N.Balasubramanyam, vs The State Of Andhra Pradesh,
2021 Latest Caselaw 1262 AP

     THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                       WRIT PETITION NO.272 OF 2021

ORDER:

This petition is filed under Article 226 of the Constitution of

India seeking the following relief:-

"...to issue a writ of Mandamus, declaring the action of the 2nd respondent in issuing proceedings in Roc.No.3210/2019/M4-OD, dated 27.07.2020, whereby cancelling the earlier order of transfer of the petitioner to the 3rd respondent office without any valid reasons, as illegal, arbitrary and colourable exercise of power, consequently set aside the impugned proceedings while directing the respondents to retain the petitioner into service either at the office of the 3rd respondent or to repatriate to the 4th respondent Municipality duly considering the representations submitted by the petitioner dated 26.07.2020 and 26.06.2020 and pass such other order."

2. The case of the petitioner in brief is that the petitioner is

presently working as Town Planning Officer. While he working as

such at Nagari Municipality since 16.12.2017, without any

reasons and due to political pressures he was transferred to

Hindupur Municipality on deputation vide orders dated

23.06.2020. Even before the orders are coming into force, the

2nd respondent herein superseded the said transfer order and

issued another transfer order on 22.07.2020, whereby he was

transferred to the office of the 3rd respondent and directed to

engage his services in the non-focal areas. The entire proceedings

of the 2nd respondent in transferring the petitioner from Nagari

Municipality to Hindupur Municipality itself, is a political move by

the local political leaders, without any reason, immediately the

2nd respondent herein has transferred the petitioner to the

3rd respondent office. Since the 2nd respondent herein transferred

the petitioner to Tirupati in a non-focal area, the above mentioned

writ petition was closed by this Court vide order dated

23.07.2020. Immediately, the 2nd respondent herein again issued

the impugned proceedings without assigning any reasons stating

that the petitioner should report before the Municipal

Commissioner, Hindupur as per the original orders dated

23.06.2020.

3. On 26.06.2020 the petitioner addressed a letter to the

2nd respondent seeking one month leave and explained the

reasons that his wife is working as Agricultural Officer at Tirupati

and he has to attend the ACB Court at Nellore regularly and due

to present pandemic situation it is not proper to transfer him to

Hindupur as he is merely aged 54 years and therefore requested

to grant leave and to consider re-transfer.

4. Again, the petitioner made a similar request on 26.07.2020

seeking one more month leave and as such till date he is on leave

and without salary. Therefore, the petitioner requested to declare

the proceedings dated 27.07.2020 as illegal and arbitrary while

retaining the petitioner in the 3rd respondent office.

5. During hearing, Sri M.Janardhan Rao, learned counsel for

the petitioner reiterated the contentions urged in the petition

while contending that when the petitioner was transferred to the

3rd respondent office, the question of re-transfer to another place

i.e., Tirupati Municipality without assigning any reason is an

illegality and requested to issue a direction to the respondents to

retain the petitioner at the place where the petitioner is posted

i.e., at Hindupur Municipality while cancelling the said orders.

6. Whereas, Sri P.C. Reddy, learned Standing Counsel for the

Municipalities contended that this Court cannot interfere with the

transfer proceedings when the transfer is tainted by malafides and

are not punitive in nature. Therefore, the transfer proceedings issued

by the 2nd respondent by cancelling the earlier transfer proceedings,

is not a measure of punishment. Therefore, this Court cannot

interfere with the impugned transfer orders issued by the 2nd

respondent and requested to dismiss the writ petition.

7. The major contention of the petitioner before this Court is that

the transfer is a political move by the local political leaders and

therefore the transfer of the petitioner is illegal and arbitrary.

Whereas, learned Standing Counsel for Municipalities appearing for

respondents contended that there is absolutely no material to

attribute any malafides either in fact or in law and it is not punitive

in nature, thereby this Court cannot interfere with such acts of the

respondents.

8. It is settled proposition of law that the pleading cannot

substitute a reason in the administrative order and this view is

fortified by the constitutional bench judgment of the Apex Court in

Mohinder Singh Gill v. The Chief Election Commissioner, New

Delhi1, wherein it is held that when a statutory functionary makes

an order based on certain grounds, its validity must be judged by the

reasons so mentioned and cannot be supplemented by fresh reasons

in the shape of affidavit or otherwise. Otherwise, an order bad in the

beginning may, by the time it comes to court on account of a

challenge, get validated by additional grounds later brought out.

(1978) 1 SCC 405

9. Therefore, the improvement made by the petitioner that the

transfer proceedings is a political move by the local political

leaders, is not substantiated by any material. 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 Kareem2, 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 Karnataka3, Shilpi Bose v. State

of Bihar4, Union of India v. N.P. Thomas5, Union of India v.

S.L. Abbas6, Mohd. Masood Ahmad v. State of U.P.7 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 Rao8 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

Debanath9 held that if the transfer order is passed in public

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

2011 (5) ALD 709

2004 (3) ALD 34 (SC)

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 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.

10. In the present facts of the case, the contention of the

petitioner that his transfer is a political move by the local political

leaders is not supported by any material and it is purely a transfer

on administrative grounds, ex facie. Therefore, this Court cannot

interfere with the transfer orders issued by the 2nd respondent on

administrative grounds while exercising the power of judicial

(2009) 2 SCC 592

review under Article 226 of the Constitution of India, since the

transfer is an incident of service and it will not affect the service of

the Government servant and I find no ground to interfere with the

transfer orders issued by the 2nd respondent to declare the same

as arbitrary and illegal, consequently, the writ petition is liable to

be dismissed.

11. In the result, this writ petition is dismissed, at the stage of

admission itself. There shall be no order as to costs.

As a sequel, miscellaneous applications, pending, if any,

shall also stand closed.

__________________________________________ JUSTICE M. SATYANARAYANA MURTHY

Date: 02.03.2021

IS

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

WRIT PETITION NO.272 OF 2021

Date: 02.03.2021

IS