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2018 Supreme(Mad) 878
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. SURESH KUMAR, J.
P. Ayubkhan - Petitioner
Versus
The State of Tamil Nadu represented by its Principal Secretary to Government, Municipal Administration & Water Supply (ME.1) Department, Secretariat, Chennai & Another - Respondent
W.P.(MD) No. 3598 of 2018 & W.M.P(MD) Nos. 3726, 3727 & 5505 of 2018
Decided On : 18-04-2018
For the Petitioner:Ajmal Khan, Senior Counsel for Ajmal Associates, Advocates.
For the Respondents:Chellapandian, Additional Advocate General assisted by M. Rajarajan, Government Advocate.
The transfer of a government servant, especially a physically challenged individual, should consider the individual's health condition and should not be punitive in nature.
Headnote:
Writ of Certiorari - Transfer of Physically Challenged Government Servant - Prevention of Corruption Act, 1988 - Section 13(2) r/w 13(1)(d) - G.O.(D) No.68 - Relief granted to petitioner, quashing the order of transfer and directing consideration for placement in nearby areas.
Fact of the Case:
The petitioner, a physically challenged Municipal Commissioner, was transferred to a far-off place at Tamil Nadu Institute of Urban Studies, Coimbatore, on deputation basis. The petitioner challenged the transfer, alleging malafide and prejudice to his health condition.
Finding of the Court:
The court found that the transfer was based on a directive from the DVAC to prevent interference in an ongoing investigation. However, the court held that the transfer to a far-off place was punitive and prejudicial to the petitioner's health, thus quashing the transfer order.
Issues: The issues involved the validity of the transfer of a physically challenged government servant based on a directive from the DVAC and the consideration of the petitioner's health condition in the transfer decision.
Ratio Decidendi: The court ruled that while the transfer was based on administrative exigency and the DVAC directive, placing the petitioner in a far-off place was punitive and not conducive to his physical condition, thus requiring interference.
Final Decision: The court quashed the order of transfer and directed the respondents to consider placing the petitioner in nearby areas, taking into account his physical condition.
The prayer sought for herein is for a Writ of Certiorari to call for the records relating to the impugned relieving order passed by the second respondent vide his proceedings Roc.No. 1977/2016/C1 dated 22.01.2018 and the proceedings in G.O.(D) No.68 dated 16.02.2018 and quash the same as illegal.
2. Heard Mr.M.Ajmal Khan, learned senior counsel appearing for the petitioner and Mr.K.Chellapandian, Additional Advocate General, assisted by Mr.M.Rajarajan, Government Advocate, appearing for the respondents.
3. The short facts, which are required to be noticed for the disposal of the writ petition are as follows:
The petitioner against whom, while he was working as Municipal Commissioner at Kadayanallur Municipality, Tirunelveli District, the impugned order of transfer has been given, by which, the petitioner has been relieved from the office of the Commissioner of Kadayanallur Municipality and posted at Tamil Nadu Institute of Urban Studies as Faculty, at Coimbatore, on deputation basis. Challenging the said order of transfer and posting, the petitioner has moved the present writ petition with the aforesaid prayer.
4. The learned senior counsel appearing for the petitioner would submit that, initially, the relieving order dated 22.01.2018 was issued and only after three weeks, the order of transfer has been given by the impugned order dated 16.02.2018, which shows that the petitioner has been made to compulsorily wait to get orders of posting. Before relieving the petitioner, no order of transfer has been given and therefore, the impugned order of transfer is passed, sheer, out of malafide on the part of the respondents for the reason best known to them and therefore, on the ground of malafide, the said order has to be interfered with.
5. The learned senior counsel would further submit that the petitioner is a physically challenged person and if at all for any administrative reasons, though the same is not admitted by the petitioner, he is transferred, the petitioner could have been accommodated in nearby places, instead, he has been placed in a far off place at Coimbatore from Kadayanallur, thereby, placing the petitioner in a pitiable condition unmindful of the fact that he is physically challenged. Therefore, on this ground, the learned senior counsel would assail the order of transfer.
6. Per contra, Mr. K.Chellapandian, learned Additional Advocate General appearing for the respondents, by relying upon the counter affidavit filed by the second respondent, would submit that, in October 2017, based on a reliable information, the Director, Department of Vigilance and Anti Corruption (DVAC) conducted a surprise check on 13.10.2017 at the Municipal Office, Sankarankovil, Tirunelveli District, where a joint audit was convened in respect of four Municipalities including the Kadayanallur Municipality, where the petitioner herein has been working as Municipal Commissioner.
7. The learned Additional Advocate General would further submit that, consequent to the surprise checking and on preliminary enquiry, the DVAC registered a criminal case in Crime No.16 of 2017 under Section 102 Cr.P.C., and under Section 13(2) r/w 13(1) (d) of Prevention of Corruption Act, 1988 and the investigation is pending.
8. Therefore, according to the learned Additional Advocate General, it was a directive issued by the DVAC, that in the interest of continuing the investigation in the said criminal case, the concerned officials of the said Municipality including the petitioner can be kept in some other places, as the continuance of this incumbents in the present place at Kadayanallur, would enable them to hamper the investigation by way of tampering evidence to be collected by the investigating team.
9. Therefore, the learned Additional Advocate General would submit that based on the said input received from the DVAC, immediately, all the officials, who were allegedly involved or against whom, such crime was registered, including the petitioner had been relie
