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service matter = 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. = “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”. =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

Madurai High Court

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 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 


 2



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 


 3



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 


 4



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. 


 5



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:-


 6





 "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.


 7



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. 


 9



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 


 11



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 


 18



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 


 19



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 


 22



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 


 23



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". 


 24



 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 

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