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2024 DIGILAW 829 (AP)

A. Kedari, S/o Rangaiah v. State of Andhra Pradesh, rep by its Principal Secretary, Higher Education Department

2024-07-24

SUBBA REDDY SATTI

body2024
ORDER : Subba Reddy Satti, J. The above writ petition is 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 declare the action of the respondents herein in issuing the impugned transfer modification order vide Rc.No.3210/Ser.I-A/Autonomous/2023-2, dated 8-8-2023 in favor of the 3rd un-official respondent and issuing consequential posting orders vide Rc.No.210/Ser.I-A/2023-I, dated 8-8-2023 by canceling the earlier transfer orders vide Proc Rc.No.24/Ser.IIIB/ Autonomous/2023-2 dated 26-7-2023 as illegal arbitrary and without any authority or jurisdiction and also contrary to the transfer guidelines issued under Circular dated 30-6-2023 and consequentially the Hon’ble Court may pleased to set a side the both the impugned order dated 8-8-2023 and 8-8-2023 with a further direction to repost the petitioner at SRR & CVR Govt. Degree College (A) Vijayawada and may pass such other or further orders …. 2. Heard learned counsel appearing on either side. 3. The case of the petitioner, in brief, is that the petitioner was selected and appointed as Lecturer by APPSC. He was initially posted at V.S.R. Govt. Degree College, Movva, Krishna District. Subsequently, the petitioner was transferred to TSR & ERR Government Degree College Pamarru, Krishna District. The petitioner took charge of the transferred post, on 30.05.2017, in Zone-II. While so, the Government issued G.O.Rt.No.86, H.E. Department dated 30.06.2022, lifting the ban on transfers till 31.07.2023. In pursuance of the said G.O., respondent No.2 issued guidelines/notification vide Cir.No.01/CCEAcad Cell/Autonomous Transfers /AC – 06/2023 dated 30.06.2023 (Ex.P1), for transfers and postings of lecturers working in autonomous college to Government Degree Colleges. In response to the guidelines/notification dated 30.06.2023, the petitioner, as well as, respondent No.3 submitted a transfer application, opting SRR & CVR Government Degree College, Vijayawada. The authority, by proceedings in Rc.No.24/Ser.III-B/Autonomous/2023-2 dated 26.07.2023 (Ex.P3), after considering the merit secured by the petitioner, posted him at SRR & CVR Government Degree College, Vijayawada by transferring one Dr.K.R.G. Seshu Kumar, who was working in the said station, to Kaikaluru Government Degree College. However, by modification order, dated 31.07.2023, said Dr. K.R.G. Seshu Kumar, was posted at Pamarru. The authority, by proceedings in Rc.No.24/Ser.III-B/Autonomous/2023-2 dated 26.07.2023 (Ex.P3), after considering the merit secured by the petitioner, posted him at SRR & CVR Government Degree College, Vijayawada by transferring one Dr.K.R.G. Seshu Kumar, who was working in the said station, to Kaikaluru Government Degree College. However, by modification order, dated 31.07.2023, said Dr. K.R.G. Seshu Kumar, was posted at Pamarru. Respondent No.3, who was posted at Government Degree College, Pamarru, vide proceedings, dated 01.08.2023, was subsequently, by modification order, dated 08.08.2023, transferred and posted at SRR & CVR Government Degree College, Vijayawada, based on the application made by her and the petitioner was posted as Lecturer in Telugu, at Government Degree College, Kaikalur, Eluru District. The said modification transfer order passed by respondent No.2 is contrary to the recommendations made by the Selection Committee and without jurisdiction. Hence, the writ petition. 4. Learned counsel for the petitioner would contend that in the transfer order of the petitioner passed vide Ex.P9, no reason was assigned. He also would submit that the ban was imposed vide G.O.Rt.No.89 Higher Education (CE.A1) Department dated 08.07.2023 (Ex.P11). Pending the same, the petitioner was transferred and hence, the transfer order is liable to be set aside. 5. Learned Assistant Government Pleader for Services would submit that the petitioner secured 40.3 marks whereas respondent No.3 secured 43 marks. However, due to a typographical error, the petitioner’s name was shown above the name of respondent No.3. The authorities rectified the mistake and issued the proceedings, transferring the petitioner to the Government Degree College, Kaikaluru. He would submit that in fact, the petitioner is not eligible for transfer. 6. Learned counsel appearing for respondent No.3 also argued in the similar lines of learned Assistant Government Pleader. 7. The point for consideration is . “Whether the proceedings impugned in the writ petition are sustainable?. 8. Shorn of the details, in pursuance of Ex.P1 notification, the petitioner and respondent No.3 submitted applications by opting SRR & CVR Government Degree College (A) Vijayawada and they attended an interview in Zone – II of NTR District. In the said interview, the petitioner secured 40.3 marks, whereas respondent No.3 secured 43 marks. 8. Shorn of the details, in pursuance of Ex.P1 notification, the petitioner and respondent No.3 submitted applications by opting SRR & CVR Government Degree College (A) Vijayawada and they attended an interview in Zone – II of NTR District. In the said interview, the petitioner secured 40.3 marks, whereas respondent No.3 secured 43 marks. However, without noticing the marks of the 3rd respondent, (marks wrongly calculated), because of the typographical mistake in the preparation of the marks sheet, the Selection Committee appointed and transferred the petitioner as Lecturer to SRR & CVR Government Degree College (A) Vijayawada. Later, when the 3rd respondent made an application, to rectify the mistake, the authorities appointed respondent No.3 as opted by her, and transferred the petitioner to the Government Degree College, Kaiakaluru. 9. The contention of learned counsel for the petitioner that the petitioner was transferred during the ban, falls to ground for the reason, the petitioner’s transfer is not a regular transfer. It is a transfer on selection. Initially, given the typographical mistake, the petitioner was transferred based on selection despite being ineligible. Later, the authorities rectified the same. Of course, as rightly contended by the learned counsel for the petitioner, Ex.P9, impugned in the writ petition does not contain proper reason. However, along with the counter affidavit, sufficient material is placed showing that the petitioner secured 40.3 marks and respondent No.3 secured 43 marks. 10. It is settled law that the illegality shall not be allowed to perpetuate. Had the authorities failed to rectify their mistake by allowing the petitioner to continue in SRR & CVR Government Degree College, it would have amounted to perpetuating illegality. As discussed supra, 3rd respondent secured more marks than the petitioner, however, due to a mistake on the part of the authorities, the petitioner was initially transferred to SRR & CVR college on selection. Later the said mistake was rectified. 11. This Court, while exercising the Judicial Review under Section 226 of the Constitution of India, will not act as appellate authority. If the authority fails to adhere to rules or violates principles of natural justice, this Court will interfere with the decision-making process and the consequential proceedings. While explaining the scope of judicial review, the Hon’ble Apex Court in Jayrajbhai Jayantibhai Patel Vs. Anilbhai Nathubhai Patel 2006 (8) SCC 200 , the Hon’ble Apex Court held thus. “12. If the authority fails to adhere to rules or violates principles of natural justice, this Court will interfere with the decision-making process and the consequential proceedings. While explaining the scope of judicial review, the Hon’ble Apex Court in Jayrajbhai Jayantibhai Patel Vs. Anilbhai Nathubhai Patel 2006 (8) SCC 200 , the Hon’ble Apex Court held thus. “12. Article 226 of the Constitution is designed to ensure that each and every authority in the State, including the State, acts bona fide and within the limits of its power. However, the scope of judicial review in administrative matters has always been a subject matter of debate despite a plethora of case-law on the issue. Time and again attempts have been made by the courts to devise or craft some norms, which may be employed to assess whether an administrative action is justiciable or not. But no uniform rule has been or can be evolved to test the validity of an administrative action or decision because the extent and scope of judicial scrutiny depends upon a host of factors, like the nature of the subject matter, the nature of the right affected, the character of the legal and constitutional provisions applicable, etc. While appreciating the inherent limitations in exercise of the power of judicial review, the judicial quest has been to find and maintain a right and delicate balance between the administrative discretion and the need to remedy alleged unfairness in the exercise of such discretion. 18. Having regard to it all, it is manifest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Each case has to be considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Though judicial restraint, albeit self-recognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material, may be struck down. In other words, when a court is satisfied that there is an abuse or misuse of power, and its jurisdiction is invoked, it is incumbent on the court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decision-making process and not the decision.” (emphasis is mine) 12. In Asha Sharma v. Chandigarh Administration and others 2011 AIR SCW 5636, the Hon’ble Apex Court held thus. “9. Arbitrariness in State action can be demonstrated by existence of different circumstances. Whenever both the decision-making process and the decision taken are based on irrelevant facts, while ignoring relevant considerations, such an action can normally be termed as “arbitrary”. Where the process of decision-making is followed but proper reasoning is not recorded for arriving at a conclusion, the action may still fall in the category of arbitrariness. Of course, the sufficiency or otherwise of the reasoning may not be a valid ground for consideration within the scope of judicial review. Rationality, reasonableness, objectivity, and application of mind are some of the prerequisites of proper decision-making. The concept of transparency in the decision-making process of the State has also become an essential part of our administrative law. 11. Action by the State, whether administrative or executive, has to be fair and in consonance with the statutory provisions and rules. Even if no rules are in force to govern executive action still such action, especially if it could potentially affect the rights of the parties, should be just, fair and transparent. Arbitrariness in State action, even where the rules vest discretion in an authority, has to be impermissible. Even if no rules are in force to govern executive action still such action, especially if it could potentially affect the rights of the parties, should be just, fair and transparent. Arbitrariness in State action, even where the rules vest discretion in an authority, has to be impermissible. The exercise of discretion, in line with principles of fairness and good governance, is an implied obligation upon the authorities when vested with the powers to pass orders of a determinative nature. The standard of fairness is also dependent upon certainty in State action, that is, the class of persons, subject to regulation by the Allotment Rules, must be able to reasonably anticipate the order for the action that the State is likely to take in a given situation. Arbitrariness and discrimination have inbuilt elements of uncertainty as the decisions of the State would then differ from person to person and from situation to situation, even if the determinative factors of the situations in question were identical. This uncertainty must be avoided……. 13. Thus, as seen from the expressions of the Hon’ble Apex Court, arbitrariness in State action even where the rules vest discretion in an authority, is impermissible. In such cases, the Courts can exercise jurisdiction vested with it by exercising powers under Article 226 of the Constitution of India. 14. The case at hand, as discussed supra, in view of the typographical error, the petitioner was initially transferred and later the authorities rectified the same and issued modified transfer orders. The interim order granted was also modified. Thus, this Court does not find any arbitrariness in the process. 15. Given the discussion supra, this Court does not find any merit in the writ petition and the writ petition is liable to be dismissed. 16. Accordingly, the writ petition is dismissed. There shall be no order as to costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.