Andhra Pradesh High Court - Amravati
Kommana Ramesh, vs State Of Andhra Pradesh on 28 January, 2021
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
****
WRIT PETITION No.23195 OF 2020
Between:
Kommana Ramesh.
... Petitioner
And
The State of Andhra Pradesh,
Represented by its Secretary,
Home Department, Secretariat Buildings,
Velagapudi, Guntur District and others.
... Respondents.
JUDGMENT PRONOUNCED ON 28.01.2021
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? NO
2. Whether the copies of judgment may be
marked to Law Reporters/Journals YES
3. Whether Their Ladyship/Lordship wish to
see the fair copy of the Judgment? YES
MSM,J
wp_23195_2020
2
* THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
+ WRIT PETITION No.23195 of 2020
% 28.01.2021
# Kommana Ramesh.
....Petitioner
v.
$ The State of Andhra Pradesh,
Represented by its Secretary,
Home Department, Secretariat Buildings,
Velagapudi, Guntur District and others.
.... Respondents
! Counsel for the Petitioner : Sri Ravi Kondaveeti
Counsel for Respondents: Government Pleader for Services - I
<Gist :
>Head Note:
? Cases referred:
1. (1978) 1 SCC 405
2. AIR 1952 SC 16
3. 2010 (3) ALD 650
4. (1986) 4 SCC 131
5. 1991 Supp (2) SCC 659
6. 1993 Supp (1) SCC 704
7. (1993) 4 SCC 357
8. (2007) 8 SCC 150
9. 2011 (5) ALD 709
10. 2004 (3) ALD 34 (SC)
11. (2009) 2 SCC 592
12. 2002 (6) ALT 748
MSM,J
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THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION No.23195 of 2020
ORDER:
This writ petition is 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 Writ of Mandamus declaring the transfer order issued by the 2nd Respondent vide Proceedings No.Estt-4/112/2019 dated 23-11-2020 and the consequential orders issued by the 3rd Respondent vide Proceedings No.DSJO/EG/RJMV/1940/2020 dated 26-11-2020 transferring the petitioner from Sub Jail, Peddapuram, East Godavari District to Anantapuram District as wholly illegal, arbitrary, violative of Articles 14, 16 and 21 of the Constitution of India, without jurisdiction and contrary to the provisions of Presidential Order and ban order on transfers and consequently declare that the Petitioner is not liable to be transferred from Peddapuram, East Godavari District to Anantapuram District during the ban period".
The petitioner was appointed as Warder in Central Prison, Hyderabad on 27.10.1999. While the petitioner was working in Central Prison, Hyderabad, he fell sick on 01.01.2000, applied for medical leave. On that ground, the petitioner was terminated from service on 20.05.2000 without following any procedure. Questioning the termination order, the petitioner filed O.A.No.5867 of 2000 before the A.P.Administrative Tribunal, Hyderabad. The said O.A was disposed of by Order dated 05.04.2004 setting aside the termination order with a direction to the respondents therein to reinstate him into service. Pursuant to the order, the petitioner was reinstated into service on 07.06.2004. Later, he was subjected to departmental enquiry and 'censure' was awarded against him vide proceedings in CPH/Estt.SA-1/1940/2006, dated 24.02.2006 issued by the Superintendent, Central Prison, Hyderabad. Later, the petitioner was transferred to Sub-Jail, Pitapuram on 26.05.2007 to his local MSM,J wp_23195_2020 4 District as he belongs to East Godavari District local as per the Presidential Order. The petitioner was transferred to Central Prison, Rajahmundry on 30.06.2012. Thereafter, the petitioner was transferred to the present place i.e. Sub Jail, Peddapuram on 21.06.2016.
It is further contended that the period between date of termination and the date of reinstatement into service i.e. from 20.05.2000 to 07.06.2004 was not regularized in spite of several representations made by the petitioner to the respondents. Therefore, the petitioner was constrained to file O.A.No.2377 of 2006 before the A.P. Administrative Tribunal, Hyderabad for regularization of period from 20.05.2000 to 07.06.2004 as on duty, as the termination order was set aside by the A.P. Administrative Tribunal, Hyderabad. After elaborate contest, the said O.A. was allowed by Order dated 18.01.2020 directing the respondents therein to regularize the service of the petitioner from the date of appointment and keep the petitioner on probation from that date. The respondents were further directed to treat the period upto the date of termination as medical leave and pass orders as per F.R.54-A regarding the period from the date of termination to the date of reinstatement.
When the orders passed in the above O.A.No.2377 of 2006 were not implemented by the respondents, the petitioner filed C.A.No.1839 of 2014 before the A.P. Administrative Tribunal, Hyderabad. When the Tribunal was about to order appearance of the respondents, the respondents supplied copy of proceedings, dated 31.07.2010 stating that his services were regularized from the date of MSM,J wp_23195_2020 5 his joining i.e. 27.10.1999, as per the orders of A.P. Administrative Tribunal. But practically, the respondents have not treated the period from date of termination to date of reinstatement into service as on duty and other consequential benefits are not being given to him. Finally, the petitioner gave a representation on 24.05.2020 for regularising the period between the date of termination and date of reinstatement into service as on duty as the termination order was set aside by A.P. Administrative Tribunal. As the said representation was not disposed of, the petitioner filed W.P.No.11936 of 2020 before this Court. The said Writ Petition was disposed of by Order dated 22.07.2020 directing the District Sub Jails Officer, East Godavari District, Rajahmundry i.e. respondent No.3 herein to consider his representation and pass appropriate orders within a period of four weeks from the date of receipt of the Order. Immediately, after receiving copy of order in the above writ petition, the petitioner made another representation to respondent No.3 herein to consider and pass appropriate orders on his representation as directed by A.P. Administrative Tribunal. When the petitioner personally met the respondents and requested to implement the orders of the this Court in the above writ petition, the respondent authorities orally threatened the petitioner that they would take disciplinary action against the petitioner finding some mistakes as if he committed, as the petitioner constantly filing cases one after another and by issuing impugned order of transfer, he is subjected to harassment.
The petitioner pursuing his grievance for regularization of service from the date of his initial appointment through this Court, when the authorities are not considering the said request, he MSM,J wp_23195_2020 6 incurred loss in terms of money and also his career and his juniors, who were appointed subsequent to him, were already promoted to the next higher post. Except non consideration of direction issued by the Tribunal, the petitioner has no grievance against the respondents. Due to prejudice, respondent No.2 issued transfer orders during the period of ban on transfers vide proceedings No.Estt.4/112/2019 dated 23.11.2020 transferred him to another zone. In pursuance of the above proceedings, respondent No.3 issued consequential proceedings bearing No.DSJO/EG/RJMV/1940/2020 dated 26.11.2020 transferred the petitioner from Sub-Jail, Peddapuram to Prisoners Agricultural Colony, Anantapuramu. The petitioner is a local candidate of East Godavari District. The post of Warder is a district cadre post as the pay scale of the Warder is equivalent to the post of Junior Assistant as per para 3 (2) and 5 (1) of the Presidential Order; it is a district cadre post as per the provisions of the Presidential Order, hence, he should be transferred and posted within the District.
Earlier, the petitioner was working in Hyderabad. By recognizing his local district, he was transferred to East Godavari District and he has been discharging his duties in East Godavari District. Even assuming for a moment that the transfer is to be effected beyond the zone, such transfer should not be affected during the ban period. Viewed from any angle, the transfer of petitioner from East Godavari District to Anantapuram District is wholly illegal and without jurisdiction and the same is affected with prejudiced mind.
It is further contended that earlier the power of transfer was absolutely vested with appointing/transferring authority as the MSM,J wp_23195_2020 7 appointing/transferring authorities, who are in the hierarchy of the administration and they know the different abilities and disabilities of the concerned employees and as per their abilities and disabilities, the employees are being transferred as per the requirement to a particular place in order to run the administration smoothly, effectively and as per the needs of the public. As absolute power to transfer of an employee is vested with the appointing/transferring authorities, those authorities are misusing their powers and effecting the transfers as per their whims and fancies. Therefore, the controlling authorities of the Government i.e. Finance Department and General Administration Department have been formulating transfer guidelines for effecting transfers in a fair and transparent manner. For this purpose, various guidelines are being issued by the Finance Department and General Administration Department, who are controlling authorities, from time to time, in order to avoid misuse of powers by transferring authorities of various Departments and organisations. Such guidelines are issued by Finance Department through G.O.Ms.No.45, Finance (HR.Plg.& Policy) Department, dated 24.06.2019. As per the said G.O. transfers shall be affected on request and also basing on administrative grounds and the employee, who have completed 5 years of service at a station shall be transferred. In view of the previous guidelines issued by the controlling authorities of the Government, the appointing/transferring authorities can affect transfers on administrative grounds during ban period also. As that power is also being misused by the appointing/transferring authorities, that power was controlled by the controlling authority by incorporating a MSM,J wp_23195_2020 8 guideline that transfers are to be effected on administrative grounds also during the period of relaxation of ban on transfers. In the said G.O. it is clearly mentioned that transfers should be affected on request and also on administrative grounds during the period of lifting the ban on transfers only. Therefore, the controlling authorities have taken very much care in the matter of transfers by formulating these guidelines in order to avoid misuse of powers being exercised by the transferring authorities.
In some Departments, transfers are to be effected by conducting counselling and in respect of some Departments the Government have issued statutory rules to regulate transfers in order to provide statutory status to the Rules. In spite of that the appointing/transferring authorities are misusing their powers as per their whims and fancies. Respondent Nos.2 and 3 with prejudiced mind effected the transfer of petitioner from East Godavari District to Anantapuram District during the ban period by quoting administrative grounds. Even for the administrative grounds, the said G.O. is clearly indicating that transfer should be effected during the period of relaxation of ban on transfers. The above G.O. was quoted in the impugned transfer order. In the said G.O. Ms.No.45, dated 24.06.2019 ban on transfer was relaxed from 25.06.2019 to 05.07.2019. The ban on transfers was further relaxed upto 10.07.2019 through another G.O.Ms.No.59, Finance Department, dated 04.07.2019. As per the said G.O. the ban on transfer shall come into force w.e.f. 11.07.2019. Therefore, as on the date of impugned proceedings, ban on transfers is subsisting.
MSM,J wp_23195_2020 9 It is further contended that the transfers are not effected in respect of almost all the Departments because of Covid pandemic and the ban on transfers is not yet relaxed till to-day. But the petitioner was transferred contrary to the said Government Orders referred above, on this ground also the impugned transfer order passed against the petitioner is liable to be set aside.
Besides above grounds, the petitioner also pleaded that his mother is aged about 70 years and she is suffering from old age ailments. It is further contended that viewed from any angle, transfer orders issued by respondent No.2, and consequential order issued by respondent No.3 are wholly illegal, arbitrary and violative of Article 14, 16 and 21 of the Constitution of India, requested to grant relief as stated supra.
Respondent No.2 filed detailed counter denying material allegations while admitting the appointment of the petitioner and previous litigation before the Andhra Pradesh Administrative Tribunal and High Court, inter alia contending that recently some prisoners made allegations against the petitioner and Superintendent of Sub Jail, Peddapuram addressed to the DG of Prisons, complaining that the Superintendent and the petitioner has taken money from some prisoners and provided all amenities i.e. Telephone facility for number of hours, un-official interviews, clothes and contraband articles like "Ganja" to prisoners, but whereas the phone facility was not provided to other prisoners; and that on every Sunday receiving chicken/mutton from the relatives of "Ganja" case prisoners, instead from approved contractor and also pressing them to bring the same repeatedly, and that at the time of admission of MSM,J wp_23195_2020 10 Ganja case prisoners, the Superintendent and the petitioner took amount and provided "Khaini, Gutka and Cigarettes."
Consequently the DIG of Prisons, Coastal Andhra Range, Rajamahendravaram was requested to enquire into the matter and submit detailed report on the allegations made by the prisoners for taking further course of action vide Office Memo.No.Jud- 3/189/2020, Dated 26.08.2020. Accordingly, the Dy.Inspector General of Prisons, Coastal Andhra Range, Rajamahendravaram has enquired into the matter and submitted his report through Lr.No.DIG/CAR/OS/2412/ 2020, dated 16.09.2020 wherein the DIG of Prisons has reported that he has enquired the prisoners, Superintendent and staff members of Sub-Jail, Peddapuram and obtained their statements. The DIG of Prisons has concluded in his report that the petitioner is creating complications and harassing the staff and prisoners, which adversely affected the Jail administration. The DIG of Prisons has requested respondent No.2 to transfer the petitioner on administrative grounds or attach to any other station. The DIG of Prisons has further reported that separate instructions will be issued to the Superintendent, Sub-Jail, Peddapuram to be more careful while performing his legitimate duties as the Head of the Institution and not to give any scope for any allegations against the administration.
It is further contended that based on the detailed report of the Dy.Inspector General of Prisons, Coastal Andhra Range, Rajamahendravaram, the respondent No.2 i.e., DG of Prisons has transferred the petitioner from Sub-Jail, Peddapuram to Prisoners' Agricultural Colony, Ananthapuramu in the existing vacancy on MSM,J wp_23195_2020 11 administrative grounds for smooth running of the Jail administration. Accordingly, the District Sub-Jails Officer, East Godavari District, Rajamahendravaram and Superintendent, Sub Jail, Peddapuram have relieved the Petitioner at Sub-Jail, Peddapuram vide proceedings No.DSJO/ EG/RJMV/1940/2020 dated 26.11.2020 and No.SUPDT/SJ/PDP/EG/432/ 2020 dated 26.11.2020. But the Petitioner has not reported for duty at Prisoners' Agricultural Colony, Ananthapuram, till date.
It is also further contended that the petitioner is implicating the authorities as if they are threatening him so as to gain advantage in this case. The allegations made by the petitioner against the respondents are baseless, vague and untenable. The transfer orders issued were purely on administrative ground, so as to set right the situation prevalent in the Sub-Jail, Peddapuram. It is essential that proper discipline and control among the guarding force is maintained to ensure security of prisoners, and for smooth functioning of administration. Though the petitioner was relieved, instead of reporting for duty at Prisoners' Agricultural Colony, Ananthapuramu, he filed W.P.No.23195 of 2020 before this Court requesting to suspend Proceedings No.Estt-4/112/2019, Dated 23.11.2020 issued by respondent No.2 and the consequential orders in Proceedings No.DSJO/EG/RJMV/1940/2020, dated 26.11.2020 issued by respondent No.3.
It is also further contended that since the petitioner did not complete his probation period satisfactorily within the period of probation, the same was extended. As per Presidential Order under G.S.R.529 (E), all categories of executive posts in the jail wing and all MSM,J wp_23195_2020 12 categories of Ministerial posts above lower division clerk pertaining to jail department fall under State cadre.
The contention of the petitioner that the post of Warder is Lower cadre post equivalent to Junior Assistant post which is a district cadre post is false and in fact, the executive posts from the rank of Warder to Deputy Superintendent of Jails in this Department are state cadre posts as per the above Presidential Order and hence the contention of the Petitioner is not correct.
As per Government UO Note No.567/Ser.A/89-1/ Genl.Admn (Ser.A) Department, Dated 09.03.1989, any employee may be transferred, except on grounds of promotion, or as a measure of penalty or at the officer's own request, in very special cases, even he has not completed 3 years.
As per Government Memo.No.853/Ser.C/90-1, Genl.Admn.( Ser.C) Department dated 23.09.1991 regarding suspension or transfer to far off places pending investigation into allegations, any employee may be transferred to far off places instead of placing them under suspension. As per G.O.Ms.No.119, Finance (DCM.III) Department, dated 17.05.2013, Government have imposed ban on transfers of the employees except "posting orders to the employees due to disbandment of posts, reversions, repatriations, deputations (on foreign Service only), disciplinary proceedings shall be issued in clear existing vacancies without shifting other employees". Therefore, respondent No.2 is competent to transfer the petitioner to any place in the State as per the above presidential order and Government Orders, thereby there is no merit in the writ petition, requested to dismiss the writ petition.
MSM,J wp_23195_2020 13 Sri Ravi Kondaveeti, learned counsel for the petitioner, mainly demonstrated that the post of Jail Warder is not a state cadre post, it is only District cadre post. Therefore, the petitioner cannot be transferred from East Godavari District to Anantapuram District. In support of his contention, he relied on presidential order and various Government Orders issued by the Government. It is further contended that when there is ban on transfers, such transfers have to be affected only when the ban is relaxed, but by the date of issuing impugned order, the ban was in force. Consequently, the impugned order is contrary to G.O.Ms.No.45 Finance (HR.I-PLG. & Policy) Department dated 24.06.2019. He has drawn the attention of this Court to clause 3 (i) and 3 (xi) (a) and (b) of G.O.Ms.No.45 Finance (HR.I-PLG. & Policy) Department dated 24.06.2019 and another G.O.Ms.No.59 Finance (HR.I-PLG. & Policy) Department dated 04.07.2019 to establish that the period of relaxation is limited besides G.O.Ms.No.119 Finance (DCM-III) Department dated 17.05.2013. On the strength of the said three Government Orders, learned counsel for the petitioner contended that the transfer of the petitioner from East Godavari District to Anantapuram District is contrary to the presidential order and ban subsisting as on the date of impugned proceedings.
Learned counsel for the petitioner contended that the respondents cannot substitute the reason by filing counter in the writ petition when the impugned proceedings are silent and the respondents mostly concentrated that the impugned order was passed transferring the petitioner from East Godavari District to Anantapuram District on administrative ground, but the MSM,J wp_23195_2020 14 respondents improved their case explaining the reason as punitive transfer by filing counter, which is contrary to the general principle of law and the respondents cannot improve the reason by filing counter placing reliance on the judgment of the Apex Court in "Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi1". Therefore, the reason assigned in the counter for transfer of the petitioner from East Godavari District to Anantapuram District is contrary to the reason shown in the impugned order of transfer. Therefore, the plea of the respondents shall be rejected by applying the principle laid down in the said judgment.
Finally, it is contended that the transfer is incidence of service, but it shall never be punitive in nature. If it is a punitive punishment, an enquiry is required to be conducted under Rule 20 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (for short "CCA Rules"). If the State intended to impose a major penalty, it is mandatory to conduct an enquiry strictly adhering to Rule 20 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991. But no such inquiry was conducted for transfer of the petitioner as punitive punishment from one District to another District, more particularly when the petitioner is holding a local cadre post. In addition to that, the transfer from one place to another place is not a punishment prescribed under Rule 9 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991. Therefore, the transfer of the petitioner from East Godavari District to Anantapuram District is illegal and arbitrary, requested to set aside the same.
1(1978) 1 SCC 405 MSM,J wp_23195_2020 15 Learned Government Pleader for Services-I demonstrated mostly on the bad or litigious conduct of the petitioner for his transfer from one place to another place while contended that the Jail Warder is not a District Cadre Post; it is a state cadre post and drawn the attention of this Court to G.S.R.525 (E) of the Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment Order, 1975), Notifications of the Government of India Ministry of Home Affairs and the Order of the President, vide G.O.Ms.No.675 General Administration (SPF.A) Department dated 20.10.1975. On the strength of the same, he contended that the Warder is not a District cadre post and it is a state cadre post. Therefore, the transfer of the petitioner from East Godavari District to Anantapuram District is not contrary to the presidential order and G.O.Ms.No.675 General Administration (SPF.A) Department dated 20.10.1975.
The second contention of the respondents is that the petitioner is guilty of misconduct as he is supplying mutton, chicken, cigarettes etc., to the prisoners involved in Ganja cases and accommodating certain things including phone etc., which was enquired into by the Dy.Inspector General of Prisons on receipt of a complaint. On the basis of the report of the Dy.Inspector General of Prisons, the petitioner was transferred from East Godavari District to Anantapuram District and it is not a punitive in nature, it is only for administrative convenience to run the jail department smoothly. Hence, the transfer of the petitioner cannot be said to be punitive in nature. Finally, it is contended that though the ban is subsisting, transfers can be affected on administrative grounds, the ban is MSM,J wp_23195_2020 16 applicable only to general transfers and request transfers, at the end requested to dismiss the writ petition.
On analysis of the contentions raised by both the parties, the dispute is revolving around three (3) points, which are as follows:
(1) Whether the post of Jail Warder is a District cadre post? If so, whether the transfer of the petitioner from East Godavari District to Anantapuram District is in violation of Presidential order and G.O.Ms.No.675 General Administrative (SPF.A) Department dated 20.10.1975?
(2) Whether the transfer of the petitioner from East Godavari District to Anantapuram District is 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) Department dated 17.05.2013?
(3) Whether the transfer of the petitioner is punitive in nature? If so, whether the impugned proceedings be declared as illegal, arbitrary and violative of Articles 14, 16 and 21 of the Constitution of India?
P O I N T No.1:
Indisputably, appointment of the petitioner as a Jail Warder, posting at Hyderabad, chequered history of misconduct of the petitioner while discharging his duties and service litigation between the State and the petitioner is not relevant for the purpose of deciding the real controversy. The petitioner highlighted the illegal actions of the respondents, whereas respondents highlighted the misconduct of the petitioner obviously for different reasons. However, they are unnecessary for deciding the real controversy between the parties. Therefore, this Court is not required to advert to those allegations pertaining to misconduct of the petitioner and the alleged earlier illegal action of the respondents against the petitioner.
The first contention of the petitioner is that the post of Jail Warder is a local cadre post i.e. District cadre post and transfer of MSM,J wp_23195_2020 17 the petitioner from East Godavari District to Anantapuram District is contrary to the presidential order. Whereas, learned Government Pleader for Services-I contended that the Sub-Jail warder is also State cadre post and the transfer of the petitioner is in accordance with Presidential order. In view of these specific contentions, it is appropriate to advert to the relevant pleadings both in the writ petition and counter to decide the real controversy with reference to G.O.Ms.No.675 General Administration (SPF.A) Department dated 20.10.1975.
In paragraph No.6 of the writ affidavit, the petitioner contended that he is a local candidate of East Godavari District. The post of Warder is a district cadre post as the pay scale of the Warder is equivalent to the post of Junior Assistant. Para 3 (2) of the Presidential Order says that the post belonging to the category of Junior Assistant and to each of the other categories equivalent to, or lower than that of the Junior Assistant in each department in each district shall be organised into a separate cadre. Para 5 (1) of the Presidential Order says that each part of the State in which a local cadre has been organised in respect of any category or post shall be separate unit for the purpose of recruitment, appointment, discharge, seniority, promotion and transfer and such other matter as may be specified by the State Government in respect of that category of posts. Thus, the post of Warder is carrying pay scale equivalent to the post of Junior Assistant, thereby it is District cadre post. Apart from that, while the petitioner was working at Hyderabad at the time of reorganising local cadres, the petitioner was MSM,J wp_23195_2020 18 transferred to East Godavari District on the ground that the Warder is a District Cadre post and he belongs to East Godavari District.
The respondents in the counter specifically contended that the post of Jail Warder is a state cadre post. Ground Nos.6 and 7 raised in counter are relevant for the purpose of deciding the present controversy and the same is extracted hereunder.
"(6) As per Presidential Order under G.S.R.529 (E), all categories of executive posts in the Jail Wing and all categories of Ministerial posts above Lower Division Clerk pertaining to Jail Department come under State Cadre. (7) The contention of the petitioner that the post of Warder is Lower cadre post equivalent to Junior Assistant post which is a district cadre post is wrong and whereas in fact the executive posts from the rank of Warder to Deputy Superintendent of Jails in this Department are state cadre posts as per the above Presidential Order and hence the contention of the petitioner is not correct."
Based on the said two grounds, the respondents contended that the contention of the petitioner that the post of jail Warder is a District cadre post is not tenable, requested to reject the same.
The petitioner and respondents have extracted in their affidavits the specific provisions of Presidential Order in G.O.Ms.No.675 General Administration (SPF.A) Department dated 20.10.1975. The ground No.6 raised in the counter filed by the respondents is self contradictory statement made by respondent No.2 as the presidential order under G.S.R.529 (E), all categories of executive posts in the jail wing and all categories of Ministerial "Posts above Lower Division Clerk pertaining to Jail Department come under State Cadre." Any post in the jail department above the cadre of Lower Division Cadre is a State cadre post. At this stage, it is relevant to refer the specific paragraph in G.O.Ms.No.675 General MSM,J wp_23195_2020 19 Administration (SPF.A) Department dated 20.10.1975, which is as follows:
"G.S.R.528 (E) - In pursuance of Sub-paragraph (6) of paragraph 3 of the Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975, the Central Government hereby notifies the Departments in which and the categories of posts for which separate cadres have to be organised for the City of Hyderabad under the said sub-paragraph, as follows:
Sl.No. Name of the Categories of Posts
Department
1 ............ ........
2 ........... ........
3 ............ ........
4 Jail Department Posts belonging to the
category of Lower Division
Clerk and other categories
equivalent to or lower
than that of a lower
Division Clerk.
5 ........ ............
G.S.R.529 (E) - In pursuance of sub-paragraph (8) of paragraph 3 of the Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975, the Central Government hereby declares that it would not be practicable of expedient to organise local cadres under the said paragraph in respect of the Non-gazetted categories of posts specified in column (2) of the Scheduled below in the Department specified in the corresponding entry in column (3) thereof.
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THE SCHEDULE
Sl.No. Name of category/
Department
Categories
(1) (2) (3)
1. ....................... ..............
2. ....................... ..............
3. ....................... ..............
4. ....................... ..............
5. ....................... ..............
6. All categories of executive Jail Department
posts the jail wing and all
categories of Ministerial
posts above Lower Division
Clerk
7. ..................... ...............
8. ..................... ...............
9. ..................... ...............
10. ..................... ...............
11. ..................... ...............
12. ..................... ...............
Thus, in view of the above guidelines, the posts above the cadre of Lower Division Clerk are the State Cadre Post, but Lower Division clerk and below lower division clerk cadre are District cadre posts. The State issued G.O.P.No.728 General Administration (SPF.A) Department dated 01.11.1975 specifying how to organise local cadres, city cadres, multi zonal cadres, more than one local cadre permissible within a local area, issued circulars in U.O.Note No.567/Ser.A/89-1 Genl. Admn. (Ser.A) Department dated 09.03.1989, Memorandum No.215/SC.D/89-1 Genl.Admn.(SC.D) Department dated 03.04.1989 and Memorandum No.853/Ser.C/ 90-1 Genl.Admn. (Ser.C) Department dated 23.09.1991.
Taking advantage of these circulars, learned Government Pleader for Services-I contended that the post of Warder is not District Cadre. Even assuming that the Jail Warder is a District Cadre post, the petitioner can be transferred on administrative ground to other district.
MSM,J wp_23195_2020 21 In view of the contentions raised by both parties, it is necessary to decide whether the post of Jail Warder is above the rank of Lower Division Clerk.
Learned counsel for the petitioner placed reliance on the pay scales fixed by the Government for the employees in the cadre of Lower Division Clerk and other employees of Jail department. As per the revised pay scales in Jail Department, Junior Assistant (Lower Division Clerk) was shown at serial No.53 and pay scale is 1745- 3420, whereas scale of Warder is shown at serial No.70 and existing pay scale is 1535-2840. Based on the pay scales of Lower Division Clerk and Warder, it can safely be concluded that the post of Warder is lower to the cadre of Junior Assistant (Lower Division Clerk).
When the post of Lower Division Clerk itself is a local cadre, lower cadre to the cadre of Lower Division Clerk would necessarily form part of lower cadre in terms of G.O.Ms.No.675 General Administration (SPF.A) Department dated 20.10.1975. Therefore, I hold that the post of Jail Warder is a District cadre post in terms of G.O.Ms.No.675 General Administration (SPF.A) Department dated 20.10.1975.
Regarding transfer of local cadre post is dealt with by G.O.Ms.No.674, General Admn. (SPF-A) Dept., dated 29.10.1975. Paragraph No.5 deals with transfers. Each part of the State for which a local cadre has been organised in respect of any category of posts, shall be a separate unit for purposes of recruitment, appointment, discharge, seniority, promotion and transfer, and such other matters as may be specified by the State Government, in respect of that category of posts. Sub-paragraph (2) is an exception to paragraph MSM,J wp_23195_2020 22 No.5 (1). According to Sub-paragraph (2), nothing in the order shall prevent the State Government from making provision for the transfer of a person from any local cadre to any office or establishment to which this order does not apply, or vice-versa; the transfer of a person from a local cadre comprising posts in any office or establishment exercising territorial jurisdiction over a part of the State to any other local cadre comprising posts in such part, or vice- versa; the transfer of a person from one local cadre to another local cadre where no qualified or suitable person is available in the latter cadre or where such transfer is otherwise considered necessary in the public interest; and the transfer of a person from one local cadre to another local cadre on a reciprocal basis, subject to the condition that the person so transferred shall be assigned seniority in the latter cadre with reference to the date of his transfer to that cadre (inserted by G.O.Ms.No.34, G.A.D. (SPF) dated 24.01.1981).
In view of the exception carved out in clause (c) of sub- paragraph No.(2) of paragraph No.5, one employee of local cadre can be transferred to another unit in the public interest subject to other conditions.
In the present case, the transfer of the petitioner is made on administrative ground for smooth running of jail administration and the order is silent whether the transfer is in the public interest or otherwise.
In view of my foregoing discussion, I find that the Jail Warder is a local cadre post and the transfer of the petitioner under the impugned order is not in the public interest as per the reason mentioned in the impugned order. Therefore, the transfer of the MSM,J wp_23195_2020 23 petitioner from East Godavari District to Anantapuram District is contrary to presidential order. Accordingly, point No.1 is held in favour of the petitioner against the respondents. P O I N T No.2:
One of the contentions of the petitioner is that when the State imposed ban on transfers, transfer of the petitioner from East Godavari District to Anantapuram District is contrary to the 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) Department dated 17.05.2013.
By G.O.Ms.No.119 Finance (DCM-III) Department dated 17.05.2013 Government imposed ban on transfers except in respect of posting orders to the employees on account of promotion, posting orders to the employees due to disbandment of posts, reversions, repatriations, deputations, disciplinary proceedings, vacancy arising out of leave up to a period of six (6) months.
Later, G.O.Ms.No.45 Finance (HR.I-PLG. & Policy) Department dated 24.06.2019 was issued in supersession of various government orders and fresh guidelines were issued for transfers and postings. According to clause (3), transfers shall be effected "on request" basis and on administrative grounds subject to other conditions. The procedure for transfers is prescribed under clause (3) (xi) (a) and (b) and it reads as follows:
(a) The relaxation on transfers shall be effective from 25th June, 2019 to 5th July, 2019
(b) All the transfers shall be effected by the competent authorities as per the existing orders of delegation MSM,J wp_23195_2020 24 subject to the existing Government Orders and conditions prescribed.
The ban is relaxed from 25.06.2019 to 05.07.2019. In the latter G.O.Ms.No.59 Finance (HR.I-PLG. & Policy) Department dated 04.07.2019, the Government relaxed the ban on transfers till 10.07.2019 and the ban on transfers shall come into force with effect from 11.07.2019. Thus, the period of lifting ban in G.O.Ms.No.45 Finance (HR.I-PLG. & Policy) Department dated 24.06.2019 is further extended for a period of five days by G.O.Ms.No.59 dated 04.07.2019.
The transfer of the petitioner is affected on 23.11.2020 while the ban is subsisting. In the absence of lifting ban on transfers, though on administrative ground or on request, transfer cannot be affected. However, learned Government Pleader for Services contended that in view of the U.O.Note No.567/Ser.A/89-1 Genl.Admn.(Ser.A) Department dated 09.03.1989 except on grounds of promotion, or as a measure of penalty or at the officer's own request, in very special cases, transfers can be affected as clarified by the Government. Similarly, memorandum No.853/Ser.C/90-1 Genl.Admn. (Ser.C) Department dated 23.09.1991 was issued regarding suspension or transfer to far off places pending investigation into allegations. In the said memorandum, the question whether Government employees against whom investigation or enquiries into grave charges are pending should necessarily be placed under suspension or whether they should be transferred to far off places and posted in non-focal posts and whether the existing instructions in this regard need revision and modification has been MSM,J wp_23195_2020 25 examined by the Government and issued instructions in regard to transfer of Government employees to far off places instead of placing them under suspension.
As on today, no disciplinary enquiry or investigation is pending against the petitioner. In the absence of pendency of disciplinary proceedings or investigation in any crime, transfer of the petitioner to far off place based on above instructions cannot be sustained. Therefore, transfer of the petitioner during subsistence of ban order is violative of G.O.Ms.No.45 Finance (HR.I-PLG. & Policy) Department dated 24.06.2019 and G.O.Ms.No.59 Finance (HR.I-PLG. & Policy) Department dated 04.07.2019. Accordingly, the point is answered in favour of the petitioner against the respondents. P O I N T No.3:
One of the major contentions raised by the learned counsel for the petitioner is that the transfer of the petitioner is motivated besides illegalities pointed out in the aforesaid discussion on point Nos.1 and 2. Whereas, the respondents made an attempt to substantiate their action based on the misconduct attributed to the petitioner and the report submitted by Dy.Inspector General of Prisons. The specific allegation made against the petitioner by the respondents is that he is guilty of misconduct as he is supplying Khaini, Gutka, Cigarettes and mutton, chicken to the Ganja prisoners etc, and a report was called by the DGP from Dy.Inspector General of Prisons. Accordingly, he submitted his report making serious attribution of misconduct against the petitioner. In fact, it was not the reason mentioned in the impugned order and the only reason mentioned therein is "administrative ground", not a punitive MSM,J wp_23195_2020 26 action. Raising specific contention in the counter filed by the respondents though not disclosed in the impugned order is nothing but an improvement and on the basis of allegations made in the counter by way of improvement, the administrative action cannot be justified when there is any amount of difference between pleading and reason mentioned in the administrative action i.e. impugned order as discussed in earlier paragraphs.
One of the major contentions raised by the respondents in the counter is that the petitioner is guilty of misconduct and enquiry was conducted by Dy.Inspector General of Prisons, submitted a report to the D.G.P., Prisons finding him guilty for the misconduct. But the inquiry is not in accordance with rules, and that was not the ground mentioned in the order impugned in the writ petition. The respondents improved their case by inventing different theory for transfer of the petitioner under the impugned proceedings. It is settled proposition of law that the pleading cannot substitute a reason in the administrative order and this view is fortified by the constitutional bench judgment of the Apex Court in "Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi"
(referred supra), wherein it is held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out.
MSM,J wp_23195_2020 27 In the said judgment, constitutional bench also referred to earlier judgment in "Commissioner of Police,Bombay v. Gordhandas Bhanji2", wherein the Apex Court observed as follows:
"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to effect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
If the said principle is applied to the present facts of the case, reason substituted by filing counter regarding misconduct cannot form basis for transfer of the petitioner from East Godavari District to Anantapuram District and the same cannot be looked into for the purpose of deciding the validity of the impugned order.
Improvement of the case making serious attribution against the petitioner about his misconduct and transfer of the petitioner on the basis of such misconduct as per the report of Dy.Inspector General of Prisons, which is not mentioned in the impugned order, is sufficient to draw an inference that the respondents intended to neck him out from East Godavari District and the motive is apparent on the face of the pleadings that they wanted to send him to a distant place from East Godavari District. Motivated transfers cannot be upheld by the Courts, since those motivated transfers will have serious effect on the career and the family life of the employees.
When similar issue i.e. transfer of employee on administrative ground, came up before the Division Bench of this Court in "General Manager, South Central Railway v. Syed Abdul Kareem3", it is observed that, transfer is an incident of service and per se has no 2 AIR 1952 SC 16 3 2010 (3) ALD 650 MSM,J wp_23195_2020 28 adverse consequences while referring to the judgments of the Apex Court in "B.Varadha Rao v. State of Karnataka4" "Shilpi Bose v. State of Bihar5" "Union of India v. N.P. Thomas6" "Union of India v. S.L. Abbas7" "Mohd. Masood Ahmad v. State of U.P.8"
and concluded that the order of transfer dated 13.11.2003 issued by the Senior D.P.O., Secunderabad Division is vitiated for extraneous considerations and on account of non-compliance with principles of natural justice, therefore, the writ petition is allowed. In "General Manager, South Central Railway, Rail Nilayam, Secunderabad v. S.Srinivasa Rao9" when an employee was transferred straightaway on administrative ground without giving reasonable opportunity and without considering the family condition, the Division Bench of this Court held that the transfer of employee is an incidence of service and it is well settled that it should not be interfered with unless mala fides are proved. Apart from that, the Apex Court in "Union of India v. Sri Janardhan Debanath10" held that if the transfer order is passed in public interest, it could not have been interfered with.
In "Somesh Tiwari v. Union of India11" the Apex Court considered the similar issue and held that 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 fides on the part of the authority is proved. Mala fides are of two kinds - one malice in 4 (1986) 4 SCC 131 5 1991 Supp (2) SCC 659 6 1993 Supp (1) SCC 704 7 (1993) 4 SCC 357 8 (2007) 8 SCC 150 9 2011 (5) ALD 709 10 2004 (3) ALD 34 (SC) 11 (2009) 2 SCC 592 MSM,J wp_23195_2020 29 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 passed in lieu of punishment, the same is liable to be set aside being wholly illegal. Thus, the law laid down by the Apex Court and this Court is consistent that the punitive transfer on irrelevant ground is illegal and liable to be set aside.
Turning to the facts of the present case, anonymous complaint was received against the petitioner and Superintendent of Jails making serious allegations of misconduct and the same is not within the knowledge of the petitioner. However, an enquiry was ordered to be conducted by Dy.Inspector General of Prisons, accordingly, he allegedly conducted an enquiry and submitted a report as contended in the counter. When the respondents intended to transfer the petitioner as a measure of punishment i.e. punitive transfer, certain procedure is prescribed under the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 for imposing both minor and major penalties under Rules 19 and 20 of the CCA Rules. But, in the present case, obviously, the respondents did not follow the procedure prescribed under Rules 19 and 20 of the CCA Rules to impose any penalty/punishment on the employee i.e. the petitioner herein and transfer him as measure of punishment.
MSM,J wp_23195_2020 30 Specific punishments are prescribed under Rule 9 of the CCA Rules, 1991 such as censure, withholding of promotion, withholding of increments of pay without cumulative effect, suspension, reduction to lower state, withholding of increments of pay with cumulative effect, but transfer from one station to another station is not one of the prescribed punishments.
Transfer of an employee to far off place in contravention of various Government Order, like presidential order and 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 is impermissible. Ex facie, the transfer of the petitioner is motivated and the respondents wanted to send him out from the District may be in the administration of jails, but, still the respondents are bound to follow the procedure prescribed under relevant rules governing the employees, more particularly, with regard to misconduct by conducting enquiry i.e. CCA Rules, 1991 and the Andhra Pradesh Civil Services (Conduct) Rules. Hence, transfer of the petitioner to a distant place as a measure of punishment i.e. punitive in nature is in violation of various Government Orders and Presidential order as referred in earlier paragraphs in point Nos.1 and 2 is illegal and this Court can interfere in such case and set aside such order of transfer declaring the same as illegal and arbitrary.
The other contention raised by the learned counsel for the petitioner is that conducting enquiry on anonymous or pseudonymous petition is impermissible and based on such MSM,J wp_23195_2020 31 anonymous or pseudonymous petition, conducting fact finding enquiry/preliminary enquiry, the petitioner cannot be transferred.
Learned counsel for the petitioner has drawn the attention of this Court to the guidelines issued by Department of Personnel and Training, Government of India, New Delhi in letter No.321/4/91-A VD, III dated 29.09.1992, wherein it is stated that no action should be taken on anonymous or pseudonymous complaints and should be ignored and only filed. However, there is a provision available in this order that in case such complaints contain verifiable details, they may be enquired into in accordance with existing instructions. It is however, seen that the exception provided in this order has become a convenient loophole for blackmailing. The public servants, who receive the anonymous or pseudonymous complaints, generally follow the path of least resistance and order inquiries on these complaints. A peculiar feature of these complaints is that these are resorted to especially when a public servant's promotion is due or when an executive is likely to be considered for interview. If nothing else, the anonymous or pseudonymous petition achieves the objective of delaying the promotion if not denying the promotion. These complaints demoralise many honest public servants.
Therefore, keeping in view the executive instructions of the Government of India, anonymous or pseudonymous complaints should be ignored unless they disclosed verifiable information. Basing on the said circular issued by the Government of India, State Government issued Circular Memo No.706/Spl.B3/99-3, G.A. (Spl.A) Department dated 28.10.1999. In the said circular memo, clause (b) MSM,J wp_23195_2020 32 deals with anonymous or pseudonymous complaints, which reads as follows:
(b) Anonymous and Pseudonymous complaints:
Normally allegations contained in an anonymous petition ought not to have taken notice or except in cases where the details given are specific and, therefore, verifiable and the authority that receives such complaints may make such preliminary examination as may be necessary. In view of said instructions, unless there is verifiable information in the anonymous or pseudonymous complaints, the authorities cannot act upon those anonymous or pseudonymous complaints.
When an identical issue came up before the learned Single Judge of the High Court of Judicature at Hyderabad for consideration in "G.Sreenivasa Reddy v. Zonal Manager, LIC of India, Hyderabad12", this Court considered the effect of taking action on such anonymous or pseudonymous petitions and held as follows:
"Issuance of show-cause notice is an important step in the direction of compliance with the principles of natural justice. It is not the factum of issuance of notice, but the exercise to be undertaken in pursuance of the show cause notice, that constitutes the compliance with the principles of natural justice. If a conclusion is already arrived at without hearing the affected party, a show cause notice referring to the conclusions so arrived at would not, in any way, extenuate the illegality, which has already taken place in reaching a conclusion without hearing the affected party. If the respondents entertained any doubt as to the genuinely of claim of the petitioner, if they were in possession of any material, such as, anonymous letter, letter received from the Railways, etc., they ought to have furnished the same to the petitioner and called for his explanation. In such event, the petitioner would have had an opportunity to contradict the contents of the same and put-forth his own case. If on going through the same, he had no material, the petitioner would not be in a position to contradict them. Even that could add legality to the exercise. Withholding the entire material, arriving at a conclusion and directing the petitioner to show-cause as to why 12 2002 (6) ALT 748 MSM,J wp_23195_2020 33 he should not be punished, does not constitute any semblance of compliance of principles of natural justice."
In view of the law declared by the learned Single Judge of the High Court of Judicature at Hyderabad, normally the authorities cannot order enquiries based on anonymous or pseudonymous petitions. Even if, the disciplinary authority intends to take action, a show-cause notice is required to be issued supplying copy of such anonymous or pseudonymous petition/complaint to contradict the contents therein while submitting a reply to the show-cause notice. If no such copy is furnished or withholding the entire material while issuing notice by the disciplinary authority, such inquiry, if any, conducted based on such anonymous or pseudonymous petitions, is illegal.
If the said principle is applied to the facts of the present case, a show-cause notice is required to be issued to the petitioner supplying the copy of such complaint so as to enable the petitioner to give suitable reply to the show-cause notice, thereafter, to participate in the inquiry, if ordered under Rule 20 of the CCA Rules. When no show-cause notice was issued and no copy is supplied, finding him guilty, ordering punitive transfer in the impugned proceedings as a measure of punishment is not authorised by law and it is not a punishment prescribed under Rule 9 of the CCA Rules, 1991.
Though the learned counsel for the respondents relied on certain circulars (referred above) permitting transfer of employees to far off places during pendency of investigation or disciplinary enquiry, that is always subject to presidential order and ban imposed by the State. More so, in the present case, neither investigation nor MSM,J wp_23195_2020 34 disciplinary proceedings are pending. Therefore, Government Memo.No.853/Ser.C/90-1, Genl.Admn.(Ser.C) Department dated 23.09.1991 is not applicable to the present facts of the case.
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) 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 MSM,J wp_23195_2020 35 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.
In view of my foregoing discussion, and findings recorded, I have no slightest hesitation to hold that the proceedings impugned in the writ petition are illegal and arbitrary. Consequently, they are liable to be set aside.
In the result, the writ petition is allowed declaring the transfer order issued by respondent No.2 vide Proceedings No.Estt- 4/112/2019 dated 23.11.2020 and the consequential orders issued by the respondent No.3 vide Proceedings No.DSJO/EG/RJMV/1940/ 2020 dated 26.11.2020 transferring the petitioner from Sub Jail, Peddapuram, East Godavari District to Anantapuram District as illegal, arbitrary and violative of Articles 14, 16 and 21 of the Constitution of India. No costs.
Consequently, miscellaneous applications pending if any, shall also stand dismissed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 28.01.2021 Note: Mark L.R.Copy.
B/o Ksp