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

restore him in District Thoothukudi with his seniority, and confer on him the  

post of Personal Assistant (P.A.) to the District Judge, Thoothukudi.

Facts leadings to this appeal are as follows -

4. The first  respondent  joined the  Tamil  Nadu Judicial  Ministerial  

Service  as  a  Typist  on  11.4.1979,  and was initially  posted in  the Court  of  

Judicial Magistrate II Class at Kovilpatti in District Thoothukudi (formerly known  

as Tuticorin).  Over the period he was promoted from time to time and from  

15.10.2001 onwards  he was working as Sheristadar  Category  I  in  Court  of  

Principal  District  Judge,  Thoothukudi.   He  was  also  holding  the  additional  

charge of the post of P.A. to the District Judge, Thoothukudi, since that post  

had fallen vacant.  It is his case that he was expecting the regular promotion in  

the post of P.A. to the District Judge.

5. It  so  transpired  that  the  first  respondent  alongwith  other  two  

employees  in  the District,  that  is  one S.  Kuttiapa  Esakki,  Sheristadar,  Sub-

Court, Kovilpatti  and one T.C. Shankar, Head Clerk in the Court of Principal  

District Judge, Thoothukudi came to be transferred outside the district by order  

dated  19.9.2006  issued  by  the  appellant  on  behalf  of  the  High  Court  on  

administrative grounds.  These other two employees filed writ petitions bearing  

nos. WP (MD) No.9378 and 10528 of 2006 before the Madurai Bench of Madras  

High Court, but the petitions came to be dismissed by the High Court by its  

order dated 20.4.2007.  The first respondent did not challenge his transfer at  

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that  time  and  joined  at  the  place  where  he  was  transferred  in  district  

Ramanathapuram.

6. The first respondent came to know that the post of P.A. to the  

District  Judge,  Thoothukudi  was  being filled,  and on 21.4.2007 he made a  

representation  to  the  Principal  District  Judge,  Thoothukudi,  the  respondent  

no.2 herein for being considered for that post.   The first respondent learnt that  

the fourth respondent was promoted to that post of P.A. to the District Judge  

though he was due to retire shortly on 31.8.2007.  He is junior to the first  

respondent  as well  as  to the third  respondent.   Third respondent  went on  

medical leave in July 2007 and that is how fourth respondent was promoted to  

that post. Later on, the first respondent learnt that he was not considered for  

this post for the reason that he was already transferred outside that district,  

and the reasons for the decision were recorded in the proceeding of the second  

respondent dated 6.6.2007.  

7. At this stage the first respondent obtained necessary information  

by filing an application under the Right to Information Act, 2005 and then filed  

a  writ  petition  on  24.8.2007  bearing  W.P.  (MD)  No.7121/2007  before  the  

Madurai  Bench,  and  prayed  that  the  proceeding  dated  6.6.2007  bearing  

No.2697 concerning his non-consideration for that post be called from the file  

of the second respondent, and be quashed and set-aside.  He also prayed that  

a  selection  panel  be  prepared  for  the  post  of  P.A.  to  the  District  Judge,  

Thoothukudi  by including  his  name in  that  panel,  and necessary orders  be  

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passed.  The Principal District Judge was joined as the first respondent, the  

High  Court  was  joined  as  the  respondent  no.2,  and  the  two  concerned  

employees were joined as respondent no.3 and 4 in that petition.

8. The first respondent contended in his petition that in spite of his  

transfer  from District  Thoothukudi,  he  retained his  lien  on  his  post  in  that  

district.  That was the basis of his prayers.  He did not challenge his transfer  

from that district.  It is material to note what is stated in paragraph 8 of his  

affidavit in support of his writ petition.  This para reads as follows:-

“8. I  submit  that  the  2nd respondent  is  well  within  his   powers  to  transfer  any  employee  from  one  district  to  another   district  on  administrative  grounds  and  there  was  no  malafide  exercise  in  the  present  transfers.   However,  the  3rd and  4th  

respondents were left out though they too were the candidates.  In  any case, one cannot challenge the transfers but the same shall   not have the effect of obliterating the lien I hold and any right to   be  considered  for  the  promotion  as  PA  to  the  District  Judge,   Thoothukudi.”

Thus, it would be seen that the first respondent accepted that it  

was within the powers of the appellant, i.e. the Registrar General representing  

High  Court  Administration  to  transfer  the  employees  from  one  district  to  

another, and there was no malafide exercise in the present transfer.  His only  

submission was that he retained his lien on his post in district Thoothukudi in  

spite of his transfer therefrom, and he should be considered for promotion to  

the post of P.A. in that district.

9. The writ petition was opposed by the second respondent herein  

i.e. by the District Judge, Thoothukudi by filing an affidavit dated 20.3.2008.  

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He  pointed  out  that  the  first  respondent  was  transferred  outside  district  

Thoothukudi alongwith earlier mentioned two employees S. Kuttiapa Esakki and  

T.C.  Shankar  by the  High Court  under  a  common order  on the basis  of  a  

confidential letter received from the then Principal District Judge, Thoothukudi.  

The District Judge also pointed out in his affidavit that the first respondent can  

claim appropriate promotion in the district where he was transferred on the  

basis  of  his  original  seniority,  but  he  can  no  longer  claim  it  in  district  

Thoothukudi wherein he had lost his lien.  He referred to Rule 14(A) (d) of the  

Fundamental Rules of Tamil Nadu Government which lays down that the lien of  

a Government servant on his post shall stand terminated on his acquiring lien  

on another permanent post.   

10. It was therefore, pointed out in the affidavit that after the writ  

petitions  filed by the earlier  mentioned two employees were dismissed,  the  

employees  who were  in  the zone of  consideration were  considered  for  the  

promotion to the post of P.A. to District Judge, Thoothukudi, and the selection  

was made after considering the merit, ability and seniority of the candidates  

concerned as  per  rules  8 and 19 of  Tamil  Nadu Judicial  Ministerial  Service  

Rules.   As far as the claim of the first respondent to the lien on a post in  

Thoothukudi  is concerned, it  was pointed out that  first  respondent  had not  

challenged his transfer from Thoothukudi.  It was, therefore, submitted that  

the petition be dismissed.   Since,  the above referred Rule 14-A was relied  

upon, we may quote the same which reads as follows:-

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“14-A:

(a) Except as provided in clauses (c) and (d) of this rule,  a  Government  servant’s  lien  on a  post  may,  in  no  circumstances be terminated, even with his consent,   if the result will be to leave him without a lien or a   suspended lien upon a permanent post.

(b) Deleted.

(c) Notwithstanding the provisions of Rule 14(a), the lien  of  a  Government  servant  holding  substantively  a  permanent post shall be terminated while on refused  leave granted after the date of retirement under Rule   86  or  corresponding  other  rules.   Vide  G.O.829,   Personnel  and  Administrative  Reforms  Department,   dated 26.8.1985.

(d) A  Government  servant’s  lien  on  a  post  shall  stand  terminated on his  acquiring a lien on a permanent   post (whether under the Government or the Central   Government or any other State Governments) outside  the cadre on which he is borne.”

11. A  counter  affidavit  dated  18.7.2008  was  filed  by  the  then  

Registrar of the High Court , and it was pointed out that the first respondent  

himself had not alleged any malafides to challenge his transfer.  He had also  

admitted that transfer was within the powers of the High Court Administration.  

The  affidavit  stated  that  the  transfers  were  effected  on  the  basis  of  the  

report/directions received from the Vigilance Cell  of the Madras High Court,  

however,  the  transferred  employee  will  retain  his  seniority  in  the  

Ramanathapuram district under explanation 1 of Rule 39 of the Tamil  Nadu  

Judicial Ministerial Service Rule right from the date of his first appointment in  

Thoothukudi district.

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12. In view of these affidavits filed in reply to his petition, the first  

respondent  amended  his  petition  nearly  after  nine  months  by  filing  an  

application dated 21.4.2008 with supporting affidavit, and now sought to add  

the prayer that the records relating to the transfer order dated 19.9.2006 be  

also called from the files of the High Court, and the same be quashed and set-

aside.   

13. The amended petition was opposed by the then Registrar General  

of the High Court by filing one more affidavit dated 1.8.2008.  She pointed out  

that  the  first  respondent  was  transferred  along  with  two  other  employees  

outside the district Thoothukudi on administrative grounds by the High Court  

under administrative proceeding dated 19.9.2006.  She also pointed out that a  

complaint had been received from the staff of the judicial department of that  

district  by  the  Vigilance  department  of  the  High  Court  on  2.1.2006.   The  

complaint stated that the first respondent along with some other employees  

had formed a coterie in the District Court and they were dominating the District  

Administration  whereby  the  Court  was  suffering  in  its  work,  and  therefore  

these employees be transferred to other district.  That letter was forwarded to  

the District Judge, Thoothukudi for his comments, who in turn wrote back to  

the High Court on 28.4.2006 placing it on record that departmental enquiries  

were pending against the first respondent and three other employees on the  

charges  of  corruption.   The  District  Judge  had  also  opined  that  if  these  

employees were continued in the district,  the administration would be very  

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much spoiled.  It is, therefore, that the High Court Administration directed that  

the first respondent and the concerned employees be transferred outside the  

district  on  administrative  grounds.   There  was  no  malafide  intention  

whatsoever in these transfers.

14. Thereafter the first respondent sent a mercy petition to the High  

Court submitting that he was on the verge of promotion to a higher post viz.,  

that of P.A., and therefore, he may be promoted in district Thoothukudi and if  

necessary be transferred to the nearest district Tirunelveli.   The High Court  

considered that representation but rejected it by its proceeding dated 8.5.2007.  

Incidentally, Ramanathapuram is also a district adjoining Thoothukudi.

15. The writ petition was thereafter considered by a Division Bench of  

the Madras High Court at Madurai which passed the impugned order.  The High  

Court did not accept the plea of the first respondent that he retained a lien in  

district Thoothukudi.  It held that his lien in that district stood terminated in  

view of the above referred Rule 14 (A) (d) of the Fundamental Rules, and also  

in view of the proposition laid down by this Court in Jagdish Lal Vs. State of  

Haryana  reported  in [1997  (6)  SCC  538],  that  an  employee  cannot  

simultaneously claim a lien on two posts.  The Division Bench also did not find  

any error  in the proceeding / order dated 6.6.2007 of the Principal  District  

Judge, Thoothukudi wherein he had recorded that the first respondent could  

not be taken up for consideration for promotion in district Thoothukudi, since  

he had been transferred outside that district.   

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16. The Division Bench, however, held that although the High Court  

had the power to transfer the first respondent from one District unit to another  

unit, it had to be seen whether such power had been exercised by a competent  

authority or not.  The Division Bench further held in para 20 of its judgment  

that as per Article 216 of the Constitution, High Court means ‘the Chief Justice  

and his companion Judges and the matter should have been placed before the  

full Court’.  The bench also observed that in any case no committee had been  

constituted  by  the High  Court  in  that  matter  before  taking  the  decision  to  

transfer, and the impugned transfer was a unilateral decision taken by the then  

Honourable Chief Justice of Madras High Court.  If such prior steps were taken,  

the order could have been held to be valid as per the judgment of this Court in  

High Court of Judicature at Bombay Vs. Shirishkumar Rangrao Patil  

reported in [1997 (6) SCC 339].  At the end of para 20 of its judgment, the  

Court held as follows:-

”20…………….At the cost of repetition it is to be held that   no such Committee has been appointed or the matter has been  placed before the Full Court and painfully the impugned decision   has been taken unilaterally by the then Honourable Chief Justice of   the Madras High Court, which has been communicated through the  second respondent/Registrar General, which cannot be said to be  satisfying  the  meaning  of  ‘High  Court’  embodied  in  the  Constitution.  On this ground also, the impugned transfer order is   liable to be set aside.”

17. The Division Bench thereafter noted that the impugned order of  

transfer had been passed on an anonymous letter and thereafter on the basis  

of a report from the District Judge and after ordering of a vigilance enquiry.  

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The Division Bench referred to three judgments of this Court in Ishwar Chand  

Jain  Vs.  High Court  Punjab and Haryana  reported  in [1988 (3)  SCC  

370],  K.P. Tiwari Vs. State of M.P.  reported in  [1994 Suppl.  (1) SCC  

540]  and Ramesh Chander Singh Vs. High Court Allahabad reported in  

[2007 (4) SCC 247] and also to Centre for Public Interest Litigation Vs.  

Union of India reported in [2005 (8) SCC 202] and thereafter observed in  

paragraph 25 and 26 as follows:-

”25. Thus,  it  has  been  time  and  again  held  by  the  Honourable Apex Court that it is the duty of the higher judiciary to  protect the officers of the lower judiciary from the persons, who  make  reckless,  baseless  and  unfounded  allegations,  by  way  of   anonymous petitions.  The same reasoning would apply even in the   case  of  staff  members.   Admittedly,  in  the  case  on  hand,  the   impugned  action  has  been  initiated  pursuant  to  an  anonymous   petition received……….”

26. None  of  these  aspects  have  been  taken  into  consideration before ordering transfer of the petitioner.  No doubt,   transfer is an incidence of service.  But, since in the peculiar facts   and circumstances of the case on hand, where the impugned order  of transfer has served as a punishment on the petitioner, that too  without conducting any enquiry, since it has impaired his chances   of promotion besides reducing his cadre to that of the Sheristadar   of the Chief Judicial Magistrate’s Court from that of the P.A. to the   District Judge, which he was enjoying even though as an additional   charge, as there are many more seniors in the Ramanathapuram  District, now a question would arise as to whether such an order of   transfer  which  worked  as  a  punishment  on  the  petitioner,  is   sustainable under law.”

18. The appellant had drawn the attention of the Division Bench to  

the judgment of another Division Bench of Madras High Court in the case of  

The Registrar of High Court of Madras Vs. Vasudevan, A.K. reported in  

[1996 (1) MLJ 153].  In that matter complaints were received against court  

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bailiffs working in the City Civil Court at Madras. After the vigilance cell held  

discreet enquiries, they were transferred to various courts outside Madras on  

administrative  grounds.   A  Single  Judge  had  set-aside  those  transfers  by  

holding them to be punitive. Allowing the Writ Appeal, the Division Bench had  

held that the employer is entitled to consider whether the particular employee  

is suitable to work in a particular place or to continue there.  It is however to  

be seen that transfer has not affected the service conditions in any way.  The  

Division Bench held  that  the order  of  transfer  had not affected any of  the  

service conditions of the bailiffs and their chances of promotion were also not  

diluted.  Therefore, there was no question of providing any hearing as well.   

19. The  impugned  judgment  distinguished  the  judgment  in  

Vasudevan’s  case  by  observing  that  the  promotional  prospects  of  the  first  

respondent  were  affected  in  the  present  matter  which  was  not  so  in  

Vasudevan’s  case.   The  Division  Bench  observed  that  after  obtaining  the  

remarks of the District Judge, the appellant ought to have issued a notice and  

sought the explanation from the first respondent.  It was therefore, of the view  

that the first respondent had not been provided with any opportunity to explain  

and the transfer was punitive.  The Court, therefore, passed an order setting  

aside the transfer, directing the appellant and the District Judge to immediately  

restore  the  respondent  no.1  and  2  at  District  Thoothukudi  alongwith  his  

seniority, and confer on him the post of P.A. in that district, since, according to  

the Division Bench except the order of impugned transfer, there was no other  

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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  

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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   

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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  

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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  

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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  

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been looked into by the Vigilance Cell, and the District Judge had reported that  

departmental  enquiries  were  pending  against  the  appellant  and  the  other  

employees against whom the complaint had been made.  The District Judge  

had also opined that it was undesirable to retain the appellant in his district  

from the point of view of the administration of that district.  In view of all these  

factors, the Chief Justice had to take the necessary decision.  It is, therefore,  

difficult  to  accept  the  view  of  the  Division  Bench  that  the  Chief  Justice  

unilaterally transferred the appellant outside the district, and the decision ought  

to have been taken either by the Full Court or a Committee appointed by the  

Full Court.  In view of what is pointed out above, there was no reason for the  

Division Bench to take such a view in the facts of the present matter.

27. The other ground on which the Division Bench has interfered with  

the transfer order is that according to the Division Bench, but for this transfer  

order there was no other impediment for the District Judge to promote the  

respondent no.1.  The Division Bench was of the view that the first respondent  

had lost the opportunity of getting promoted to the post of P.A. to the District  

Judge on account of this transfer, and therefore the same was punitive.  As far  

as  this  finding of  the bench is  concerned,  it  ought  to have noted that  the  

transfer is an incident of service, and the first respondent himself had clearly  

stated in para 8 of his affidavit in support of the petition that there was no  

malafide exercise in the present transfer.  As seen above, the transfer was  

purely  on  the  administrative  ground  in  view of  the  pending  complaint  and  

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departmental enquiry against first respondent.  When a complaint against the  

integrity  of  an employee is  being investigated,  very  often he is  transferred  

outside the concerned unit.  That is desirable from the point of view of the  

administration as well as that of the employee.  The complaint with respect to  

the  first  respondent  was that  he was dominating  the administration  of  the  

District Judiciary, and the District Judge had reported that his retention in the  

district was undesirable,  and also that departmental  enquiries were pending  

against  him  and  other  employees,  with  respect  to  their  integrity.   In  the  

circumstances the decision of the then Chief Justice to transfer him outside  

that district could not be faulted.  

28. Besides, there is no right of promotion available to an employee.  

He has a right to be considered for promotion which has been held to be a  

fundamental right (see para 13 of S.B. Bhattacharjee Vs. S.D. Majumdar,  

[2007  (10)  SCC  513].   However,  though  a  right  to  be  considered  for  

promotion is a condition of service, mere chance of promotion is not (see para  

15 of the Constitution Bench judgment in  Mohd. Shujat Ali Vs. Union of  

India, [AIR 1974 SC 1631].

29. The fact  that  the first  respondent  could not be considered for  

promotion  to  the  post  of  P.A.  in  district  Thoothukudi  was  undoubtedly  the  

consequence of this transfer outside that district.  However, in view of what is  

stated above, that itself cannot make his transfer a punitive one.  As rightly  

stated by the then Registrar General in her affidavit before the High Court, the  

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first  respondent  would  be  retaining  his  original  seniority  though  he  was  

transferred in another district.   He was in the cadre of  Sheristadar  and he  

continued in that cadre in district Ramanathapuram after he was transferred to  

that district.  In district Thoothukudi, he was officiating as P.A to the District  

Judge  since  that  post  was  vacant,  but  his  substantive  post  was  that  of  

Sheristadar.   The  officiating  work  did  not  create  any  right  in  him  to  be  

continued in the post of P.A.  That was not also his case, and that is how he  

had sought to be empanelled for being considered for the promotion to the  

post of P.A, though in district Thoothukudi.  Since the first respondent was no  

longer in district Thoothukudi, obviously he could not be included in the panel  

prepared for consideration for the post of P.A. in that district.   

30. The  first  respondent  was  contending  that  his  transfer  was  

punitive only because his promotional chances were affected. This controversy  

is  no  longer  res-integra.   In  Paresh  Chandra  Nandi  Vs.  Controller  of  

Stores, N.F. Railway [AIR 1971 SC 359] the situation was almost similar  

though  the  grievance  of  the  appellant  was  that  on  account  of  transfer  of  

respondents 4 to 8 into his department alongwith their lien, his chances for  

promotion were materially affected.  The appellant was working in the stores  

department of the North East Frontier Railway.  This Court however, noted that  

the transfer was effected under the relevant rules on administrative grounds,  

and it did not affect his pay in any way.  The court held that the transfer of a  

permanent employee alongwith the consequent transfer of his lien cannot be  

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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  

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subordinate  officers.   In  Ramesh  Chandra  Singh (supra)  disciplinary  

proceedings  were  initiated  by the High Court  against  the Appellant  Judicial  

Officer for a bail order which order could not be said to be unjustified.  The  

Disciplinary action was disapproved by this Court and the matter was remitted  

to the Full Court for its consideration.   

32. As can be seen from these judgments, they were all rendered in  

altogether  different context.   In the present case we are concerned with a  

Sheristadar who has been transferred on receiving a complaint, although an  

anonymous one, but against whom a departmental inquiry is pending.  He has  

been transferred to another district though retaining him in the same cadre  

with the same pay as well as his seniority.  Such an action was fully justified  

and within the authority of the High Court.  No observations were made against  

him, nor was any stigma attached. The reliance on the above three judgments  

to interfere in such an order clearly shows a non-application of mind by the  

Division Bench to the problem which the High Court Administration was faced  

with, and which was being attended in accordance with the relevant rules.  In  

Centre  for  Public  Interest  Litigation (supra),  the  grievance  was  with  

respect  to the likely appointment of  respondent  No.  3 to the post  of  Chief  

Secretary, Uttar Pradesh when she was facing criminal prosecution.  This Court  

had  therefore  directed  that  she  be  transferred  to  some  other  post  in  the  

cadre/grade to which she belonged. It was in this context that the Court made  

a  general  observation  that,  postings  in  sensitive  posts  should  be  made  in  

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transparent manner so that there is no scope for making grievance, though  

grievances can be made for ulterior motive with the intention of damaging the  

reputation of an officer who is likely to be appointed in a sensitive post.  These  

observations have also no application in the present case since all  that has  

happened is that  first  respondent  has been transferred from one district  to  

another in view of a complaint received against him and a pending inquiry.  It  

cannot be said that the action was with a view to deny him any post.  In fact  

the first respondent himself had stated in his Writ Petition to the High Court  

that there was no malafide exercise in his transfer.

33. The Division Bench also erred in ignoring that the first respondent  

had been transferred under a common order alongwith two other employees  

i.e. S. Kuttiapa Esakki, and one T.C. Shankar.  The Writ Petitions filed by them  

had  been  dismissed.   Besides,  a  judgment  of  a  co-ordinate  bench  in  A.K.  

Vasudevan was cited before the Division Bench wherein the facts were almost  

identical.   It  was  therefore,  not  expected  of  the  Division  Bench  to  take  a  

different view from the point of view of judicial discipline.  To put it in the  

words of this Court in  Sri Venkateswara Rice Ginning & Groundnut Oil  

Mill  Vs. State of Andhra Pradesh  reported in [AIR 1972 SC 51],  ‘it  is  

regrettable that the learned Judges who decided the latter case overlooked the  

fact that they were bound by the earlier decision’ (para 9 of the report in AIR).

34. We cannot ignore that the integrity of the officers functioning in  

the  administration  is  of  utmost  importance  to  retain  the  confidence  of  the  

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litigants in the fairness of the judicial system.  If there is any complaint in this  

behalf, the Chief Justice is expected to act on behalf of the High Court to see to  

it that the stream of justice does not get polluted at any level.  We are pained  

to observe but we must state that the decisions on the judicial side such as the  

one  in  the  present  case  create  unnecessary  difficulties  for  the  High  Court  

Administration.   In  High  Court  Judicature  for Rajasthan  Vs.  Ramesh  

Chand Paliwal reported in  [1998 (3) SCC 72], the order under challenge  

was with respect to the issue whether the post of Deputy Registrar should be  

filled from amongst the officers belonging to the establishment of the High  

Court, or from the judicial side. A Division Bench of Rajasthan High Court had  

opined that the subject be placed before the Full Court, since according to the  

bench the Chief Justice ought not to have brought in the officers from the  

judicial side for an administrative post.  This Court set-aside that direction by  

holding  that  it  amounted  to  encroachment  upon the authority  of  the Chief  

Justice,  and was contrary to the constitutional  scheme.  This was a matter  

concerning  an  officer  of  the  High  Court  covered  under  Article  229  of  the  

Constitution.  What the Apex Court has observed in para 38 of this judgment is  

quite relevant for the present matter and worth reproducing.  This para 38  

reads as follows:-

“38.  As  pointed  out  above,  under  the  constitutional   scheme,  Chief  Justice  is  the  supreme  authority  and  the  other   Judges,  so  far  as  officers  and  servants  of  the  High  Court  are   concerned, have no role to play on the administrative side. Some  Judges, undoubtedly, will become Chief Justices in their own turn   one day, but it is imperative under the constitutional discipline that   they work in tranquillity. Judges have been described as “hermits”.   

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They have to live and behave like “hermits” who have no desire or  aspiration,  having  shed  it  through penance.  Their  mission  is  to   supply light and not heat.  This is necessary so that  their  latent   desire to run the High Court administration may not sprout before   time, at least, in some cases.”

35. Thus it is very clear that the impugned judgment and order are  

wholly unsustainable, and in complete disregard of the law laid down by this  

Court.   This Court has, therefore, to allow this appeal and to set-aside the  

judgment  and order  dated 28.8.2008 passed by the Madras High Court  on  

W.P.(MD) No. 7121 of 2007.  Accordingly, this appeal is allowed and the order  

dated 28.8.2008 passed by the Madras High Court on Writ Petition (MD) No.  

7121 of 2007 is set-aside.  The said writ petition shall stand dismissed.  There  

will, however, not be any order as to the costs.

…………………………………..J.  ( J.M. Panchal )

  …………………………………..J.  ( H.L. Gokhale  )

New Delhi

Dated: September 19, 2011  

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