Read Order: M Kachu Fathima vs. Government of Tamil Nadu & Ors. 

Pankaj Bajpai

Chennai, February 14, 2022: While hearing a petition whereby a direction was sought to be given to the Government of Tamil Nadu for permitting one of its employee to take part in the transfer counseling, the Madras High Court has observed that transfer can never be claimed as a matter of right by the Government employees, as transfer orders are issued on administrative grounds. 

The Single Judge S.M Subramaniam observed that the power of judicial review in respect of such general transfer counselling policy is limited, and the High Courts cannot interfere with the day-to-day administration of the Government Departments. 

When transfer itself is incidental to service, the concession extended the employees to choose the place or post would never provide any cause for moving a writ petition, added the Single Judge. 

The observation came pursuant to a petition questioning the validity of Clause-2(a)(3) of G.O.(Ms) No.176, School Education [SE5(1)] Department, dated December 17, 2021, issued by the State Government (first Respondent). In addition, the petition also sought direction to the State government to permit Kachu Fathima (Petitioner) to take part in the transfer counseling, by placing her under the priority spouse quota. 

After considering the submissions, Justice Subramaniam found that it is the prerogative of the public administration to transfer the employee in the public interest and to ensure efficient and effective administration, as the counselling policy introduced by the Government is a concession extended to the Government employees.

Counselling policies are issued for providing an opportunity to the employees to choose the place or post subject to the availability and eligibility and as per the terms and conditions stipulated in the counselling policy, and therefore, a concession can never be claimed as a matter of right, added the Single Judge. 

However, the High Court pointed out that such concessions are to be extended strictly in accordance with the terms and conditions of the counselling policy, and the officials, who are all implementing the counselling policy, must ensure that the terms and conditions of the policy are strictly followed and the eligibility criterias of the candidates to participate in the counselling are verified and accordingly, appropriate decisions are taken. 

For entertaining a writ petition, the right must be established or it’s infringement is to be established, and Courts need not interfere with any such policies, which are all provided to facilitate the employees or to grant concession to choose the place or post, subject to the availability, added the High Court. 

Even in case if the employees are unable to get a particular post or place, then also it cannot be construed as a right. If at all there is any gross violation of the policy decision taken by the Authorities competent, then the aggrieved person has to approach the Authorities concerned for redressal of his/her grievance in the manner known to law. However, in the present case, the petitioner states that she is eligible to participate in the counselling. The eligibility of the petitioner is to be ascertained by the Authorities competent, while finalizing the list of candidates, who are all eligible to participate in the counseling”, added the Single Judge. 

Accordingly, the High Court disposed of the petition and directed the competent Authorities to verify the service register of the petitioner and take appropriate decision in this regard.

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