While giving a decision on the petition of M Kachu Fathima versus the Government of Tamil
Nadu, on 10th Feb 2022, Justice M Subramaniam from the Madurai Bench of the Madras High Court rejected a plea for a transfer stating the reason that transfer of a government employee cannot be claimed as a matter of right.
The appellant sought for including her name in the transfer counselling which did not happen. Hence the petition. The Court opined that transfers of government employees are made on administrative grounds. It is the discretion of the administrative authorities to transfer employees to ensure effective administration and employees do not have a say in this matter. The employees cannot insist for transfer to a particular place.
The petitioner M Kachu Fathima was posted at a school in Tenkasi as a junior assistant in
2013 and eventually promoted as PG assistant in February 2021. Meanwhile, in December 2021 a Government Order was passed, with exemption for employees with more than one year of service in the present station, including visually impaired and physically challenged teachers. The petitioner sought inclusion in the transfer counselling under the priority quota. Since the petitioner met the categories mentioned in the exemption criteria, she appealed the court to intervene and allow her to be a part of the transfer counselling.
The petitioner challenged the legality of Clause-2(a)(3) of G.O.(Ms) No.176, School
Education [SE5(1)] Department, dated 17th December 2021, issued by the State Government (first Respondent). In addition, the petitioner also wanted an order from the State government to include Kachu Fathima (Petitioner) in the transfer counseling, via the priority spouse quota.
The High Court dismissed the petition, however directed the concerned Government authorities to authenticate the service register of the petitioner and take fitting decision.
Citing that transfers are incidental, more so for a government employee, the court noted that the counselling policy is concession bestowed upon government employees. "Therefore, a concession can never be claimed as a matter of right," Justice S M Subramaniam stated.
The court further added that the authority for a judicial review in such cases is limited, and even if employees are unable to get a particular place or post, then too no such right can be construed. In case the petitioner feels that there has been a gross violation of policy decision, then she could approach the concerned governmental departments for grievance redressal. The Judge observed that the power of judicial review is limited in respect of such transfer, and therefore, the High Court 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. Since for the entertainment of a writ petition, a right must exist and an infringement of that right must also be established, a general transfer counselling would not provide a cause of action.
Furthermore, the court held that any transfer of government employee is done in the public interest to ensure efficient and effective administration. The counselling policies are a platform for the employees to select the available place or post according to their eligibility. However, the High Court directed attention to the proper adherence to the terms and conditions of the counselling policy, and advised that the officials who implement the counselling policy to ensure the eligibility of the candidates taking part in the counselling are verified and fair decisions are taken.
The government employees are bound to the terms and conditions of the Public Authorities and Companies, one of which mandates transfer at the sole discretion of the government.
A transfer is essential for an efficient administration. Furthermore, a transfer widens the experience and knowledge of an employee value adding his skills. Transfers usually increase the effectiveness of an organization by correcting erroneous placements, rectifying incompatibilities in employee relations, dealing with changing work requirements, avoiding monotonous jobs, provide creative opportunity, move an employee in the interest of health or age, and train employees for advancement in job.
However, the transferring authorities should also keep in mind that transfers cause an inconvenience to people who otherwise do not want to relocate. There is also a risk that the transferred employee does not fit into the new work culture or location or department. In addition, shifting of experienced people may affect the productivity and efficiency of the company. Biased or discriminatory transfers could also affect the morale of the employees.
Considering the aforesaid, the transfers should have a balanced approach taking into consideration the company needs, employee needs and decide the greater good.
This article is written by Rakesh Behera, of Sambalpur University.