THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.2599 OF 2021
ORDER:
This writ petition is filed under Article 226 of the Constitution of India to issue Writ of Mandamus declaring the Proceedings No.E1/1508/2020 dated 16.11.2020 issued by the 4th respondent whereby transferred the petitioner to Registrar Office A.B.Anakapalli from Sub-Registrar Office, Nakkapalli, Anakapalli Registration District on the ground that employees involved in ACB cases and now working in focal stations as illegal arbitrary unjust non application of mind contrary to the ban imposed vide G.O.Ms.No.45 Finance (HR.I-PLG & Policy) Department dated 24.06.2019 apart from being violative of Articles 14, 16 & 21 of the Constitution of India and set aside the same.
The main grievance of this petitioner in nut-shell is that, while the petitioner was working as Junior Assistant in Sub- Registrar Office, Nakkapalli, Anakapalli is transferred and posted to work at Registrar Office (A.B), Anakapalli on the ground that the employees who were working in focal posts are directed to be transferred to non-focal posts in the Registration Department by the Department of Anti-Corruption Bureau.
But, the main contention of this petitioner is that the petitioner did not involve in any A.C.B. cases and he is working in focal post and that issue to transfer the petitioner from one station to the other on administrative ground in view of Memo MSM,J WP.No.2599 of 2020 2 No.Vig.3/643/2020 dated 11.10.2020 of the Commissioner and Inspector General of Registration and Stamps, A.P., Vijayawada is illegal and requested to issue a direction as stated above.
During hearing, Sri Kambhampati Ramesh Babu, learned counsel for the petitioner reiterated the contentions urged in the affidavit, whereas, the learned Government Pleader for Services-I opposed the petition on the ground that, when the petitioner was transferred on administrative grounds, such transfer cannot be interfered by this Court, unless such transfer is punitive or effected by malafides either in fact or in law and in the absence of such allegations, the order of administrative transfer dated 16.11.2020 cannot be set-aside, declaring the same as illegal and arbitrary.
Learned counsel for the petitioner also contended that, the petitioner cannot be transferred during ban period.
When similar issue i.e. transfer of employee on administrative ground, came up before the Division Bench of this Court in "General Manager, South Central Railway v. Syed Abdul Kareem1", it is observed that, transfer is an incident of service and per se has no adverse consequences while referring to the judgments of the Apex Court in "B.Varadha Rao v. State of Karnataka2" "Shilpi Bose v. State of Bihar3" "Union of India v. N.P. Thomas4" "Union of India v. S.L. Abbas5" "Mohd. 1 2010 (3) ALD 650 2 (1986) 4 SCC 131 3 1991 Supp (2) SCC 659 4 1993 Supp (1) SCC 704 5 (1993) 4 SCC 357 MSM,J WP.No.2599 of 2020 3 Masood Ahmad v. State of U.P.6" and concluded that the order of transfer dated 13.11.2003 issued by the Senior D.P.O., Secunderabad Division is vitiated for extraneous considerations and on account of non-compliance with principles of natural justice, therefore, the writ petition is allowed. In "General Manager, South Central Railway, Rail Nilayam, Secunderabad v. S.Srinivasa Rao7" when an employee was transferred straightaway on administrative ground without giving reasonable opportunity and without considering the family condition, the Division Bench of this Court held that the transfer of employee is an incidence of service and it is well settled that it should not be interfered with unless mala fides are proved. Apart from that, the Apex Court in "Union of India v. Sri Janardhan Debanath8" held that if the transfer order is passed in public interest, it could not have been interfered with.
In "Somesh Tiwari v. Union of India9" the Apex Court considered the similar issue and held that 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 fides on the part of the authority is proved. Mala fides are 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 6 (2007) 8 SCC 150 7 2011 (5) ALD 709 8 2004 (3) ALD 34 (SC) 9 (2009) 2 SCC 592 MSM,J WP.No.2599 of 2020 4 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. Thus, the law laid down by the Apex Court and this Court is consistent that the punitive transfer on irrelevant ground is illegal and liable to be set aside.
On an overall consideration of material on record, it is evident that the respondents transferred the petitioner from Nakkapalli to Anakapalli on administrative ground, but not as a measure of punishment.
In addition to the above ground, the learned counsel for the petitioner contended that, when the State imposed ban on transfers, transfer of the petitioner is contrary to the G.O.Ms.No.45 Finance (HR.I-PLG. & Policy) Department dated 24.06.2019, G.O.Ms.No.59 Finance (HR.I-PLG. & Policy) Department dated 04.07.2019 and G.O.Ms.No.119 Finance (DCM-III) Department dated 17.05.2013.
By G.O.Ms.No.119 Finance (DCM-III) Department dated 17.05.2013 Government imposed ban on transfers except in respect of posting orders to the employees on account of promotion, posting orders to the employees due to disbandment of posts, reversions, repatriations, deputations, disciplinary proceedings, vacancy arising out of leave up to a period of six (6) months.
MSM,J WP.No.2599 of 2020 5 Later, G.O.Ms.No.45 Finance (HR.I-PLG. & Policy) Department dated 24.06.2019 was issued in supersession of various government orders and fresh guidelines were issued for transfers and postings. According to clause (3), transfers shall be effected "on request" basis and on administrative grounds subject to other conditions. The procedure for transfers is prescribed under clause (3) (xi) (a) and (b) and it reads as follows:
(a) The relaxation on transfers shall be effective from 25th June, 2019 to 5th July, 2019
(b) All the transfers shall be effected by the competent authorities as per the existing orders of delegation subject to the existing Government Orders and conditions prescribed.
The ban is relaxed from 25.06.2019 to 05.07.2019. In the latter G.O.Ms.No.59 Finance (HR.I-PLG. & Policy) Department dated 04.07.2019, the Government relaxed the ban on transfers till 10.07.2019 and the ban on transfers shall come into force with effect from 11.07.2019. Thus, the period of lifting ban in G.O.Ms.No.45 Finance (HR.I-PLG. & Policy) Department dated 24.06.2019 is further extended for a period of five days by G.O.Ms.No.59 dated 04.07.2019.
The transfer of the petitioner is affected on 23.11.2020 while the ban is subsisting. In the absence of lifting ban on transfers, though on administrative ground or on request, transfer cannot be affected. However, learned Government Pleader for Services contended that in view of the U.O.Note No.567/Ser.A/89-1 MSM,J WP.No.2599 of 2020 6 Genl.Admn.(Ser.A) Department dated 09.03.1989 except on grounds of promotion, or as a measure of penalty or at the officer's own request, in very special cases, transfers can be affected, as clarified by the Government. Similarly, Memorandum No.853/Ser.C/90-1 Genl.Admn. (Ser.C) Department dated 23.09.1991 was issued regarding suspension or transfer to far-off places pending investigation into allegations. In the said memorandum, the question whether Government employees against whom investigation or enquiries into grave charges are pending should necessarily be placed under suspension or whether they should be transferred to far off places and posted in non-focal posts and whether the existing instructions in this regard need revision and modification has been examined by the Government and issued instructions in regard to transfer of Government employees to far off places instead of placing them under suspension.
In view of G.O.Ms.No.45 Finance (HR.I-PLG. & Policy) Department dated 24.06.2019; G.O.Ms.No.59 Finance (HR.I-PLG. & Policy) Department dated 04.07.2019; G.O.Ms.No.119 Finance (DCM-III) Department dated 17.05.2013 and U.O.Note No.567/Ser.A/89-1 Genl.Admn.(Ser.A) Department dated 09.03.1989, transfer of the petitioner from Sub-Registrar Office, Nakkapalli, Anakapalli Registration District to Registrar Office, A.B. Anakapalli is not vitiated and on that ground, Proceedings No.E1/1508/2020 dated 16.11.2020 cannot be set-aside.
MSM,J WP.No.2599 of 2020 7 In view of my foregoing discussion, and findings recorded, I find no ground to interfere with the impugned proceedings. Consequently, the writ petition is liable to be dismissed.
In the result, the writ petition is dismissed. No costs. Consequently, miscellaneous applications pending if any, shall also stand dismissed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:03.02.2021 SP