S.Sivalingam Vs. Commissioner of Survey - Court Judgment

SooperKanoon Citationsooperkanoon.com/1169446
CourtChennai High Court
Decided OnFeb-04-2014
JudgeR.SUBBIAH
AppellantS.Sivalingam
RespondentCommissioner of Survey
Excerpt:
in the high court of judicature at madras dated : 04.02.2014 coram: the hon'ble mr.justice r.subbiah w.p.no.708 of 2013 and m.p.no.1 of 2013 s.sivalingam ..petitioner vs., 1.the principal commissioner and commissioner of survey and settlement, chepauk, chennai-600 005. 2.the additional director, department of survey and land records, chepauk, chennai-600 005. 3.the settlement officer, office of commissioner of survey and settlements, chepauk, chennai-600 005. 4.the personal assistant to the director of survey and settlements, office of the commissioner of survey and settlements, chepauk, chennai-600 005..respondents prayer: writ petition has been filed under article 226 of the constitution of india praying for issuance of a writ of certiorarified mandamus to call for the records relating to the impugned order passed in na.ka.no.a1/94/2013, dated 04.01.2013 on the file of the firs.respondent and the subsequent order passed by the second respondent in na.ka.no.r2/289/2013 (l.s.) dated 04.01.2013, and to quash the same and consequently, to direct the respondents to restore the petitioner in the settlement wing of the department of survey and settlement with consequential and other benefits. for petitioner : mr.g.sankaran for respondents : mr.r.vijayakumar, agp * * * * * order this petition has been filed seeking for issuance of a writ of certiorarified mandamus to call for the records relating to the impugned order passed in na.ka.no.a1/94/2013, dated 04.01.2013, on the file of the firs.respondent and the subsequent order passed by the second respondent in na.ka.no.r2/289/2013 (l.s.) dated 04.01.2013, and to quash the same and consequently, to direct the respondents to restore the petitioner in the settlement wing of the department of survey and settlement with consequential service and other benefits. 2.in the affidavit filed in support of the writ petition, it has been averred as follows:- 2(1)during the year 1983-84 in order to carry out updating registry scheme (udr) to survey the lands throughout the state, the department of survey engaged thousands of persons on contract basis in various categories. during that time, the petitioner was appointed as night watchman in the office of the assistant director of survey, tiruppattur on contract basis. even after the completion of udr scheme, the persons engaged on contract basis were allowed to continue on consolidated pay basis. while so, based on the representations given by the contract employees, the state government has taken a decision to bring them on regular establishment and issued orders in g.o.ms.no.248, revenue department, dated 23.03.1993, as per which the contract employees in all categories are directed to be absorbed in other departments on regular basis based on the qualification, subject to availability of vacancies. in pursuant to the same, orders have been issued in favour of the petitioner appointing him as office assistant in the settlement wing of department of survey and settlement as per the proceedings of the firs.respondent dated 14.11.1995. 2(2)thus, the petitioner was given regular appointment in settlement wing of the department of survey and settlement as per the order of the 1st respondent dated 14.11.1995. subsequently, orders have been passed on 27.02.1997 regularising the services of the petitioner from the date of initial appointment. thereafter, the petitioner's probation has been declared in the post of office assistant on satisfactory completion of probation period as per the order dated 15.07.1998. thus, he was appointed as office assistant in settlement wing of the department of survey and settlement and his services have been regularised and on declaration of probation, he has become the regular member of service. 2(3)subsequently, orders have been passed on 06.05.2003 by the office of the firs.respondent to the effect that the petitioner was appointed on permanent basis in the substantial vacancy that arose due to the retirement of one babu, office assistant. the said babu is the person, who was employed in settlement wing of the department of survey and settlement and retired from services on 31.11.1997. 2(4)subsequently, the petitioner was given promotion to the post of record clerk as per the orders dated 27.12.2001 and he joined the promoted post on 28.12.2001. thereafter, his probation in the post of record clerk was also declared and his services have been regularised in the post of record clerk with effect from 28.12.2001 as per the proceedings dated 16.02.2004. 2(5)thereafter, the petitioner was given promotion to the post of junior assistant as per the proceedings of the personal assistant to the director of survey and settlement, who is the appointing authority in respect of settlement wing, in and by order dated 30.11.2004. the post of personal assistant to the director has been made as an appointing authority up to the post of junior assistant in settlement wing of the department, after abolishing the post of assistant settlement officer in 4 places. hence, the order of promotion to the post of junior assistant issued by the personal assistant to the director made it clear that the petitioner is working in the settlement wing of the department of survey and settlement. so far as survey wing is concerned, it is governed by separate rules, and the additional director of survey and land records is the head of office and appointing authority for the employees under survey wing of the department of survey and settlements. 2(6)the petitioner's services have also been regularised in the post of junior assistant with effect from the date of promotion i.e., 01.12.2004 as per the proceedings of p.a.to director, the fourth respondent herein. thus, the petitioner was given regular appointment in the settlement wing of the department of survey and settlement and his services have been regularised in the settlement wing and he has become a regular member of settlement wing. based on seniority and eligibility within the settlement wing, he was given promotion to the post of record clerk and further promotion to the post of junior assistant. 2(7)while so, the 3rd respondent issued the impugned proceedings dated 04.01.2012 reverting the petitioner from the settlement wing to survey wing of the department of survey and settlement on the premises that his parent department is survey department. based on the order passed by the 3rd respondent, the 2nd respondent, who is the head of office of the survey department, has issued another proceedings dated 04.01.2013 appointing the petitioner in the post of junior assistant in the department of survey in the vacancy available in the office of the assistant director of survey and land records, nagercoil. 2(8)it is the case of the petitioner that the department of survey and settlement is having two branches called survey wing and settlement wing and they are governed by two different service rules. the petitioner was given regular appointment in the settlement wing and his services have been regularised in the settlement wing. therefore, it would be construed that the petitioner belongs to the settlement wing, since his services were regularised only in settlement wing. therefore, the impugned orders are not legally sustainable. hence, the petitioner has come forward with the present writ petition for the relief as stated supra. 3.on behalf of the respondents, a counter affidavit has been filed contending that the commissionarate of survey and settlement consists of two wings viz., the survey wing and the settlement wing and the service matters are dealt with separately. as the petitioner was having a habit of not following the official procedures and was found violating the rules, it has been decided to transfer the petitioner from the settlement wing to the survey wing on administrative grounds. hence, the fourth respondent vide letter no.rc.a1/9/2013 dated 02.01.2013 addressed the tamil nadu public service commission (in short 'tnpsc') to give its concurrence on the proposed transfer of the petitioner from settlement wing to survey wing, as the post of junior assistant comes under the purview of tnpsc. meanwhile, pending concurrence of tnpsc, the fourth respondent addressed the additional director of survey and land records (the head of survey wing) to give his consent regarding the transfer of the petitioner from the settlement wing to survey wing vide letter no.u.o.note rc.a1/9/2013, dated 02.01.2013. the additional director of survey and land records has also given consent for transfer of the petitioner to the survey wing vide his proceedings no.u.o.note rc.r2/289/13(sy) dated 03.01.2013. based on the consent given by both the appointing authorities, the petitioner was transferred to survey wing from settlement wing by the settlement officer (i/c) vide proceedings rc.a1/94/2013 dated 04.01.2013. the 2nd respondent in his proceedings rc.r2/289/2013 (sy) dated 04.01.2013 posted the petitioner as junior assistant in the office of the assistant director of survey and land records, nagercoil. further, rule 20(a) of the tamil nadu ministerial service rules empowers the appointing authorities to transfer the probationers and approved probationers from one department/unit to another department/unit. therefore, according to the respondents, in the instant case, the requisite rules have been scrupulously followed and there is no violation of rules in transferring the petitioner from the settlement wing to survey wing. thus, they have prayed for dismissal of the writ petition. 4.the learned counsel for the petitioner submitted that the petitioner was given regular appointment in settlement wing of the department of survey and settlement as per the order dated 14.11.1995. his services have also been regularised only in the settlement wing. his promotion to the post of record clerk and further promotion to the post of junior assistant have also been given only in the settlement wing on the basis of the seniority and eligibility in the settlement wing. 5.the learned counsel for the petitioner further submitted that the department of survey and settlement is having two branches called settlement wing and survey wing. the settlement wing is being governed by separate service rules, viz., revenue subordinate service rules. the survey wing is governed by survey subordinate service rules. so far as the survey wing is concerned, the additional director of survey and land records is the head of office and commissioner of survey and settlement is the head of the department. so far as the settlement wing is concerned, the director of survey and settlement is the head of office as well as head of the department, and pa to the director is the appointing authority upto the post of junior assistant. therefore, there are two branches/departments within the department of survey and settlement governed by separate service rules. 6.it is further submitted by the learned counsel for the petitioner that in the settlement wing, the competent authority to make transfers upto the post of junior assistant is the personal assistant to the director. but, the impugned order has been passed by the settlement officer, the 3rd respondent herein and hence, the impugned order has been passed by the 3rd respondent without jurisdiction. further, for transfer from one department/unit to another department/unit in respect of the post of junior assistant, concurrence from tnpsc is mandatory, since the post of junior assistant come under the purview of tnpsc. 7.the learned counsel for the petitioner has also submitted that provisions under rule 20(a) of the tamil nadu ministerial service rules for transferring the probationers and approved probationers from one department/unit to another department/unit can be invoked only in special/extraordinary circumstances, that too with the concurrence of tnpsc, since the post of junior assistant comes under the purview of tnpsc. the learned counsel for the petitioner, by inviting the attention of this court to the counter affidavit filed on the side of the respondents, submitted that in the counter affidavit it has been stated that the fourth respondent vide letter no.rc.a1/9/2013 dated 02.01.2013 addressed tnpsc to give its concurrence on the proposed transfer of the petitioner from settlement wing to survey wing, as the post of junior assistant comes under the purview of tnpsc. pending concurrence of tnpsc, the fourth respondent vide letter no.u.o.note rc.a1/9/2013, dated 02.01.2013 addressed the additional director of survey and land records (the head of survey wing) to give his consent regarding the transfer of the petitioner from the settlement wing to survey wing. the learned counsel for the petitioner submitted that even before obtaining concurrence from tnpsc, there cannot be any transfer. but, in the instant case, the petitioner has been transferred even before obtaining concurrence from tnpsc. therefore, the statements made in the counter affidavit would show that the records have been created to cover up the lapses. thus, the learned counsel for the petitioner submitted that the impugned orders are patently illegal and without jurisdiction and the same are liable to be quashed. 8.the learned additional government pleader appearing for the respondents submitted that in the year 1982 the updating registry scheme work was taken up in the survey and land records department as a time bound programme. during that period, the petitioner was appointed as night watchman on consolidated pay in the survey and land records department with effect from 02.06.1983 in the office of the special assistant director of survey, thiruppathur. thereafter, government took a lenient view and ordered all the persons working under consolidated pay to be absorbed in the time scale of pay in the available vacancies in the other departments. the petitioner was appointed temporarily under rule 10(a)(1) of the state & subordinate service rules, as office assistant in the settlement wing and he joined duty on 22.11.1995. the petitioner's services were regularised with effect from 22.11.1995 in the cadre of office assistant. thereafter, the petitioner was promoted as record clerk with effect from 28.12.2001. subsequently, he was promoted as junior assistant as per the proceedings of the personal assistant of the commissioner and director of survey and settlement in rc.a1/7526/2003, dated 30.11.2004. 9.the learned additional government pleader has further submitted that the petitioner was having a habit of not following the official procedures and was found violating the rules. therefore, it has been decided to transfer the petitioner from settlement wing to survey wing ie., to parent department, by invoking the provisions under rule 20(a) of the tamil nadu ministerial service rules. the transfer of the petitioner from settlement wing to survey wing is only in accordance with rules. therefore, no infirmity could be found in the impugned orders.thus, the learned additional government pleader sought for dismissal of the writ petition. 10.heard the submissions made on either side and perused the materials available on record. 11.the petitioner herein was originally appointed as night watchman on 02.06.1983 in the office of the assistant director of survey, tiruppattur in the survey and land records department, during the updating registry scheme work, on consolidated pay on contract basis. subsequently, he was absorbed in the time scale of pay in the available vacancy in the settlement wing and was appointed as office assistant on 22.11.1995. the petitioner's service was regularised in the cadre of office assistant with effect from 22.11.1995. his subsequent promotions to the post of record clerk on 28.12.2001 and to the post of junior assistant on 01.12.2004 were also made only in the settlement wing. the petitioner's services in the cadre of junior assistant were also regularised with effect from 01.12.2004. 12.it is the admitted fact that in the department of survey and settlement, there are two different wings viz., settlement wing and survey wing and they are governed by two different separate rules. the settlement wing is governed by revenue subordinate service rules, whereas the survey wing is governed by survey subordinate service rules. so far as the survey wing is concerned, the additional director of survey and land records is the head of office and commissioner of survey and settlement is the head of the department. so far as the settlement wing is concerned, the director of survey and settlement is the head of office as well as head of the department, and pa to the director is the appointing authority upto the post of junior assistant. therefore, according to the learned counsel for the petitioner, the transfer from one wing to another wing, which are governed by two separate service rules, is illegal. 13.but, according to the learned additional government pleader, rule 20(a) of the tamil nadu ministerial service rules empowers the respondents to transfer a probationer/approved probationer to a department/unit/wing to another department/unit/wing. in view of this submission made by the learned additional government pleader, it would be appropriate to extract rule 20(a) of the tamil nadu ministerial service rules, which reads as follows:- rule 20  transfers of probationers and approved probationers.(a)notwithstanding anything contained in rules 12 to 16 and 19, a probationer or an approved probationer may, in special cases and on grounds of administrative necessity, be transferred with the mutual consent of the appointing authorities and the authorities nominated by the head of the department for the purpose of allotment of candidates where there is more than one appointing authority, in the department unit concerned (i)from one office in a departmental unit to another office in the same department unit. (ii)temporarily from an office in one departmental unit to an office in another departmental unit if both the officers belong to a department in which full members are ordinarily subject to transfers from one departmental unit to another; and (iii)permanently from an office in one departmental unit to an office in another department unit. a careful reading of the above said rule would show that only in special cases and on the ground of administrative necessity with the mutual consent of the concerned appointing authorities, transfer from one wing/unit to another wing/unit could be done. but, in the instant case, the reason assigned by the respondents in the counter for transferring the petitioner from settlement wing to survey wing is that the petitioner is having a habit of not following the office procedures and was found violating the rules and therefore, they decided to transfer the petitioner from settlement wing to survey wing. the said reason assigned by the respondents cannot be construed as a special circumstances to invoke the provisions under rule 20(a) of the tamil nadu ministerial service rules. further, if any such order of transfer is passed on that allegation, it will be against the ratio laid down by the hon'ble supreme court reported in 2009 (2) scc592(somesh tiwari versus union of india and others).wherein it has been held that if any order is passed in lieu of punishment without providing any opportunity, the same would be liable to be set aside as wholly illegal. therefore, from the reason assigned by the respondents to transfer the petitioner, it could be construed that the transfer of the petitioner from settlement wing to survey wing is a transfer of punishment. but, there cannot be any punitive transfer without providing an opportunity to the concerned person. therefore, i am not inclined to accept the submission made by the learned additional government pleader that the transfer of the petitioner from settlement wing to survey wing is only in accordance with the rule 20(a) of the tamil nadu ministerial service rules. further, i am of the opinion that in the absence of any special circumstance, the transfer of the petitioner from settlement wing to survey wing is not sustainable in law. 14.with regard to the submission made by the learned counsel for the petitioner that the petitioner was only reverted to the parent department, i am of the opinion that the petitioner was absorbed in settlement wing as office assistant as early as on 22.11.1995, and his services were regularised in the category of office assistant with effect from 22.11.1995. his further promotions to the posts of record clerk and junior assistant were also in the settlement wing only. thus, the petitioner has become a regular member of service in the settlement wing. therefore, the contention of the learned additional government pleader that the petitioner was reverted back to his parent department cannot be accepted and the said contention is totally contrary to the fact. when these two different wings are governed by two different service rules, the transfer of the petitioner from one wing to another wing is against the rules and it would affect his service rights. 15.from the materials available on record, i find that when a transfer under rule 20(a) of tamil nadu ministerial service rules is made, since the post of junior assistant comes under the purview of tnpsc, it is mandatory to obtain concurrence from tnpsc by the competent authority before passing the order of transfer from one wing to another wing. there is no provision under the said rules, to transfer a person pending concurrence from the tnpsc. if any such transfer is made pending concurrence from the tnpsc, it would be in violation of the service rules. in the instant case, pending concurrence of the tnpsc, the order of transfer of the petitioner has been made by the 3rd respondent. hence, on this ground also the impugned orders are liable to be quashed. 16.for the foregoing reason, the writ petition deserves to be allowed and accordingly, the same is allowed and the impugned orders are quashed. consequently, connected miscellaneous petitions are closed. no costs. 04.02.2014 index : yes / no internet : yes / no ssv to, 1.the principal commissioner and commissioner of survey and settlement, chepauk, chennai-600 005. 2.the additional director, department of survey and land records, chepauk, chennai-600 005. 3.the settlement officer, office of commissioner of survey and settlements, chepauk, chennai-600 005. 4.the personal assistant to the director of survey and settlements, office of the commissioner of survey and settlements, chepauk, chennai-600 005. r.subbiah, j. ssv pre-delivery order in w.p.no.708 of 2013 and m.p.no.1 of 2013 04.02.2014
Judgment:

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.02.2014 CORAM: THE HON'BLE MR.JUSTICE R.SUBBIAH W.P.No.708 of 2013 and M.P.No.1 of 2013 S.Sivalingam ..Petitioner Vs., 1.The Principal Commissioner and Commissioner of Survey and Settlement, Chepauk, Chennai-600 005.

2.The Additional Director, Department of Survey and Land Records, Chepauk, Chennai-600 005.

3.The Settlement Officer, Office of Commissioner of Survey and Settlements, Chepauk, Chennai-600 005.

4.The Personal Assistant to the Director of Survey and Settlements, Office of the Commissioner of Survey and Settlements, Chepauk, Chennai-600 005..Respondents Prayer: Writ Petition has been filed under Article 226 of the Constitution of India praying for issuance of a writ of Certiorarified Mandamus to call for the records relating to the impugned order passed in Na.Ka.No.A1/94/2013, dated 04.01.2013 on the file of the fiRs.respondent and the subsequent order passed by the second respondent in Na.Ka.No.R2/289/2013 (L.S.) dated 04.01.2013, and to quash the same and consequently, to direct the respondents to restore the petitioner in the Settlement Wing of the Department of Survey and Settlement with consequential and other benefits.

For Petitioner : Mr.G.Sankaran For Respondents : Mr.R.Vijayakumar, AGP * * * * * ORDER

This petition has been filed seeking for issuance of a writ of Certiorarified Mandamus to call for the records relating to the impugned order passed in Na.Ka.No.A1/94/2013, dated 04.01.2013, on the file of the fiRs.respondent and the subsequent order passed by the second respondent in Na.Ka.No.R2/289/2013 (L.S.) dated 04.01.2013, and to quash the same and consequently, to direct the respondents to restore the petitioner in the Settlement Wing of the Department of Survey and Settlement with consequential service and other benefits.

2.In the affidavit filed in support of the writ petition, it has been averred as follows:- 2(1)During the year 1983-84 in order to carry out Updating Registry Scheme (UDR) to survey the lands throughout the State, the Department of Survey engaged thousands of persons on contract basis in various categories.

During that time, the petitioner was appointed as Night Watchman in the Office of the Assistant Director of Survey, Tiruppattur on contract basis.

Even after the completion of UDR Scheme, the persons engaged on contract basis were allowed to continue on consolidated pay basis.

While so, based on the representations given by the contract employees, the State Government has taken a decision to bring them on regular establishment and issued orders in G.O.Ms.No.248, Revenue Department, dated 23.03.1993, as per which the contract employees in all categories are directed to be absorbed in other departments on regular basis based on the qualification, subject to availability of vacancies.

In pursuant to the same, orders have been issued in favour of the petitioner appointing him as Office Assistant in the Settlement Wing of Department of Survey and Settlement as per the proceedings of the fiRs.respondent dated 14.11.1995.

2(2)Thus, the petitioner was given regular appointment in Settlement Wing of the Department of Survey and Settlement as per the order of the 1st respondent dated 14.11.1995.

Subsequently, orders have been passed on 27.02.1997 regularising the services of the petitioner from the date of initial appointment.

Thereafter, the petitioner's probation has been declared in the post of Office Assistant on satisfactory completion of probation period as per the order dated 15.07.1998.

Thus, he was appointed as Office Assistant in Settlement Wing of the Department of Survey and Settlement and his services have been regularised and on declaration of probation, he has become the regular member of service.

2(3)Subsequently, orders have been passed on 06.05.2003 by the Office of the fiRs.respondent to the effect that the petitioner was appointed on permanent basis in the substantial vacancy that arose due to the retirement of one Babu, Office Assistant.

The said Babu is the person, who was employed in Settlement Wing of the Department of Survey and Settlement and retired from services on 31.11.1997.

2(4)Subsequently, the petitioner was given promotion to the post of Record Clerk as per the orders dated 27.12.2001 and he joined the promoted post on 28.12.2001.

Thereafter, his probation in the post of Record Clerk was also declared and his services have been regularised in the post of Record Clerk with effect from 28.12.2001 as per the proceedings dated 16.02.2004.

2(5)Thereafter, the petitioner was given promotion to the post of Junior Assistant as per the proceedings of the Personal Assistant to the Director of Survey and Settlement, who is the appointing authority in respect of Settlement Wing, in and by order dated 30.11.2004.

The post of Personal Assistant to the Director has been made as an appointing authority up to the post of Junior Assistant in Settlement Wing of the Department, after abolishing the post of Assistant Settlement Officer in 4 places.

Hence, the order of promotion to the post of Junior Assistant issued by the Personal Assistant to the Director made it clear that the petitioner is working in the Settlement Wing of the Department of Survey and Settlement.

So far as Survey Wing is concerned, it is governed by separate Rules, and the Additional Director of Survey and Land Records is the Head of Office and appointing authority for the employees under Survey Wing of the Department of Survey and Settlements.

2(6)The petitioner's services have also been regularised in the post of Junior Assistant with effect from the date of promotion i.e., 01.12.2004 as per the proceedings of P.A.to Director, the fourth respondent herein.

Thus, the petitioner was given regular appointment in the Settlement Wing of the Department of Survey and Settlement and his services have been regularised in the Settlement Wing and he has become a regular member of Settlement Wing.

Based on seniority and eligibility within the Settlement Wing, he was given promotion to the post of Record Clerk and further promotion to the post of Junior Assistant.

2(7)While so, the 3rd respondent issued the impugned proceedings dated 04.01.2012 reverting the petitioner from the Settlement Wing to Survey Wing of the Department of Survey and Settlement on the premises that his parent department is Survey Department.

Based on the order passed by the 3rd respondent, the 2nd respondent, who is the Head of Office of the Survey Department, has issued another proceedings dated 04.01.2013 appointing the petitioner in the post of Junior Assistant in the Department of Survey in the vacancy available in the Office of the Assistant Director of Survey and Land Records, Nagercoil.

2(8)It is the case of the petitioner that the Department of Survey and Settlement is having two branches called Survey Wing and Settlement Wing and they are governed by two different service rules.

The petitioner was given regular appointment in the Settlement Wing and his services have been regularised in the Settlement Wing.

Therefore, it would be construed that the petitioner belongs to the Settlement Wing, since his services were regularised only in Settlement Wing.

Therefore, the impugned orders are not legally sustainable.

Hence, the petitioner has come forward with the present writ petition for the relief as stated supra.

3.On behalf of the respondents, a counter affidavit has been filed contending that the Commissionarate of Survey and Settlement consists of two wings viz., the Survey Wing and the Settlement wing and the service matters are dealt with separately.

As the petitioner was having a habit of not following the official procedures and was found violating the Rules, it has been decided to transfer the petitioner from the Settlement Wing to the Survey Wing on administrative grounds.

Hence, the fourth respondent vide letter No.Rc.A1/9/2013 dated 02.01.2013 addressed the Tamil Nadu Public Service Commission (in short 'TNPSC') to give its concurrence on the proposed transfer of the petitioner from Settlement Wing to Survey Wing, as the post of Junior Assistant comes under the purview of TNPSC.

Meanwhile, pending concurrence of TNPSC, the fourth respondent addressed the Additional Director of Survey and Land Records (the Head of Survey Wing) to give his consent regarding the transfer of the petitioner from the Settlement Wing to Survey Wing vide letter No.U.O.Note Rc.A1/9/2013, dated 02.01.2013.

The Additional Director of Survey and Land Records has also given consent for transfer of the petitioner to the Survey Wing vide his proceedings No.U.O.Note Rc.R2/289/13(Sy) dated 03.01.2013.

Based on the consent given by both the appointing authorities, the petitioner was transferred to Survey Wing from Settlement Wing by the Settlement Officer (i/c) vide proceedings Rc.A1/94/2013 dated 04.01.2013.

The 2nd respondent in his proceedings Rc.R2/289/2013 (Sy) dated 04.01.2013 posted the petitioner as Junior Assistant in the Office of the Assistant Director of Survey and Land Records, Nagercoil.

Further, Rule 20(a) of the Tamil Nadu Ministerial Service Rules empowers the appointing authorities to transfer the probationers and approved probationers from one department/Unit to another department/Unit.

Therefore, according to the respondents, in the instant case, the requisite rules have been scrupulously followed and there is no violation of rules in transferring the petitioner from the Settlement Wing to Survey Wing.

Thus, they have prayed for dismissal of the writ petition.

4.The learned counsel for the petitioner submitted that the petitioner was given regular appointment in Settlement Wing of the Department of Survey and Settlement as per the order dated 14.11.1995.

His services have also been regularised only in the Settlement Wing.

His promotion to the post of Record Clerk and further promotion to the post of Junior Assistant have also been given only in the Settlement Wing on the basis of the seniority and eligibility in the Settlement Wing.

5.The learned counsel for the petitioner further submitted that the Department of Survey and Settlement is having two branches called Settlement Wing and Survey Wing.

The Settlement Wing is being governed by separate service Rules, viz., Revenue Subordinate Service Rules.

The Survey Wing is governed by Survey Subordinate Service Rules.

So far as the Survey Wing is concerned, the Additional Director of Survey and Land Records is the Head of Office and Commissioner of Survey and Settlement is the Head of the Department.

So far as the Settlement Wing is concerned, the Director of Survey and Settlement is the Head of Office as well as Head of the Department, and PA to the Director is the appointing authority upto the post of Junior Assistant.

Therefore, there are two branches/departments within the Department of Survey and Settlement governed by separate service Rules.

6.It is further submitted by the learned counsel for the petitioner that in the Settlement Wing, the competent authority to make transfers upto the post of Junior Assistant is the Personal Assistant to the Director.

But, the impugned order has been passed by the Settlement Officer, the 3rd respondent herein and hence, the impugned order has been passed by the 3rd respondent without jurisdiction.

Further, for transfer from one Department/Unit to another Department/Unit in respect of the post of Junior Assistant, concurrence from TNPSC is mandatory, since the post of Junior Assistant come under the purview of TNPSC.

7.The learned counsel for the petitioner has also submitted that provisions under Rule 20(a) of the Tamil Nadu Ministerial Service Rules for transferring the probationers and approved probationers from one department/Unit to another department/Unit can be invoked only in special/extraordinary circumstances, that too with the concurrence of TNPSC, since the post of Junior Assistant comes under the purview of TNPSC.

The learned counsel for the petitioner, by inviting the attention of this Court to the counter affidavit filed on the side of the respondents, submitted that in the counter affidavit it has been stated that the fourth respondent vide letter No.Rc.A1/9/2013 dated 02.01.2013 addressed TNPSC to give its concurrence on the proposed transfer of the petitioner from Settlement Wing to Survey Wing, as the post of Junior Assistant comes under the purview of TNPSC.

Pending concurrence of TNPSC, the fourth respondent vide letter No.U.O.Note Rc.A1/9/2013, dated 02.01.2013 addressed the Additional Director of Survey and Land Records (the Head of Survey Wing) to give his consent regarding the transfer of the petitioner from the Settlement Wing to Survey Wing.

The learned counsel for the petitioner submitted that even before obtaining concurrence from TNPSC, there cannot be any transfer.

But, in the instant case, the petitioner has been transferred even before obtaining concurrence from TNPSC.

Therefore, the statements made in the counter affidavit would show that the records have been created to cover up the lapses.

Thus, the learned counsel for the petitioner submitted that the impugned orders are patently illegal and without jurisdiction and the same are liable to be quashed.

8.The learned Additional Government Pleader appearing for the respondents submitted that in the year 1982 the Updating Registry Scheme work was taken up in the Survey and Land Records Department as a time bound programme.

During that period, the petitioner was appointed as Night Watchman on consolidated pay in the Survey and Land Records Department with effect from 02.06.1983 in the office of the Special Assistant Director of Survey, Thiruppathur.

Thereafter, Government took a lenient view and ordered all the persons working under consolidated pay to be absorbed in the time scale of pay in the available vacancies in the other departments.

The petitioner was appointed temporarily under Rule 10(a)(1) of the State & Subordinate Service Rules, as Office Assistant in the Settlement Wing and he joined duty on 22.11.1995.

The petitioner's services were regularised with effect from 22.11.1995 in the cadre of Office Assistant.

Thereafter, the petitioner was promoted as Record Clerk with effect from 28.12.2001.

Subsequently, he was promoted as Junior Assistant as per the proceedings of the Personal Assistant of the Commissioner and Director of Survey and Settlement in Rc.A1/7526/2003, dated 30.11.2004.

9.The learned Additional Government Pleader has further submitted that the petitioner was having a habit of not following the official procedures and was found violating the rules.

Therefore, it has been decided to transfer the petitioner from Settlement Wing to Survey Wing ie., to parent department, by invoking the provisions under Rule 20(a) of the Tamil Nadu Ministerial Service Rules.

The transfer of the petitioner from Settlement Wing to Survey Wing is only in accordance with Rules.

Therefore, no infirmity could be found in the impugned ordeRs.Thus, the learned Additional Government Pleader sought for dismissal of the writ petition.

10.Heard the submissions made on either side and perused the materials available on record.

11.The petitioner herein was originally appointed as Night Watchman on 02.06.1983 in the Office of the Assistant Director of Survey, Tiruppattur in the Survey and Land Records Department, during the Updating Registry Scheme Work, on consolidated pay on contract basis.

Subsequently, he was absorbed in the time scale of pay in the available vacancy in the Settlement Wing and was appointed as Office Assistant on 22.11.1995.

The petitioner's service was regularised in the cadre of Office Assistant with effect from 22.11.1995.

His subsequent promotions to the post of Record Clerk on 28.12.2001 and to the post of Junior Assistant on 01.12.2004 were also made only in the Settlement Wing.

The petitioner's services in the cadre of Junior Assistant were also regularised with effect from 01.12.2004.

12.It is the admitted fact that in the Department of Survey and Settlement, there are two different wings viz., Settlement Wing and Survey Wing and they are governed by two different separate Rules.

The Settlement Wing is governed by Revenue Subordinate Service Rules, whereas the Survey Wing is governed by Survey Subordinate Service Rules.

So far as the Survey Wing is concerned, the Additional Director of Survey and Land Records is the Head of Office and Commissioner of Survey and Settlement is the Head of the Department.

So far as the Settlement Wing is concerned, the Director of Survey and Settlement is the Head of Office as well as Head of the Department, and PA to the Director is the appointing authority upto the post of Junior Assistant.

Therefore, according to the learned counsel for the petitioner, the transfer from one Wing to another Wing, which are governed by two separate service Rules, is illegal.

13.But, according to the learned Additional Government Pleader, Rule 20(a) of the Tamil Nadu Ministerial Service Rules empowers the respondents to transfer a probationer/approved probationer to a department/Unit/Wing to another department/Unit/Wing.

In view of this submission made by the learned Additional Government Pleader, it would be appropriate to extract Rule 20(a) of the Tamil Nadu Ministerial Service Rules, which reads as follows:- Rule 20  Transfers of probationers and approved probationeRs.(a)Notwithstanding anything contained in Rules 12 to 16 and 19, a probationer or an approved probationer may, in special cases and on grounds of administrative necessity, be transferred with the mutual consent of the appointing authorities and the authorities nominated by the head of the Department for the purpose of allotment of candidates where there is more than one appointing authority, in the department unit concerned (i)From one office in a departmental Unit to another office in the same department Unit.

(ii)Temporarily from an office in one departmental unit to an office in another departmental Unit if both the officers belong to a department in which full members are ordinarily subject to transfers from one departmental unit to another; and (iii)Permanently from an office in one departmental unit to an office in another department unit. A careful reading of the above said Rule would show that only in special cases and on the ground of administrative necessity with the mutual consent of the concerned appointing authorities, transfer from one Wing/Unit to another Wing/Unit could be done.

But, in the instant case, the reason assigned by the respondents in the counter for transferring the petitioner from Settlement Wing to Survey Wing is that the petitioner is having a habit of not following the office procedures and was found violating the Rules and therefore, they decided to transfer the petitioner from Settlement Wing to Survey Wing.

The said reason assigned by the respondents cannot be construed as a special circumstances to invoke the provisions under Rule 20(a) of the Tamil Nadu Ministerial Service Rules.

Further, if any such order of transfer is passed on that allegation, it will be against the ratio laid down by the Hon'ble Supreme Court reported in 2009 (2) SCC592(Somesh Tiwari versus Union of India and others).wherein it has been held that if any order is passed in lieu of punishment without providing any opportunity, the same would be liable to be set aside as wholly illegal.

Therefore, from the reason assigned by the respondents to transfer the petitioner, it could be construed that the transfer of the petitioner from Settlement Wing to Survey Wing is a transfer of punishment.

But, there cannot be any punitive transfer without providing an opportunity to the concerned person.

Therefore, I am not inclined to accept the submission made by the learned Additional Government Pleader that the transfer of the petitioner from Settlement Wing to Survey Wing is only in accordance with the Rule 20(a) of the Tamil Nadu Ministerial Service Rules.

Further, I am of the opinion that in the absence of any special circumstance, the transfer of the petitioner from Settlement Wing to Survey Wing is not sustainable in law.

14.With regard to the submission made by the learned counsel for the petitioner that the petitioner was only reverted to the parent department, I am of the opinion that the petitioner was absorbed in Settlement Wing as Office Assistant as early as on 22.11.1995, and his services were regularised in the category of Office Assistant with effect from 22.11.1995.

His further promotions to the posts of Record Clerk and Junior Assistant were also in the Settlement Wing only.

Thus, the petitioner has become a regular member of service in the Settlement Wing.

Therefore, the contention of the learned Additional Government Pleader that the petitioner was reverted back to his parent department cannot be accepted and the said contention is totally contrary to the fact.

When these two different wings are governed by two different service Rules, the transfer of the petitioner from one Wing to another Wing is against the Rules and it would affect his service rights.

15.From the materials available on record, I find that when a transfer under Rule 20(a) of Tamil Nadu Ministerial Service Rules is made, since the post of Junior Assistant comes under the purview of TNPSC, it is mandatory to obtain concurrence from TNPSC by the competent authority before passing the order of transfer from one Wing to another Wing.

There is no provision under the said Rules, to transfer a person pending concurrence from the TNPSC.

If any such transfer is made pending concurrence from the TNPSC, it would be in violation of the Service Rules.

In the instant case, pending concurrence of the TNPSC, the order of transfer of the petitioner has been made by the 3rd respondent.

Hence, on this ground also the impugned orders are liable to be quashed.

16.For the foregoing reason, the writ petition deserves to be allowed and accordingly, the same is allowed and the impugned orders are quashed.

Consequently, connected Miscellaneous Petitions are closed.

No costs.

04.02.2014 Index : Yes / No Internet : Yes / No ssv To, 1.The Principal Commissioner and Commissioner of Survey and Settlement, Chepauk, Chennai-600 005.

2.The Additional Director, Department of Survey and Land Records, Chepauk, Chennai-600 005.

3.The Settlement Officer, Office of Commissioner of Survey and Settlements, Chepauk, Chennai-600 005.

4.The Personal Assistant to the Director of Survey and Settlements, Office of the Commissioner of Survey and Settlements, Chepauk, Chennai-600 005.

R.SUBBIAH, J.

ssv Pre-delivery order in W.P.No.708 of 2013 and M.P.No.1 of 2013 04.02.2014