Smt.K.Lakshmi Bai vs The Government Of India And 7 ...
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     HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO

                                    AND

         HONOURABLE SRI JUSTICE T.VINOD KUMAR


                 WRIT PETITION NO.21300 OF 2020

                                 O R D E R:

(Per Sri Justice M.S.Ramachandra Rao)

The petitioner is working as Senior Assistant in the office of the

Commissioner of Survey, Settlements and Land Records, Andhra

Pradesh in Vijayawada. Her spouse is working as an Engineer in the

Head Office of the Electronics Corporation of India Limited (ECIL), a

Public Sector Undertaking of Government of India situated at

Secunderabad.

2. In 2009, the petitioner had been transferred to Hyderabad on

spouse ground as her husband was working in Hyderabad. She was

later promoted as Senior Assistant in January, 2012.

3. Thereafter, the composite State of Andhra Pradesh was divided

into the new State of Telangana and the residuary State of Andhra

Pradesh under A.P. Reorganisation Act, 2014 (for short, "the Act").

4. The Advisory Committee constituted under the provisions of

the Act (4th respondent) issued a Notification on 18.12.2014

publishing the cadre strength of the Survey, Settlements and Land

Records Department calling for comments and representations with

respect to the cadre strength.

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5. On 18.04.2015, the 4th respondent issued another Notification

publishing tentative allocation list of State cadre employees of the said

Department and invited representations under Paras 19 and 20 of the

Guidelines framed by Government of Andhra Pradesh and State of

Telangana for allocation of employees between both States.

6. The petitioner gave option for the State of Telangana citing

spouse ground. But the petitioner was allotted/ allocated to the State

of Andhra Pradesh to the office of the Commissioner, of survey,

Settlements and Land records , Andhra Pradesh at Vijayawada

(7th respondent).

7. The petitioner then submitted a representation on 30.04.2015

online requesting allotment to the State of Telangana and to consider

posting her in the Office of Head of Department in Telangana State

i.e., in the office of the 8th respondent. But remarks were offered by

the Head of Department on the petitioner's request that there is no

provision for preferential allotment for the employees whose spouses

are working in Central Government/Public Sector Undertakings of

Government of India.

8. Thereupon, the Government of Andhra Pradesh issued

G.O.Ms.No.220 General Administration (SR-I) Department,

dt.31.12.2015 communicating Order No.31(1)/2015 dt.30.11.2015

issued by the Union of India, Department of Personnel & Training,

Ministry of Personnel, Public Grievance & Pensions, Government of

India finally allocating the petitioner to the State of Andhra Pradesh.

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9. This is challenged in the instant Writ Petition on the ground that

the respondents could not have allotted the petitioner to the State of

Andhra Pradesh and they should have allotted her to the State of

Telangana (i.e., to the Office of 8th respondent) on spouse ground and

there has been violation of the Guidelines framed for final allocation

of State cadre employees under the Act as approved by the 1st

respondent.

10. Even thereafter, the petitioner had submitted another

representation seeking allotment to the State of Telangana; and the

Government of Andhra Pradesh, vide Memo dt.22.07.2016 had

forwarded it to the Commissioner, Survey, Settlements and Land

Records, Andhra Pradesh, Hyderabad and the latter was requested to

examine the same as per rules and also refer the petitioner's case to

the Commissioner, Survey, Settlements and Land Records, State of

Telangana (8th respondent) for their consent.

11. The Commissioner of Survey, Settlements and Land Records,

Andhra Pradesh, Hyderabad (7th respondent) had addressed a letter on

06.08.2016 to her counter part the 8th respondent in the State of

Telangana stating that the petitioner had been allotted to the residuary

State of Andhra Pradesh and had submitted representation stating that

she belongs to Scheduled Tribe caste and her husband is working in

the Electronics Corporation of India Limited, Secunderabad which is a

Public Sector Company Undertaking of Government of India, that he

does not have any provision to transfer to any other place till his

retirement, that the couple have two children and it is difficult for MSR,J & TVK,J ::4:: wp_21300_2020

them to look after their children if her husband and herself are posted

in different States and that she had requested for re-allotment to

Telangana State. The Commissioner, Survey, Settlements and Land

Records, Hyderabad, Telangana State (8th respondent) was requested

to consider the case of the petitioner on spouse grounds.

12. The petitioner contends that there are vacancies in the office of

the Commissioner, Survey, Settlements and Land Records, Telangana,

Hyderabad (8th respondent) and the action of the respondents in not

considering her case on spouse grounds is contrary to the Guidelines

framed by Union of India and has caused lot of hardship to her.

Reliance is also placed on the decision of this Court rendered on

27.02.2017 in W.P.No.23775 of 2016.

13. Respondents 2, 4 and 5 have filed their counter affidavit stating

that the cadre strength of the category of Senior Assistant (Survey) as

on 01.06.2014 was 24, i.e., 13 filled and 11 vacant; out of these, 14

posts, i.e., 8 filled and 6 vacant posts, were allotted to Andhra Pradesh

and the remaining 10 posts, i.e., 5 filled and 5 vacant, were allotted to

the State of Telangana. It is stated that the number of allocable

persons in the category is 14.

14. It is further contended that among the 14 allocable employees, 7

are local to Telangana and opted for allocation to Telangana and the

remaining 7 are local to Andhra Pradesh. Out of them, one employee

with seniority rank No.8 opted for preferential allotment to Telangana

on serious medical hardship under Para 18 (m)(iii) of the Guidelines.

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Thus it stated that out of the 10 posts allocated to Telangana, 8 posts

were filled as above leaving 2 vacancies. But it is asserted that the

petitioner has seniority rank of 13 and is local to Andhra Pradesh and

her option to Telangana State was not considered for allotment to

Telangana State and she was tentatively allotted to Andhra Pradesh in

the reverse order of seniority under Para 18(f) of the Guidelines as

there was no vacancy within the category of filled posts allotted to

Telangana State.

15. It is also stated that none of her juniors who are local to Andhra

Pradesh and opted for allocation to Telangana State were considered

for allotment to Telangana State and so the tentative allotment of the

petitioner to the State of Telangana was in accordance with the

Guidelines issued by Government of India and was correct.

16. It is contended that the petitioner did not claim preferential

allotment on spouse grounds to the Telangana State in her option

form.

17. It is however admitted that under Para 18(l) of the Guidelines,

a State cadre employee is eligible for preferential allotment whose

spouse is an employee in State cadre in Government/an employee in

local body or is a local cadre employee who is deemed allotted as per

the Act.

18. But it is pointed out that since the spouse of the petitioner is an

employee of Electronics Corporation of India Limited which is a

Government of India Undertaking, the petitioner is not eligible for MSR,J & TVK,J ::6:: wp_21300_2020

preferential allotment on spouse ground under Para 18(l) of the

Guidelines even if she had claimed so.

The stand of the 8th respondent

19. It is the contention of 8th respondent that Para No.18(g) of the

Guidelines communicated vide notification dt.25.07.2014 states that

"employees who are not local in relation to both States will be

allocated on the basis of nativity / domicile based on due verification

and certification of nativity / domicile by the Head of the concerned

Department," and that Para No.18(j) states, "spouse of an All India

Service (AIS) Officer who is a State Government employee shall be

allocated, where so desired by the spouse, to the State to which the

said Officer is allocated".

20. Since the husband of petitioner was an employee of a Central

Government Public Sector undertaking of Government of India and

since the guidelines did not provide for the same, on the basis of

nativity / domicile of the petitioner, she was allocated to the State of

Andhra Pradesh.

21. It was also contended that petitioner's request for deputation to

the Telangana State was also rejected by the State of Telangana on

14.11.2019.

The stand of the Union of India (1st respondent)

22. The Union of India also filed a counter affidavit reiterating the

same stand as was taken by the State of Andhra Pradesh.

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23. It is stated that 10 posts, 5 filled and 5 vacant, were allotted to

the State of Telangana out of 24 posts in the category of Senior

Assistant (Survey); Out of the 14 employees, 10 employees (including

the petitioner) had opted for the State of Telangana; and out of these 7

were senior to petitioner and one junior was adjusted against the

vacant post on the ground of being a widowed female employee. It is

also stated that one employee senior to petitioner who was local to

Andhra Pradesh and had opted for Telangana was also allocated to

Andhra Pradesh. It is stated that the petitioner was at serial No.11 in

the seniority list. It is pointed that all the filled posts were occupied by

the employees who were local to Telangana and also senior to the

petitioner and there was no vacancy in the filled posts allocated to

Telangana and hence she was allocated to Andhra Pradesh.

24. We have noted the contentions of all the parties.

The consideration by the Court

25. The statement in the counter affidavit of respondents 2, 4 and 5

that the petitioner did not seek allocation on spouse ground to the

State of Telangana is not factually correct.

26. It can be seen from Ex.P4, which contains petitioner's request

for allocation to the State of Telangana, that she specifically

mentioned that her husband was working in Electronics Corporation

of India Limited which is a Government of India Enterprise located in

Hyderabad and it would be difficult for the couple to take care of their

children and their in-laws if they are posted in separate States.

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The petitioner had specifically quoted in the said representation

Kamalanathan Committee recommendations about posting of spouses

together. But the Head of Department had rejected the petitioner's

request on the ground that there is no provision for preferential

allotment for the employees whose spouses are working in Central

Government/Public Sector Undertakings of Government of India.

27. It is not in dispute that Notification No.21708/SR I/A/2014

dt.18.12.2014 was issued by the Secretary to Government (SR),

General Administration (SR) Department and Member-Secretary to

4th respondent Committee communicating the Guidelines relating to

allocation of State service employees between the successor States of

Andhra Pradesh and Telangana which had been approved by

Government of India vide Reference F.No.27/13/2013-SRS

dt.29.10.2014.

28. Consequently, Notification No.21708/SR I/A1/2014

dt.13.02.2015 was also issued by General Administration (SR)

Department of Government of Andhra Pradesh asking the employees

to give options and referring to the Guidelines framed by the Union of

India.

29. It is not in dispute that Para 18(l) dealt with allocation of

employees who claim preferential treatment on spouse grounds. The

said Para states:

"18(l). Spouses in State cadre in Government or in State Government institutions, local bodies and those who are deemed allocated as per the Act, shall as far as practicable, be allotted to MSR,J & TVK,J ::9:: wp_21300_2020

the same State, after considering options made by them and their local candidature. Spouses who are local candidates of a State shall be allocated to that State. Spouses who belong to different States may be allocated after considering their options."

30. Para 18(f) which also speaks about allocation on the basis of

order of seniority is also relevant and is stated as under:

"18(f). The allocation shall be done in order of seniority as available on June 01, 2014. Those who have opted, who are 'local candidates' relatable to the State to which they have opted, shall, in order of their seniority, be considered for allocation first. If allocable posts in that category remain, then, others who have opted to the State may be allocated in order of seniority. If still posts remain allocation will be made in reverse order of seniority."

31. Para 18(k) is also relevant and it deals with allocation of spouse

of an All India Service (AIS) officer, which reads as under:

"18(k). Spouse of an All India Service (AIS) officer who belongs to a State cadre or is an employee of a State Government institution shall be allocated, where so desired by the spouse, to the State to which the AIS officer is allocated."

32. As can be seen from Para 18(l) of the Guidelines, spouses in

State cadre in Government or in State Government institutions, local

bodies and those who are deemed allocated as per the Act, shall as far

as practicable, be allotted to the same State, after considering options

made by them and their local candidature. There is no provision

contained here to consider cases of employees whose spouses are

employed in the Central Government Undertakings.

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33. But notwithstanding the same, a Division Bench of this Court in

Dr. S. Shobha Rani v. State Reorganization Department1 has taken

the view after considering Paras 18(f) and 18(l) that the basic

principle underlying the Guidelines is to protect and keep employed

spouses together who would otherwise be separated owing to the

allocation undertaken pursuant to the bifurcation of the erstwhile State

of Andhra Pradesh. It held that the spirit and intent underlying this

principle should be kept in mind while implementing the Guidelines.

It declared that merely because Clause 18 (l) did not speak of

employees working in Central Government/Public Sector

Undertakings, it does not mean that the spouses of such employees

who are working in the State cadre are not to be accommodated

where they are working; Clause (l) of Guideline 18 states in no

uncertain terms that allocation shall, as far as practicable, be made so

as to keep the spouses together; the import and intent of bifurcation of

the erstwhile State of Andhra Pradesh is not to breakup marriages;

and the authorities have to conceive, formulate and implement the

Guidelines keeping this in mind. It also stated that any shortfall in the

Guidelines in this regard cannot be taken literally to mean that the

spouses, whose cases do not fall within the four corners of the

instructions as set out therein, are to be left out in the cold and have to

suffer marital separation.

In that case, the husband of the petitioner was working in a non-

transferable post in Bharat Heavy Electricals Limited, a Central

Order dt.27.02.2017 in WP.No.23775 of 2016 (DB) = 2017 (3) A.L.D. 207 (D.B.) MSR,J & TVK,J ::11:: wp_21300_2020

Government Public Sector Undertaking at Visakhapatnam and the

petitioner's children were also studying there, but she was allocated to

the State of Telangana though her spouse was employed in the State

of Andhra Pradesh in the said Undertaking on the ground that the

Guidelines do not provide for such a contingency.

The Court observed that there were vacancies in the posts of

Principal, which the petitioner therein was holding, available in the

State of Andhra Pradesh and more particularly at Visakhapatnam, and

in terms of the definition of 'allocable posts', vacancies are also

included; Clause (f) of Para 18 itself states that if 'allocable posts' in

the category remain after local candidates relatable to that State have

been considered, then others who opt for that State may be allocated

in order of seniority; and this part of Clause (f) of Para 18 was

completely overlooked by the authorities. It declared that the rejection

of the petitioner's request for allocation to the State of Andhra

Pradesh and for her retention at Visakhapatnam in that case was

wholly unsustainable when there were vacancies available at

Visakhapatnam in the cadre of Principal. It allowed the Writ Petition

and gave directions to the respondents to reconsider the final

allocation of the petitioner by giving effect to Para 18(f) of the

Guidelines in true letter and spirit keeping in mind the principle

underlying such allocation on spousal grounds within four weeks and

directed the petitioner to be retained at Visakhapatnam in the

meantime.

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34. The Judgment in Dr. S. Shobha Rani v. State Reorganization

Department (1 supra) was also followed by another Division Bench

of this Court in Uzma-Nikhath v. Government of India2.

In that case, the petitioner was working as Senior Assistant in

the office of the Director General and Inspector General of Prisons in

the combined State of Andhra Pradesh before coming into force of the

Act and as a result of the bifurcation she was allotted to the State of

Andhra Pradesh. She contended that she was entitled to be protected

from being allotted to the State of Andhra Pradesh and was eligible to

continue to be in the State of Telangana on the basis of Sub-Clauses

(k) and (l) of Clause 18 of the Guidelines relating to allocation of

State services employees approved by Government of India, Ministry

of Personnel, P.G. & Pensions, Department of Personnel & Training,

issued on 29.10.2014.

In that case also, her husband was working as Scientific

Assistant "B" in Indian National Centre for Ocean Information

Services, an institution under the control of Ministry of Earth Sciences

of Government of India.

The said Division Bench held that the concept being a spouse of

All India Service Officer, who belongs to a State cadre is wide enough

to take within its view those who are employed in institutions under

the control of the Government of India as well. It observed that the

Indian National Central for Ocean Information Services is under the

control of the Ministry of Earth Sciences of Government of India and

Order dt.28.01.2019 in WP(TR) No.5680 of 2017(DB) MSR,J & TVK,J ::13:: wp_21300_2020

there is no reason to assume that it is not part of the group identified

as All India Service officer for the purpose of the protective covenant

in favour of spouses in Sub-Clauses (k) and (l) of Clause 18 of the

Guidelines.

35. These two decisions were again reiterated by a Division Bench

of this Court in its order dt.22.01.2021 in W.P.No.37396 of 2017 and

W.P.No.18559 of 2020.

The said Division bench considered Clause 18(f), (k), 18(l) and

18(m) and held that they mandate vulnerable sections of employees

such as spouses of Government employees, Last Grade employees,

widowed female employees, handicapped persons and persons facing

serious medical hardship who fall in these categories to be given

priority in allocation to the State of their choice; that all these Clauses

of the Guidelines are to be treated as exceptions to Clause 18(f)

because otherwise they would be practically rendered otiose and

defeat the very purpose for which they were included in the

Guidelines. It interpreted the word "as far as practicable" occurring in

Clause 18(l) as "if not impossible/impracticable".

36. In the instant case also, since the petitioner had categorically

mentioned about the employment of her spouse in the ECIL at

Hyderabad in a non-transferable post, it was incumbent on the

respondents to take into account Clause 18(k) as well as Clause 18(l)

and the underlying principle of the Guidelines to protect and keep

together employed spouses who would otherwise be separated owing MSR,J & TVK,J ::14:: wp_21300_2020

to allocation undertaken pursuant to the bifurcation of the erstwhile

State of Andhra Pradesh and to keep in mind the import and intent of

the Guidelines that marriages ought not to be broken up because of the

bifurcation of the State.

37. Therefore, the mere fact that the Guidelines did not deal with

preference to be given to the employees whose spouses are employees

in Government of India Undertakings cannot deprive the petitioner of

the priority if she was entitled to it on account of the above Judicial

precedents.

38. Admittedly, out of the 10 posts allocated to the State of

Telangana in the category of Senior Assistant (Survey), only 8 have

been filled and 2 posts are still vacant.

39. As per Para 7 of the Guidelines for allocation framed by the

Union of India, allocable posts include vacant posts.

40. Clause (f) of Para 18 specifically states that if allocable posts

in the category remain after local candidates relatable to that State

have been considered, then others who opted for that State may be

allocated in order of seniority. This part of Clause (f) of Para 18

seems to have been completely overlooked by the respondents.

41. Therefore, the petitioner is entitled to be permanently allocated

to the State of Telangana in one of the two vacant posts available in

the said State and the respondents cannot refuse to permanently

allocate her to the State of Telangana.

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42. Accordingly, the Writ Petition is allowed; Order No.31(1)/2015

dt.30.11.2015 passed by the 1st respondent and G.O.Ms.No.220

General Administration (SR-I) Department dt.31.12.2015 by the 2nd

respondent are both set aside; and a direction is given to the

respondents to permanently allot the petitioner to the State of

Telangana on spouse ground in the vacant post of Senior Assistant

(Survey) available in the office of the 8th respondent within four (4)

weeks from the date of receipt of a copy of this order. No costs.

43. Pending miscellaneous petitions, if any, in this Writ Petition

shall stand closed.

____________________________ M.S.RAMACHANDRA RAO, J

____________________ T.VINOD KUMAR, J Date: 12.02.2021 Svv / Ndr