HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T.VINOD KUMAR
WRIT PETITION NO.21300 OF 2020
O R D E R:
(Per Sri Justice M.S.Ramachandra Rao) The petitioner is working as Senior Assistant in the office of the Commissioner of Survey, Settlements and Land Records, Andhra Pradesh in Vijayawada. Her spouse is working as an Engineer in the Head Office of the Electronics Corporation of India Limited (ECIL), a Public Sector Undertaking of Government of India situated at Secunderabad.
2. In 2009, the petitioner had been transferred to Hyderabad on spouse ground as her husband was working in Hyderabad. She was later promoted as Senior Assistant in January, 2012.
3. Thereafter, the composite State of Andhra Pradesh was divided into the new State of Telangana and the residuary State of Andhra Pradesh under A.P. Reorganisation Act, 2014 (for short, "the Act").
4. The Advisory Committee constituted under the provisions of the Act (4th respondent) issued a Notification on 18.12.2014 publishing the cadre strength of the Survey, Settlements and Land Records Department calling for comments and representations with respect to the cadre strength.
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5. On 18.04.2015, the 4th respondent issued another Notification publishing tentative allocation list of State cadre employees of the said Department and invited representations under Paras 19 and 20 of the Guidelines framed by Government of Andhra Pradesh and State of Telangana for allocation of employees between both States.
6. The petitioner gave option for the State of Telangana citing spouse ground. But the petitioner was allotted/ allocated to the State of Andhra Pradesh to the office of the Commissioner, of survey, Settlements and Land records , Andhra Pradesh at Vijayawada (7th respondent).
7. The petitioner then submitted a representation on 30.04.2015 online requesting allotment to the State of Telangana and to consider posting her in the Office of Head of Department in Telangana State i.e., in the office of the 8th respondent. But remarks were offered by the Head of Department on the petitioner's request that there is no provision for preferential allotment for the employees whose spouses are working in Central Government/Public Sector Undertakings of Government of India.
8. Thereupon, the Government of Andhra Pradesh issued G.O.Ms.No.220 General Administration (SR-I) Department, dt.31.12.2015 communicating Order No.31(1)/2015 dt.30.11.2015 issued by the Union of India, Department of Personnel & Training, Ministry of Personnel, Public Grievance & Pensions, Government of India finally allocating the petitioner to the State of Andhra Pradesh.
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9. This is challenged in the instant Writ Petition on the ground that the respondents could not have allotted the petitioner to the State of Andhra Pradesh and they should have allotted her to the State of Telangana (i.e., to the Office of 8th respondent) on spouse ground and there has been violation of the Guidelines framed for final allocation of State cadre employees under the Act as approved by the 1st respondent.
10. Even thereafter, the petitioner had submitted another representation seeking allotment to the State of Telangana; and the Government of Andhra Pradesh, vide Memo dt.22.07.2016 had forwarded it to the Commissioner, Survey, Settlements and Land Records, Andhra Pradesh, Hyderabad and the latter was requested to examine the same as per rules and also refer the petitioner's case to the Commissioner, Survey, Settlements and Land Records, State of Telangana (8th respondent) for their consent.
11. The Commissioner of Survey, Settlements and Land Records, Andhra Pradesh, Hyderabad (7th respondent) had addressed a letter on 06.08.2016 to her counter part the 8th respondent in the State of Telangana stating that the petitioner had been allotted to the residuary State of Andhra Pradesh and had submitted representation stating that she belongs to Scheduled Tribe caste and her husband is working in the Electronics Corporation of India Limited, Secunderabad which is a Public Sector Company Undertaking of Government of India, that he does not have any provision to transfer to any other place till his retirement, that the couple have two children and it is difficult for MSR,J & TVK,J ::4:: wp_21300_2020 them to look after their children if her husband and herself are posted in different States and that she had requested for re-allotment to Telangana State. The Commissioner, Survey, Settlements and Land Records, Hyderabad, Telangana State (8th respondent) was requested to consider the case of the petitioner on spouse grounds.
12. The petitioner contends that there are vacancies in the office of the Commissioner, Survey, Settlements and Land Records, Telangana, Hyderabad (8th respondent) and the action of the respondents in not considering her case on spouse grounds is contrary to the Guidelines framed by Union of India and has caused lot of hardship to her. Reliance is also placed on the decision of this Court rendered on 27.02.2017 in W.P.No.23775 of 2016.
The stand of respondent No.s 2,4 and 5
13. Respondents 2, 4 and 5 have filed their counter affidavit stating that the cadre strength of the category of Senior Assistant (Survey) as on 01.06.2014 was 24, i.e., 13 filled and 11 vacant; out of these, 14 posts, i.e., 8 filled and 6 vacant posts, were allotted to Andhra Pradesh and the remaining 10 posts, i.e., 5 filled and 5 vacant, were allotted to the State of Telangana. It is stated that the number of allocable persons in the category is 14.
14. It is further contended that among the 14 allocable employees, 7 are local to Telangana and opted for allocation to Telangana and the remaining 7 are local to Andhra Pradesh. Out of them, one employee with seniority rank No.8 opted for preferential allotment to Telangana on serious medical hardship under Para 18 (m)(iii) of the Guidelines.
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Thus it stated that out of the 10 posts allocated to Telangana, 8 posts were filled as above leaving 2 vacancies. But it is asserted that the petitioner has seniority rank of 13 and is local to Andhra Pradesh and her option to Telangana State was not considered for allotment to Telangana State and she was tentatively allotted to Andhra Pradesh in the reverse order of seniority under Para 18(f) of the Guidelines as there was no vacancy within the category of filled posts allotted to Telangana State.
15. It is also stated that none of her juniors who are local to Andhra Pradesh and opted for allocation to Telangana State were considered for allotment to Telangana State and so the tentative allotment of the petitioner to the State of Telangana was in accordance with the Guidelines issued by Government of India and was correct.
16. It is contended that the petitioner did not claim preferential allotment on spouse grounds to the Telangana State in her option form.
17. It is however admitted that under Para 18(l) of the Guidelines, a State cadre employee is eligible for preferential allotment whose spouse is an employee in State cadre in Government/an employee in local body or is a local cadre employee who is deemed allotted as per the Act.
18. But it is pointed out that since the spouse of the petitioner is an employee of Electronics Corporation of India Limited which is a Government of India Undertaking, the petitioner is not eligible for MSR,J & TVK,J ::6:: wp_21300_2020 preferential allotment on spouse ground under Para 18(l) of the Guidelines even if she had claimed so.
The stand of the 8th respondent
19. It is the contention of 8th respondent that Para No.18(g) of the Guidelines communicated vide notification dt.25.07.2014 states that "employees who are not local in relation to both States will be allocated on the basis of nativity / domicile based on due verification and certification of nativity / domicile by the Head of the concerned Department," and that Para No.18(j) states, "spouse of an All India Service (AIS) Officer who is a State Government employee shall be allocated, where so desired by the spouse, to the State to which the said Officer is allocated".
20. Since the husband of petitioner was an employee of a Central Government Public Sector undertaking of Government of India and since the guidelines did not provide for the same, on the basis of nativity / domicile of the petitioner, she was allocated to the State of Andhra Pradesh.
21. It was also contended that petitioner's request for deputation to the Telangana State was also rejected by the State of Telangana on 14.11.2019.
The stand of the Union of India (1st respondent)
22. The Union of India also filed a counter affidavit reiterating the same stand as was taken by the State of Andhra Pradesh.
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23. It is stated that 10 posts, 5 filled and 5 vacant, were allotted to the State of Telangana out of 24 posts in the category of Senior Assistant (Survey); Out of the 14 employees, 10 employees (including the petitioner) had opted for the State of Telangana; and out of these 7 were senior to petitioner and one junior was adjusted against the vacant post on the ground of being a widowed female employee. It is also stated that one employee senior to petitioner who was local to Andhra Pradesh and had opted for Telangana was also allocated to Andhra Pradesh. It is stated that the petitioner was at serial No.11 in the seniority list. It is pointed that all the filled posts were occupied by the employees who were local to Telangana and also senior to the petitioner and there was no vacancy in the filled posts allocated to Telangana and hence she was allocated to Andhra Pradesh.
24. We have noted the contentions of all the parties. The consideration by the Court
25. The statement in the counter affidavit of respondents 2, 4 and 5 that the petitioner did not seek allocation on spouse ground to the State of Telangana is not factually correct.
26. It can be seen from Ex.P4, which contains petitioner's request for allocation to the State of Telangana, that she specifically mentioned that her husband was working in Electronics Corporation of India Limited which is a Government of India Enterprise located in Hyderabad and it would be difficult for the couple to take care of their children and their in-laws if they are posted in separate States.
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The petitioner had specifically quoted in the said representation Kamalanathan Committee recommendations about posting of spouses together. But the Head of Department had rejected the petitioner's request on the ground that there is no provision for preferential allotment for the employees whose spouses are working in Central Government/Public Sector Undertakings of Government of India.
27. It is not in dispute that Notification No.21708/SR I/A/2014 dt.18.12.2014 was issued by the Secretary to Government (SR), General Administration (SR) Department and Member-Secretary to 4th respondent Committee communicating the Guidelines relating to allocation of State service employees between the successor States of Andhra Pradesh and Telangana which had been approved by Government of India vide Reference F.No.27/13/2013-SRS dt.29.10.2014.
28. Consequently, Notification No.21708/SR I/A1/2014 dt.13.02.2015 was also issued by General Administration (SR) Department of Government of Andhra Pradesh asking the employees to give options and referring to the Guidelines framed by the Union of India.
29. It is not in dispute that Para 18(l) dealt with allocation of employees who claim preferential treatment on spouse grounds. The said Para states:
"18(l). Spouses in State cadre in Government or in State Government institutions, local bodies and those who are deemed allocated as per the Act, shall as far as practicable, be allotted to MSR,J & TVK,J ::9:: wp_21300_2020 the same State, after considering options made by them and their local candidature. Spouses who are local candidates of a State shall be allocated to that State. Spouses who belong to different States may be allocated after considering their options."
30. Para 18(f) which also speaks about allocation on the basis of order of seniority is also relevant and is stated as under:
"18(f). The allocation shall be done in order of seniority as available on June 01, 2014. Those who have opted, who are 'local candidates' relatable to the State to which they have opted, shall, in order of their seniority, be considered for allocation first. If allocable posts in that category remain, then, others who have opted to the State may be allocated in order of seniority. If still posts remain allocation will be made in reverse order of seniority."
31. Para 18(k) is also relevant and it deals with allocation of spouse of an All India Service (AIS) officer, which reads as under:
"18(k). Spouse of an All India Service (AIS) officer who belongs to a State cadre or is an employee of a State Government institution shall be allocated, where so desired by the spouse, to the State to which the AIS officer is allocated."
32. As can be seen from Para 18(l) of the Guidelines, spouses in State cadre in Government or in State Government institutions, local bodies and those who are deemed allocated as per the Act, shall as far as practicable, be allotted to the same State, after considering options made by them and their local candidature. There is no provision contained here to consider cases of employees whose spouses are employed in the Central Government Undertakings.
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33. But notwithstanding the same, a Division Bench of this Court in Dr. S. Shobha Rani v. State Reorganization Department1 has taken the view after considering Paras 18(f) and 18(l) that the basic principle underlying the Guidelines is to protect and keep employed spouses together who would otherwise be separated owing to the allocation undertaken pursuant to the bifurcation of the erstwhile State of Andhra Pradesh. It held that the spirit and intent underlying this principle should be kept in mind while implementing the Guidelines. It declared that merely because Clause 18 (l) did not speak of employees working in Central Government/Public Sector Undertakings, it does not mean that the spouses of such employees who are working in the State cadre are not to be accommodated where they are working; Clause (l) of Guideline 18 states in no uncertain terms that allocation shall, as far as practicable, be made so as to keep the spouses together; the import and intent of bifurcation of the erstwhile State of Andhra Pradesh is not to breakup marriages; and the authorities have to conceive, formulate and implement the Guidelines keeping this in mind. It also stated that any shortfall in the Guidelines in this regard cannot be taken literally to mean that the spouses, whose cases do not fall within the four corners of the instructions as set out therein, are to be left out in the cold and have to suffer marital separation.
In that case, the husband of the petitioner was working in a non- transferable post in Bharat Heavy Electricals Limited, a Central 1 Order dt.27.02.2017 in WP.No.23775 of 2016 (DB) = 2017 (3) A.L.D. 207 (D.B.) MSR,J & TVK,J ::11:: wp_21300_2020 Government Public Sector Undertaking at Visakhapatnam and the petitioner's children were also studying there, but she was allocated to the State of Telangana though her spouse was employed in the State of Andhra Pradesh in the said Undertaking on the ground that the Guidelines do not provide for such a contingency.
The Court observed that there were vacancies in the posts of Principal, which the petitioner therein was holding, available in the State of Andhra Pradesh and more particularly at Visakhapatnam, and in terms of the definition of 'allocable posts', vacancies are also included; Clause (f) of Para 18 itself states that if 'allocable posts' in the category remain after local candidates relatable to that State have been considered, then others who opt for that State may be allocated in order of seniority; and this part of Clause (f) of Para 18 was completely overlooked by the authorities. It declared that the rejection of the petitioner's request for allocation to the State of Andhra Pradesh and for her retention at Visakhapatnam in that case was wholly unsustainable when there were vacancies available at Visakhapatnam in the cadre of Principal. It allowed the Writ Petition and gave directions to the respondents to reconsider the final allocation of the petitioner by giving effect to Para 18(f) of the Guidelines in true letter and spirit keeping in mind the principle underlying such allocation on spousal grounds within four weeks and directed the petitioner to be retained at Visakhapatnam in the meantime.
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34. The Judgment in Dr. S. Shobha Rani v. State Reorganization Department (1 supra) was also followed by another Division Bench of this Court in Uzma-Nikhath v. Government of India2.
In that case, the petitioner was working as Senior Assistant in the office of the Director General and Inspector General of Prisons in the combined State of Andhra Pradesh before coming into force of the Act and as a result of the bifurcation she was allotted to the State of Andhra Pradesh. She contended that she was entitled to be protected from being allotted to the State of Andhra Pradesh and was eligible to continue to be in the State of Telangana on the basis of Sub-Clauses
(k) and (l) of Clause 18 of the Guidelines relating to allocation of State services employees approved by Government of India, Ministry of Personnel, P.G. & Pensions, Department of Personnel & Training, issued on 29.10.2014.
In that case also, her husband was working as Scientific Assistant "B" in Indian National Centre for Ocean Information Services, an institution under the control of Ministry of Earth Sciences of Government of India.
The said Division Bench held that the concept being a spouse of All India Service Officer, who belongs to a State cadre is wide enough to take within its view those who are employed in institutions under the control of the Government of India as well. It observed that the Indian National Central for Ocean Information Services is under the control of the Ministry of Earth Sciences of Government of India and 2 Order dt.28.01.2019 in WP(TR) No.5680 of 2017(DB) MSR,J & TVK,J ::13:: wp_21300_2020 there is no reason to assume that it is not part of the group identified as All India Service officer for the purpose of the protective covenant in favour of spouses in Sub-Clauses (k) and (l) of Clause 18 of the Guidelines.
35. These two decisions were again reiterated by a Division Bench of this Court in its order dt.22.01.2021 in W.P.No.37396 of 2017 and W.P.No.18559 of 2020.
The said Division bench considered Clause 18(f), (k), 18(l) and 18(m) and held that they mandate vulnerable sections of employees such as spouses of Government employees, Last Grade employees, widowed female employees, handicapped persons and persons facing serious medical hardship who fall in these categories to be given priority in allocation to the State of their choice; that all these Clauses of the Guidelines are to be treated as exceptions to Clause 18(f) because otherwise they would be practically rendered otiose and defeat the very purpose for which they were included in the Guidelines. It interpreted the word "as far as practicable" occurring in Clause 18(l) as "if not impossible/impracticable".
36. In the instant case also, since the petitioner had categorically mentioned about the employment of her spouse in the ECIL at Hyderabad in a non-transferable post, it was incumbent on the respondents to take into account Clause 18(k) as well as Clause 18(l) and the underlying principle of the Guidelines to protect and keep together employed spouses who would otherwise be separated owing MSR,J & TVK,J ::14:: wp_21300_2020 to allocation undertaken pursuant to the bifurcation of the erstwhile State of Andhra Pradesh and to keep in mind the import and intent of the Guidelines that marriages ought not to be broken up because of the bifurcation of the State.
37. Therefore, the mere fact that the Guidelines did not deal with preference to be given to the employees whose spouses are employees in Government of India Undertakings cannot deprive the petitioner of the priority if she was entitled to it on account of the above Judicial precedents.
38. Admittedly, out of the 10 posts allocated to the State of Telangana in the category of Senior Assistant (Survey), only 8 have been filled and 2 posts are still vacant.
39. As per Para 7 of the Guidelines for allocation framed by the Union of India, allocable posts include vacant posts.
40. Clause (f) of Para 18 specifically states that if allocable posts in the category remain after local candidates relatable to that State have been considered, then others who opted for that State may be allocated in order of seniority. This part of Clause (f) of Para 18 seems to have been completely overlooked by the respondents.
41. Therefore, the petitioner is entitled to be permanently allocated to the State of Telangana in one of the two vacant posts available in the said State and the respondents cannot refuse to permanently allocate her to the State of Telangana.
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42. Accordingly, the Writ Petition is allowed; Order No.31(1)/2015 dt.30.11.2015 passed by the 1st respondent and G.O.Ms.No.220 General Administration (SR-I) Department dt.31.12.2015 by the 2nd respondent are both set aside; and a direction is given to the respondents to permanently allot the petitioner to the State of Telangana on spouse ground in the vacant post of Senior Assistant (Survey) available in the office of the 8th respondent within four (4) weeks from the date of receipt of a copy of this order. No costs.
43. Pending miscellaneous petitions, if any, in this Writ Petition shall stand closed.
____________________________ M.S.RAMACHANDRA RAO, J ____________________ T.VINOD KUMAR, J Date: 12.02.2021 Svv / Ndr