Andhra Pradesh High Court - Amravati
A V Suresh Kumar vs The State Of Andhra Pradesh on 2 November, 2023
THE HON'BLE SMT. JUSTICE V. SUJATHA
Writ Petition No.13743, 13739, 13738, 13740, 13742, 13744,
13745, 13746, 13747, 13748, 13749, 13750, 13751,
13753 of 2023
COMMON ORDER:
Writ Petition No.13743 of 2023 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 a writ of mandamus, declaring the action of the 3rd Respondent in issuing the Orders vide proceedings Roc.No.132III/C/2023 dt.31.05.2023 served on 06.06.2023 transferring the petitioner from the office of the District Audit Officer, State Audit, Chittoor, Chittoor District, Andhra Pradesh to the office of the Joint Director, State Audit, Tirumala Tirupati Devasthanam, Tirupati, Tirupati District, Andhra Pradesh as illegal, arbitrary, without any jurisdiction and contrary to G.O.Ms.No.71 Finance (HR-I- PLG and Policy) Department dt.17.05.2023 and pass....."
Since the claim of all the petitioners is one and the same in these writ petitions, I find that it would be appropriate to pass common order.
The writ petition No.13743 and 2023 is taken as leading petition for the purpose of deciding the issue in controversy.
The petitioner in W.P.No.13743 of 2023 joined in the State Audit Department in the year 2001 as a typist and thereafter, he was promoted as Senior Auditor in the year 2007. While he was working in the State Audit Department in the office of the VS,J wp_13743_2023 and batch 2 Assistant Audit Officer, State Audit (MP) Chittoor, he got transferred on 30.06.2022 to the District Audit Officer, State Audit, Chittoor. While the things stood thus, the 3rd respondent issued impugned transfer orders vide proceedings Roc.No.132- III/C/2023-2, dated 31.05.2023 which were served on the petitioner on 06.06.2023, transferring the petitioner to the office of the Joint Director, State Audit, Tirumala Tirupati Devastanam, Tirupati, Tirupati District from the State Audit Office, Chittoor, Chittoor District.
The main grievance of the petitioner is that he has completed only 10 months period in the present station i.e. State Audit Office, Chittoor and the present impugned transfer orders dated 31.05.2023 were issued by the respondent No.3 without jurisdiction and contrary to G.O.Ms.no.71, dated 17.05.2023. Initially, the name of the petitioner was not included in the transfer list that has been finalised on 31.05.2023. The 4th respondent issued memo vide Roc.No.179/A1/2023, dated 05.06.2023 requesting all the concerned District Officers, State Audit in Zone-IV to submit compliance report about the transfers made before 31.05.2023. Transfer orders with regard to the employees working in Zone I, II and III were issued by the Regional Deputy Director. But, the impugned transfer order of the VS,J wp_13743_2023 and batch 3 petitioner who is working in Zone IV was issued by the Joint Director, who is not the competent authority to issue transfer orders. Challenging the same, the present writ petition is filed.
On 19.06.2023, this Court passed an interim order duly suspending the transfer orders dated 31.05.2023 issued by the 3rd respondent and the operative portion of the same is extracted as under:
"........Considering the said submissions, no doubt, the respondents can affect the transfers on administrative ground. But in the instant case, no reasons were mentioned in the impugned orders on what administrative grounds the authority have affected the transfer of the petitioner within a period of seven months. Power is given to affect administrative transfers but it should be in a transparent manner. Here the authorities have not mentioned any administrative reasons for affecting the transfer of the petitioner. Hence the proceedings dated 31.5.2023 of the 3rd respondent is suspended on the ground of violation of conditions in G.O.Ms.No.71 dated 17.5.2023."
The respondent Nos.1 to 5 have filed a counter contending that the transfer orders were issued within the deadline of 31.05.2023 and further, as per Section 3.3 of the A.P. State Audit Act, 1989, the Director shall exercise general control and superintendence over the officers of the State Audit Department in the performance of their functions under this Act and also the rules made there under. As per the rule 3(4) of the AP State Audit Rules framed in G.O.Ms.No.130, dated 08.09.2000, the Director shall have the power to initiate disciplinary action against the VS,J wp_13743_2023 and batch 4 authorities who are found negligent in enforcing and misusing the powers under the provisions of the Act. During the District Audit Officers review meeting, the District Audit Officers have given their feedback on administrative side and Audit issues in the light of the transfers and according to G.O.Ms.No.71, Finance (HR-I Plg. & Policy) dated 17.05.2023, the head of the department is responsible for the implementation of the transfer orders. In pursuance of the said G.O., the Government has insisted to affect the transfers in order to achieve optimum productivity, efficiency and accountability in administration by placing the right person in the right place. Accordingly, the Joint Director, State Audit in the Directorate was instructed to review the list submitted by the Regional Deputy Director, State Audit, Zone-IV, Kurnool vide Directorate Memo No.13031-3/C1/2023, dated 31.05.2023. Thereafter, on verification, the proposed final list was submitted by the Joint Director, State Audit in the Directorate which was reviewed by the Regional Deputy Director, State Audit, Zone-IV, Kurnool who in turn had expressed his resent on the list in the context of facts and feedback of District Audit Officers.
Counter further states that, though the Regional Deputy Director has expressed his resentment, for better and smooth operation of newly implemented reforms, the Joint Director vide VS,J wp_13743_2023 and batch 5 Directorate Progs.Roc.No.13021/13/C1/2023, dated 31.05.2023 who is a higher official than the Regional Deputy Director by cadre, had issued transfer orders on behalf of the Director, State Audit in accordance with the approved final list issued by the Director vide Directorate Memo.No.13/127/C1/2023, dated 31.05.2023. As such, the transfer orders issued by the 3rd respondent on behalf of the Director, State Audit are within the jurisdiction and are not illegal, arbitrary and are in accordance with the G.O.Ms.No.71, Finance (HR-I Plg. & Policy) Dept., dated 17.05.2023.
The counter further states that the petitioner has joined in the department in the year 2001 as a typist and was promoted as Senior Auditor in the year 2007. He worked in the office of the District Audit Officer, State Audit, Chittoor District from 01.07.2022, but, the petitioner has mislead this Court claiming that he is working in the present station for 10 months only, calculating the same from the date of the District Reorganization, which is purely temporary allocation as per G.O.Ms.No.126 Finance (HR.IPlg.&Policy) Department, dated 30.06.2022 and the period for transfer has to be reckoned from the date he joined in the erstwhile station only.
VS,J wp_13743_2023 and batch 6 It is further contended in the counter that Zone-IV is unique in the State Audit Department because of prominent and major institutions such as Tirumala Tirupati Devasthanams, Tirupati and the annual audit of Tirumala Tirupati Devasthanams, Tirupati is pending from 2020-21 to 2022-23 and 40% of the cadre strength are vacant. In the letter Roc.No.468-1/SA/2020- 21, dated 03.10.2022, the Joint Director, State Audit, Tirumala Tirupati Devasthanams, Tirupati requested that 15 Assistant Audit Officers and 64 Senior Auditors are required for the completion of the audit of the very prestigious institution. Basing on the above said proposals, as a permanent solution to the paucity of cadre strength at the institution, the present transfer orders were issued on administrative grounds in order to complete the long pending Audit of Tirumala Tirupati Devasthanams, Tirupati for the financial year 2020-21 to 2022-23 duly following the provisions of Cir.Memo.No.GAD01-SW0SERA/27/2019- SW,GA (Service Welfare)Dept., dated 15.06.2022 and G.O.Ms.No.71, Finance (HR-I Plg. & Policy) Dept., dated 17.05.2023 and the authority has issued transfer orders in accordance with the provisions of the A.P. State Audit Act, 1989.
Respondent No.6 has filed a counter stating that he was initially appointed as Typist on 13.11.2008 at the District Audit VS,J wp_13743_2023 and batch 7 Office, State Audit, Kurnool, Kurnool District and was later promoted as Senior Auditor and was appointed at the office of the Junior Director, State Audit, TTD Tirupathi on 20.08.2020 and is working as Senior Auditor at the District Audit Office, State Audit, Chittoor, Chittoor District from 06.06.2023. He further states that the 4th respondent herein had issued proceedings in Roc.No.132- V/C/ 2023-7, dated 31.05.2023 transferring the respondent No.6 from the office of the Joint Director, State Audit, TTD, Tirupati to the office of the District Audit Office, State Audit, Chittoor District on administrative grounds. In due obedience to the proceedings of the respondent No.4, he was relieved from the office of the Joint Director, State Audit, TTD, Tirupati on the F.N. of 06.06.2023 vide memo dated 06.06.2023. He had also reported to duty in the office of the District Audit Officer, State Audit, Chittoor District on the F.N. of 06.06.2023 and has been performing his duties as Senior Auditor in the office of the District Audit Officer, State Audit, Chittoor District.
He further contended in the counter that the respondent authorities have followed the due process as stipulated under law in respect of transfers and as on date, respondent No.6 has already assumed charge, as such the petition is totally VS,J wp_13743_2023 and batch 8 misconceived and devoid of merits and requested to dismiss the writ petition.
Sri G.Vijay Kumar, learned counsel representing Ms.Thota Suneetha, 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 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 and that the transfers shall be effected by the competent authorities as per the existing orders of delegation subject to the existing Government Orders and conditions prescribed. He further contended that the competent authority is the Regional Deputy Director, but, in the present case, the transfer orders were issued by the Joint Director and that the transfer orders were issued contrary to G.O.Ms.No.71 dated 17.05.2023 and also without jurisdiction.
Learned counsel for the petitioner further argues that there are no bonafides on the part of the authorities in using the word 'administrative ground' and when the persons are already available and working in the said post, displacing the petitioner is uncalled for.
VS,J wp_13743_2023 and batch 9 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. Respondent No.3 is vested with the power to effect transfers by virtue of the proceedings issued by the Director of State Audit, A.P., Mangalagiri vide Procgs.Roc.No.13021/13/C1/ 2023 dated 31.05.2023. Based on the requirement only, he 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 is not entitled to question the transfer in view of the law laid down by the Apex Court in "Shilpi Bose v. State of Bihar1" and requested to dismiss the writ petition.
Learned Counsel for respondent No.6 reiterated the contentions urged by the learned Government Pleader for Services - I and specifically contended that mere completion of only 10 months service by the petitioner at the present station is not a ground to set aside the impugned proceedings and the respondents have followed the due process as stipulated under 1 AIR 1991 SC 532 VS,J wp_13743_2023 and batch 10 law while transferring the petitioner, 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:
Admittedly, the petitioner joined in the State Audit Department in the year 2001 as a typist, and promoted as Senior Auditor in the year 2007. While the petitioner was working in the office of the District Audit Officer, State Audit, Chittoor, he was transferred to the office of the Joint Director, State Audit, Tirumala Tirupati Devasthanam, Tirupati vide proceedings Roc.No.132-III/C/2023-2 dated 31.05.2023.
Petitioner challenged the impugned proceedings mainly on two grounds, viz., on the ground of violation of conditions in G.O.Ms.No.71 Finance (HR.I-PLG. & Policy) Department dated 17.05.2023 and on the ground of jurisdiction.
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:
VS,J wp_13743_2023 and batch 11 "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 30th 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.3 transferred the petitioner 'on administrative grounds'. The relevant portion of the impugned proceedings dated 31.05.2023 is as follows:
"In pursuance of the orders contained in the reference 1 st to 7th cited, Sri C.Narasimha Murthy, Senior Auditor, Office of the District Officer, State Audit, Chittoor is transferred and posted as Senior Auditor in the office of the Joint Director, State Audit, TTD, Tirupathi on administrative grounds, in the existing vacancy. These orders shall come into force with immediate effect."
Therefore, the transfer order issued by respondent No.3 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 VS,J wp_13743_2023 and batch 12 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 10 months service in the present station, the present impugned order cannot be set aside.
Even otherwise, as rightly pointed out by respondent Nos.1 to 5, the petitioner worked in the office of the District Audit Officer, State Audit, Chittoor District from 01.07.2022 i.e. for a period of 10 months calculating the same from the date of the District Reorganization, which is purely temporary allocation as per G.O.Ms.No.126 Finance (HR.I Plg. & Policy) Department dated 30.06.2022, but the period of transfer has to be reckoned from the date he joined in the erstwhile station only.
Another ground raised by the petitioner is that Regional Deputy Director is only competent to issue transfer order, but not the respondent No.3 - Joint Director of State Audit, Andhra VS,J wp_13743_2023 and batch 13 Pradesh who has issued impugned transfer order.
To decide the said controversy, it is relevant to extract hereunder the Procgs.Roc.No.13021/13/C1/2023 dated 31.05.2023 issued by the Director of State Audit, Andhra Pradesh, Mangalagiri.
"During the District Audit Officers review meeting, the feedback of District Audit Officers was taken on administrative and Audit issues in light of the transfers. According to the provisions of G.O reference 1st cited, the Head of the Department is responsible for the implementation of the transfer orders. In accordance with the G.O. the Government has insisted to effect the transfers in order to achieve optimum productivity, efficiency and accountability in administration by placing the right person in the right place. Accordingly, the Joint Director, State Audit In the Directorate was instructed to review the list submitted by the Regional Deputy Director, State Audit, Zone-IV, Kurnool vide reference 3rd cited.
On verification, the proposed final list was submitted by the Joint Director, State Audit in the Directorate, which was reviewed with the Regional Deputy Director, State Audit, Zone-IV, Kurnool who expressed his resent on the list in the context of facts and feedback of District Audit Officers.
In the light of the resentment expressed by the Regional Deputy Director, State Audit, Zone-IV Kurnool and to timely control further damage on administration in the context of the focal and new reforms taken up like Online Pension Authorization System, Pre Audit in ULBS, HR&CE Institutions, Universities, special drive programme on settlement of audit objections in all the auditee institutions etc., the Joint Director, State Audit, in the Directorate of State Audit who is higher than the Regional Deputy Director by cadre is hereby instructed to issue transfer orders on behalf of Director, State Audit on administrative grounds in accordance with the finalized list approved and issued by the Director vide reference 4 cited after taking into account the feedback from all the concerned District Audit Officers who are the original field level result extracting officers in the districts of the Zone."
As per the said proceedings, the Director of State Audit, A.P., Mangalagiri, instructed the Joint Director to issue transfer VS,J wp_13743_2023 and batch 14 orders on administrative grounds on his behalf in accordance with the list approved and issued by him.
There is no doubt that in view of the proceedings Procgs.Roc.No.13021/13/C1/2023 dated 31.05.2023 issued by the Director of State Audit, Andhra Pradesh, power is vested with the respondent No.3 - Joint Director to issue transfer orders. Moreover, respondent No.3 - Joint Director has to obey the instructions issued by the Director of State Audit as the Director is superior to him. Therefore, the contention of the learned counsel for the petitioner that respondent No.3 has no jurisdiction to issue transfer orders is not accepted.
In "Kommana Ramesh Vs. State of Andhra Pradesh2", relied on by the learned counsel for the petitioner, this Court held as follows:
"On an overall consideration of material on record, it is evident that the respondents transferred the petitioner from East Godavari District to Anantapuram District in utter deviation of the procedure and ignoring the presidential order, G.O.Ms.No.675 General Administration (SPF.A) Department dated 20.10.1975, G.O.Ms.No.674 General Administration (SPF.A) Department dated 29.10.1975 and G.O.P.No.728 General Administration (SPF.A) Department dated 01.11.1975, which deals with reorganisation of employees and in violation of G.O.Ms.No.45 Finance (HR.I-PLG. & Policy) Department dated 24.06.2019, G.O.Ms.No.59 Finance (HR.I-PLG. & Policy) Department dated 04.07.2019, and G.O.Ms.No.119 Finance (DCM-III) 2 2021 (2) ALD 381 (AP) VS,J wp_13743_2023 and batch 15 Department dated 17.05.2013 imposing ban on transfers, so also the law declared by the Courts in most irresponsible manner. The respondents being higher officials are supposed to be fair in their action while taking action against any such person and must adhere to the orders issued by the Government and rules for such transfers either on administrative ground or as measure of punishment. But for the reasons best known to them, respondent No.2 issued impugned proceedings transferring the petitioner from East Godavari District to Anantapuram District in violation of various Government Orders and rules referred above and contrary to the law laid down by the Courts in the judgments (referred supra) and the same was implemented by respondent No.3 as consequential order relieving the petitioner from the post of Warder. Hence, the action of the respondents in transferring the petitioner from East Godavari District to Anantapuram District is illegal, arbitrary and the same is liable to be set aside. Accordingly, the point is answered in favour of the petitioner and against the respondents."
The law laid down in the said judgment is not in dispute. This Court set aside the transfer order issued to the petitioner therein on the ground that the transfer of the petitioner was effected while the ban was subsisting and the petitioner was transferred from East Godavari District to Anantapuram District. But, in the present facts of the case, the ban on transfer of employees was relaxed from 22.05.2023 to 31.05.2023, and the petitioner was transferred on 31.05.2023 while the ban was relaxed though it is the last day. Hence, there is no ban on transfers when the petitioner was transferred. Further, the petitioner was transferred from Chittoor to Tirupati, which is not VS,J wp_13743_2023 and batch 16 a far off place from Chittoor. Therefore, the law laid down in the said judgment is not applicable to the present facts of the case.
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 v. State of U.P.3" "State of U.P. v. Dr. R.N. Prasad4" "Abani Kante Ray v. State of Orissa5"
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 v.3
1993 Supp. (3) SCC 35 4 1995 (Supp) 2 SCC 151 5 1995 (Supp) 4 SCC 169 VS,J wp_13743_2023 and batch 17 Atmaram Sungomal Poshani6", 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 v. H.N. Kirtania7) 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.
In "State Bank of India v. Anjan Sanyal8" 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 6 1989 SCR (2) 357 7 1989 SCR (3) 397 8 AIR 2001 SC 1748 VS,J wp_13743_2023 and batch 18 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:
Calcutta Gas Company (Propriety) Ltd. v. State of West Bengal9 and "State of Kerala v. K.G. Madhavan Pillai10").
The Supreme Court in "Shilpi Bose v. State of Bihar"
(referred supra) 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 9 1962 SCR Supl. (3) 1 10 1988 SCR Supl. (3) 94 VS,J wp_13743_2023 and batch 19 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 v. Union of India11", 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 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."11
(2009) 2 SCC 592 VS,J wp_13743_2023 and batch 20 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 No.13743 of 2023 is liable to be dismissed.
In view of the detailed order passed in W.P.No.13743 of 2023, the other writ petitions are also liable to be dismissed.
Accordingly, the writ petitions are dismissed. No costs. In view of the dismissal of the main writ petitions, the interim order, if any, passed in the writ petitions shall stand vacated.
Miscellaneous petitions pending, if any, in the Writ Petitions, shall stand closed.
______________________ JUSTICE V.SUJATHA 02.11.2023 GSS/Ksp