S. Atchi Babu vs The State Of Andhra Pradesh,
2021 Latest Caselaw 564 AP

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

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.

2010 (3) ALD 650

(1986) 4 SCC 131

1991 Supp (2) SCC 659

1993 Supp (1) SCC 704

(1993) 4 SCC 357 MSM,J WP.No.2599 of 2020

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

(2007) 8 SCC 150

2011 (5) ALD 709

2004 (3) ALD 34 (SC)

(2009) 2 SCC 592 MSM,J WP.No.2599 of 2020

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

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

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

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