Rule 14(A)(d) of the Fundamental Rules of Tamil Nadu

R.Perachi vs The Hon'Ble Principal District ... on 28 August, 2008

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28/08/2008
CORAM
THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO
AND
THE HONOURABLE MR.JUSTICE R.SUBBIAH
Writ Petition (MD) No.7121 of 2007
and
M.P.No.1 of 2007
R.Perachi ... Petitioner
Vs.
1.The Hon'ble Principal District Judge,
Office of the Principal District Court,
Thoothukudi.
2.The Hon'ble Registrar General,
High Court ofJudicature at Madras,
Chennai.
3.Thiru S.Subramaniam
4.Thiru K.Perumal ... Respondents
* * *
Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the order in ROC.No.4573-A/2006/C1, dated 19.9.2006 on the file of the 2nd respondent and quash the same and consequentially set aside the order in RO.No.2697, dated 6.6.2007 on the file of the 1st respondent and further directing the 1st respondent to prepare selection panel for the promotion to the post of P.A.to District Judge, Thoothukudi by including the petitioner's name.
* * *
!For petitioner ... Mr.G.Prabhu Rajadurai
^For R.1 and R.2... Mr.Pala.Ramasamy,
Spl.G.P.
For R.3 and R.4 ... No appearance
* * *
:ORDER
ELIPE DHARMA RAO, J.
The petitioner was working as Sheristadar in the Principal District Court, Thoothukudi from 15.10.2001 and he being the senior most, he was kept in additional charge of the post of P.A. to the District Judge, Tuticorin, which fell vacant from 1.5.2006, by the orders of the Principal District Judge, Tuticorin, dated 28.4.2006. He continued in the additional charge till 20.9.2006.

2. In the meantime, an unsigned anonymous petition was received by the High Court, including the Registrar Vigilance, stated to be from 'the Judicial employees of the Thoothukudi District', on 2.1.2006, against P.A. to the District Judge, Sheristadar, Head Clerk, Central Nazir of the District Court, Thoothukudi and Sheristadar of Chief Judicial Magistrate's Court, Thoothukudi alleging that they all are corrupt and they have formed themselves into rival groups in order to be dominant, as a result of which, the administration is suffering. The said complaint was forwarded to the Principal District Judge, Thoothukudi for being dealt with by him and for submitting a report thereon to the Vigilance Cell, High Court, Madras. Accordingly, the Principal District Judge, Thoothukudi, has submitted his report in D.No.3616, dated 28.4.2006. As could be seen from the files submitted before us, the said communication of the Principal District Judge, Thoothukudi reads as follows: "Against Thiru N.Srinivasan, then Personal Assistant to District Judge, Thoothukudi some allegation was made and as per High Court direction dated 12.5.2005 in Roc.1080/05/C1, the Principal District Judge had submitted a report against the then Personal Assistant and thereafter he was transferred to Tirunelveli District. From 27.6.2005 Thiru R.Subramanian is working as Personal Assistant to District Judge and his work was to the officer's entire satisfaction. Thiru R.Perachi is Sheristadar in District Court, Thiru S.Subramanian is Sheristadar of Chief Judicial Magistrate Court; Thiru S.Kuttiappa Essakki is Central Nazir and Thiru T.K.Shankar is Head Clerk both in District Court, Thoothukudi. Of the four, the work of Thiru S.Subramanian, Sheristadar, Chief Judicial Magistrate Court is a little bit satisfactory. The above four persons have formed themselves into rival groups in order to be dominant in the matter of administration. These four persons act against administration's interests and hence their continuance in Thoothukudi District will spoil the administration."

3. Pursuant to the said report submitted by the Principal District Judge, Thoothukudi and after ascertaining the vacancy position from various Districts, by the impugned order dated 19.9.2006, the petitioner was transferred to Ramanathapuram District and thereafter assigned the post of Sherishtadar of the Chief Judicial Magistrate's Court, Ramanathapuram. Thiru S.Kuttiappa Esakki, Central Nazir, Thoothukudi District was transferred to Tiruchirappalli District and Thiru T.K.Sankar, Head Clerk, Thoothukudi District was transferred to Madurai District. Aggrieved, the petitioner has filed this writ petition.
4. The petitioner would submit that having served the Judicial Department in various capacities for more than 28 years, he was under the expectation that his services would be recognized and would be promoted to the post of Personal Assistant to the District Judge, which is the maximum post he could reach before his retirement on superannuation, since he was the senior of the two Sheristadars working in Thoothukudi District in Category-I. He further submitted that the then P.A. to the District Judge, Thoothukudi retired on superannuation on 30.4.2006 and hence even in the month of April, 2006, service particulars of the two Sheristadars Category-1 were called for by the first respondent and among the two candidates, whose records were called for, he was the senior and the 3rd respondent was the junior and their educational qualifications are also almost similar; that in the month of June 2006, the service records of five candidates including the petitioner and respondents 3 and 4 were called for; that by the circular issued by the High Court in Roc.No.5182/95/C1, dated 29.1.1997, only those candidates who are working in category-1 alone can be promoted as P.A. to the District Judge; that however, one Kuttiappa Esakki, who was working as Central Nazir, filed a writ petition in W.P.No.3883 of 2006 for considering his candidature as well for the post of P.A. to the District Judge and in view of the pendency of the said writ petition, the first respondent did not effect any promotion, however, the petitioner was put in the additional charge of the post of P.A. to the District Judge and he was working as such from 1.5.2006 till 20.9.2006.
5. The petitioner would further submit that all of a sudden, the second respondent, by order dated 19.9.2006 transferred him along with the said Kuttiappa Esakki and one T.K.Sankar to other Districts; that the other two persons, who were transferred along with him filed writ petitions, challenging the transfer order and he was given to understand that there were number of anonymous petitions against the candidates vying for the post of P.A. to the District Judge and in that connection, the second respondent was constrained to issue transfer orders on administrative grounds; that the second 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 respondents 3 and 4 were left out though they too were the candidates and in any case, one cannot challenge the transfers, but the same shall not have the effect of obliterating the lien he holds and his right to be considered for promotion as P.A. to the District Judge, Thoothukudi.
6. The petitioner would further submit that he made a representation to the first respondent on 21.4.2007 to consider his candidature for promotion to the post of P.A. to the District Judge, since the writ petition filed by the said Kuttiappa Esakki was dismissed by this Court on 20.4.2007 and he thought that there was no impediment for the first respondent to effect the promotion, but, the first respondent, ignoring his representation, has promoted the third respondent as P.A. to the District Judge, in the month of April, 2007. It is also submitted that the fourth respondent, who was the junior most among the five candidates and who was to retire on superannuation on 31.8.2007, was promoted to Category-I in view of the transfer of the petitioner to Ramanathapuram and the third respondent went on medical leave in July 2007 and hence the fourth respondent was promoted to the post of P.A. to the District Judge.

7. Though originally this writ petition was filed challenging the order of the learned Principal District Judge, Thoothukudi in R.No.2697, dated 6.6.2007, returning the representation of the petitioner dated 21.4.2007 to consider him for promotion to the cadre of P.A. to the District Judge, the petitioner, subsequently filed a petition in M.P.(MD) 2 of 2008, praying to amend the prayer and on the same having been allowed, the prayer was amended, challenging the transfer order dated 19.9.2006.

8. The first respondent filed a counter affidavit stating that as per Rule 14(A)(d) of the Fundamental Rules of Tamil Nadu, a Government servant's lien on a post shall stand terminated on his acquiring a lien on a permanent post outside the cadre on which he is borne and therefore, the petitioner cannot contend that even after transfer to the district of Ramanathapuram, he got a lien in the post he held in the district of Thoothukudi. It has also been submitted that the former unit seniority of the petitioner can be maintained in the latter unit of Ramanathapuram District, while considering for promotion to the higher post at Ramanathapuram District as per Rules 36 and 39 of the Tamil Nadu Judicial Ministerial Service Rules and as per G.O.Ms.No.543, Home (Courts V) Department, dated 25.6.2002. It is also submitted that the writ petitioner has got no right to claim promotion and all the procedural formality contemplated under law and relevant rules were strictly followed for promotion to the post of Personal Assistant to District Judge, Thoothukudi.
9. The second respondent/Registrar General of this Court has filed a counter affidavit and additional counter affidavit, stating that the petitioner was transferred on administrative grounds and that the lien he was holding in the district of Thoothukudi came to be terminated as per FR 14(d) and hence non- consideration of his name for promotion as P.A. to the District Judge, Thoothukudi is well within the rules governing the subject, however, as per Explanation (1) under Rule 39 of the Tamil Nadu Judicial Ministerial Service Rules, he is now enjoying his seniority fixed in the Ramanathapuram Unit, with reference to his date of first appointment in the Thoothukudi Unit.
10. It has been further submitted that immediately on joining in his post in the Ramanathapuram Unit on 28.9.2006 i.e. within a period of five months, there arose a vacancy in the post of P.A. to the District Judge, Ramanathapuram District and one A.Devadhanam, Sheristadar of the Principal District Court, Ramanathapuram was promoted and posted as P.A. to the District Judge, Ramanathapuram w.e.f. 1.2.2008 and the petitioner had submitted his representation, dated 8.2.2008 before this Court on its administrative side against the said promotion order of A.Devadhanam and the same is under consideration and hence his contention that the transfer order has the effect of depriving him of his chance of getting promotion as P.A. to the District Judge is not correct; that the action of the Principal District Judge, Thoothukudi, after the transfer of the writ petitioner to Ramanathapuram District to promote the third respondent as P.A. cannot be stated to be illegal inasmuch as there is no need to consider the name of the petitioner for promotion to the post of P.A. to the District Judge, as his lien stood terminated on joining the post of Sherishtadar in the Ramanathapuram Unit, as per FR14(d).
11. Heard Mr.G.Prabhu Rajadurai, learned counsel for the petitioner and Mr.Pala.Ramasamy, learned Special Government Pleader for the respondents 1 and
2.
12. In consideration of all the facts and circumstances of the case and in the light of the arguments advanced, the following points would arise for consideration in this writ petition:
1.Whether the petitioner would have lien in the district of Thoothukudi, in spite of his transfer to Ramanathapuram District on administrative grounds?
2.Whether the transfer order of the petitioner is punitive in nature and had affected his future prospects and if so, to what reliefs the parties are entitled?
POINT No.1:
13. The petitioner was transferred from Thoothukudi District to Ramanathapuram District on administrative grounds and he was relieved at Thootukudi on the A.N. of 20.9.2006 and after availing the joining time, admissible under law, the petitioner joined in the Ramanathapuam District on the F.N. of 28.9.2006 and posted as Sheristadar of the Chief Judicial Magistrate's Court, Ramanathapuram. The petitioner would contend that even after his transfer, his lien in the district of Thoothukudi would continue and therefore,
14. The other argument of the petitioner that even after transfer he got lien in the district of Thoothukudi cannot be accepted, for the simple reason that on being transferred to the other district, he becomes the employee of that district, since his seniority has been counted only from the date of his initial appointment as per Rule 39 of the Tamil Nadu Judicial Ministerial Service Rules. Therefore, the question his name being considered, even after such transfer does not arise at all.
15. There is no doubt that the petitioner was holding a permanent post in Thoothukudi District and was transferred to a permanent post in Ramanathapuram District. Rule 14-A of the Fundamental Rules deals with lien of such employees and for the sake of better appreciation, the same is extracted hereunder: "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 owner the Government or the Central Government or any other State Governments) outside the cadre on which he is borne."
Therefore, since the petitioner has been transferred to another permanent post, his lien in the Thoothukudi District was terminated, in terms of Rule 14-A(d) of the Fundamental Rules.
16. In JAGDISH LAL vs. STATE OF HARYANA [(1997) 6 SCC 538] , the Honourable Apex Court has held that:
"Under Fundamental Rule 14-A(a) 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. Under Fundamental Rule 14-A(d) a government servant's lien on a post shall stand terminated on his acquiring a lien on a permanent post (whether under the Central Government or a State Government) outside the cadre on which he is borne. A conjoint reading, thus, would establish that a government servant shall always have a lien on the post and, simultaneously, he shall not have right to hold any lien on more than one post. In other words, the articulated major premise is that an employee cannot simultaneously be a member of two posts/service/grade/cadre nor is he eligible to hold lien on two posts." Therefore, on being transferred from the Post of Sheristadar in the Thoothukudi District to the post of Sheristadar in the Ramanathapuram District, he becomes a member of the service in the cadre of Sheristadar in the Ramanathapuram District and thus he cannot claim lien in the post of Sheristadar in the Thoothukudi District also, in addition to the lien he acquired on being transferred as the Sheristadar in the Ramanathapuram District.
17. At this juncture, the petitioner would contend that even if his lien was terminated after his transfer to the district of Ramanathapuram, the same was very well available on the date when the vacancy of P.A. to the District Judge fell vacant and hence he should have been considered for that post. True, when the vacancy of P.A. to the District Judge, Thoothukudi fell vacant on and from 1.5.2006, the petitioner, who was serving as the Sheristadar category I at that time in the Thoothukudi District was very well in the zone of consideration for the post of P.A. to the District Judge, Thoothukudi, rather he is the seniormost in the rank of Sheristadar and thus eligible for promotion to the post of P.A. to the District Judge, Thoothukudi. But, since one Mr.Kuttiappa Esakki, who was working as Central Nazir filed W.P.No.3883 of 2006, for considering his candidature as well for the post of P.A. to the District Judge and the same was pending, no person was appointed to the post of P.A. to the District Judge, but, however, taking into consideration the seniority of the petitioner, he was kept in additional charge of the post of P.A. to the District Judge, Thoothukudi from 1.5.2006 to 20.9.2006. In the meantime, by the proceedings dated 19.9.2006, the petitioner was transferred to the Ramanathapuram District. Thus, his lien came to be terminated. Thereafter, on 20.4.2007, the said writ petition filed by the said Kuttiappa Esakki was dismissed by this Court. Immediately, on the next day, i.e. On 21.4.207, the petitioner submitted a representation to the District Judge, Thoothukudi to consider him to the post of P.A. to the District Judge, which was returned on 6.6.2007. In the meantime, the third respondent was promoted as the P.A. to the District Judge and since he went on medical leave, the next senior being the fourth respondent, he was promoted to the post of P.A. to the District Judge. Thus, when on the actual date of consideration, the petitioner was serving in the Ramanathapuram District, pursuant to his transfer from Thoothukudi, he lost his lien in the district of Thoothukudi and therefore, the first respondent has rightly returned his representation, by the order dated 6.6.2007 wherein we find no illegality and the same well sustainable in law. This point is thus answered against the petitioner.
POINT No.2:
18. The petitioner was transferred on administrative grounds from Thoothukudi to Ramanathapuram. As per Rule 39, Explanation 1 of Tamil Nadu Judicial Ministerial Service Rules, 'the seniority of a member of the service, who is transferred on administrative grounds only from one unit to another, shall be fixed in the later unit with reference to the date of his first appointment in the former unit.' Accordingly, the petitioner's seniority, on his being transferred from Thoothukudi to Ramanathapuram District was fixed and the result is that the petitioner has become the junior in the cadre, as a result, he was posted as Sherishtadar of the Chief Judicial Magistrate's Court, Ramanathapuram, which is a lower category post than that of the P.A. to the District Judge, which the petitioner was enjoying, though as an additional charge. Thus the impugned transfer order has worked as an order of punishment against the interest of the petitioner, since he lost the opportunity of being promoted to the next cadre, which, rather, he was enjoying while working in the District of Thoothukudi, though as an additional charge, besides reducing his cadre. But for the impugned order of transfer, the petitioner would have been promoted to the cadre of P.A. to the District Judge, Thoothukudi. By this we are not holding that if an employee holding an additional charge of a higher category post, has to be transferred by any reason, he has to be accorded with the stature of the post of that additional charge. What we are insisting on is that when the petitioner is indisputably the seniormost person competing for the post of P.A. to the District Judge and but for the impugned action, he would have been promoted as the P.A. to the District Judge also (since it is seen from the records that only seniority is weighing much in such promotions), transferring him to another Unit where he becomes a junior most in the category and thus forcing him to distant from being even the competitor, should not have been resorted to. It is also proper at this stage to refer to the aspect that after the petitioner was transferred to Ramanathapuram District, the post of P.A. to the District Judge fell vacant from 1.2.2008 and the request of the petitioner to promote him to that post was rejected by the District Judge, Ramanathapuram on the ground that one Mr.A.Devadhanam is senior to him and hence Mr.A.Devadhanam was promoted. Thus, there is no doubt that only seniority is weighing much in promotion to the post of P.A. to the District Judge.
19. The second respondent/Registrar General would contend that as per the above said Rule 40(a), the Registrar General has got power to transfer the members of the service from one unit to another unit and the same power has been exercised in the case of the petitioner also. It has also been stated that the petitioner himself has admitted in Para No.8 of his affidavit that under Rule 40(a) of the Tamil Nadu Judicial Ministerial service Rules, the High Court has got power to transfer the employees from one Unit to another Unit. No doubt, petitioner has admitted the power of the 'High Court' in transferring him from one Unit to another Unit. But, it is to be seen whether such power has been exercised by a competent authority or not.

20. Rule 40(a) of the Tamil Nadu Judicial Ministerial Service Rules contemplates that 'transfer of members of the service from the jurisdiction of one appointing authority to that of another shall be made by the High Court of Judicature at Madras.' There is no doubt that the High Court as an establishment or an employer can sue and be sued only through the Registrar. But, as per Article 216 of the Constitution 'High Court' means Chief Justice and his companion judges. Therefore, the matter should have been placed before the Full Court. We are aware that if a Committee is constituted on the basis of a resolution passed by the Full Court to consider such aspects and if a decision has been arrived at by the said Committee, the said decision of the Committee so constituted has to be treated as the decision of the High Court itself, as has been held by the Honourable Supreme Court in HIGH COURT OF JUDICATURE AT BOMBAY vs. SHIRISHKUMAR RANGRAO PATIL [(1997) 6 SCC 339]. In the case on hand, it is not the case of the Registry that any such Committee has been constituted and the impugned decision has been arrived at by the Committee, so as to say that it is the decision of the 'High Court'. At this juncture, it is relevant to quote a judgment of the Honourable Apex Court in BHAVNAGAR UNIVERSITY vs. PALITANA SUGAR MILL (P) LTD. [(2003) 2 SCC 111] wherein a Three Judge Bench of the Honourable Apex Court has held that 'when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner alone or not at all'. 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.
21. Admittedly, before passing the impugned order of transfer and pursuant to the anonymous letter, much exercise has been done by the Registry of this Court, like calling for report from the District Judge, Thoothukudi and ordering vigilance enquiry. Ironically, every thing took place behind the back of the petitioner and at no stage, either the District Judge, who sent his 'report' or the Registry of this Court has sought any explanation from the petitioner, to suitably reply to the allegations levelled against him by somebody, by way of anonymous letter, that too without any details or particulars of the alleged bribe and indulging in group rivalry or coterie. Interestingly, no allegation of any bribe came to be proved against the petitioner and only based on the 'report' of the Principal District Judge, Thoothukudi, justifying the allegation regarding the coterie and group rivalry and such other things, the transfer of the petitioner was recommended. It is also seen that the anonymous letter with bald allegations is aimed at the persons vying for the post of P.A. to the District Judge, Thoothukudi.
22. In ISHWAR CHAND JAIN vs. HIGH COURT OF PUNJAB AND HARYANA [(1988) 3 SCC 370], the Honourable Apex Court has held:
"Under the Constitution, the High Court has control over the subordinate judiciary. While exercising that control it is under a constitutional obligation to guide and protect judicial officers. An honest strict Judicial Officer is likely to have adversaries in the mofussil Courts. 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 and it would be difficult for him to discharge his duties in an honest and independent manner. An independent and honest judiciary is a sine qua non for Rule of law. If Judicial Officers are under constant threat of complaint and enquiry on trifling matters and if High Court encourages anonymous complaints to hold the field, the subordinate judiciary will not be able to administer justice in an independent and honest manner. It is therefore, imperative that the High Court should also take steps to protect its honest officers by ignoring ill-conceived or motivated complaints made by the unscrupulous lawyers and litigants...."
23. In K.P.TIWARI vs. STATE OF M.P. [1994 Supp. (1) SCC 540], the Honourable Apex Court has held:
"One of the functions of the higher Court is either to modify or set aside erroneous orders passed by the lower courts. Our legal system acknowledges fallibility of judges. It has to be kept in mind that a subordinate judicial officer works mostly in a charged atmosphere. He is under a psychological pressure - contestants and lawyers breathing down his neck. He does not enjoy the detached atmosphere of the higher court. Every error, however gross it may be should not be attributed to improper motives. The Judges of the High Court have a responsibility to ensure judicial discipline and respect for the judiciary from all concerned. No greater damage can be done to the administration of justice and to the confidence of the people in the judiciary if the higher courts express lack of faith in the subordinate judiciary for some reason or the other. That amounts to destruction of judiciary from within."
24. In a recent Three Judge Bench judgment of the Apex Court in RAMESH CHANDER SINGH vs. HIGH COURT OF ALLAHABAD AND ANOTHER [(2007) 4 SCC 247], speaking for the Bench, His Lordship The Honourable Mr.K.G.Balakrishnan, Chief Justice of India, quoting the above said judgments of the Apex Court in Ishwar Chand Jain case and K.P.Tiwari case, has held that:
"This Court on several occasions has disapproved the practice of initiation of disciplinary proceedings against officers of the subordinate judiciary merely because the judgments/orders passed by them are wrong...."
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. At this juncture, we feel it apt to refer to a judgment of the Honourable Apex Court in CENTRE FOR PUBLIC INTEREST LITIGATION vs. UNION OF INDIA [(2005) 8 SCC 202], wherein a Three Judge Bench of the Honourable Apex Court, has put a note of caution as follows:
"... A time has come when the postings of officers holding sensitive posts should be done in transparent manner giving no scope for any grievance. It is true that grievances can be made or allegations can be levelled for ulterior motive or with the intention of damaging the reputation of an officer who is likely to be appointed in a sensitive post, very often at the behest of persons angling for the post...."

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.

27. At this juncture, it has been argued on the part of the Registry of this Court that the impugned order of transfer was effected purely on 'administrative grounds' and without attaching any stigma and hence the same is well maintainable. In support of this contention, reliance was placed on a Division Bench judgment of this Court in THE REGISTRAR, HIGH COURT, MADRAS vs. VASUDEVAN, A.K. AND OTHERS [(1996) 1 MLJ 153], wherein when complaints were received against court bailiffs, discreet enquiries by Vigilance Cell were ordered which revealed that there was some basis for the complaints and thereafter, such bailiffs were transferred purely on administrative grounds, without attaching stigma. Such of the transferred Bailiffs, challenged their transfer orders by way of writ petitions before this Court and since the learned single Judge has allowed the same, the matters landed in the form of appeals before the Division Bench, wherein the Division Bench has held as follows in para No.36:
"An employer is entitled to consider whether his employee is suitable to work in a particular place or to continue there. If during the assessment, the employer finds that the work or performance of the employee is not satisfactory, or in case where the employee, while discharging his duties, has to mingle with the members of the public, which gives room for complaints in the nature of bad faith, corruption, etc., that will also be an added reason for the employer to find that his staff can discharge his duties in a better way in another place. Such an assessment is not in the nature of punishment. It is only to avoid or minimise any future complaint or give the employee a better opportunity in a better atmosphere, he is asked to work in a different place, under an order of transfer. Such an order cannot be considered as a punishment or as a stigma cast on him."
It has also been held in Para No.34 as follows:
"In the present case, the order of transfer made purely on administrative grounds has not affected the service conditions of the petitioners in any way. Merely because an enquiry was made by the vigilance cell into the complaints made against the petitioners, it cannot be said that the order of transfer is by way of punishment."
28. This judgment of the Division Bench of this Court is very well distinguishable from the facts of the case on hand. As has been observed in the above judgment, in that case, 'the order of transfer has not affected the service conditions of the petitioners in any way.' But, in the case on hand, the impugned order of transfer has drastically affected his future prospects and thus has served as a punishment on him, since if he continue in the same district of Ramanathapuram, there may not be any opportunity for him to get the promotion to the next rank, as there are many seniors above him. It is also proper at this stage to refer to the aspect that after the petitioner was transferred to Ramanathapuram District, the post of P.A. to the District Judge fell vacant from 1.2.2008 and the request of the petitioner to promote him to that post was rejected by the District Judge, Ramanathapuram on the ground that one Mr.A.Devadhanam is senior to him and hence Mr.A.Devadhanam was promoted. Aggrieved against this order, the petitioner filed a departmental appeal and the same is pending before this Court on administrative side. Whether the petitioner is senior to Mr.A.Devadhanam or not is not the subject for consideration before us. But, from the above, it is clear that the promotional avenues of the petitioner were impaired, on his transfer to the Ramanathapuram District. The same would not have been the situation, had the petitioner continued in the district of Thoothukudi itself, since the fact that the persons, who were promoted subsequently, pursuant to the transfer of the petitioner to the Ramanathapuram District, are far juniors to the petitioner has not been disputed by anybody. Thus, when admittedly the juniors of the petitioners got promoted, the petitioner got remained in the same cadre, since the impugned transfer order has downgraded him in the row of seniority.
29. It has been argued on the part of the Registry that a contemporary Bench of this Court has dismissed similar request of the other two transferred employees viz. Kuttiappa Esakki and T.K.Shankar, in W.P.(MD)Nos.9378 and 10528 of 2006, dated 20.4.2007 and hence the plea of the petitioner, who was also transferred under the same proceedings, which were challenged in the said cases, should also be rejected. Though all the three individuals were transferred under one and the same proceedings, each case has to be tested on its own facts and circumstances. Even though in the case of the above said two individuals, they have also pleaded that the impugned transfer has affected their seniority, admittedly, they are not the immediate competitors for the post of P.A. to the District Judge, Thoothukudi, though Mr.Kuttiappa Esakki contended that he also falls within the zone of consideration. No such contention was raised on the part of Mr.T.R.Shankar. Without going into that aspect of Mr.Kuttiappa Esakki, it is an admitted fact that the petitioner is the seniormost in the district of Thoothukudi, eligible for promotion to the post of P.A. to the District Judge, Thoothukudi and was even working in additional charge as such, prior to the impugned transfer order. Therefore, the cases of other two individuals, which were dismissed by a contemporary Bench of this Court, cannot be applied to the case of the petitioner, since he is the immediate loser. Therefore, this contention of the respondents 1 and 2 cannot be accepted.
30. It is pleaded on the part of the respondents 1 and 2 that the transfer is in the interest of justice and on administrative grounds and in another voice they have also stated that after receiving the complaints from the judicial staff, remarks were called for from the District Judge and on the basis of the remarks only, without attaching any stigma, the individuals were transferred. When once the transfer was effected on the basis of the alleged complaint of the judicial staff and remarks were also called for from the District Judge, to satisfy the principles of natural justice, the second respondent/Registrar General should have considered the remarks of the District Judge as a preliminary report, thereafter should have issued a notice to the petitioner and others by making it known the contents of the complaint to the petitioner and others to enable them to explain the same. Therefore, as seen from the above, it is not a transfer simpliciter and it is the transfer based on the complaint made through anonymous letter against the petitioner and calling for report behind the back of the petitioner and without affording him any opportunity to explain or rebut the same and for these reasons, we have no hesitation to hold that the order of transfer imposed on the petitioner is punitive in nature since it had drastically affected his future prospects.

31. The order of transfer, by way of punishment, as in the case on hand, is not sustainable in law. For this proposition, we draw source from a Constitutional Bench judgment of the Honourable Apex Court in S.P.GUPTA vs. UNION OF INDIA [1981 Supp SCC 87] and UNION OF INDIA vs. JANARDHAN DEBANATH [(2004) 4 SCC 245]. Our view is further fortified by the fact that when a learned single Judge of this Court has allowed a writ petition holding that the transfer order by way of punishment cannot be resorted to except by conducting enquiry in A.REGHUPATHI vs. THE JOINT REGISTRAR OF COOPERATIVE SOCIETIES [W.P.(MD) No.9401 of 2006, dated 29.11.2006], the Department preferred Writ Appeals No.6 and 7 of 2007 before a Division Bench and speaking for the Bench, one of us (Elipe Dharma Rao, J.) dismissed the writ appeals by the judgment dated 9.1.2007. Aggrieved by the said judgment of the Division Bench of this Court, S.L.P.(Civil) No.2743 of 2007 was preferred , which was dismissed by the Honourable Supreme Court by the order dated 23.2.2007, thus confirming the view and judgment of this Court. Thus, it is clear that transfer by way of punishment is not permissible under law.
32. The undisputed fact is that had the impugned order of transfer not visited him, definitely, the petitioner would have been in the zone of consideration for promotion to the post of P.A. to the District Judge, rather would have been the P.A. to the District Judge, since it is seen from the records that, as a practice, only seniority has been given much weight. It is seen from the records that the petitioner was imposed with a punishment of stoppage of increment for two years in the post of Head Clerk, Judicial Magistrate Court, Kovilpatti w.e.f. 1.4.1998 and he has also been severely warned by the Judicial Magistrate No.I, Kovilpatti, as per the order of Judicial Magistrate No.I, Kovilpatti, dated 21.11.1996. But, as on the date of 'consideration', they both were not in vogue and thus, at the cost of repetition, it is to be said that the only because of the impugned transfer order, the petitioner could not be considered for promotion. Consideration for promotion has been held as a fundamental right by the Honourable Apex Court in DELHI JAL BOARD vs. MAHINDER SINGH [(2000) 7 SCC 210].
33. Though in the case on hand, no mala fides could be attached to the transfer order passed against the petitioner, since the same has been passed based on the anonymous petition received by the Registry and calling for a 'report' from the Principal District Judge, Thoothukudi, who has also reported against the petitioner, without even conducting any enquiry or giving any opportunity to the petitioner to explain the same and further since the said transfer order has worked as a stumbling block in the way of the petitioner getting promoted to the next cadre, we have no hesitation to hold that the impugned order of transfer has served only as a punishment on the petitioner and the same, therefore, requires to be set aside.
34. Day in and day out we are able to see that petition-mongers are growing in large numbers and addressing anonymous petitions to the authorities with bald and baseless allegations, without any specifications and even without offering their name and address and not even signing the petitions, thus interfering in the administration, has become the order of the day and if the administration acts merely based on such anonymous petitions, that too to the detriment of the public servants, without any other basis or evidence, it will impair the performance of the officers and staff having far-reaching consequences on the society, besides shaking their confidence in the entire system. Making allegations is very easy, and rebutting the same is very difficult. The motive behind such anonymous petitions has to be examined by the employer, before proceeding on such anonymous petitions, since as has been cautioned by the Honourable Apex Court in CENTRE FOR PUBLIC INTEREST LITIGATION vs. UNION OF INDIA [(2005) 8 SCC 202], grievances can be made or allegations can be levelled for ulterior motive or with the intention of damaging the reputation of an officer.
35. Since in the case on hand, the entire action has been initiated based on the anonymous petition received by the Registry, which has been deprecated by the Honourable Apex Court time and again, in the interest of the Tamil Nadu Judiciary and the officers and staff of both the High Court and the lower judiciary, to serve as a confidence building measure, we consider it appropriate to direct the Registry not to act upon such anonymous petitions, unless they are signed and bears true postal address so as to call upon the said person to give a statement or adduce evidence in support of his contentions, if need be.
36. To sum-up,
(i)the petitioner will have no lien in the district of Thoothukudi, after his transfer to Ramanathapuram District;
(ii)the impugned order of transfer has been passed merely based on an anonymous petition, without affording any opportunity to the petitioner to explain the same and thus the principles of natural justice have been violated; (iii)the impugned order of transfer has been effected by invoking Rule 40(a) of the Tamil Nadu Judicial Ministerial Service Rules, which empowers the 'High Court' to transfer the employees from one Unit to another Unit. Under Article 216 of the Constitution, 'High Court' means the Chief Justice and the companion Judges. No Committee to look into such matters has also been constituted. Neither the matter has been placed before any Committee nor before the Full Court, but a unilateral decision has been taken by the then Honourable Chief Justice of the Madras High Court, thus defeating the purpose of Rule 40(a) of the Tamil Nadu Judicial Ministerial Service Rules.
(iv)The entire action has been initiated based on the anonymous petition received by the Registry, without affording any opportunity to the petitioner. Further, the impugned transfer order has worked as a punishment to the petitioner, since he was lowered in the cadre and also became the junior most in the cadre, thus affecting his promotional chances.
In the result, the impugned order of transfer is set aside insofar as the petitioner is concerned. The respondents 1 and 2 are directed to re-transfer the petitioner immediately to the Thoothukudi District restoring his seniority in the District, as if the impugned order of transfer was never passed against him and confer on him the post of P.A. to the District Judge, Thoothukudi, since except the order of impugned transfer order, there was no other impediment for the respondents 1 and 2 to promote the petitioner to the post of P.A.to the District Judge, Thoothukudi, within a period of twelve weeks from the date of receipt of a copy of this order.