G Vijaya Lakshmi vs The State Of Ap
2022 Latest Caselaw 3771 AP

Citation : 2022 Latest Caselaw 3771 AP
Judgement Date : 7 July, 2022

Andhra Pradesh High Court - Amravati

G Vijaya Lakshmi vs The State Of Ap on 7 July, 2022

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                                                                            KVL, J
                                                              WP No.18759 of 2022


            HON'BLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI

                       Writ Petition No.18759 of 2022

ORDER:

This writ petition is filed 'to declare the impugned proceedings dated

28.06.2022 of the 2nd respondent and the consequential proceedings of the

2nd respondent dated 27.06.2022, as illegal and arbitrary.'

Case of the petitioner is that, she is working as Manager at 3rd

respondent Municipality for the last two years, ten months and the 4th

respondent is working in the same municipality for the last six years, nine

months; while so, initially through proceedings dated 27.06.2022,

petitioner was transferred to Kavali and the 4th respondent was transferred

to Tanuku municipality; again through proceedings dated 28.06.2022 the

said transfer orders were modified by transferring the petitioner from

Kavali to Tanuku and the 4th respondent from Tanuku to Kavali, even though

petitioner opted for Kavali Municipality. Challenging the said proceedings,

present writ petition is filed.

Transfer guidelines are issued in G.O.Ms.No.116 Finance (HR.I-PLG. &

POLICY) Department, dated 07.06.2022. As seen from the said guidelines,

the employees who have completed five years of service shall be invariably

transferred. It does not mean that an employee cannot be transferred

before five years. In the said guidelines, it is specially stated that the

transfers can also be effected basing on the request and also on

administrative grounds. In the impugned transfer proceedings dated

28.06.2022, it is stated that the transfer of the petitioner is on

administrative grounds. In transfer maters, the scope of jurisdiction of this

KVL, J WP No.18759 of 2022

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

2022 SCC Online SC 297

KVL, J WP No.18759 of 2022

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."