Ch Sreenivasulu vs The State Of Andhra Pradesh
2024 Latest Caselaw 9105 AP

Andhra Pradesh High Court - Amravati

Ch Sreenivasulu vs The State Of Andhra Pradesh on 3 October, 2024

   IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

      HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

      WRIT PETITION Nos.21325, 21541 and 21560 of 2024

WRIT PETITION No.21325 of 2024

Between:

Y.DHANALAKSHMI
                                               ... Petitioners.
           AND

THE STATE OF ANDHRA PRADESH AND OTHERS
                                      ... Respondents.

WRIT PETITION No.21541 of 2024

Between:

CH.SREENIVASULU AND OTHERS
                                               ... Petitioners.
           AND

THE STATE OF ANDHRA PRADESH AND OTHERS
                                      ... Respondents.

WRIT PETITION No.21560 of 2024

Between:

N.NANCHARAIAH
                                                ... Petitioner.
           AND

THE STATE OF ANDHRA PRADESH AND OTHERS
                                      ... Respondents.
                                  Page 2 of 14



Counsel for the petitioners           : Smt.Kavitha Gottipati
                                         Sri A.Rajendra Babu
                                         Sri G.V.S.Kishore Kumar

Counsel for respondents               : Sri R.S.Manidhar Pingali
                                        AGP Services

                            COMMON ORDER

Since the issue involved in the above writ petitions is the same, this Court feels it appropriate to dispose of them through this common order.

2. Petitioners, in W.P.Nos.21325 and 21541 of 2024 are Forest Beat Officers and the petitioner in W.P.No.21560 of 2024 is Senior Assistant.

3. The above writ petitions are filed impugning the transfer proceedings transferring the petitioners, as illegal and arbitrary.

4. Heard Smt.Kavitha Gottipati, Sri A.Rajendra Babu, and Sri G.V.S.Kishore Kumar, learned respective counsel for petitioners, and Sri R.S.Manidhar Pingali, learned Assistant Government Pleader for Services for Respondents.

5. Learned counsel for petitioners would submit that the transfers of petitioners were made contrary to the guidelines in G.O.Ms.No.75 dated 17.08.2024. The transfers are punitive and no transparency was followed. They would also submit that none of the petitioners completed 5 years of terms in the station, yet the petitioners were transferred and no reasons were assigned.

6. Smt.Kavitha Gottipati, the learned counsel would submit that without disclosing the vacancy position, the petitioner was transferred. However, no such pleading was made in the writ affidavit.

7. Per contra, learned Assistant Government Pleader for Services would submit that the petitioners were transferred on administrative exigency. Transfers of the petitioners were made as per G.O.Ms.No.75 dated 17.08.2024. He would further submit that to achieve optimum productivity, efficiency, and accountability in administration by placing the right person at the right place the transfers were made and thus prayed to dismiss the writ petition.

8. Now, the point for consideration is:

Whether the transfer orders of the petitioners suffer from any illegality warranting interference by this Court to exercise judicial review under Article 226 of the Constitution of India?

9. Before delving into the facts of the case, let the Court examine the scope of the writ petition regarding the transfer of employees. It is a settled law that an employee holding a transferable post cannot claim any vested right to work at a particular place as the transfer order normally does not affect legal rights. The transfer issue is a prerogative of the employer and normally Courts will not interfere with transfers. A transfer is not only an incidence of service but also an essential condition of the service. Normally courts are chary to interfere with an order of transfer made for administrative reasons. However, if an order of transfer is found to be an outcome of a mala fide exercise of power; if the transfer is made in connection with

departmental proceedings; for extraneous considerations or collateral purposes, the Court can interfere with such transfers.

10. In Gujarat Electricity Board Vs. Atmaram Sungomal Poshani1, the Hon'ble Apex Court has observed thus:

"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."

11. In Union of India Vs. H.N. Kirtania2 the Hon'ble Apex Court observed as follows:

"Transfer of a public servant made on administrative grounds or in the public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the grounds of violation of statutory rules or grounds of malafide."

12. The Hon'ble Apex Court in Shilpi Bose v. State of Bihar3, observed thus:

"4. 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

1989 SCR (2) 357

1989 SCR (3) 397

AIR 1991 SC 532

statutory Rule or on the ground of malafide. 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."

(emphasis is mine)

13. In State of Punjab vs. Joginder Singh Dhatt4, the Hon'ble Apex Court observed as follows:

"3. ... It is entirely for the employer to decide when, where, and at what point of time a public servant is transferred from his present posting ..."

14. In Union of India and Others vs. S.L. Abbas 5, the Hon'ble Apex Court observed that the scope of judicial review is available when there is a clear violation of statutory provision or the transfer is swayed by mala-fide etc., It was observed as follows:

"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

AIR 1993 SC 2486

(1993) 4 SCC 357

doubt, the authority must keep in mind the guidelines issued by the Government on the subject..."

15. In N.K. Singh vs. Union of India and Others6, the Hon'ble Apex Court considered the aspect of the transfer of an employee, the prerogative of an employer regarding transfer observed as follows:

"23. ... Assessment of worth must be left to the bonafide decision of the superiors in service and their honest assessment accepted as a part of service discipline. Transfer of a government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring the formation of a subjective opinion in that sphere may be involved, at times. The only realistic approach is to leave it to the wisdom of the hierarchical superiors to make that decision. Unless the decision is vitiated by mala fides or infraction of any professed norm or principle governing the transfer, which alone can be scrutinized judicially, there are no judicially manageable standards for scrutinizing all transfers and the courts lack the necessary expertise for personnel management of all government departments. This must be left, in the public interest, to the departmental heads subject to the limited judicial scrutiny indicated."

The Apex Court further observed that:

"24. ... Challenge in courts of a transfer when the career prospects remain unaffected and there is no detriment to the government servant must be eschewed and interference by courts should be rare,

(1994) 6 SCC 98

only when a judicially manageable and permissible ground is made out. This litigation was ill-advised."

16. In the State of M.P. and another Vs S.S.Kourav and others7, the Hon'ble Apex Court held as follows:

"The courts or tribunals are not appellate forums to decide on transfers of officers on administrative grounds. It is for the administration to take appropriate decisions and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background foundation. In this case transfer order having been issued on administrative grounds, expediency of those orders cannot be examined by the Court."

17. In National Hydroelectric Power Corporation Ltd. Vs Shri Bhagwan8, it was observed as follows:

"No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since the transfer of a particular employee appointed to the class or category of transferable post from one place to other is not only an incident but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the tribunals cannot interfere with such orders as a matter routine, as though they are the appellate authorities substituting their own decisions for that of the management, as against such orders passed in the interest of administrative exigencies of the service concerned."

(1995) 3 SCC 270

(2001) 8 SCC 574

18. In Somesh Tiwari Vs. Union of India and others9, the Hon'ble Apex Court held thus:

"19. Indisputably 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 fide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the second malice in law.

20. 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."

19. Of late, the Hon'ble Apex Court in Sri Pubi Lombi Vs. The State of Arunachal Pradesh and Others10, reversed the judgment of the Division Bench of the High Court and upheld the order of the learned single Judge, wherein the learned single Judge declined to interfere in a transfer. The Apex Court observed thus:

"10. In view of the foregoing enunciation of law by judicial decisions of this Court, it is clear that in absence of (i) pleadings regarding mala- fide, (ii) non-joining the person against whom allegation are made, (iii)

(2009) 2 SCC 592

2024 0 Supreme (SC) 225

violation of any statutory provision (iv) the allegation of the transfer being detrimental to the employee who is holding a transferable post, judicial interference is not warranted. In the sequel of the said settled norms, the scope of judicial review is not permissible by the Courts in exercising of the jurisdiction under Article 226 of the Constitution of India."

20. Keeping in view the expressions of the Hon'ble Apex Court, let me delve into the facts of the cases.

21. The petitioners, Forest Beat Officers and Senior Assistant of the respondent department were transferred to the other places. In the transfer orders, it was revealed that the transfers were made on administrative grounds/requests.

22. The Government issued G.O.Ms.No.75 Finance (HR.I-PLG. & POLICY) Department, dated 17.08.2024, framing guidelines/ instructions, in respect of transfers and posting of employees.

23. In the aforementioned Government Order, it was detailed that the Government is committed to the welfare of its employees and seeks to promote work-life balance while ensuring efficient and effective service delivery to the citizens. To achieve the same, it is required that the employees are posted at places where they can contribute to the best of their abilities for improved governance and efficient delivery of public services. Keeping the above laudable object, guidelines were issued in the aforementioned G.O. The guidelines issued cannot be construed as either a Statute or the Rules made thereunder. The guidelines or administrative instructions concerning the exercise of transfer of employees concerned, the same are intended to ensure that a fair procedure is adopted and the power

is not exercised arbitrarily by the employer or his representative while effecting transfer of the employees. Uniform standards and procedures are put in place to secure fair play and transparency in the matter. Thus, the guidelines formulated are only an administrative mechanism.

24. Paragraph No.IV of the said G.O. prescribes Principles for Transfers and Postings. Paragraph No.IV (1) prescribes that the employees who have completed a period of continuous stay of 5 years at a station invariably transferred. Paragraph No.IV (2) prescribes that the employees, other than those who completed 5 years of stay at a station, shall also be eligible for transfer on administrative exigencies or personal request. Such employees too shall exercise preferences for stations.

25. As seen from the records, it may be a fact that the petitioners have not completed five years of service, however, the transfers were made on the administrative exigency. The guidelines referred to supra make it clear that the transfer of employees, who have not completed five years in a station, can be made on administrative exigency. It is not the case of the petitioners that the authority transferred the petitioner for extraneous considerations and that it is a mala fide exercise. It is also not the case of the petitioners that the transfer will affect prospects in employment. Unless the petitioners plead, it is very hard for this court to visualize the case of the petitioners in those lines.

26. In Shilpi Bose case (supra), the Hon'ble Court observed that even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order, instead the affected party should approach the higher authorities in the

department. Of course, in the case, at hand, this court does not find any violation of the rules and regulations regarding the transfer. As discussed supra, the transfer of the petitioners was made on administrative grounds. A separate common proceeding was issued, impugned in each writ petition, in respect of different employees by mentioning administrative grounds/requests. That itself, per se, will not subvert the transfer orders.

27. At the hearing learned counsels for the petitioners, without specific pleading and impleading authority in its name, urged that the orders impugned suffer from mala fides. Of course, without a pleading in the affidavit, this court need not answer the point. Indeed, pleadings are very much essential for proper adjudication of an issue even in writ petitions. However, such a plea is urged during the hearing the same is answered. Whenever allegations of mala fides are made, the persons against whom the same are leveled need to be impleaded as parties to the proceedings enabling them to answer. In Ratnagiri Gas and Power Private Limited Vs. RDS Projects and others11, the Hon'ble Apex Court held thus:

"... There is yet another aspect which cannot be ignored. As and when allegations of mala fides are made, the persons against whom the same are leveled need to be impleaded as parties to the proceedings to enable them to answer the charge. In the absence of the person concerned as a party in his/her individual capacity, it will neither fair nor proper to record a finding that malice in fact had vitiated the action taken by the authority concerned..."

(2013) 1 SCC 524

28. In the case at hand, as pointed out supra, no authority was impleaded as a party respondent to the writ petition enabling the authority to answer the charge. Thus, this Court does not find any merit in the said plea.

29. It is settled law that to invoke the jurisdiction under Article 226 of the Constitution of India, one must satisfy infringement of its right be it legal or statutory, and corresponding legal obligation on the part of the respondent. Thus, the existence of legal rights is a sine qua non for invoking jurisdiction under Article 226 of the Constitution of India.

30. In State of U.P. and others Vs. Harish Chandra and others12, the Hon'ble Apex Court held as follows:

"10. ... Under the Constitution, a Mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition."

31. In Union of India Vs. S.B. Vohra13, the Hon'ble Apex Court considered a similar issue and held that for issuing a Writ of Mandamus in favour of a person, the person claiming must establish his legal right in himself. Then only a Writ of Mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so.

(1996) 9 SCC 309

(2004) 2 SCC 150

32. In Oriental Bank of Commerce Vs. Sunder Lal Jain14, the Supreme Court emphasized the necessity to establish the existence of legal right and its infringement for the grant of Writ of Mandamus referred the principles stated in the Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.:

33. In Mani Subrat Jain Vs. State of Haryana15, while considering scope of Article 226 of the Constitution of India, the Hon'ble Apex Court observed as follows:

"9. ... It is elementary though it is to be restated that no one can ask for a Mandamus without a legal right there must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to do something or to abstain from doing something. (See Halsbury's Laws of England 4th Ed. Vol I, paragraph 122); State of Haryana Vs. Subash Chander, AIR 1973 SC 2216; Jasbhai Motibhai Desai Vs. Roshan, Kumar Haji Bashir Ahmed, AIR 1976 SC 578) and Ferris Extraordinary Legal Remedies paragraph 198."

34. In the cases at hand, the transfer of the petitioners was made on administrative exigencies. An order of transfer of an employee will not visit the employee concerned with any grave consequence. He would be required to function from a different office or unit whenever subjected to such transfer. The rest of the conditions of his service remain intact. The petitioners failed to demonstrate infringement of

(2008) 2 SCC 280

AIR 1977 SC 276

either fundamental or statutory rights and this Court has not been persuaded with the submission of the learned counsels appearing for the petitioner. In that view of the matter, this Court does not find any merit in the above writ petition and the same are liable to be dismissed.

35. Accordingly, all the Writ Petitions are dismissed at the admission stage. No costs.

As a sequel, pending miscellaneous petitions, if any, shall stand closed.

__________________________ JUSTICE SUBBA REDDY SATTI PVD