Telangana High Court

M.A.Khader Mohiuddin vs The Honourable High Court For The State ... on 12 August, 2024

              *THE HON'BLE SRI JUSTICE SUJOY PAUL
                               AND
      *THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

                       + WRIT PETITION No.6055 OF 2024
% 12-08-2024

# M.A. Khader Mohiuddin                                ...Petitioner
vs.

$ The Hon'ble High Court for the State of Telangana,
  Hyderabad, rep. by its Registrar (Admn.),
  High Court Buildings, Hyderabad and Others           ... Respondents

!Counsel for the Petitioners        : Ms. Ch.Sujatha

^Counsel for Respondents            : Sri Harender Pershad, Senior
                                      Counsel representing
                                      Sri A.Naren Rudra

<Gist :


>Head Note :

? Cases referred

1.      (1999) 4 SCC 293
2.      (2009) 1 SCC 297
3.      (2013) 10 SCC 253
4.      (1977) 4 SCC 441
5.      (1978) 2 SCC 202
6.      1995 Supp (1) SCC 76
7.      MANU/TL/1207/2023
8.      (2009) 2 SCC 592
9.      AIR 1966 SC 1283
10.     2009 LawSuit (Mad) 1429
11.     2006 LawSuit (Mad) 152
12.     1996 (9) SCC 471
13.     2000 (5) SCC 65
14.     2011 (5) SCC 142
15.     (2020) 3 SCC 86
16.     2024 SCC Online SC 279
17.     (2004) 4 SCC 245
18.     2003 (1) MPHT (FB) 226
                                     2
                                                               SP, J & RRN, J
                                                               WP_6055_2024


       IN THE HIGH COURT FOR THE STATE OF TELANGANA AT
                             HYDERABAD
                                 ****
                  WRIT PETITION No.6055 OF 2024
                   (Per Hon'ble Sri Justice Sujoy Paul)

Between:
M.A. Khader Mohiuddin
                                                     ...Petitioner
vs.

The Hon'ble High Court for the State of Telangana,
Hyderabad, rep. by its Registrar (Admn.),
High Court Buildings, Hyderabad and Others
                                                 ... Respondents
JUDGMENT PRONOUNCED ON: 12.08.2024


              THE HON'BLE SRI JUSTICE SUJOY PAUL
                              AND
      THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO


1.     Whether Reporters of Local newspapers
       may be allowed to see the Judgments?      :


2.     Whether the copies of judgment may be
       Marked to Law Reporters/Journals?         :


3.     Whether His Lordship wishes to
       see the fair copy of the Judgment?        :

                                                          _________________
                                                           SUJOY PAUL, J

                             _________________________________________
                                  NAMAVARAPU RAJESHWAR RAO, J
                                     3
                                                            SP, J & RRN, J
                                                            WP_6055_2024


           THE HONOURABLE SRI JUSTICE SUJOY PAUL
                         AND
         THE HONOURABLE SRI JUSTICE NAMAVARAPU
                   RAJESHWAR RAO

                    WRIT PETITION No.6055 of 2024

ORDER:

(Per Hon'ble Justice Sujoy Paul)

This petition filed under Article 226 of the Constitution seeks

a declaration that petitioner's application seeking voluntary

retirement dated 28.01.2023 must be treated as deemed to have

been accepted as per Rules. The petitioner has also called in

question the transfer orders dated 24.01.2023 and 23.01.2024

whereby he was transferred from Secunderabad to Adilabad.

2. Briefly stated, the relevant facts for adjudication of this

matter are that the petitioner on 28.01.2023 submitted an

application/notice before the Chief Judge, City Civil Court,

Hyderabad, through proper channel seeking permission to

voluntarily retire after three months. The specific stand of the

petitioner is that no express decision was ever taken on this notice

of the petitioner regarding voluntary retirement. The petitioner

preferred appeal dated 08.09.2023 for taking decision on the said

application for voluntary retirement, but to no avail.

SP, J & RRN, J WP_6055_2024

3. The second limb of attack is to the transfer order issued vide

ROC.No.90/2023-C-3, dated 24.01.2023, whereby the petitioner

was transferred from the I Additional Family Court, City Civil

Court, Secunderabad, to the unit of District Judge, Adilabad, on

administrative grounds. The petitioner filed additional material

papers to submit that he made unsuccessful efforts to join at

Adilabad. The petitioner along with memo dated 18.03.2024 filed

applications submitting his joining before the Adilabad Court

pursuant to transfer order dated 23.01.2024.

4. By placing reliance on Clause (2) of Rule 48-A of the

Telangana Revised Pension Rules, 1980, it is submitted that if no

decision is taken by the department on his application for

voluntary retirement, pursuant to the deeming clause, the

petitioner will be deemed to have been retired on completion of

stipulated period of three months. In support of these

submissions, learned counsel for the petitioner placed reliance on

judgments of Apex Court in the cases of State of Haryana vs.

S.K.Singhal 1, Virender Chaudhary vs. Bharat Petroleum

Corpn. 2, Vijay S. Sathaye vs. Indian Airlines Ltd. 3, Dinesh

(1999) 4 SCC 293

(2009) 1 SCC 297

(2013) 10 SCC 253

SP, J & RRN, J WP_6055_2024

Chandra Sangma vs. State of Assam 4, B.J. Shelat vs. State of

Gujarat 5 and Union of India vs. Sayed Muzaffar MR 6 and also

the judgment of this Court in V. Radhika vs. The State of

Telangana 7.

5. The transfer order (Annexure P-2) is assailed by contending

that the same is punitive and mala fide in nature. The transfer

order is not passed on administrative grounds, although it cites

such administrative reason. By placing reliance on the reference

letters mentioned in the impugned transfer orders dated

24.01.2023 and 23.01.2024, learned counsel for the petitioners

submits that the operative reason for transfer relates to alleged

conduct of the petitioner and if, for said reason the petitioner is

transferred, the orders are certainly punitive in nature. In

support of this contention, she placed reliance on the judgments

of Supreme Court in the cases of Somesh Tiwari vs. Union of

India 8 and The Management of the Syndicate bank Ltd. vs.

The Workmen 9 and judgments of Madras High Court in the cases

of K M Elumalai vs. Additional Director General of Police,

(1977) 4 SCC 441

(1978) 2 SCC 202

1995 Supp (1) SCC 76

MANU/TL/1207/2023

(2009) 2 SCC 592

AIR 1966 SC 1283

SP, J & RRN, J WP_6055_2024

Director General of Prisons; Superintendent of Prisons 10 and

S. Sevugan vs. Chief Educational Officer 11.

6. Per contra, Sri Harender Pershad, learned Senior counsel for

the respondents submitted that the petitioner preferred

application for voluntary retirement on 28.01.2023. The said

application was preferred before the Chief Judge, City Civil Court,

Hyderabad, whereas, the petitioner was already transferred by

order dated 24.01.2023. The petitioner was relieved on

28.01.2023 and since, he did not accept the relieving order and

left no stone unturned to avoid service of transfer/relieving order,

the said orders were sent to him through registered post, which

was returned with caption 'un-claimed'. The respondents, then

got the transfer/relieving order affixed on the house of the

petitioner. A photograph showing the same is placed on record, in

which the son of the petitioner was standing in front of affixed

notice. There is no pleading in the petition and rejoinder that the

petitioner submitted his joining at Adilabad and his joining was

not accepted. The documents filed with memo dated 18.03.2024

are not supported by any affidavit. The High Court by order dated

23.01.2024 directed the petitioner to comply with the transfer

2009 LawSuit (Mad) 1429

2006 LawSuit (Mad) 152

SP, J & RRN, J WP_6055_2024

order dated 24.01.2023 (Annexure P-2). The transfer order is

passed in administrative exigency and in absence of any specific

pleadings of malice, no interference is warranted. The necessary

parameters for interference in transfer order are not satisfied.

7. So far, the application for voluntary retirement dated

28.01.2023 is concerned, the learned Senior counsel for

respondents submitted that since the petitioner stood relieved

from the City Civil Court, Hyderabad, the said application was

returned to the petitioner to enable him to submit the said

application/notice at Adilabad. The attempt of the department to

return the application to the petitioner physically could not fetch

any result because the petitioner successfully avoided receiving it.

Therefore, left with no other option, the said letter was sent

through registered post, which came back 'un-claimed'. If such,

notice is refused by the petitioner, it must be treated as 'served'.

Since the application of voluntary retirement was returned in

January, 2023 itself, the deeming clause of statute is of no benefit

to the petitioner.

8. In the rejoinder submission, learned counsel for the

petitioner submits that it is doubtful whether the registered

SP, J & RRN, J WP_6055_2024

envelope, which allegedly came back 'un-claimed' was containing

the notice/application of the petitioner for voluntary retirement.

9. The parties confined their arguments to the extent indicated

above.

10. At the outset, we may observe that law is well settled that if

notice for voluntary retirement is preferred and relevant Rule

prescribes that the decision on it must be taken within a

stipulated time and also contains a deeming clause, in absence of

taking any decision on the notice/application within time, the

permission to voluntary retirement shall be deemed to have been

granted. The Rule in hand also prescribes the same and there is

no difficulty in accepting the contention of learned counsel for the

petitioner about the interpretation and impact of such deeming

clause. What is important to note is that if application for

voluntary retirement remained pending for a stipulated period,

then only deeming clause comes into operation.

11. In the instant case, the parties are at loggerheads whether

the said application for voluntary retirement was actually pending.

As noticed above, the petitioner's stand is that till date no decision

was taken on the said application and even his

SP, J & RRN, J WP_6055_2024

appeal/representation could not fetch any result. The

respondents, on the other hand, urged that the application for

voluntary retirement was returned to the petitioner.

12. In order to separate the wheat from chaff, we have perused

the original record produced before us by the respondents. It

contains a sealed registered envelope sent to the declared

residential address of the petitioner, which came back 'un-

claimed'. We have opened the sealed registered envelope and

found that it contains the notice/application of petitioner seeking

voluntary retirement. The Apex Court in the cases of M/s.

Attabira Regulated Market Committee v. M/s. Ganesh Rice

Mills 12, Syndicate Bank v. General Secretary, Syndicate Bank

Staff Association 13 and Chairman-cum-M.D., Coal India Ltd. v.

Ananta Saha 14 opined that if a registered letter comes back with

note 'un claimed/refused', it shall be treated to be served. Thus,

in our opinion, the petitioner's application for compulsory

retirement was returned to him by registered letter dated

30.01.2023. Thus, his application/notice was not pending beyond

30.01.2023 with the department and therefore, the question of

giving benefit of deeming clause does not arise. For this reason,

1996 (9) SCC 471

2000 (5) SCC 65

2011 (5) SCC 142

SP, J & RRN, J WP_6055_2024

the judgments on this point relied by the petitioner are of no

assistance.

13. So far, transfer order is concerned, it is trite that transfer is

incidence of service. The transfer order can be interfered if it runs

contrary to any statutory provision (not policy guidelines), proved

to be (not alleged to be) mala fide, changes service condition of the

employee to his detriment, passed by incompetent authority. The

personal inconvenience cannot be a ground to interfere with the

transfer order. The employer is the best judge to decide about the

existence of administrative exigency and this Court cannot sit in

appeal and conduct roving enquiry. On these principles, the

impugned transfer order is required to be tested.

14. Learned counsel for the petitioner placed heavy reliance on

the judgment of Somesh Tiwari (supra) and other judgments of

High Courts, to submit that the transfer order is in fact passed as

a punitive measure and not arising out of any administrative

exigency.

15. In the instant case, whether the transfer order is mala fide

or not can be examined if there exists sufficient pleadings in

support thereof. We have perused the pleadings carefully. In para

SP, J & RRN, J WP_6055_2024

No.20 of this petition, bald pleadings exists that "the transfer

order dated 23.01.2024 which I have not yet been served on me, is

deemed mala fide..."

16. In cases where the petitioner alleges mala fide, the

elementary requirement is to allege mala fide with accuracy and

precision. Bald allegation that the order is mala fide cannot be

entertained. In addition, if malice/mala fide is alleged against the

persons, such persons against whom the allegations are leveled

needs to be impleaded as parties 'eo nomine'. The Apex Court in

the case of Rajneesh Khajuria vs.Wockhardt Limited 15 held as

under:

"20.In another judgment reported as Ratnagiri Gas and Power Private Limited v. RDS Projects Limited & Ors.11, this Court held that when allegations of mala fides are made, the persons against whom the same are levelled need to be impleaded as parties to the proceedings to enable them to answer the charge. A judicial pronouncement declaring an action to be mala fide is a serious indictment of the person concerned that can lead to adverse civil consequences against him. The Court held as under:

"27. 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 levelled 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 be fair nor proper to record a finding that malice in fact had vitiated the action taken by the authority concerned. It is important to remember that a judicial pronouncement declaring an action to be mala fide is a serious indictment of the person concerned that can lead to adverse civil consequences against him. Courts have, therefore, to be slow in drawing conclusions when it comes to holding allegations of mala fides to be proved and only in

(2020) 3 SCC 86

SP, J & RRN, J WP_6055_2024

cases 11 (2013) 1 SCC 524 where based on the material placed before the Court or facts that are admitted leading to inevitable inferences supporting the charge of mala fides that the Court should record a finding in the process ensuring that while it does so, it also hears the person who was likely to be affected by such a finding."

(Emphasis Supplied)

17. It is further held in Rajneesh Khajuria (supra) in para No.23

that since appellant has not laid any foundation to alleged malice

in law, in view of various judgments, interference cannot be made.

'Malice in law' would be something which is done without lawful

excuses or an act done wrongfully and willfully without reasonable

and probable cause.

18. In a recent judgment in the case of Pubi Lombi vs. State of

Arunachal Pradesh 16, the Apex Court held as under:

"15. In view of the foregoing enunciation of law by judicial decisions of this Court, it is clear that in absence of (i) pleadings regarding malafide, (ii) non-joining the person against whom allegation are made, (iii) violation of any statutory provision (iv) the allegation of the transfer being detrimental to the employee who is holding a transferrable 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 the jurisdiction under Article 226 of the Constitution of India."

(Emphasis Supplied)

19. In the instant case, in absence of any specific pleadings

alleging mala fide and impleading the person concerned 'eo

nomine', allegations of mala fide cannot be entertained. The

2024 SCC Online SC 279

SP, J & RRN, J WP_6055_2024

transfer order is passed by competent authority. It does not

change service condition of the petitioner to his detriment.

Transfer is his incidence of service.

20. The documents filed with the memo dated 18.03.2024 are

not supported by any affidavit. Therefore, we are unable to take

note of the same. Thus, it is not established that the petitioner

was not permitted to join at Adilabad. Even assuming that

petitioner's joining was not accepted at Adilabad and he preferred

such representations, which are filed with memo (although no

receiving of the department is there), nothing prevented the

petitioner to send the said letters through registered post from

Adilabad itself.

21. In Union of India vs. Janardhan Debanath 17, the Apex

Court opined as under:

"12. ... The manner, nature and extent of exercise to be undertaken by courts/tribunals in a case to adjudge whether it casts a stigma or constitutes one by way of punishment would also very much depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions -- status, service prospects financially -- and the same yardstick, norms or standards cannot be applied to all categories of cases. Transfers unless they involve any such adverse impact or visit the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and

(2004) 4 SCC 245

SP, J & RRN, J WP_6055_2024

utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration."

(Emphasis Supplied)

22. It was further held that:

"14. The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any misbehaviour is a question which can be gone into in a departmental proceeding. For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was misbehaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated..."

(Emphasis Supplied)

23. In the subsequent judgment in Somesh Tiwari (supra), it

was held as under:

"16. 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. 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

SP, J & RRN, J WP_6055_2024

passed in lieu of punishment, the same is liable to be set aside being wholly illegal.

21... No vigilance enquiry was initiated against appellant. Transfer order was passed on material which was non- existent. The order suffers not only from non-application of mind but also suffers from malice in law."

24. The Division Bench of Apex Court in Janardhan Debanath

(supra) poignantly held that for effecting a transfer, question of

holding enquiry and recording finding about employee's conduct is

not necessary. However, another Division Bench in Somesh

Tiwari (supra), interfered with the order of transfer on the ground

that no vigilance enquiry was initiated against the employee. The

previous judgment of Janardhan Debanath (supra) was not cited

before the subsequent bench in Somesh Tiwari (supra).

Pertinently, in Somesh Tiwari (supra), a peculiar fact available in

the said case about anonymous complaint which was held to be a

non-existent material also became reason for interference.

25. In view of Five Judges Bench judgment of Madhya Pradesh

High Court in Jabalpur Bus Operators Association vs. State of

M.P. 18, wherein it was held that if previous judgment of a

coordinating Bench is not considered by subsequent Bench, the

2003 (1) MPHT (FB) 226

SP, J & RRN, J WP_6055_2024

previous judgment will prevail. The relevant portion reads as

under:

"9... With regard to the High Court, a Single Bench is bound by the decision of another Single Bench. In case, he does not agree with the view of the other Single Bench, he should refer the matter to the Larger Bench. Similarly, Division Bench is bound by the judgment of earlier Division Bench. In case, it does not agree with the view of the earlier Division Bench, it should refer the matter to Larger Bench. In case of conflict between judgments of two Division Benches of equal strength, the decision of earlier Division Bench shall be followed except when it is explained by the latter Division Bench in which case the decision of later Division Bench shall be binding. The decision of Larger Bench is binding on Smaller Benches.