B Geetha Lakshmi vs The State Of Andhra Pradesh
2023 Latest Caselaw 5324 AP

       THE HON'BLE SMT. JUSTICE V. SUJATHA

                     Writ Petition No.16421 of 2023
ORDER:

This writ petition came to be 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 declaring the action of the 4th respondent in issuing the impugned transfer orders vide No.E/490/2023, dt.31.5.2023 transferring the petitioner from Joint Sub Registrar-I. R.O.(OB), Visakhapatnam is transferred and posted as Sub Registrar, S.R.O. Chodavaram, Anakapalli district and posted the unofficial respondent vide Modification order No.E/490/2023-2, Dated 31.5.2023 issued by the 4th respondent is illegal, arbitrary, discriminatory, Violation of Article 14, 16, 19 and 21 of the Constitution of India and also contrary to the orders /guidelines issued by the 3rd Respondent authority vide G.O.Ms.No.71 Finance (HR.I-PLG and POLICY) Department dated 17.5.2023 and the same is liable to be set aside in so far as the petitioner is concerned and consequently direct the respondent authorities to continue the petitioner as Joint Sub Registrar-I, Visakhapatnam R.O.(O.B) by cancelling/modifying the orders of the 4 th respondent vide impugned Proceedings No.E/490/2023 dated 31.5.2023 in so far as the petitioner is concerned in place of the unofficial respondent and to pass....."

The brief facts of the case are that, the petitioner herein was

initially appointed as Sub. Registrar Grade-II on 24.10.2009 and

had completed training in the year 2011. After completion of

training, the petitioner was posted at Sompeta, Srikakulam

District and worked there till 2013. Thereafter, the petitioner was

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transferred to Itchapuram and worked there till 2014.

Subsequently, the petitioner was posted at Vizianagaram R.O.

(O.B), as Sub-Registrar-II in the year 2014 and worked there till

07.07.2019. Further, the petitioner was transferred to Rajam and

worked there till July, 2022 and thereafter, the petitioner was

posted as Audit Sub. Registrar at Vizianagaram and worked there

till October, 2022.

While the petitioner was working as Audit Sub.Registrar,

Vizianagaram, she was promoted as Sub. Registrar Grade-I and

posted as Joint Sub. Registrar-I at Visakhapatnam (O.B)

Jagadamba Centre, Visakhapatnam on 31.10.2022.

Subsequently, on 10.05.2023, the petitioner was posted to

Ponduru S.R.O. Srikakulam district on deputation basis.

Thereafter, as the general transfers were effected by virtue of the

relaxation of the ban on transfers vide G.O.Ms.No.71 Finance

(HR.I-PLG&POLICY) Department, dated 17.05.2023, the petitioner

was transferred and was posted at Chodawaram vide proceedings

dated 31.05.2023 of the 4th respondent on administrative

grounds, though the petitioner has not made any request and not

even completed 6 months of service at Visakhapatnam R.O.(O.B).

After transferring the petitioner, one Sri. M. Ravi Shankar Sesh

was posted as Joint-I Sub.registrar, Visakhpatnam O.B and on

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the same day, a modification order was issued transferring

Sri. M. Ravi Shankar Sesh to S.R.O. Ponduru, Srikakulam District

by retaining one Sri. K. Srinivasulu as Joint Sub.registrar-II

Visakhapatnam, R.O.(O.B).

The grievance of the petitioner is that she had shifted her

family from Vizianagaram to Visakhapatnam in the month of

December, 2022 and had admitted her children in the local school

in Visakhapatnam and had to look after her aged mother who

lives along with her. She was transferred from Vizianagaram to

Visakhapatnam on 31.10.2022 and not even completed 6 months

service at the present station, therefore, the transfer order issued

by respondent No.4 is illegal and contrary to the guidelines issued

in G.O.Ms.No.71 dated 31.05.2023. Hence, the writ petition.

The respondent No.4 has filed a counter contending that

while the petitioner was working as Joint Sub-Registrar-I, R.O.

(OB), Visakhapatnam, the ACB authorities, Visakhapatnam Range

have conducted Surprise Check over R.O. (OB), Visakhapatnam

on 26.04.2023. The D.S.P., ACB, Visakhapatnam has reported

that the Joint Sub-Registrars have engaged eight unauthorised

persons by paying daily salary. During search, unaccounted cash

of Rs.7,943/- was found in possession of Sri Tangi Suribabu,

Private Employee and an amount of Rs.26,640/- was found in

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possession of the Document writers/Assistant Document writers

and the said amount was seized by the ACB authorities. The DSP

further reported that the Joint Sub-Registrars have not

maintained the registers properly. As per the instructions of the

Commissioner & Inspector General of Registration and Stamps,

A.P., Vijayawada issued Vide Memo No.E1/3388-2/2023 dated

31.05.2023 for effecting transfers of the Sub-Registrars on

administrative grounds in the interest of efficient and effective

administration, certain transfers in the cadre of Sub-Registrars

and Senior Assistants have been taken up in Registration and

Stamps Department throughout the State as well as in the

jurisdiction of Deputy Inspector General of Registration and

Stamps, Visakhapatnam. Further, the Government relaxed the

ban on transfers of the employees from 22.05.2023 to 31.05.2023

vide G.O.Ms.No.71 Finance (HR.I-PLG. & Policy) Department

dated 17.05.2023. In the said G.O., it is also stated that the

transfers shall be effected only on request basis and on

administrative grounds.

It is further contended in the counter that it is the bounden

duty of all the Government Employees to serve the public only on

behalf of the Government, whenever and wherever he/she

transferred (or) posted by the Government without questioning the

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authority. Moreover, transfer of employees on administrative

grounds should not be interfered by the Courts or Tribunals. In

pursuance of the impugned transfer order, the petitioner reported

to duty at S.R.O., Chodavaram, Anakapalli District on 02.06.2023

and after lapse of one month from the date of her joining, she filed

the present writ petition. The counter affidavit further states that

respondent authorities have followed the due process as

stipulated under law in respect of transfers, and requested to

dismiss the writ petition.

The writ petitioner filed reply affidavit reiterating

contentions urged in the writ petition. In the reply affidavit, it is

specifically stated that ACB authorities have conducted the ride in

various sub-registrar's office in the State of Andhra Pradesh and

no transfer has been effected on other similarly placed persons

though they received various amounts from various individuals,

but for the reasons best known to respondent No.4, the petitioner

was transferred and the transfer of the petitioner is contrary to

the guidelines issued in G.O.Ms.No.71 dated 31.05.2023 and

requested to set aside the impugned transfer order.

Sri K.Satyanarayana Murthy, learned counsel for the

petitioner, contended that the Government relaxed the ban on

transfers of the employees from 22.05.2023 to 31.05.2023 vide

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G.O.Ms.No.71 Finance (HR.I-PLG. & Policy) Department dated

17.05.2023. In the said G.O., it is also stated that the transfers

shall be effected only on request basis and on administrative

grounds. There are no bonafides on the part of the authorities in

using the word 'administrative ground' as the petitioner worked in

the present station only for 6 months and when other persons are

already available and working in the said post, displacing the

petitioner is uncalled for. It is further contended that without

assigning any reason in the impugned transfer order, the

petitioner was transferred by the respondents, and requested to

set aside the impugned transfer order.

Sri G.V.S.Kishore Kumar, learned Government Pleader for

Services-I, opposed the writ petition strongly on the ground that

the transfer is incidence of service; when the petitioner agreed for

service conditions, joined in the service is bound by the transfer

on periodical basis and/or on administrative grounds. Based on

the requirement only, she is transferred, which is not vindictive.

Further, none of the submissions in the writ petition would

disclose that there is malafide on the part of the department, in

transferring the petitioner. The petitioner was transferred from

Visakhapatnam to Chodavaram, Anakapalli District on

administrative grounds, which is not contrary to the guidelines

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issued in G.O.Ms.No.71 dated 17.05.2023. Mere completion of

only 6 months service by the petitioner at the present station is

not a ground to set aside the impugned proceedings and

requested to dismiss the writ petition.

Considering rival contentions, perusing the material

available on record, the point that arose for consideration is:

Whether this Court can interfere with the transfer of the petitioner while exercising power under Article 226 of the Constitution of India on the grounds narrated in the petition?

P O I N T:

As per the material placed on record, the petitioner was

appointed as Sub-Registrar Grade-II on 24.10.2009 and posted at

Sompeta, Srikakulam District. While the petitioner was working

as Audit Sub-Registrar, Vizianagaram, she was promoted as

Sub.Registrar Grade-I and posted as Joint Sub.Registrar-I at

Visakhapatnam (O.B), Jagadamba Centre, Visakhapatnam on

31.10.2022. Thereafter, she was transferred to Chodavaram,

Anakapalli District vide proceedings No.E/490/2023 dated

31.05.2023.

Petitioner challenged the impugned proceedings mainly on

two grounds, viz., (i) on the ground of violation of conditions in

G.O.Ms.No.71 Finance (HR.I-PLG. & Policy) Department dated

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17.05.2023 and (ii) on the ground that the impugned transfer

order was issued without assigning any reasons.

For better appreciation, this Court feels that it is

appropriate to extract the relevant clauses in G.O.Ms.No.71 dated

17.05.2023, which are as follows:

"I. Transfers shall be effected only "on request" basis and on administrative grounds.

II. Employees who completed 2 years of service at a station as on 30 th April, 2023 are only eligible for request transfers and those who completed 5 years of service at a station as on said date, shall be invariably transferred."

As per Clause I (referred above), the transfers can be

effected on request basis and on administrative grounds.

As can be seen from the impugned proceedings, respondent

No.4 transferred the petitioner 'on administrative grounds'. The

relevant portion of the impugned proceedings dated 31.05.2023

is as follows:

"In pursuance of the Guidelines/instructions issued vide G.O. referred 1st above and in view of instructions issued by the Commissioner and Inspector General of Regn. and Stamps, A.P., Vijayawada in the reference 2nd cited for effecting the transfers of the Sub-Registrars on administrative grounds in the interest of efficient effective administration, the following transfers of Sub-Registrars of Zone-I are hereby ordered on administrative grounds.

(1) ........

(2) ........

(3) ........

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(4) Smt B.Geeta Lakshmi, Joint Sub-Registrar-I, R.O. (OB), Visakhapatnam is transferred and posted as Sub-Registrar, S.R.O, Chodavaram, Anakapalli District vide Sri K.Balaji, Sub- Registrar Grade-II transferred."

Therefore, the transfer order issued by respondent No.4 is

in accordance with G.O.Ms.No.71, dated 17.05.2023 as the said

G.O. empowers the respondents to effect transfers on

administrative grounds.

As per Clause II (referred supra), the employees who have

completed 2 years of service at a station as on 30th April, 2023

are only eligible for request transfers, which does not mean, that

the employees who have completed less than 2 years of service

cannot be transferred on administrative grounds. Further, as per

Clause II, the application submitted by any employee for request

transfer can be entertained subject to completion of 2 years

service at a station as on 30th April, 2023. It is a condition

precedent for entertaining the application for request transfers,

but it does not restrict the authorities from transferring the

employees, who have completed less than 2 years service at a

station, on administrative grounds for smooth functioning of the

administration. Therefore, on the ground that the petitioner has

completed only 6 months service in the present station, the

present impugned order cannot be set aside.

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Another ground raised by the petitioner is that respondent

No.4 issued the impugned proceedings without assigning any

reasons. In the absence of reasons assigned by the respondents,

the transfer order cannot be sustained.

The impugned order reflects that the petitioner was

transferred on account of administrative reasons. In cases of

transfer, assigning a reason by the department is not necessary.

The issue of transfer is a prerogative of the employer and in

normal course; the Courts cannot interfere with such transfers.

The Apex Court discussed about the scope of interference of

Courts and settled the law in catena of decisions, held that it is

entirely upon the competent authority to decide when, where and

at what point of time a public servant is to be transferred from

his present posting. Transfer is not only an incident but an

essential condition of service. It does not affect the conditions of

service in any manner. The employee does not have any vested

right to be posted at a particular place. (Vide: "Ramadhar

Pandey Vs. State of U.P.1" "State of U.P. Vs. Dr. R.N.

Prasad2" "Abani Kante Ray Vs. State of Orissa3"

1993 Supp. (3) SCC 35

1995 (Supp) 2 SCC 151

1995 (Supp) 4 SCC 169

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An employee holding a transferable post cannot claim any

vested right to work at a particular place as the transfer order

does not affect any of his legal rights and the Court cannot

interfere with a transfer/posting which is made in public interest

or on administrative exigency. In "Gujarat Electricity Board Vs.

Atmaram Sungomal Poshani4", the Supreme Court has

observed as under:-

"Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the another is an incident of service. No Government servant or employee of public undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration."

Transfer of a public servant made on administrative

grounds or in public interest should not be interfered with unless

there are strong and pressing grounds rendering the transfer

order illegal on the ground of violation of statutory rules or on

ground of malafide. (Vide: Union of India Vs. H.N. Kirtania5)

In view of the law declared in the judgments (referred

supra), this Court should not interfere with the transfer of an

employee, except such transfer is vindictive in nature or tainted

by serious malafides.

1989 SCR (2) 357

1989 SCR (3) 397

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In "State Bank of India Vs. Anjan Sanyal6" the Apex

Court held as under:-

"4. An order of transfer of an employee is a part of the service conditions and such order of transfer is not required to be interfered with lightly by a court of law in exercise of its discretionary jurisdiction unless the court finds that either the order is mala fide or that the service rules prohibit such transfer or that the authorities, who issued the order, had not the competence to pass the order.

(Emphasis supplied).

It is settled law that a writ petition under Article 226 of the

Constitution is maintainable for enforcing the statutory or legal

right or when there is a complaint by an employee that there is a

breach of a statutory duty on the part of the employer. Therefore,

there must be a judicially enforceable right for the enforcement of

which the writ jurisdiction can be resorted to. The Court can

enforce the performance of a statutory duty by public bodies

through its writ jurisdiction at the behest of a person, provided

such person satisfies the Court that he/she has a legal right to

insist on such performance. The existence of the said right is a

condition precedent for invoking the writ jurisdiction. (Vide:

AIR 2001 SC 1748

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Calcutta Gas Company (Propriety) Ltd. Vs. State of West

Bengal7 and "State of Kerala Vs. K.G. Madhavan Pillai8").

The Supreme Court in "Shilpi Bose Vs. State of Bihar9"

observed as follows:

"In our opinion, the courts should not interfere with a transfer order which are made in public interest and for administrative reasons (unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department. If the courts continue to interfere with day to day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfer orders."

In view of the law declared in "Shilpi Bose v. State of

Bihar" (referred supra) the Court cannot interfere with such

transfers.

In "Somesh Tiwari Vs. Union of India10", the Supreme

Court observed as follows:

"20. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily

1962 SCR Supl. (3) 1

1988 SCR Supl. (3) 94

AIR 1991 SC 532

(2009) 2 SCC 592

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an incident of service should not be interfered with, save in cases where inter alia malafide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the second malice in law."

In view of the law laid down in the judgments referred

supra, this Court finds no ground to interfere with the impugned

proceedings. Accordingly, the point is answered against the

petitioner and in favour of the respondents. Therefore, the writ

petition is liable to be dismissed.

In the result, the writ petition is dismissed. No costs.

Miscellaneous petitions pending, if any, in the Writ Petition,

shall stand closed.

___________________________ JUSTICE V. SUJATHA 06.11.2023 Ksp