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2023 DIGILAW 1116 (AP)

Bokka Rambabu v. State of Andhra Pradesh

2023-07-21

V.SUJATHA

body2023
ORDER : This writ petition came to be filed under Article 226 of the Constitution of India seeking the following relief: “...to issue a writ, order or direction more particularly one in the nature of Writ of Mandamus declaring that the action of the 2nd respondent in issuing the Proceedings No.LAE0511021(31)/48/2022-A SEC. DOF-3, dated 29.06.2022, transferring the petitioner from the post of Deputy Chief Inspector of Factories, Guntur and I/c Inspector of Factories, Guntur to accommodate the 3rd respondent on return from leave as illegal, improper, arbitrary, contrary to law, violation of principles of natural justice, violative of Articles 14, 16 and 21 of the Constitution of India, unconstitutional and set aside the same by holding that the impugned transfer is made at the behest of the 3rd respondent that too, to accommodate him after return from leave is irrational and unsustainable in the eye of law and to pass.....” 2. The case of the petitioner is that, initially, he was appointed as Inspector of Factories on 05.09.2003 and was posted in the Head Office, Hyderabad. Thereafter, he discharged his duties in various places in the erstwhile State of Andhra Pradesh from time to time. After his promotion as Deputy Chief Inspector of Factories at Kadapa on 18.08.2016, he was transferred and was posted as Deputy Chief Inspector of Factories at Guntur with effect from 31.01.2019. While the things stood thus, the 2nd respondent issued impugned orders of transfer dated 29.06.2022, duly transferring the petitioner from the post of Deputy Chief Inspector of Factories and I/c Inspector of Factories, Guntur to that of post of Deputy Chief Inspector of Factories at Srikakulam on administrative grounds. The grievance of the petitioner is that his transfer was affected at the instance of the local MLA of Guntur West Constituency vide his letter dated 15.06.2022 so as to accommodate the unofficial respondent i.e., the 3rd respondent herein in the place of the petitioner. Challenging the said action, the petitioner has filed the present writ petition. 3. When the writ petition came up for admission on 05.07.2022, this Court was pleased to pass the following interim order: “In the facts and circumstances, there shall be interim suspension of the impugned proceedings dated 29.06.2022 issued by the 2nd respondent till 30.08.2022.” 4. Challenging the said action, the petitioner has filed the present writ petition. 3. When the writ petition came up for admission on 05.07.2022, this Court was pleased to pass the following interim order: “In the facts and circumstances, there shall be interim suspension of the impugned proceedings dated 29.06.2022 issued by the 2nd respondent till 30.08.2022.” 4. The respondent Nos.1 and 2 have filed a counter stating that the 3rd respondent has submitted a representation on 22.03.2022 stating that he underwent Coronary Artery Bypass Surgery on 14.09.2021 and thereby, he needs cardiac specialist doctors’ observation and requested to post him at Vijayawada. However, the said request could not be considered as there was ban on transfers. 5. The counter further states that the Government has relaxed the ban on transfers vide G.O.Ms.No.116, dated 07.06.2022 and G.O.Ms.No.122, dated 16.06.2022 duly stipulating certain principles and procedures for undertaking the transfers and postings, wherein there is no minimum qualifying service stipulated in the said G.O., for undertaking transfers on request and on administrative grounds, while making the transfer compulsory if the period of service at a station is more than 5 years. The respondent has issued a circular memo vide LAE 05-11021(31)/48/2022-A SEC-DOF, dated 13.06.2022, duly calling for options from the employees seeking transfer of the Department. 6. In response to which, the 3rd respondent has submitted an option form on 15.06.2022 requesting for transfer at Guntur, duly citing that he underwent Coronary Artery Bypass Surgery on 14.09.2021. Further, the petitioner, who is working in Guntur as Deputy Chief Inspector of Factories, since the last 3 years and 5 months, has also submitted a representation on 13.06.2022 requesting to retain him in the existing place as he has not completed 5 years of service at the station and also cited health grounds. The representation of the petitioner dated 13.06.2022 which is duly attached with medical reports were examined and as the medical problem cited by him has not been listed as a preference for considering the transfer in G.O.Ms.No.116, dated 07.06.2022, the request made by the petitioner was not considered. 7. In the meanwhile, the MLA of Guntur Constituency has addressed a letter to the Hon’ble Minister for Labour, Factories, Boilers & Insurance Medical Services, requesting the concerned to post a good Deputy Chief Inspector of Factories at Guntur by transferring the petitioner in the interest of public. 7. In the meanwhile, the MLA of Guntur Constituency has addressed a letter to the Hon’ble Minister for Labour, Factories, Boilers & Insurance Medical Services, requesting the concerned to post a good Deputy Chief Inspector of Factories at Guntur by transferring the petitioner in the interest of public. Thereafter, as the petitioner’s medical reports do not find a place in the preferences for considering the medical grounds as per G.O.116, dated 07.06.2022 and also in pursuance of the letter of the Hon’ble Minister for Labour, the petitioner was transferred on administrative grounds and was posted to Srikakulam vide proceedings dated 29.06.2022, which was served to him through official email on 30.06.2022. It is stated that, hence, the transfer of the petitioner has been done purely on administrative grounds, but not to accommodate the 3rd respondent on his return from leave, as alleged by the petitioner. 8. It is further stated that after availing leave for a period of 131 dates, the 3rd respondent has reported to duty along with the medical fitness certificate in the office of the 1st and 2nd respondent on 29.06.2022 for posting orders. In view of the pending request of the 3rd respondent for posting at Guntur on Health Ground since 22.03.2022, his option for posting at Guntur on 15.06.2022 was considered on medical grounds as the 3rd respondent has undergone Coronary Artery Bypass Surgery, which falls within the scope of preferences on medical grounds shortlisted in para 4(v)(c) of the G.O.MsNo.116, dated 07.06.2022. The counter further states that, the Director of Factories, is the competent authority to transfer the employees in the department on request as well as on administrative grounds with no minimum qualifying service at a station. In accordance with the transfer orders dated 29.06.2022, the 3rd respondent has reported to duty at Guntur on 30.06.2022 and signed the CTC. Later, it was reported by the 3rd respondent vide letter dated 01.07.2022 which was received in the office of the 1st respondent on 01.07.2022 that he has attempted to contact the petitioner several times over phone and by deputing special messenger to his residence in order to relieve the petitioner by obtaining signatures on CTC. But, the petitioner has reportedly did not respond. As such, the 3rd respondent has continued to perform the duties of Deputy Chief Inspector of Factories, Guntur. 9. But, the petitioner has reportedly did not respond. As such, the 3rd respondent has continued to perform the duties of Deputy Chief Inspector of Factories, Guntur. 9. While so, this Court has passed interim suspension orders dated 05.07.2022 in the present writ petition duly suspending the transfer orders issued by the 1st respondent to the petitioner vide orders dated 29.06.2022. It is further stated that as the orders issued by this respondent are in accordance with the Government Orders and are within the powers vested with the respondent, the respondent No.3 was transferred vide orders dated 29.06.2023 and accordingly, he also joined at Guntur and is discharging duties as Deputy Chief Inspector of Factories with effect from 30.06.2022 which is even prior to the interim orders passed by this Court i.e., 05.07.2022. 10. The 3rd respondent has also filed a counter affidavit, reiterating the facts as stated by the respondent Nos.1 and 2 and has further stated that he was appointed as Inspector of Factories through A.P. Public Service Commission on 11.10.1994 and was further promoted as Deputy Chief Inspector of Factories on 24.10.2012. Thereafter, in the month of September, 2021, while he was working at Chittoor, he underwent heart surgery at Hyderabad and was advised to take rest for four months i.e., from 18.02.2022. Subsequently, he reported to duty on 29.06.2022 in the Head Office at Vijayawada. Taking into consideration his work at various places and also on medical grounds, he was given posting at Guntur as Deputy Chief Inspector of Factories. The 3rd respondent has joined the duty on 30.06.2022 and took charge in the said office, but, the petitioner herein has failed to sign the certificate of transfer and the same has been reported to the Head Office by the 3rd respondent, who in turn has directed the 3rd respondent to continue his services at the same place. 11. It is further contended that the transfers are not based on some political appointments or on recommendations. As the respondent No.3 has reported to duty after leave and he being the senior most person in Deputy Chief Inspector of Factories, posting was given to him accordingly at Guntur in pursuance of the regular posting but not basing on any recommendation as alleged by the petitioner. It is also stated that the petitioner has not been attending his duty since the date of transfer order and on 30.06.2022. It is also stated that the petitioner has not been attending his duty since the date of transfer order and on 30.06.2022. It is also stated that when the 3rd respondent has reported in the office to take charge in pursuance of the transfer orders, the petitioner has left the office without signing on the certificate of transfer. The 3rd respondent further stated that as the charge has already been given to him, the petitioner herein is liable to report to the duty in the place where he was transferred. 12. This Court feels it appropriate to extract the provisions of the Principles for transfer of postings as per G.O.Ms.No.116, dated 07.06.2022, which reads as under: “Principles for Transfers and Postings 4. The following principles may be adopted while effecting transfer of employees: i. Transfers shall be effected only “on request” basis and on administrative grounds. ii. Employees who completed 5 years at a station shall be invariably transferred. iii. 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. iv. However, for State Audit Department, station means Office within the Zone as all their officer are situated in the District Headquarters only. v. Preference will be given to below categories: a. Employees with disabilities of 40% or more as certified by a competent authority as per “persons with disabilities.” b. Employees having mentally challenged children to a place where medical facilities are available. c. Medical grounds for the diseases (either self or spouse or dependent children and dependent parents) of Cancer, Open Heart Operations, Neuro Surgery, Kidney Transplantation to places where such facilities available. d. Widow employee appointed on Compassionate appointments. e. Husband and Wife cases (only one of the spouses shall be shifted following the prescribed procedure.) Once the facility is utilized, the next request can be made only after eight years.” 13. On a perusal of the counter filed by the respondent Nos.1 and 2, it is clear that the Government has relaxed the ban on transfers vide G.O.Ms.No.116, dated 07.06.2022 and G.O.Ms.No.112, dated 16.06.2022, duly stipulating certain principles and procedures for undertaking the transfers and postings. On a perusal of the counter filed by the respondent Nos.1 and 2, it is clear that the Government has relaxed the ban on transfers vide G.O.Ms.No.116, dated 07.06.2022 and G.O.Ms.No.112, dated 16.06.2022, duly stipulating certain principles and procedures for undertaking the transfers and postings. In pursuance of the above said G.Os., the respondents have issued circular memo dated 13.06.2022, duly calling for the options from the employees seeking transfer of the department. In response to the memo, the 3rd respondent has submitted an option form on 15.06.2022 requesting to post him at Guntur, duly citing his health ground of Coronary Artery Heart Surgery and the petitioner herein has also submitted a representation dated 13.06.2022 requesting to retain him in the existing post at Guntur as he has not yet completed 5 years of service at Guntur also citing health grounds. Both the options submitted by the petitioner and the 3rd respondent were duly considered by the official respondents and as the 3rd respondent has undergone Heart Surgery which was stipulated in clause 4 (v) (c) of the principles for transfers and postings, the request made by the 3rd respondent was considered and the petitioner’s option was not considered as there is no minimum qualifying period stipulated in the said G.O.ms.No.116, dated 07.06.2022 for undertaking request either by transfer or administrative grounds. Whereas, according to the medical report submitted by the petitioner, the diagnosis was found to be “partially distended, wall is mildly irregular No calculi” with respect to urinary bladder was examined, which was not listed/stipulated as per the principles for transfers and postings. 14. As such, the petitioner’s representation was found to be invalid with respect to the medical grounds. Further, there seems to be a letter addressed by the MLA, Guntur Constituency, requesting the respondent authorities to post a good Deputy Chief Inspector of Factories at Guntur by transferring the existing incumbent i.e., the petitioner herein in the interest of public. Under similar circumstances wherein the transfer was made in pursuance of a letter addressed by the MLA, the Hon’ble Supreme Court in Mohd. Masood Ahmad Vs. State of U.P and others, (2007) 8 SCC 150 , has held as follows: “7. The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Roy Vs. Union of India, National Hydroelectric Power Corpn. Masood Ahmad Vs. State of U.P and others, (2007) 8 SCC 150 , has held as follows: “7. The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Roy Vs. Union of India, National Hydroelectric Power Corpn. Ltd. V. Shri Bhagwan, State Bank of India Vs. Anjan Sanyal. Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh v. Stateof U.p and Onkar Nath Tiwari V. Chief engineer, Minor Irrigation Deptt. has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a court of law in exercise of its discretionary jurisdiction under Article 226 unless the court finds that either the order is mala fide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders.” “8…….In our opinion, even if the allegation of the appellant is correct that he was transferred on the recommendation of an MLA, that by itself would not vitiate the transfer order. After all, it is the duty of the representatives of the people in the legislature to express the grievances of the people and if there is any complaint against an official the State Government is certainly within its jurisdiction to transfer such an employee. There can be no hard-and-fast rule that every transfer at the instance of an MP or MLA would be vitiated. It all depends on the facts and circumstances of an individual case. 15. The learned Government Pleader for Services-III has relied upon a judgment in Shilpi Bose Vs. State of Bihar, 1990 LawSuit(SC) 692, wherein while dealing with the issue whether Courts can interfere with the transfer orders which are made in the public interest and for administrative reasons or not, the Court has held as follows: “[4] In our opinion, the courts should not interfere with a transfer order which are made in public interest and for administrative reasons (unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department. If the courts continue to interfere with day-to-day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfer orders. [5] We accordingly allow the appeal, set aside the order of the High Court and dismiss the petition filed by the respondents. The appellants should be posted to the places to which they had been transferred under the orders impugned before the High Court. There will be no order as to costs.” 16. In the case on hand, the petitioner has filed the present writ petition on 04.07.2022 challenging the transfer orders dated 29.06.2022 and had obtained an interim order on 05.07.2022. But, in pursuance of the transfer orders dated 29.06.2022, the 3rd respondent had joined the duty at Guntur on 30.06.2022 which is even before the interim orders were granted i.e., on 05.07.2022. In view of the fact that even by the date of filing of the present writ petition, the 3rd respondent has already reported to duty and has assumed charge. Also, this Court does not find any illegality on behalf of the respondents for transferring the petitioner herein as it was done by the authorities who are competent enough to pass the orders and as it was done in accordance with the principles for transfers and postings as stipulated in G.O.Ms.No.116, dated 07.06.2022. In view of the above, this Court feels that no further adjudication would be necessary in the present writ petition. 17. Accordingly, Writ Petition is dismissed. There shall be no order as to costs. Miscellaneous petitions, pending, if any, in this Writ Petition shall stand closed.