Tamil Nadu Municipality General Service Rules Part III under the category IX. Subsequently, the post of Bill Collector was merged with Junior Assistant post with effect from 01.10.1999 onwards and now the said post is coming under clause VII category No.1, which is having promotional avenues and the Bill Collector can be promoted to Assistant and Revenue Inspector and therefore, it cannot be stated that there was no promotional avenues for Bill Collector. They also denied the allegations made in the writ petitions that Rule 31(c) is an exceptional one and though under Rule 31(b) transfer can be made by the appointing authority, additional power was given to the Director of Municipal Administration or any person to whom, the power was delegated may transfer the member of servant from one municipality to another municipality and as per the circular of the Government, dated 30.11.2006 for the purpose of ensuring better administration, all the Regional Directors of Municipal Administration are directed to exercise the powers of transfer and posting in respect of municipal employees in respect of the following categories under the Act and the Assistant and below cadres are brought under the Tamil Nadu Municipal General Service Rules and they are included. The circular was issued in the proceedings in Roc No.66744/2006/OP-1, dated 30.11.2006 and issued by the Commissioner of Municipal Administration, Administration, Chepauk, Chennai-5. Therefore, the order of transfer passed by the Regional Director of Municipal Administration is perfectly valid and it cannot be challenged.
6.In the writ petition W.P.(MD)No.11544 of 2008, the order of transfer was challenged stating that on 01.08.1977, the petitioner was promoted as Bill Collector and thereafter, as Junior Assistant and he is working as Junior Assistant and by order, dated 31.01.1990, the first respondent transferred him to another municipality quoting Rule 31(c) of the Tami Nadu Municipal Administration Rules and that was challenged by him before the Tamil Nadu Administrative Tribunal in O.A.No.1037 of 1990 and that was allowed on 27.11.1990 holding that the first respondent has no authority to effect transfer. He was again transferred, by the order of first respondent, dated 18.02.1991 and that was also challenged in O.A.No.815 of 1991 and that application was also allowed. Therefore, it is contended by the writ petitioner that under
Section 31(c) of the Rules, the first respondent has no power to transfer the Bill Collector and the transfer order has no basis on administrative grounds nor necessitated for want of vacancy in that municipality and he was originally transferred on 02.12.1998 at Nagercoil municipality to Kuzhithurai municipality and by modification order, dated 05.12.2008 he was transferred from Nagercoil to Padmanabhapuram and thereafter, by order, dated 08.12.2008, the respondent was directed to handover charge to Mr.Eeesalam and this order would prove that the order of transfer is not on administrative ground and it is a mala-fide one and it has been made clear in the order O.A.No.1047 of 1990 that the Director of Municipal Administration alone has been empowered with the authority to appoint the Junior Assistant and transfer them and the Regional Director of Municipal Administration has no power to transfer and therefore, the transfer order is liable to be set aside.
7.The learned counsel appearing for the petitioners Mr.G.R.Swaminathan, in the W.P.(MD)Nos.4859 to 4866 of 2008 submitted that a reading of Rule 31(c) would make it clear that Director of Municipal Administration or such other authority to whom, the power may be delegated is entitled to transfer a member of a service from one municipality to another. The Regional Director of Municipal Administration has not been delegated with such power and hence, the order of transfer passed by the Regional Director of Municipal Administration, is not legally valid and liable to be set aside.
8.He further contended that there was a total ban of transfer and as per the letter of Personnel and Administrative Reforms, Department in the letter No.10383/S/2008-1, dated 04.04.2008, if any transfer is necessary in the interest of administration, the transfer can be effected only after getting prior permission from the Personnel and Administrative Reform Department and the ban of transfer even after the completion of three years were allowed to continue till 2008. Therefore, the learned counsel appearing for the petitioners Mr.G.R.Swaminathan, contended that without getting consent from the Personnel and Administration Department, the transfer cannot be made.
9.Mr.C.Godwin, the learned counsel appearing for the petitioner in W.P.No.11544 of 2008 contended that on earlier two occasions, the transfer order passed by the authorities were set aside by the Tamil Nadu Administrative Tribunal holding that the Regional Director of Municipal Administration has no power to transfer and therefore, those orders will operate as res-judicata and hence, the petitioners cannot be transferred by the first respondent.
10.On the other hand, the learned counsel appearing for the respondent municipality in all the writ petitions, Mrs.Srimathy, submitted that while passing the order by the Tamil Nadu Administrative Tribunal in O.A.Nos.2823 of 1993 batch etc., there was no delegation of power to the Regional Director of Municipal Administration and hence, in that context, the order of transfer passed by the Regional Director of Municipal Administration was set aside. However, by virtue of the power conferred on the Commissioner of Municipal Administration, by the circular in Roc No.66744/2006/OP-1, dated 30.11.2006, power has been delegated to the Regional Director of Municipal Administration and hence, the order of transfer has been passed by the competent authority and that cannot be challenged.
11.It was contended by the learned counsel appearing for some of the Municipalities, Mr.P.Chandra Bose that the Government order relied upon by the petitioners in W.P.(MD)Nos.4859 to 4862 of 2008 that there was a ban of transfer and without getting prior permission from the Department of Personnel and Administration, transfer cannot be effected, will not be applicable to the facts of the case as the said G.O. dated 30.11.2008 is only applicable to Government servant and the municipal servants are not Government servants as they are not appointed by TNPSC and therefore, the petitioners cannot take shelter under that G.O. In other aspects, he reiterated the arguments of Mrs.Srimathy, the learned counsel appearing for the municipality. The learned Government Advocate Mr Rajarajan, also reiterated the very same grounds advanced by the learned counsel appearing for the municipality.
12.Mrs.Srimathy and Mr.P.Chandra Bose, the learned counsels appearing for the municipalities further submitted that the transfer is an incidence of service and unless mala-fide is attributed to the authority, such order of transfer cannot be challenged and relied upon the judgment reported in [2007(115) FLR 363, [Supreme Court] in the case of Mohd. Masood Ahamed and State of U.P. and others and in 2004(III) CLR 78 SC in the case of State of U.P & others vs. Gobardhan Lal and submitted that the order of transfer should not be interfered with ordinarily while exercising the discretionary jurisdiction unless order is mala-fide or prohibited under rules or authority.
13.I have given my anxious consideration to the submissions made by the counsels on both sides.
14.In all these cases, the order of transfer was challenged mainly on the ground that the Regional Director of Municipal Administration was not the competent authority to pass the order of transfer and under the Rule 31(c) only the Director of Municipal Administration or any other person to whom the power was delegated can pass order of transfer. As a matter of fact, the petitioners were under the impression that no delegation or power was given to the Regional Director of Municipal Administration to make transfer.
15.Further, it was stated that the transfer order was mala-fide and in the case W.P.(MD)No.11544 of 2008, it was further contended that by virtue of the order passed in the O.A. referred to above, the order of transfer passed by the Regional Director of Municipal Administration was quashed earlier and hence, the present transfer is a mala-fide one and there is no necessity for transferring the petitioners from one municipality to another municipality.
16.It is true that till 30.11.2006, the Regional Director of Municipal Administration has no power to transfer, as the power was not delegated to him. But on 30.11.2006, a circular was issued by the Commissioner of Municipal Administration, Chepauk, Chennai in Roc No.66744/2006/OP-1 stating that in order to ensure better administration, the Regional Directors of Municipal Administration are directed to exercise the power of transfer and posting in respect of municipal employees in respect of the following category, which includes Assistant and below cadres category covered under the Tamil Nadu Municipal General Service Rule.
17.Therefore, as per the provisions of Rule 31(c) of Tamil Nadu General Administration Rule, the power was delegated to the Regional Director of Municipal Administration. It is seen from the Rule 31(c) of the Tamil Nadu Municipal General Service Rules, notwithstanding anything contained in sub- rule(b), the Regional Director of Municipal Administration or such other authority to whom the power is delegated may transfer a member of servant to any one to another. As per Rule 31(d), the power conferred under sub rule [c] may be exercised by the State Government or any other authority to whom the authority referred to in sub-rule [c] is his subordinate. Admittedly, the Commissioner of Municipal Administration is subordinate to the State Government and therefore, the Commissioner of Municipal Administration is competent to delegate the power to be exercisable by the Regional Director of Municipal Administration and by virtue of the proceedings, dated 30.11.2006, the power was delegated to Regional Director of Municipal Administration and hence, it cannot be contended by the petitioners that the order of transfer passed by the Regional Director of Municipal Administration is not valid and he is not the competent person to effect transfer.
18.Further, as rightly pointed by the learned counsel appearing for the various Municipalities that the circular in Letter No.10383/S/2008-1 dated 04.04.2008 cannot be made applicable to the Municipal Services, as they cannot be considered as Government servants. Further, it is admitted that the Bill Collector post is equivalent to Junior Assistant and hence, as per the proceedings of the Commissioner of Municipal administration, dated 30.11.2006, the Regional Director of Municipal Administration has got power to pass the order of transfer.
19.It is also held by the Honourable Supreme Court in the reported judgments referred to above that the transfer is an incidence of service and the court should not interfere with such transfer, unless materials are placed, which would lead to the conclusion that the order of transfer passed is a mala- fide. In this case, except stating that the order of transfer is mala-fide, no materials were supplied or placed before this court by the petitioners.
20.Hence, the argument of the learned counsel appearing for the petitioners cannot be accepted and I hold that the Regional Director of Municipal Administration, is competent to pass the order of transfer as power has been delegated to him and the transfer order is valid and the hence, the writ petitions filed by the petitioners are dismissed.
21.Contempt Petition No. 100 of 2008: In this contempt petition, it has been stated that the petitioner filed the above writ petition challenging the order of transfer of the petitioner from Nagercoil to Padmanabhapuram municipality and the order, dated, 08.12.2008, by which the petitioner was relieved from Nagercoil Municipality and an order of stay was passed by this court on the impugned order of transfer and even after informing the order of stay to the second respondent by wire, the second respondent refused to permit the petitioner to join the duty in the Nagercoil municipality and therefore, the 2nd respondent has committed contempt of court.
22.It is further stated that even assuming that the petitioner was relieved from Nagercoil municipality, before the order of stay was passed, after the stay was granted by this court the second respondent should have allowed the petitioner to join the service in the Nagercoil municipality and as the second respondent refused to permit the petitioner to join the duty at Nagercoil municipality, he has committed contempt, as the second respondent has wilfully disobeyed the order of this court.
23.It is submitted by Mrs.Srimathy, the learned counsel appearing for the 2nd respondent that even before the order of stay was communicated to the 2nd respondent, the petitioner was relieved from Nagercoil municipality and hence, he was not accommodated in the Nagercoil municipality. It is further contended that the 2nd respondent also filed application to vacate the stay and hence, the petitioner was not accommodated in the Nagercoil Municipality.
24.Mr.C.Godwin, the learned counsel appearing for the petitioner in W.P.(MD)No.11544 of 2008 submitted that as per Division Bench order of this court made in .M.P.(MD)No.2 of 2007 in W.P.(MD)No.6299 of 2007, dated 06.11.2007, once the order of interim stay is granted, it is incumbent upon the third respondent to have reinstated the petitioner and restored his original status and submitted that even though, the petitioner was relieved before the stay was granted, after the receipt of stay order the respondents should have reinstated and allowed the petitioner to join the duty in the Nagercoil municipality and hence, the respondent has committed the act of contempt.
25.According to me, as rightly contended by the learned counsel appearing for the petitioner in the Contempt Petition (MD)No.100 of 2009, once stay was passed, the petitioner must be restored to his original status and the respondent should not have refused to permit the petitioner to join the duty in Nagercoil municipality. It has also been made clear in the judgment of the Division Bench of this court referred to above. However, Mrs.S.Srimathy, the learned counsel appearing for the respondents submitted that there is no wilful disobedience on the part of the respondents and the respondents are under the bona fide impression that after transfer was given effect to, the stay was granted and the 2nd respondent also filed application to vacate the stay and hence, the 2nd respondent was under the bona-fide belief that the petitioner, who was relieved from that post, need not be allowed to join duty. The contention of the learned counsel appearing for the respondents cannot be accepted, having regard to the judgment of the Honourable Division Bench of this court referred to above.
26.Therefore, according to me, the 2nd respondent has committed act of contempt. When I hold that the 2nd respondent has committed the act of contempt by not permitting the petitioner to join the duty in Nagercoil Municipality, even after the order of stay passed by this court, the question of punishment has to be considered.
27.In this case, it has been stated by the learned counsel appearing for the 2nd respondent, the 2nd respondent was under the bona-fide belief that the stay was granted after the petitioner was relived and the 2nd respondent has also filed petition to vacate the stay petition and hence, there is no question of wilful disobedience and the respondents cannot be punished for contempt. Though, the argument of the learned counsel appearing for the respondents appears to be logic, by the reason of the act of the 2nd respondent, in refusing the petitioner to join duty, the petitioner is not able to get wages and hence, in my opinion, instead of punishing the 2nd respondent, the petitioner can be compensated by the 2nd respondent to pay the salary to the petitioner from the date on which, he was relieved from Nagercoil Municipality till he resumes the duty in the transferred place as the transfer has been held by me as valid, in the main writ petition. Hence, it is ordered in contempt petition, directing the 2nd respondent to pay the salary to the petitioner from the date of his relieving from the Nagercoil Municipality till today. The 2nd respondent municipality is directed to pay the aforesaid salary to the petitioner as stated above within a period of four weeks from the date of receipt of a copy of this order.
28.In fine, the writ petitions are dismissed and the contempt petition is ordered as above. Consequently, connected Miscellaneous Petitions are closed. No costs.
er To,
1.The Regional Director of Municipal Administration, Tirunelveli, Tirunelveli District.
2.The Commissioner, Kadayanallur Municipality, Kadayanallur, Tirunelveli District.
3.The Commissioner, Sankarankoil Municipality, Sankarankoil, Tirunelveli District.
4.The Commissioner, Rajapalayam Municipality, Rajapalayam, Virudhunagar District.
5.The Commissioner, Thuthukudi Municipality, Thuthukudi, Thuthukudi District.
6.The Municipal Commissioner, Nagercoil Municipality, Nagercoil-1.
7.The Government Advocate, Madurai Bench of Madras High Court, Madurai.