Andhra Pradesh High Court - Amravati
Mohammad Niyamatulla vs The State Of Andhra Pradesh on 2 April, 2024
APHC010417232023
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3328]
(Special Original Jurisdiction)
TUESDAY, THE SECOND DAY OF APRIL
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE GANNAMANENI RAMAKRISHNA
PRASAD
WRIT PETITION NOs: 13826 and 22161 of 2023
W.P.No.13826 of 2023:
Between:
1. MOHAMMAD NIYAMATULLA, S/O MD. KHAJAVALI (LATE),
AGED ABOUT 59 YEARS, R/O 60-9-10/8, FLAT. NO.10,
MANASA APARTMENT, SIDDARTHANAGAR, 7TH LINE, BEHIND
LALITHA JEWELLERS, VIJAYAWADA (URBAN), KRISHNA
DISTRICT, ANDHRA PRADESH-520010.
...PETITIONER
AND
1. THE STATE OF ANDHRA PRADESH, REP. BY ITS PANCHAYAT
RAJ DEPARTMENT, SECRETARIAT, VELAGAPUDI,
AMARAVATHI, GUNTUR DISTRICT, ANDHRA PRADESH.
2. THE COMMISSIONER, PR AND RD, TADEPALLI, GUNTUR
DISTRICT. ANDHRA PRADESH.
3. THE CHIEF EXECUTIVE OFFICER, ZILLA PRAJA PARISHAD,
MACHILIPATNAM, KRISHNA DISTRICT, ANDHRA PRADESH.
4. THE EXECUTIVE ENGINEER, PR, PIU DIVISION, VIJAYAWADA,
NTR DISTRICT, ANDHRA PRADESH.
5. THE MANDAL PARISHAD DEVELOPMENT OFFICER,
KALIDINDI, ELURU DISTRICT, ANDHRA PRADESH.
2
WP Nos.13826 & 22161 of 2023
...RESPONDENT(S):
Petition under Article 226 of the Constitution of India praying
that in the circumstances stated in the affidavit filed therewith, the
High Court may be pleased to issue a writ, order or direction
particularly one in the nature of Writ of Mandamus to declare the
proceedings vide bearing Rc.No.1500/2023/A1 dated 31.05.2023
issued by the Respondent No.3 in transferring me from the office of
Respondent No.4 to the office of Respondent No.5 as void ab initio,
manifestly arbitrary, capricious, whimsical, per se illegal, ultra vires,
whimsical, unreasonable, dehors delegation of powers and legislative
competence, colourable exercise of legislative and executive powers
besides being dehors application of mind and jurisdiction and violative
of Articles 14, 16, 19, 21 and 309 of the Constitution of India and
contrary to G.O.Ms.No.71 dated 17.05.2023 issued by Finance
(HR.I.PI.G. and POLICY) Department, Andhra Pradesh and
consequently, to set aside the same and/or pass and/or pass
IA NO: 1 OF 2023
Petition under Section 151 CPC praying that in the
circumstances stated in the affidavit filed in support of the petition,
the High Court may be pleased to suspend the proceedings vide
bearing Rc.No.1500/2023/A1 dated 31.05.2023 issued by the
Respondent No.3 by permitting the Petitioner to continue in the office
of Respondent No.4 and/or pass
Counsel for the Petitioner:
1. P DURGA PRASAD
Counsel for the Respondent(S):
1. GP FOR SERVICES IV
2. G SRINIVASULA REDDY (SC FOR ZPP MPP AND GP SERVICES)
W.P.No.22161 of 2023:
Between:
1. MOHAMMAD NIYAMATULLA,, C/O KHAJAVALI, AGED ABOUT
59 YEARS, R/O 60-9-10/8, FLAT NO.10, MANASA
APARTMENT, SIDDARTHANAGAR, 7TH LINE, BEHIND LALITHA
WP Nos.13826 & 22161 of 2023
JEWELLERS, VIJAYAWADA (URBAN), KRISHNA DISTRICT,
ANDHRA PRADESH-520 010
...PETITIONER
AND
1. THE STATE OF ANDHRA PRADESH, REP. BY ITS PRINCIPAL
SECRETARY, PANCHAYAT RAJ DEPARTMENT, SECRETARIAT,
VELAGAPUDI, AMARAVATHI, GUNTUR.
2. THE DISTRICT COLLECTOR, KRISHNA DISTRICT, AT
MACHILIPATNAM.
3. THE COMMISSIONER, PANCHAYAT RAJ AND RURAL
DEVELOPMENT OFFICER (PR AND RD), TADEPALLI, GUNTUR
DISTRICT.
4. THE CHIEF EXECUTIVE OFFICER, ZILLA PRAJA PARISHAD,
MACHILIPATNAM, KRISHNA DISTRICT.
5. THE EXECUTIVE ENGINEER, PANCHAYAT RAJ, PIU DIVISION,
VIJAYAWADA, NTR DISTRICT.
6. THE MANDAL PARISHAD DEVELOPMENT OFFICER, (MPDO,
KALIDINDI, ELURU DISTRICT.
7. THE MANDAL PARISHAD DEVELOPMENT OFFICER, (MPDO),
MYLAVARAM, NTR DISTRICT.
8. SRI VEMURI SRINIVASA RAO, S/O.GOPALA KRISHNA MURTHY,
AGED 61 YEARS, R/O.D.NO.1-1-252STR301, ROAD NO.12, SRI
TIRUMALA RESIDENCY, BALAJI NAGAR COLONY, ALKAPURI
POST, SAROOR NAGAR, KV.RANGA REDDY, TELANGANA-
500035.
...RESPONDENT(S):
Petition under Article 226 of the Constitution of India praying
that in the circumstances stated in the affidavit filed therewith, the
High Court may be pleased to issue a writ, order or direction
particularly one in the nature of Writ of Mandamus, (i).declaring the
proceedings in Rc.No.1500/2023-A 1 dated 22-07-2023 issued by the
4th respondent herein transfer and posted the petitioner as
Administrative Officer in the office of 7th respondent herein and
WP Nos.13826 & 22161 of 2023
further to declare the action of the 4th respondent herein in rejecting
the Appeal filed by the petitioner vide e-Proceeding No.2121069/CPR
and RD/C2/2023 dated 13-07-2023 issued by the 3rd respondent
herein against the proceedings in Rc.No.1500/2023/A dated 31-05-
2023 issued by the 4th respondent as illegal, arbitrary, unreasonable,
Violation of Principles of Natural Justice, Violative of Articles 14 and
21 of Constitution of India and besides contrary to the GO.Ms.No.71
dated 17-05-2023 issued by the Finance (HR.I.PI.G. 86 POLICY)
Department, Andhra Pradesh. (ii)consequently direct the respondents
2 to 5 herein to continue the petitioner as Administrative Officer in the
office of 5th respondent herein pursuant to the guidelines issued vide
GO.Ms.No.71 dated 17-05-2023 issued by the Finance (HR.I.PI.G. 86
POLICY) Department, Andhra Pradesh and pass
IA NO: 1 OF 2023
Petition under Section 151 CPC praying that in the
circumstances stated in the affidavit filed in support of the petition,
the High Court may be pleased to direct the respondents 2 to 7 herein
to continue the petitioner as Administrative Officer in the office of 5th
respondent herein by suspending the proceedings in
Rc.No.1500/2023-A1 dated 22-07-2023 issued by the 4th respondent
and e-Proceeding No.2121069/CPRandRD/C2/2023 dated 13-07-
2023 issued by the 3rd respondent herein, pending disposal of the
Writ Petition and pass
Counsel for the Petitioner:
1. AKULA SRI KRISHNA SAI BHARGAV
Counsel for the Respondent(S):
1. GP FOR SERVICES IV
2. G SRINIVASULA REDDY
3. G SRINIVASULA REDDY (SC FOR ZPP MPP AND GP SERVICES)
4. G SRINIVASULA REDDY (SC FOR ZPP MPP AND GP SERVICES)
WP Nos.13826 & 22161 of 2023
The Court made the following COMMON ORDER:
Heard Sri A.S.K.S. Bhargav, Learned Counsel for the Writ
Petitioners, Sri V. Ramesh, Learned Government Pleader for Services-
IV and Sri G. Srinivasulu Reddy, Learned Standing Counsel for ZPP,
MPP and GP Services.
2. W.P.Nos.13826 and 22161 of 2023 are disposed of by this
common Order. The Petitioner in both the Writ Petitions is one and the
same. W.P.No.13826 of 2023 is filed by the Writ Petitioner seeking the
following relief:
"It is prayed that this Hon‟ble Court may be pleased to
issue a writ, order or direction particularly one in the nature
of Writ of Mandamus to declare the proceedings vide bearing
Rc.No.1500/2023/A1 dated 31.05.2023 issued by the
Respondent No.3 in transferring me from the office of
Respondent No.4 to the office of Respondent No.5 as void ab
initio, manifestly arbitrary, capricious, whimsical, per se
illegal, ultra vires, whimsical, unreasonable, dehors
delegation of powers and legislative competence, colourable
exercise of legislative and executive powers besides being
dehors application of mind and jurisdiction and violative of
Articles 14, 16, 19, 21 and 309 of the Constitution of India
and contrary to G.O.Ms.No.71 dated 17.05.2023 issued by
Finance (HR.I.PI.G. & POLICY) Department, Andhra Pradesh
and consequently, to set aside the same and/or pass and/or
pass such other order(s) as this Hon‟ble Court may deem fit
and proper in the facts and circumstances of the case."
3. W.P.No.22161 of 2023 is filed seeking the following relief:
It is prayed that this Hon‟ble Court may be pleased to
issue a writ, order or direction particularly one in the
nature of Writ of Mandamus:
i. declaring the proceedings in Rc.No.1500/2023-A1 dated
22.07.2023 issued by the 4th Respondent herein
transfer and posted the petitioner as Administrative
WP Nos.13826 & 22161 of 2023
Officer in the office of 7th respondent herein and further
to declare the action of the 4th respondent herein in
rejecting the Appeal filed by the petitioner vide e-
Proceeding No.2121069/ CPR&RD/C2/2023 dated
13.07.2023 issued by the 3rd respondent herein against
the proceedings in Rc.No.1500/2023/A dated
31.05.2023 issued by the 4 respondent as illegal,
th
arbitrary, unreasonable, violation of Principles of
Natural Justice, violative of Articles 14 and 21 of
Constitution of India and besides contrary to the
G.O.Ms.No.71 dated 17.05.2023 issued by the Finance
(HR.I.PI.G 7 POLICY) Department, Andhra Pradesh.
ii. Consequently direct the respondents 2 and 5 herein to
continue the petitioner as Administrative Officer in the
office of 5th respondent herein pursuant to the
guidelines issued vide G.O.Ms.No.71 dated 17.05.2023
issued by the Finance (HR.I.PI.G. & POLICY)
Department, Andhra Pradesh.
Submissions of the Learned Counsel for the Writ Petitioner:
4. Sri A.S.K.S.Bhargav, Learned Counsel appearing for the Writ
Petitioner (in W.P.Nos.22161 and 13826 of 2023) would submit
that initially, by Order dated 31.05.2023, the Writ Petitioner, who
was working as Administrative Officer in the Office of the
Executive Engineer, Panchayat Raj, PIU Division, Vijayawada,
Krishna District, was transferred as Administrative Officer to the
Office of Mandal Parishad Development Officer (MPDO), Kalidindi,
Eluru District vide Rc.No.1500/2023/A1, dated 31.05.2023 (Ex.P.1),
(the Order impugned in W.P.No.13826 of 2023). The Writ Petitioner
has challenged this Order dated 31.05.2023 (Ex.P.1) on the ground
that the Writ Petitioner underwent „open heart surgery‟ and also that
WP Nos.13826 & 22161 of 2023
the Writ Petitioner has completed only four years of service in the
office of the Executive Engineer, Panchayat Raj at Vijayawada and that
he has not requested for any transfer from Vijayawada.
5. On 15.06.2023, this Court, has noted that the Writ Petitioner was
relieved from the post at Vijayawada and another incumbent (Sri
Vemuri Srinivasa Rao) has already joined (at Vijayawada) in the said
post. Therefore, an interim direction was given to the Writ Petitioner
to submit a Representation/Appeal to Respondent No.2 explaining the
medical difficulties faced by the Writ Petitioner and also the
justification for being retained at Vijayawada. This Court gave further
direction to Respondent No.2 to consider and pass appropriate Orders
within a period of one week from the date of receipt of the
Appeal/Representation. In terms of the directions given by this Court
in W.P.No.13826 of 2023, the Writ Petitioner herein has submitted an
Appeal dated 19.06.2023 to Respondent No.3 to revoke the Transfer
Orders dated 31.05.2023.
6. While so, the Respondent No.3 has again passed an Order vide
e-Proceedings No.2121069/CPR&RD/C2/2023, dated 13.07.2023
(Ex.P.2), directing the Chief Executive Officer of Zilla Praja Parishad,
Krishna District to issue revised transfer orders, duly posting the
Appellant nearer to Vijayawada in any of the available existing
vacancies immediately. The Writ Petitioner herein filed W.P.No.17956
of 2023 assailing the Order dated 13.07.2023; and, during the course
WP Nos.13826 & 22161 of 2023
of argument, the Writ Petitioner came to know through the Counsel for
the Respondents that the Respondent No.4 has issued Proceeding
bearing Rc.No.1500/2023/A1, dated 22.07.2023 (Ex.P.1 in
W.P.No.22161 of 2023), posting the Writ Petitioner as Administrative
Officer in the Office of the Mandal Parishad Development Officer
(MPDO), Mylavaram, NTR District. Under the same proceeding, the
Appeal filed by the Writ Petitioner was rejected (vide Proceedings in
Rc.No.1500/2023-A1, dated 22.07.2023). In view of these subsequent
developments, this Court has disposed of the W.P.No.17956 of 2023
by Order dated 25.07.2023 (Ex.P.14) by giving liberty to the Writ
Petitioner to challenge the Proceedings dated 22.07.2023.
7. Learned Counsel for the Writ Petitioner would further submit
that accordingly, Writ Petitioner filed W.P.No.22161 of 2023 assailing
the proceedings bearing Rc.No.1500/2023-A1 dated 22.07.2023
resisting his transfer basing on medical grounds inasmuch as he had
undergone „open heart surgery‟ in the year 2015. Learned Counsel for
the Writ Petitioner has placed reliance on certain Orders/Judgments
in support of his contentions (viz., Order dated 02.01.2024 in
W.P.No.14039 of 2023). He had also referred to G.O.Ms.No.71, dated
17.05.2023, which has laid down certain guidelines in respect of
transfers and postings of employees. Clause-(c) of sub-para No.(v) of
Para No.3 of the said G.O., deals with preference to be given to
employees on medical grounds for the diseases (either self or spouse
WP Nos.13826 & 22161 of 2023
or dependent children and dependent parents) of Cancer, Open Heart
Operations, Neuro Surgery, Kidney Transplantation to places where
such facilities are available.
Submissions of Learned Counsel for Respondents:
8. Sri G. Srinivasulu Reddy, Learned Standing Counsel has placed
reliance on the Orders of the Apex Court in Shilpi Bose and Ors Vs.
State of Bihar and Ors : 1991 Supp (2) SCC 659. At Para No.4, the
Hon‟ble Apex Court had categorically held that the Court should not
interfere with a transfer order which is 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. Para No.4 in Shilpi Bose‟s case is usefully extracted hereunder:
"4. In our opinion, the courts should not interfere with a
transfer order which is 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 the 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 overlooked these aspects in interfering with the transfer
orders."
WP Nos.13826 & 22161 of 2023
9. Learned Standing Counsel has also placed reliance on the case
rendered by the Hon‟ble Apex Court in Shanti Kumar Vs. Regional
Deputy Director, Health Services, Patna Division, Patna and Ors :
(1981) 2 SCC 72. The Hon‟ble Apex Court, at Para No2 of the said
Judgment has held that the Courts cannot interfere in matters of
transfer except under certain circumstances. Para No.2 of the said
Judgment is usefully extracted hereunder:
"2. Having heard learned counsel for the parties, we are
of the opinion that the High Court rightly declined to interfere
with the impugned order. Transfer of a government servant
may be due to exigencies of service or due to administrative
reasons. The courts cannot interfere in such matters. Shri
Grover, learned counsel for the appellant, however, contends
that the impugned order was in breach of the Government
instructions with regard to transfers in the Health
Department. If that be so, the authorities will look into the
matter and redress the grievance of the appellant."
10. Apart from taking note of the Judgments cited by the Learned
Standing Counsel, this Court is inclined to refer to the following
authoritative Judgment:
State of U.P. and Ors Vs. Gobardhan Lal : (2004) 11 SCC
402. The relevant paragraphs are extracted hereunder:
"7. It is too late in the day for any government servant to
contend that once appointed or posted in a particular place or
position, he should continue in such place or position as long as
he desires. Transfer of an employee is not only an incident
inherent in the terms of appointment but also implicit as an
essential condition of service in the absence of any specific
indication to the contra, in the law governing or conditions of
service. Unless the order of transfer is shown to be an outcome
of a mala fide exercise of power or violative of any statutory
provision (an Act or rule) or passed by an authority not
WP Nos.13826 & 22161 of 2023
competent to do so, an order of transfer cannot lightly be
interfered with as a matter of course or routine for any or every
type of grievance sought to be made. Even administrative
guidelines for regulating transfers or containing transfer policies
at best may afford an opportunity to the officer or servant
concerned to approach their higher authorities for redress but
cannot have the consequence of depriving or denying the
competent authority to transfer a particular officer/servant to
any place in public interest and as is found necessitated by
exigencies of service as long as the official status is not affected
adversely and there is no infraction of any career prospects such
as seniority, scale of pay and secured emoluments. This Court
has often reiterated that the order of transfer made even in
transgression of administrative guidelines cannot also be
interfered with, as they do not confer any legally enforceable
rights, unless, as noticed supra, shown to be vitiated by mala
fides or is made in violation of any statutory provision."
8. A challenge to an order of transfer should normally be
eschewed and should not be countenanced by the courts or
tribunals as though they are Appellate Authorities over such
orders, which could assess the niceties of the administrative
needs and requirements of the situation concerned. This is for
the reason that courts or tribunals cannot substitute their own
decisions in the matter of transfer for that of competent
authorities of the State and even allegations of mala fides when
made must be such as to inspire confidence in the court or are
based on concrete materials and ought not to be entertained on
the mere making of it or on consideration borne out of
conjectures or surmises and except for strong and convincing
reasons, no interference could ordinarily be made with an order
of transfer."
9. ..................Attempting to undertake an exercise of the
nature could even be assailed as an onslaught and
encroachment on the respective fields or areas of jurisdiction
earmarked for the various other limbs of the State. Giving room
for such an impression should be avoided with utmost care and
seriously and zealously courts endeavour to safeguard the rights
of parties."
ANALYSIS:
11. In view of the proceedings bearing Rc.No.1500/2023-A1 dated
22.07.2023, the W.P.No.13826 of 2023 has become infructuous.
Accordingly, W.P.No.13826 of 2023 is disposed of as having become
WP Nos.13826 & 22161 of 2023
infructuous. It is a matter of record that the Writ Petitioner underwent
the Open Heart Surgery in the year 2015 whereas the Impugned
Transfer Orders are passed in the month of July, 2023. From a
reading of the provisions under G.O.Ms.No.71, it transpires that a
specific medical ground which is available for an employee for being
posted at a convenient place for medical facility should be proximate
in time. In other words, the date or time of the Open Heart Surgery
should be proximate to the date on which an employee is sought to be
posted at a particular place. The underlying reason is that an
employee or his family member, as indicated in G.O.Ms.No.71, dated
17.05.2023, would require immediate medical attention and also a
follow-up by way of periodical check-ups. There can also be another
situation where such patient may require „continuous and prolonged
treatment within short intervals‟ as recommended by the treating
„Medical Professional‟. Admittedly, in this case, there is a gap of nearly
eight years between the period at which the Writ Petitioner underwent
Open Heart Surgery (in the year 2015) and the period of
posting/transfer (July, 2023) and there is nothing on record to show
that, the Writ Petitioner requires such „continuous and prolonged
treatment within short intervals‟.
12. It is stated at the bar that the distance between Vijayawada and
Mylavaram is about 50 Kms to 60 Kms. Whereas, the Google Maps
WP Nos.13826 & 22161 of 2023
would show two alternative routes with distances of 34 Kms and 39
Kms between Vijayawada and Mylavaram.
13. The Writ Petitioner has undergone the Open Heart Surgery in
the year 2015 and after a period of eight years, at the most he would
be required to go for a medical check-up twice annually or once in
every quarter. Therefore, one-way travelling about 35 to 40 Kms, even
for periodical check-ups, is neither impractical nor would it cause any
kind of inconvenience or hardship to the Writ Petitioner. It is not the
case of the Writ Petitioner that he is presently suffering from any other
serious disease or disorder as specified in Class-(c) of sub para No.(v)
of the Para No.3 of G.O.Ms.No.71, dated 17.05.2023 (Ex.P.8) in
W.P.No.22161 of 2023. It is the settled law that the Courts would be
sloth in interfering with issues of transfer which is undertaken by the
Government as a public policy from time to time.
CONCLUSION:
14. In the above premise, having considered the fact that the Open
Heart Surgery was undergone by the Writ Petitioner in the year 2015,
and that the distance between the places where the medical facilities
are available namely at Vijayawada and Mylavaram being only 35 to
45 Kms and having taken note of the authoritative precedents on the
legal proposition with regard to transfer, this Court is not inclined to
interfere.
WP Nos.13826 & 22161 of 2023
15. Accordingly, this Writ Petition (W.P.No.22161 of 2023) is
dismissed. No order as to costs.
16. Interlocutory Applications, if any, stand closed in terms of this
order.
__________________________________________
GANNAMANENI RAMAKRISHNA PRASAD, J
Dt:02.04.2024
VNS/JKS
WP Nos.13826 & 22161 of 2023
HON'BLE SRI JUSTICE GANNAMANENI RAMAKRISHNA PRASAD
WRIT PETITION Nos.13826 and 22161 of 2023
Dt:02.04.2024
JKS/Vns
