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2022 DIGILAW 1065 (AP)

T. Sudarshan Reddy v. State of Andhra Pradesh

2022-10-18

V.SUJATHA

body2022
ORDER : 1. The writ petition is filed under Article 226 of the Constitution of India seeking the following relief: “to issue a Writ or Order more in the nature of Mandamus declaring the action of the 3rd respondent in modifying the transfer order issued vide A4/752/2019, dated 10.07.2019 served o 20.07.2019 (through Whatsapp) read with REVASECORP (VRO)/1 2019, dated 22.07.2019 in so far as transferring the petitioner from Kurnool Town Cluster III as Village Revenue Officer, Deenkakonda-II village, and posting the 4th respondent as Village Revenue Officer, Kurnool Town Cluster-III as illegal, arbitrary and contrary to guidelines of G.O.Ms.No.45, Finance (HR.I-PIG Policy) Department, dated 24.06.2019 and G.O.Ms.No.59, dated 04.07.2019 and in violation of Article 14 of the Constitution of India and consequently to direct the respondents to retain and continue the petitioner as Village Revenue Officer, Kurnool Town Cluster III with all incidental benefits.” 2. The case of the petitioner, in brief, is that he is working as Village Revenue Officer with effect from 10.12.2010. The Government of Andhra Pradesh issued G.O.Ms.No.45 Finance (HR-I-Plg & Policy) Department, dated 24.06.2019 lifting the ban on transfers from 25.06.2019 to 05.07.2019, which was extended up to 10.07.2019 vide G.O.Ms.No.59, dated 04.07.2019. Consequent upon relaxation of ban on transfers, the petitioner, along with one A. Lakshmi Kanth Reddy, who was working as Village Revenue Officer, Cluster III, Kurnool Town, had applied for transfer on mutual basis, which is permissible under the transfer guidelines. Considering the said application, the 3rd respondent issued proceedings in Rc.No.A4/752/2019, dated 10.07.2019 transferring and posting certain Village Revenue Officers on Administrative grounds, wherein the petitioner was shown at S.No.71 transferring him from Kurnool Town II, Cluster, Kurnool to Kurnool Town III Cluster, Kurnool. Accordingly, the petitioner reported to duty on 12.07.2019. The further case of the petitioner is that his wife Smt. D. Rajeswaramma, was working as Post Graduate Teacher in Zoology, A.P. Model School, Jupali Bungalow, Kurnool and his case is squarely covered under spouse case as envisaged in transfer guidelines. Strangely, the 3rd respondent issue proceedings in Rc.No.A4/752/2019, dated 10.07.2019, partially modifying the earlier orders of transfer, which was communicated through Whatsapp on 20.07.2019 after the petitioner joined in Kurnool Town III Cluster Kurnool in pursuance of initial transfer orders dated 10.07.2017. Strangely, the 3rd respondent issue proceedings in Rc.No.A4/752/2019, dated 10.07.2019, partially modifying the earlier orders of transfer, which was communicated through Whatsapp on 20.07.2019 after the petitioner joined in Kurnool Town III Cluster Kurnool in pursuance of initial transfer orders dated 10.07.2017. The grievance of the petitioner is that the 3rd respondent issued the impugned order partially modifying the earlier transfers to accommodate the 4th respondent who was appointed under compassionate grounds which is nothing but arbitrary, unjust and contrary to guidelines issued in G.O.Ms.No.45, dated 24.06.2019. 3. The 3rd respondent filed his counter denying the averments made in the writ petition and contended that the G.O.Ms.No.45 Fin (HRI.Plg & Policy) Department, dated 24.06.2019 was issued relaxing ban on transfer of employees up to 05.07.2019 and as per Para 3 (i), (ii) and (iii) of the said G.O., the principles for transfers and postings are that the transfer of employees shall be effected “on request” and on administrative grounds; employees who completed five years at a station shall be invariably transferred; and service in all cadres at a station shall be counted while calculating the period of stay. Station means place (City, Town, Village) of actual working for the purpose of transfers and not office or institution. Subsequently, the relaxation of ban on transfer of employees was extended up to 10.07.2019 vide G.O.Ms.No.59 Fin (HRI-Plg. & Policy) Department, dated 04.07.2019. 4. It is further stated that the petitioner, who was working as Village Revenue Officer, Kurnool Town-II Cluster, Kurnool, was transferred and posted as Village Revenue Officer, Kurnool Town III Cluster vide proceedings in Rc.A4/752/2019, dated 10.07.2019 showing him at S.No.71 on mutual basis, which was not made as per the principles laid down in G.O.Ms.No.45, dated 24.06.2019, but only on administrative grounds. Immediately, partial modification orders were issued, transferring and posting the petitioner as Village Revenue Officer, Devenakonda-II Cluster, Devenakonda Mandal, on administrative grounds, on the ground that the petitioner has completed five years of service as Village Revenue Officer, as per Rule 3 (ii) of the said G.O., more so, he was working in the same Mandal since his date of appointment in the cadre of Village Revenue Officer from 10.12.2010 i.e. more than nine years. Accordingly, the petitioner’s transfer was effected and the said orders were despatched on the same day i.e. 10.07.2019 to the office of the Tahsildar, Kurnool and accordingly, the petitioner reported to duty on the F.N. of 12.07.2019 before the Tahsildar, Kurnool. 5. Subsequently, as the 4th respondent was appointed as Village Revenue Officer under compassionate grounds and posted as Village Revenue Officer, Kurnol Town-III vide proceedings in REV-ASECORP(VRO)/1/2019, dated 22.07.2019, the Tahsildar, Kurnool relieved the petitioner on the A.N. of 22.07.2019 vide his proceedings No.C/571/2019, dated 22.07.2019 from the post of Village Revenue Officer, Kurnool Town III Cluster. But, the petitioner has not joined there. Thereafter, pursuant to the letter dated 29.10.2019 addressed by the 3rd respondent to the Tahsildar, Kurnool, calling for a detailed report for not implementing the revised orders of the 3rd respondent, the Tahsildar, Kurnool, submitted his report vide Rc.No.C.571/2019, dated 02.11.2019, stating that the then Tahsildar has implemented the earlier orders of the 3rd respondent dated 10.07.2019 issued posting the petitioner as Village Revenue Officer, Kurnool Town III Cluster and he admitted the petitioner to duty as such. The revised orders dated 10.07.2019 was received on the same day whereby the petitioner was transferred from Kurnool Town III to Devanakonda II of Devenakonda Mandal, but, the said individual was not relieved immediately on the ground that the said post was not filled up and it would be difficult for smooth administration, if the said post is kept vacant for attending protocol duties/conducting panchanamas/autopsy duties/issue of certificates and also attending court duties. Immediately the then Tahsildar was relieved from the post of Tahsildar, Kurnool on the A.N. of 12.07.2019 as he was transferred to Ananthapur District after completion of General Elections 2019 by handing over the charge of the post of Deputy Tahsildar. Later on 13.07.2019 the Deputy Tahsildar has handed over the charge to newly joined Tahsildar. 6. It is further stated that on 22.07.2019, the 4th respondent was appointed as Village Revenue Officer under compassionate grounds and posted as such in Kurnool Town III vide proceedings REV-ASECORP(VRO)/1/2019, dated 22.07.2019 and he was joined duty on the A.N. of 22.07.2019 and the petitioner was relieved on F.N. of 22.07.2019. 6. It is further stated that on 22.07.2019, the 4th respondent was appointed as Village Revenue Officer under compassionate grounds and posted as such in Kurnool Town III vide proceedings REV-ASECORP(VRO)/1/2019, dated 22.07.2019 and he was joined duty on the A.N. of 22.07.2019 and the petitioner was relieved on F.N. of 22.07.2019. The 3rd respondent admitted the fact that the delay in implementing the revised orders of the Collector, Kurnool transferring and posting the petitioner was due to holding of post of the Tahsildar, Kurnool by three officers in short term of 10 days and also for smooth administration only and there was no intention in delaying the same. Further, the petitioner has applied for transfer on mutual basis only and not on spouse grounds as Village Revenue Officer, Kurnool Town III, which was not permissible as per the principles laid down in G.O.Ms.No.45, dated 24.06.2019. It is also stated that the transfers and postings were issued in three lists as per the feasibility of the administration and the same were issued on the same date i.e. 10.07.2019. Further, the petitioner, instead of joining in Devanakonda-II Cluster of Devanakonda Mandal, the transferred place, filed the present writ petition and obtained orders of status quo on 23.09.2019. 7. Heard Sri D. Linga Rao, learned counsel for the petitioner and the learned Government Pleader for Services-I. 8. Learned counsel for the petitioner, while reiterating the contents of the writ petition, vehemently contended that when once the 3rd respondent issued proceedings transferring the petitioner from Kurnool Town Cluster II, Kurnool to Kurnool Town III Cluster, Kurnool, and pursuant to the said transfer orders, when the petitioner had acted upon such transfer orders, issuance of revised orders transferring him from Kurnool Town III Cluster, Kurnool to Devanakonda is nothing but illegal, arbitrary and without jurisdiction. He further contended that the 3rd respondent issued the revised transfer orders only to accommodate the 4th respondent. In fact, the petitioner joined in the new station on 12.07.2019. However, the 4th respondent, who was appointed on compassionate grounds, joined duty on 22.07.2019. 9. He further contended that the 3rd respondent issued the revised transfer orders only to accommodate the 4th respondent. In fact, the petitioner joined in the new station on 12.07.2019. However, the 4th respondent, who was appointed on compassionate grounds, joined duty on 22.07.2019. 9. In support of his case, the learned counsel for the petitioner relied upon a decision reported in R.K. Dubey v. M.P. State Agro Industries Development Corporation, [1990(6) SLR 530 (MP)], wherein a Division Bench of Madhya Pradesh High Court categorically held as under: “…….In any service when the relationship is that of master and servant, transfer, retirement, promotion etc. are incidents of service. Usually the master has full power to transfer his servant wherever he wants because transfer is ordered looking to the character and quality of work the servant does. Thus, if the master is of the opinion that a particular servant is required at a particular place for a particular duty, the master has a right to transfer such a servant from one place to another. This power of the master is not absolute and should not be exercised capriciously. At the same time, the master should avoid to transfer his servant simply to accommodate the other favoured servant. Furthermore an order of transfer of a servant should be passed in public interest or in the interest of the institution itself where the servant serves. Exigencies of administrative purpose also sometimes persuade the master to transfer the servant from one place to another. Orders of transfer of a Govt. servant like any other administrative or executive orders are passed invariably for administrative purposes or in public interest. Such orders normally are outside the purview of examination by courts of law. But an executive decision or action or an administrative decision is liable to be struck down if it is used mala fide or for a collateral purpose.” 10. Relying upon the above judgment, the learned counsel for the petitioner vehemently argued that the power to transfer of an employee is not an absolute and should not be exercised capriciously or simply to accommodate another favoured servant and that transfer can be effective in public interest or in the exigencies of administrative purpose. He further agued that when an order of transfer is lacking a bona fide, court competent to interfere with it for the sake of justice and fair play. 11. He further agued that when an order of transfer is lacking a bona fide, court competent to interfere with it for the sake of justice and fair play. 11. Similarly, in Major A.A. Aphraim v. Director General, National Cadet Corps, New Delhi, [1989 (2) SLR 792], wherein the Central Administrative Tribunal, while discussing the principle of ‘promissory estoppel’ applicable to the Government, categorically held as under: “...... If the Government does not want its freedom of executive action to be hampered or restricted, the Government need not make a promise knowing or intending that it would be acted on by the promise and the promise would alter his position relying upon it. But, if the Government makes such a promise and the promise acts in reliance upon it and alters his position, there is no reason why the Government should not be compelled to make good such promise like any other private individual. It is only if the Court is satisfied that overriding public interest requires that the Government should not be held bound by the promise that the Court would refuse to enforce the promise......” 12. Relying upon the above judgment, it is contended that when the employer makes a promise and in reliance upon such promise, if the employee alters his position, the employer is bound to make good such promise, on the principle of promissory estoppel. 13. Per contra, it is the contention of the respondents that initially the petitioner was transferred and posted as Village Revenue Officer, Kurnool Town-III Cluster, Kurnool vide proceedings dated 10.07.2019 on mutual basis, which was not made as per the principles laid down in G.O.Ms.No.45, dated 24.06.2019. It is also the contention of the respondents that since the petitioner had completed five years of service as per Rule 3 (ii) of the said G.O., more so, as he was working as Village Revenue Officer nearly nine years since the date of his appointment, he was transferred and posted as Village Revenue Officer, Devanakonda-II Cluster of Devanakonda Mandal, on administrative grounds vide revised orders dated 10.07.2019, which was communicated on the same day i.e. 10.07.2019 to the office of Tahsildar, Kurnool. 14. 14. In support of their case, the learned standing counsel for the respondents relied upon a decision reported in State of U.P. and others v. Ashok Kumar Saxena and another, [ (1998) 3 SCC 303 ], wherein the Hon?ble Supreme Court categorically observed that transfer of an employee is within the prerogative power of an employer, who can withdraw, alter or modify any previous order of transfer, wherein the High Court will not interfere under Article 226 of the Constitution of India unless it is shown clearly as mala fide or infraction of any professed norms or principles enshrined by the Rules. The Hon?ble Supreme Court, while dealing with a case of this nature, categorically held as follows: “.....The parameters of the powers of a Court under Article 226 vis-a-vis an order of transfer for are well settled. In N.K. SINGH VERSUS UNION OF INDIA 7 ORS. (1994) 6 S.C.C. 98 , this Court held that interference by judicial review is justified only in cases of mala fides or infraction of any professed norms or principles and where career prospects remain unaffected and no detriment is caused to the concerned Government employee, challenge to the transfer must be eschewed. Reiterating the said proposition in Sri Abani Kanta Ray Versus State of Orissa & Ors. J.T. 1995 (7) S.C. 467 the Court added that transfer being an incidence or service, is not to be interfered with by the Courts unless it is shown clearly arbitrary.......” 15. Similarly, in Somesh Tiwari v. Union of India and others, [ (2009) 2 SCC 592 ], the Hon?ble Supreme Court categorically held that an order of transfer is an administrative order, which is ordinary an incident of service and the same should not be interfered with, unless in cases where mala fides on the part of the authority is proved. However, it may be relevant to refer the observations made, as under: “……Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the second malice in law. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal….” 16. In the judgment referred to supra, the Hon’ble Supreme Court has further categorically held that failure of an employee to join at the station where he was transferred, the employee is treated to be on leave, in respect of which it is for the authorities to pass appropriate orders invoking the leave rules applicable in that behalf. 17. In the light of above background, it is to be seen that whether the petitioner has reported to duty in the station where he was transferred pursuant to the revised transfer orders? 18. A perusal of the material available on record makes it clear that initially, the petitioner was transferred and posted as Village Revenue Officer in Kurnool Town-III, Kurnool from Kurnool Town-II Cluster, Kurnool. It is also a fact that in partial modification of earlier transfer orders, the respondent authorities issued revised transfer orders on the very same day transferring some of the employees on administrative grounds, where the petitioner is one among them. But, it is the case of the petitioner that when once the petitioner acted in reliance upon the initial transfer orders and altered his position by joining at the place where he was initially transferred, the issuance of revised orders again transferring him to another place is nothing but illegal and is estopped by the principle of “promissory estoppel”. 19. But, it is the case of the petitioner that when once the petitioner acted in reliance upon the initial transfer orders and altered his position by joining at the place where he was initially transferred, the issuance of revised orders again transferring him to another place is nothing but illegal and is estopped by the principle of “promissory estoppel”. 19. On the other hand, it is the claim of the respondents that in partial modifications of earlier transfer orders, the subsequent revised orders were issued on administrative grounds on the very same day, transferring a large of number of officers, out of whom, the petitioner is one among them. It is not dispute that the revised transfer orders were issued on the same day i.e. 10.07.2019. It is also not in dispute that pursuant to the earlier transfer orders, the petitioner reported to duty on 12.07.2019 in Kurnool Town-III Cluster where he was earlier transferred. It also appears from the material on record that pursuant to the revised transfer orders, the petitioner was not relieved due to some administrative lapses on the part of the respondent authorities. However, on the joining of his successor in the said place, he ultimately relieved from duties on 22.07.2019, vide proceedings No.Rc.C/571/2019, dated 22.07.2019, which is impugned herein. 20. But, it appears that pursuant to the said relieving orders, the petitioner had not joined duty at the place i.e. Devanakonda-II where he was transferred. But, instead of joining, the petitioner filed the present writ petition challenging the said orders. But, no interim order was passed. Despite the same, taking advantage of pendency of the writ petition, the petitioner himself voluntarily kept away from the employment since the date of filing of the writ petition. It is no doubt a fact that if really he is aggrieved by the revised transfer orders, firstly, he should have joined in the place where he was transferred and then he would challenge the said orders, which he did not do so. The fact remains that pursuant to the said revised orders, the employees, who were transferred subsequently, were joined in the new stations, but, it is only the petitioner, without joining in the new station, filed the present writ petition challenging the said revised orders, which is not permissible under the law. The fact remains that pursuant to the said revised orders, the employees, who were transferred subsequently, were joined in the new stations, but, it is only the petitioner, without joining in the new station, filed the present writ petition challenging the said revised orders, which is not permissible under the law. As already stated, the petitioner himself voluntarily kept away from employment taking advantage of pendency of the writ petition though no interim order was passed. 21. Having regard to the facts and circumstances of the case and keeping in view the fact that the petitioner himself kept away from employment without joining in the new station because of pendency of the writ petition, this court is of the considered view that the petitioner is not entitled for any relief as his conduct is wholly unwarranted and not justified in law. Hence, the writ petition is devoid of any merit and is liable to be dismissed. 22. Accordingly, the writ petition is dismissed, leaving it open to the petitioner to make a representation to the respondent authorities to permit him to join duty in the place i.e. Devanakonda-II, Devanakonda Mandal where he was transferred or in any other place. There shall be no order as to costs. 23. As a sequel thereto, miscellaneous petitions, if any, shall stand closed.