Andhra Pradesh High Court - Amravati

A.Sivaji/Sivaji Babu vs The State Of Andhra Pradesh on 7 July, 2022

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                                                                            KVL, J
                                                              WP No.18973 of 2022


            HON'BLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI

                     Writ Petition No.18973 of 2022

ORDER:

This writ petition is filed questioning the proceedings of the 2nd

respondent dated 30.06.2022 as illegal and arbitrary and violative of

G.O.Ms.No.116 Finance Department dated 07.06.2022 and G.O.Ms.No.122

Finance Department dated 16.06.2022'

Case of the petitioner is that, he is working as VRO (Grade-I) at

Vastavai Secretariat-I, NTR District and the petitioner has not completed

five years of service in the present station; in spite of the same, the 2nd

respondent has transferred the petitioner to Naguluru Secretariat,

Reddygudem Mandal vide proceedings dated 30.06.2022, which is 100 kms

away from the present station; petitioner is transferred from Tiruvuru

revenue division to Nandigama revenue division, which is contrary to the

guidelines issued by the 1st respondent; further, petitioner case was

considered on the ground of spouse as per G.O.Ms.No.57, Finance

Department dated 08.05.2018, as the wife of the petitioner is working as

Anganwadi teacher; petitioner is at the verge of retirement and the transfer

is unwarranted as per the guidelines of the 1st respondent. Hence, the writ

petition.

As per the guidelines issued in G.O.Ms.No.116 Finance Department

dated 07.06.2022, transfers shall be effected only on request and on

administrative grounds and employees who have completed five years at a

station shall be invariably transferred. This does not mean that they cannot

be transferred before five years. The said G.O. also shows that preference

has to be given in spouse cases and in the said spouses cases, request on

spouse ground cannot be made before eight years, once it is granted.

KVL, J WP No.18973 of 2022

In transfer maters, the scope of jurisdiction of this court is very

limited. In a recent judgment in 'Sk. Nausad Rahaman & others vs. Union of

India & others1', the Hon'ble Supreme Court held as follows:

"23. While analyzing the rival submissions, certain basic precepts of service jurisprudence must be borne in mind.

24. First and foremost, transfer in an All India Service is an incident of service. Whether, and if so where, an employee should be posted are matters which are governed by the exigencies of service. An employee has no fundamental right or, for that matter, a vested right to claim a transfer or posting of their choice.

25. Second, executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting. Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration.

26. Third, policies which stipulate that the posting of spouses should be preferably, and to the extent practicable, at the same station are subject to the PART D 27 requirement of the administration. In this context, Justice JS Verma (as the learned Chief Justice then was) speaking for a three-judge Bench of this Court in 'Bank of India v. Jagjit Singh Mehta [(1992) 1 SCC 306] held:

"5. There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of all-India services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an all-India service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of all-India service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places. [...] No doubt the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to

2022 SCC Online SC 297

KVL, J WP No.18973 of 2022

live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees."

27. The above principle was cited with approval in Union of India v. SL Abbas [(1993) 4 SCC 357] where the Court held that transfer is an incident of service:

"7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right."

Petitioner contends that he was transferred on the spouse ground as

per G.O.Ms.No.57 dated 08.05.2018 and as he has not completed five years

of service at this particular station and as he cannot be transferred on

spouse ground in the near future because of ban of eight years, he ought to

have been retained in the same station. In view of the facts and

circumstances of the case, the respondents are directed to examine the

case of the petitioner in accordance with the relevant G.Os. including

spouse ground and take appropriate decision in the matter, as

expeditiously as possible.