K Mahalingappa vs The State Of Ap
2021 Latest Caselaw 755 AP

  THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                       WRIT PETITION NO.3283 OF 2020
ORDER:

This 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 by declaring the entire action of the 2nd respondent in issuing the present impugned Proceedings No.Ser- IV(1)/1081/2005, dated 3.1.2020, wherein the petitioner is transferred on OD basis with directing to report before the SE, PR, Kurnool for obtaining place for posting orders and another proceedings No.Ser- IV(1)/32524/2008 dated 3.1.2020, wherein posting the unofficial respondent in the place of the petitioner on a FAC basis is highly illegal, arbitrary, colorable exercise of power, without any valid reasons, except to accommodate the unofficial respondent by adopting illegal methods during the ban on transfer period including stigmatic in nature, and consequently to direct the respondents to forthwith repost the petitioner as Dy.Executive Engineer, V&QC Sub Division-I, Kurnool without reference to the present impugned orders of the 2nd respondent."

It is the case of the petitioner that, while he was working at

PRI sub Division Punganur of Chittoor District, he was transferred

to Vigilance and quality control, Sub Division -I Kurnool on

21.11.2015. Accordingly, he joined on 21.11.2015 itself. While he

was working in the above place, his services were disturbed and

posted to PIU Sub Division, Nandikotkur of Kurnool District, on

other duty vide Procg.No.Ser-IV(1)/2034/2015, dated 05.03.2016.

Aggrieved by the said order, the petitioner approached higher

authorities, ultimately the Government cancelled the said order

and reposted at Vigilance and Quality Control, Sub Division-I

Kurnool, on 07.07.2016. While matter stood thus, again his

services were disturbed and directed to report before the 2nd

respondent for place of posting vide G.O.Rt No.676 PR&RD (E1) MSM,J WP_3283_2020

dept. dated 4.6.2018 at the instance and political pressure yielded

by unofficial respondent.

Aggrieved by the above orders of transfer, the petitioner filed

O.ANo.1143/2018. The Tribunal, by its order dated 16.11.2018

was pleased to quashed the impugned orders of Transfer dated

04.06.2018 and further directed respondent No.2 to repost the

petitioner at the same place i.e, Vigilance and Quality Control, Sub

division-1, Kurnool. Consequent on initiating contempt

proceedings, the petitioner herein was re-inducted and posted at

Vigilance and Quality Control, Sub division-1, Kurnool vide Memo

No.17026/37/2018. Estt.1 dated 06.03.2019 of the Government.

Accordingly, consequential orders were issued by respondent No.2

vide proceedings dated 08.03.2019. Accordingly the petitioner

joined at the above place on 11.3.2019 and discharged his duties

till passing of the present impugned order.

While matter stood thus, within a period of 10 months from

the date of joining, the respondents once again disturbed the

services of the petitioner vide Proceedings dated 03.01.2020 and

the unofficial respondent, who is working as PA to EE, PRI

Division, Kurnool is kept as full additional charge in the place of

the petitioner in another proceeding dated 03.01.2020. A reading of

the present impugned orders clearly disclosed that, respondent

No.2 to confer undue benefit in favour of the unofficial respondent,

disturbing the service of the petitioner by employing language 'that

on certain allegations' is nothing but stigma against the petitioner.

In fact respondent No.2 forced the petitioner to give willingness for

his transfer from the above place, when he did not accept for the

same, respondent No.2 conveniently come forward with the present MSM,J WP_3283_2020

impugned order. Viewed from any angle, the entire action of

respondent No.2 in issuing the present impugned order at the

instance of unofficial respondent is nothing but illegal, arbitrary,

colorable exercise of power, malafide in nature and nothing but

stigmatic in nature.

It is further contended that on account of frequent transfers,

the petitioner is put to serious inconvenience and the transfer is

punitive in nature even from the allegations made in the order of

transfer impugned in the writ petition, requested to set aside the

same by declaring the same as illegal and arbitrary.

Respondent No.2 filed counter denying all the material

allegations while admitting about the passing of impugned order

on the ground that the petitioner is not discharging his duties

effectively. It is further contended that the petitioner is guilty of

misconduct and that there are several complaints against the

petitioner. Therefore, the proceedings impugned in the writ petition

were issued to divert the petitioner from main channel and it is a

non-focal post and the impugned order is not punitive in nature,

requested to dismiss the writ petition.

Unofficial respondent - respondent No.3 filed a separate

counter reiterating the contentions raised by respondent No.2. He

contended that when the transfer is in the public interest and on

administrative ground, the same cannot be interfered with by this

Court in view of the law laid down by the Apex Court in "Union of

India v. Sri Janardhan Debanath1" and "National

Hydroelectric Power Corporation Limited v. Shri Bhagwan2"

2004 (3) ALD 34 (SC)

2001 (8) SCC 574 MSM,J WP_3283_2020

Respondent No.3 further contended that even till date

whereabouts of the petitioner is not known and he did not report to

duty and that the departmental proceedings were initiated and the

department tried to serve show-cause notice in view of Rule 20 (3)

of the Andhra Pradesh Civil Services (Classification, Control and

Appeal) Rules, 1991 (for short "CCA Rules"), but the same was not

served, thereupon paper publication was issued and that the

petitioner himself is guilty of misconduct, requested to dismiss the

writ petition.

Sri S.Satyanarayana Rao, learned counsel for the petitioner,

contended that the transfer impugned in the writ petition is

punitive in nature for the reason that, only based on the compliant

lodged against the petitioner, he was transferred to non-focal post,

and such punitive transfer is impermissible under law, requested

to allow the writ petition.

Ms.J.Sumathi, learned Government Pleader for Services-II,

contended that the acts of the petitioner would constitute serious

misconduct being an officer of the State and the petitioner is not

discharging his duties effectively. Therefore, the transfer though on

account of complaint made against the petitioner, it is only to keep

him away to the regular proceedings, to avoid his further

indulgence in such activities and to proceed against him in the

departmental enquiry proposed to be initiated against him. Hence,

the transfer of the petitioner cannot be said to be punitive in

nature, requested to dismiss the writ petition.

Sri Manikanteswararao Kotha, learned counsel for the

unofficial respondent - respondent No.3, vehemently contended

that the petitioner is not effectively discharging his duties as if MSM,J WP_3283_2020

unofficial respondent is the superior officer to the petitioner.

Respondent No.3 drawn the attention of this Court to several

proceedings annexed to the counter filed by respondent No.3 to

contend that the petitioner did not report though more than one

year time has elapsed and it also amounts to misconduct and the

petitioner successfully avoiding to receive show-cause notice.

Therefore, such person is disentitled to claim discretionary relief

under Article 226 of the Constitution of India, requested to dismiss

the writ petition.

Considering rival contentions, perusing the material

available on record, the sole point that arises for consideration is:

Whether the order impugned in the writ petition

transferring the writ petitioner on other duty is punitive in

nature. If so, whether this Court can interfere with such

proceedings by exercising jurisdiction under Article 226 of the

Constitution of India? If so, whether the impugned order can

be declared as illegal and arbitrary?

P O I N T:

One of the major contentions raised before this Court is that

the order impugned in the writ petition is punitive in nature.

Therefore, it is necessary to advert to the impugned proceedings

No.Ser-IV (1)/1081/2005 dated 03.01.2020 to decide whether it is

punitive in nature or otherwise. Copy of the said proceedings is

placed on record.

The contents of the proceedings No.Ser-IV (1)/1081/2005

dated 03.01.2020 disclosed that only on the basis of complaint

alleged against the petitioner, he was deputed to PR Circle,

Kurnool to work on other duty on administrative grounds, and on

the basis of the complaint received against the petitioner, he was MSM,J WP_3283_2020

transferred. When such complaint is made against the petitioner

to attract misconduct as defined in A.P.Civil Services (Conduct)

Rules, the procedure to be followed is prescribed under Rule 20 of

the CCA Rules. Instead of following such procedure, respondent

No.2 transferred the petitioner on the ground that complaints

were received against the petitioner. No doubt, the Court cannot

interfere with such transfer order in a causal and routine manner.

When the transfer is punitive in nature and tainted by malafide,

the Court can interfere with such transfer orders.

As submitted by learned Government Pleader for Services -

II the transfer was only on account of complaint made against the

petitioner. If the transfer is consequence of such complaint, it can

be described as punitive transfer and such transfer cannot be

sustained.

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 Kareem3", it is observed that, transfer is an incidence 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

Karnataka4" "Shilpi Bose v. State of Bihar5" "Union of India v.

N.P. Thomas6" "Union of India v. S.L. Abbas7" "Mohd. Masood

Ahmad v. State of U.P.8" 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

2010 (3) ALD 650

(1986) 4 SCC 131

1991 Supp (2) SCC 659

1993 Supp (1) SCC 704

(1993) 4 SCC 357

(2007) 8 SCC 150 MSM,J WP_3283_2020

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 Rao9"

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 Debanath" (referred supra) held that if

the transfer order is passed in public interest, it could not have

been interfered with.

In "Somesh Tiwari v. Union of India10" 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

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 penalty or in lieu of

punishment. When an order of transfer is passed in lieu of

2011 (5) ALD 709

(2009) 2 SCC 592 MSM,J WP_3283_2020

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. The order of transfer ex facie punitive in

nature as such the impugned order of transfer is liable to be set

aside.

In view of my foregoing discussion, the writ petition deserves

to be allowed. Accordingly, the point is held in favour of the

petitioner and against the respondents.

In the result, the writ petition is allowed setting aside the

impugned proceedings No.Ser-IV(1)/1081/2005 dated 03.01.2020

issued by respondent No.2 while declaring the action of

respondents as illegal and arbitrary. However, this order will not

preclude respondent Nos.1 and 2 to proceed against the petitioner

in disciplinary proceedings. No costs.

The miscellaneous petitions pending, if any, shall also stand

closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 11.02.2021 Ksp