Telangana High Court
G. Gloria vs The State Of Telangana on 27 April, 2020
Author: M.S.Ramachandra Rao
Bench: M.S. Ramachandra Rao
HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T. AMARNATH GOUD
Writ Petition No.43554 of 2018
ORDER :(Per Sri Justice M.S.Ramachandra Rao) The Background facts The petitioner had passed M.A and B.Ed (English) and is a local to the City of Hyderabad in the State of Telangana. She had got selected as a Post Graduate Teacher (English) pursuant to recruitment notification issued in 2012 by the erstwhile composite State of Andhra Pradesh and was appointed on 21.9.2014.
2. At the time of filing of the Writ Petition and even as on date she is working as Post Graduate Teacher (English), English Model School, Kethpally, Nalgonda District, Telangana State.
3. She got married to one A.V.Prabhakar Rao who is working as a Junior Lecturer in Commerce, Government Junior College, Kanchikacherla, Krishna District.
4. The erstwhile composite State of Andhra Pradesh was bifurcated into the new State of Telangana and the residuary State of Andhra Pradesh w.e.f.2.6.2014 by the A.P.Reorganisation Act,2014.
5. Consequent to the above event, both the States constituted "Officers Committee" for evolving a policy for inter-state transfers ::2:: MSR,J & TA,J wp_43554_2018 between the two States vide G.O.Rt. No.1634 General Administration (SPF & MC) Department dt.3.8.2016.
6. Basing on the recommendations of the said Committee guidelines governing inter-state transfers were issued vide Circular Memo.No.9940/SPF & MC/ 2015 dt.7.8.2017 by the above Departments of both States.
7. Clause 6 of the guidelines made under the above Memo stated:
" 6. The Committee after detailed deliberations recommended the following guidelines to consider inter-state transfer of Local cadre (District/Zone/Multi Zonal) and State cadre employees on spouse grounds/criteria and on mutual basis and the same are accepted by the Government of Andhra Pradesh and Government of Telangana for implementation. Accordingly the following guidelines are issued.
(k) . In respect of Teachers, inter-state transfers are permissible only between the same managements and same category/subject (in case of mutual transfers) in both the State Governments."
8. Petitioner made an application on 26.8.2017 for inter-state transfer from the State of Telangana to the State of Andhra Pradesh ( where her husband was employed) to the Principal, Model School and Junior College, Korlapadu Village, Kethepally, Nalgonda District ( 7th respondent) requesting him to forward it to higher officials for considering her transfer to the State of Andhra Pradesh on spouse grounds as her husband is employed in the said State at Kanchikacherla, Krishna District and he and their children are staying ::3:: MSR,J & TA,J wp_43554_2018 there and she is facing many difficulties apart from feeling insecure about her children and husband.
9. This was forwarded by the 7th respondent to the District Education Officer, Telangana State Model Schools, Nalgonda vide Lr.Rc.No.40/A1/MS/TG/2017 dt.26.8.2017.
10. On 22.8.2017 itself, the AP Model School and Junior College, Pedakomera, Gampalagudem, Krishna District, State of Andhra Pradesh had certified vide Ex.P8 certificate that there is a vacancy for post of Post Graduate Teacher (English) in the said school and from June 2013, the said vacant post had not been filled up till the said date.
11. In the very same District, there is another school , AP Model School and Model School Junior College, Madddulaparva Village, Reddigudem mandal, Krishna District which also issued a certificate Ex.P7 dt. 22.8.2017 that there were 2 clear vacant posts of Post Graduate Teacher (English) in the said school and from June 2013, the said vacant post had not been filled up till the said date.
12. A UO Note No.003503/B20/SRI/2017 dt.3.2.2018 was also issued by the General Administration (SR) Department of the Government of Andhra Pradesh ( 3rd respondent) asking the School Education (SC Prog.1) Department of the said State to examine whether inter-state transfers of Model School teachers can be considered as per proviso to para 6 (b) of the guidelines.
::4:: MSR,J & TA,J
wp_43554_2018
13. Referring to this UO note, the Additional Director, Model Schools, State of Telangana ( 6th respondent) wrote a letter Lr. Rc.No. 115/A1/TSMS/2016 dt.30.5.2018 (Ex.P11) to the Commissioner of School Education, State of Andhra Pradesh ( 5th respondent) giving particulars of persons who had sought inter-state transfers on spouse grounds mentioning the petitioner at S.No.3 as one such individual.
14. In turn, the 5th respondent wrote Rc.No.693/APMS/2018 dt.19.6.2018 (Ex.P12) to the District Educational Officers of the State of Andhra Pradesh to verify the service registers of the spouses of the applicants for inter-state transfer and their local status.
15. The District Educational Officer, Krishna District, Machilipatnam, State of Andhra Pradesh wrote Lr.Rc.No.09/E5/2018 dt.27.6.2018 (Ex.P13) to the Commissioner of School Education, State of Andhra Pradesh (5th respondent) certifying the petitioner's spouse Sri A.V.Prabhakar Rao was indeed employed as Junior Lecturer in the Govt. Junior College, Kanchikacherla, Krishna District.
16. The Additional Director, Model Schools, State of Telangana (6th respondent) once again forwarded the application of the petitioner to Commissioner of School Education, State of Andhra Pradesh (5th respondent) vide Lr.No.1115/A2/TSMS/2016 dt.18.7.2018.
17. The Commissioner of School Education, State of Andhra Pradesh (5th respondent) vide Lr.No.673/APMS/2017 dt.9.10.2018 (Ex.R9 filed by the State of A.P along with it's counter affidavit) requested the Principal Secretary, School Education Department of Government ::5:: MSR,J & TA,J wp_43554_2018 of Andhra Pradesh (2nd respondent) to pass suitable orders in the matter of inter-state transfers , (petitioner was mentioned at S.No.6 in the list enclosed to the said letter), but the 2nd respondent kept it pending without passing any orders.
18. The Commissioner of School Education, State of Andhra Pradesh (5th respondent), in the meantime, issued a Notification No.768/TRC- 1/2018-1 dt.26.10.2018 inviting applications for Teachers Recruitment Test (TRT) for various posts including the Post graduate Teacher Posts (English) for which proposals were pending with respondent no.s 2 and 5.
Petitioner's contentions
19. Petitioner contends that the action of the respondents in not considering her case for inter-state transfer on spouse grounds inspite of a policy framed in that regard by both States and by notifying the said vacancies the respondent Nos.2 and 5 will fill up the existing vacancies and then refuse to consider her case for such transfer is arbitrary, illegal and violative of Art.14 of the Constitution of India.
20. Petitioner therefore seeks a Writ of Mandamus to declare the same as arbitrary, illegal and violative of Art.14 of the Constitution of India and to also declare that the petitioner is entitled to be transferred to the State of Andhra Pradesh as Post Graduate Teacher with all consequential benefits before proceeding with recruitment pursuant to the above recruitment notification dt.26.10.2018 issued by the 5th respondent.
::6:: MSR,J & TA,J
wp_43554_2018
The stand of the State of Telangana
21. The State of Telangana ( respondents 1,6 and 7) filed a counter affidavit through the 5th respondent stating that they had furnished all relevant particulars to facilitate the inter-state transfer of petitioner to the respondents 2,3 and 5 through the Commissioner of School Education & Ex-Officio Project director, A.P.Model School/RMSA, State of Andhra Pradesh vide ref. Lr.Rc.No.1115/A1/TSMS/2016 dt.18.7.2018 , and that the State of Andhra Pradesh has kept it pending. It is stated that as soon as the State of A.P. issues appropriate orders, they will take appropriate action to relieve the petitioner who is working as Post Graduate Teacher (English), English Model School, Kethpally, Nalgonda District, Telangana State. The Stand of the State of A.P.
22. In the counter affidavit filed by the 5th respondent for himself and the 2nd respondent, the framing of guidelines for inter-state transfers of spouses by the Committee constituted for such purpose, the fact that petitioner's husband is employed in Kanchikacherla in Krishna District as Junior lecturer in Govt.Junior College at that place, that there were two vacancies available on 22.8.2017 in A.P.Model School, Maddulaparva and one vacancy in Gampalagudem , all in Krishna District, are admitted.
23. But it is contended that in respect of the petitioner, there is no clear vacancy in Zone-II in the category of Post Graduate Teacher- English as all vacancies of DSC-2012 had been carried forward to ::7:: MSR,J & TA,J wp_43554_2018 DSC-2018; that a fresh notification had been issued on 26-10-2018 to fill up all vacancies of Post Graduate Teachers etc.; and that the 2nd respondent had informed in a Memo No,.ESE01- SEDNOCSE/92/2018-Prog.1 SECT , School Education (prog.I) Department dt.23.1.2019 that Inter-state transfer of petitioner and others under the spouse /mutual grounds cannot be agreed to as per Para 6(e) of the Circular memo No.9949/SPF&MC/2015 dt.7.8.2018 as there are no clear vacancies.
The consideration by the Court
24. It is to be seen that petitioner had applied for inter-state transfer on spouse grounds on 26.8.2017 through proper channel.
25. The respondent no.s 2 and 5 have nowhere disputed petitioner's eligibility for seeking the inter-state transfer on spouse grounds as per the guidelines framed by both States.
26. When 2 vacancies were available at A.P.Model School, Maddulaparva and one vacancy in A.P.Model School, Gampalagudem , all in Krishna District since 2013, there is no valid reason assigned by the respondent no.s 2 and 5 for not accommodating petitioner in the said vacancies and including the said vacancies in the DSC-2018 selections notified vide Notification No.768/TRC-1/2018-1 dt.26.10.2018.
27. Thus for more than one year no action was taken by the 2nd and 5th respondent on petitioner's application.
::8:: MSR,J & TA,J
wp_43554_2018
28. When such proposal for inter-state transfer of petitioner was received from 6th respondent by 5th respondent on 18.7.2018, why the 5th respondent did not forward them to the 2nd respondent till 9.10.2018 is not explained anywhere by the respondents 2 and 5.
29. In Urban Improvement Trust, Bikaner vs. Mohan Lal1, the Supreme Court held that frivolous and unjust objections ought not be raised by the State and it cannot behave like a private litigant to obstruct the path of justice. It also observed that unwarranted litigation by Governments and statutory authorities basically stems from the two general baseless assumptions by their officers. They are:
(i) All claims against the Government/statutory authorities should be viewed as illegal and should be resisted and fought up to the highest court of the land.
(ii) If taking a decision on an issue could be avoided, then it is prudent not to decide the issue and let the aggrieved party approach the court and secure a decision.
30. The Supreme Court emphasised:
"5. ... ... Statutory authorities exist to discharge statutory functions in public interest. They should be responsible litigants. They cannot raise frivolous and unjust objections, nor act in a callous and high-handed manner. They can not behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers act negligently or in an overbearing manner. When glaring wrong acts by their officers are brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation. Their harsh attitude in regard to 1 (2010) 1 SCC 512 ::9:: MSR,J & TA,J wp_43554_2018 genuine grievances of the public and their indulgence in unwarranted litigation requires to be corrected.
6. This Court has repeatedly expressed the view that Governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice.
We may refer to some of the decisions in this behalf.
7. In Dilbagh Rai Jarry v. Union of India2 this Court extracted with approval the following statement [from an earlier decision of the Kerala High Court (P.P. Abubacker case3):
"25. ... '5. ... The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the State's interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak, Government shows a willingness to settle the dispute regardless of prestige and other lesser motivations which move private parties to fight in court. The layout on litigation costs and executive time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic showdowns where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of Government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957.' "
8. In Madras Port Trust v. Hymanshu International4 this Court held: (SCC p. 177, para 2) 2 (1974) 3 SCC 554 3 AIR 1972 KERALA 103 ::10:: MSR,J & TA,J wp_43554_2018 "2. ... It is high time that Governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a Government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the court, but what we feel is that such a plea should not ordinarily be taken up by a Government or a public authority, unless of course the claim is not well founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable."
9. In a three-Judge Bench judgment of Bhag Singh v. UT of Chandigarh5 this Court held: (SCC p. 741, para 3) "3. ... The State Government must do what is fair and just to the citizen and should not, as far as possible, except in cases where tax or revenue is received or recovered without protest or where the State Government would otherwise be irretrievably be prejudiced, take up a technical plea to defeat the legitimate and just claim of the citizen."
10. Unwarranted litigation by Governments and statutory authorities basically stems from the two general baseless assumptions by their officers. They are:
(i) All claims against the Government/statutory authorities should be viewed as illegal and should be resisted and fought up to the highest court of the land.
(ii) If taking a decision on an issue could be avoided, then it is prudent not to decide the issue and let the aggrieved party approach the court and secure a decision.
The reluctance to take decisions, or tendency to challenge all orders against them, is not the policy of Governments or statutory authorities, but is attributable to some officers who are responsible for taking decisions and/or officers in charge of litigation. Their reluctance arises from an instinctive tendency to protect themselves against any future accusations of wrong decision-making, or worse, of improper motives for any decision- making. Unless their insecurity and fear is addressed, officers will 4 1979 (4) SCC 176 5 1985 (3) SCC 737 ::11:: MSR,J & TA,J wp_43554_2018 continue to pass on the responsibility of decision-making to courts and tribunals."(emphasis supplied)
31. These observations aptly get attracted to the instant case.
32. Moreover, in a somewhat similar situation, another Division Bench of this Court held in S. Shoba Rani vs. State Reorganization Department and Ors6 considered similar guidelines for inter-state transfers on spouse grounds and held that the basic principle underlying these guidelines is therefore to protect and keep together employed spouses who would otherwise be separated owing to the allocation undertaken pursuant to the bifurcation of the erstwhile State of Andhra Pradesh. It held:
"6. The guidelines for final allocation of State cadre employees under the Andhra Pradesh Reorganization Act, 2014, approved by the Government of India, were communicated under G.O. Ms. No. 312 dated 30.10.2014 for information and further action. In terms of Para 7 of the said guidelines falling under the title 'Allocation of Posts', the Government of India made it clear that 'allocable posts' included vacant posts. Para 18 enumerates the principles guiding the allocation of employees. Clause (f) thereof is relevant and reads as under:
'(f) The allocation shall be done in order of seniority as available on June 01, 2014. Those who have opted, who are 'local candidates' relatable to the State to which they have opted, shall, in order of their seniority, be considered for allocation first. If allocable posts in that category remain, then, others who have opted to the State may be allocated in 6 MANU/AP/0111/2017 = 2017 (3) ALD 207 (DB) ::12:: MSR,J & TA,J wp_43554_2018 order of seniority. If still posts remain allocation will be made in reverse order of seniority.' Clause (1) thereof is also of relevance and reads as under:
'(1) Spouses in State cadre in Government or in State Government institutions, local bodies and those who are deemed allocated as per the Act, shall as far as practicable, be allotted to the same State, after considering options made by them and their local candidature. Spouses who are local candidates of a State shall be allocated to that State. Spouses who belong to different States may be allocated after considering their options.'
7. It may also be noted that in the case of a spouse of an All India Service officer who belongs to a State cadre or is an employee of a State Government institution, such a spouse is to be allocated as desired to that State where the All India Service officer is allocated [Clause (k)].
8. The basic principle underlying these guidelines is therefore to protect and keep together employed spouses who would otherwise be separated owing to the allocation undertaken pursuant to the bifurcation of the erstwhile State of Andhra Pradesh. Keeping the spirit and intent underlying this principle, the guidelines should be implemented. Merely because Clause (1) does not speak of employees working in Central Government Public Sector Undertakings, it does not mean that spouses of such employees, who are working in the State cadre, are not to be accommodated where they are working. Clause (1) states in no uncertain terms that allocation shall, as far as practicable, be made so as to keep the spouses together. The import and intent of bifurcation of the erstwhile State of Andhra Pradesh is not to break up marriages. The authorities therefore have to conceive, formulate and implement the guidelines keeping this in mind. Any shortfall in the guidelines in this regard cannot be taken literally to mean that spouses, whose cases do not fall within the four corners of the instructions as set out therein, are to be left out in the cold and must suffer marital separation.
::13:: MSR,J & TA,J
wp_43554_2018
9. In the present case, the husband of the petitioner is working in a nontransferable post in BHEL, a Central Government Public Sector Undertaking, at Visakhapatnam. Her children are also studying there. Significantly, she already suffered loss of seniority earlier to keep her family together.
10. This being the factual situation, the action of the authorities in turning a blind eye to her plight and her fervent request for allocation to Visakhapatnam cannot be countenanced. It is not in dispute that vacancies in the posts of Principal are available in the State of Andhra Pradesh and more particularly, at Visakhapatnam. In terms of the definition of 'allocable posts', vacancies are included therein as already stated supra. Clause
(f) of Para 18 specifically states that if 'allocable posts' in the category remain after local candidates relatable to that State have been considered, then others who opt for that State may be allocated in order of seniority. This part of clause (f) of Para 18 seems to have been completely overlooked by the authorities. Thus, when there are vacancies available at Visakhapatnam in the cadre of Principal, the rejection of the petitioner's request for allocation to the State of Andhra Pradesh and for her retention at Visakhapatnam is wholly unsustainable. The writ petition is accordingly allowed."
33. The above decision was also applied and followed by another Division bench preside over by Justice V. Ramasubramanian ( as he then was) in M.S.D. Sujatha vs. Union of India and Ors7. The Bench stated:
"The reliance placed by Mr. Krishna Murthy, learned Senior Counsel for the petitioner on the decision of this Court in Dr. S. Shobha Rani v. State Reorganization Department and the decision rendered in Writ Petition Nos. 14006 and 14062 of 2018, dated 12.10.2018, is appropriate in this regard. As observed by the Division Bench in both the above cases, the guidelines should not be so framed as to break families. In fact, in the later decision dated 12.10.2018, the Division Bench found fault with Clause - 6 (g) of the Circular Memo dated 07.08.2017 relating to inter-
7
MANU/TL/0093/2019 = 2019(4) ALD 26 (DB)
::14:: MSR,J & TA,J
wp_43554_2018
state transfer of State Government employees.
Therefore, the challenge to sub-clauses (i) and (ii) of Clause -2 (k) of the guidelines is liable to be sustained."
Thus basic principle underlying the guidelines framed by both States on 7.8.2017 vide Circular Memo.No.9940/SPF&MC/2015 is therefore to protect and keep together employed spouses who would otherwise be separated owing to the allocation undertaken pursuant to the bifurcation of the erstwhile State of Andhra Pradesh. This policy appears to have ben totally ignored by the respondent No.s 2 and 5.
34. Accordingly we hold that the action of the respondent No.s 2 and 5 in not permitting the petitioner to join in the vacancies available in AP Model Schools in Krishna District of State of Andhra Pradesh in 2017 and stating that there is no clear vacancy in Zone-II in the category of Post Graduate Teacher- English as all vacancies of DSC- 2012 had been carried forward to DSC-2018, that a fresh notification had been issued on 26-10-2018 to fill up all vacancies of Post Graduate Teachers etc, is arbitrary, illegal and violative of Art.14 of the Constitution of India.
35. The Special Government Pleader has however stated, on instructions, that the respondent no.s 2 and 5 are willing to accommodate the petitioner in a vacancy at A.P.Model School, Hamsavaram in East Godavari District, State of Andhra Pradesh which also falls in Zone-II.
36. Accordingly, the Writ Petition is allowed with costs of Rs.25,000/- to be paid by respondent No.s 2 and 5 to the petitioner; they are ::15:: MSR,J & TA,J wp_43554_2018 directed to issue orders posting the petitioner to the A.P.Model School, Hamsavaram in East Godavari District in State of Andhra Pradesh forthwith; the respondents 1,3,4,6 and 7 shall then relieve the petitioner from the post of Post Graduate Teacher (English), English Model School, Kethpally, Nalgonda District, Telangana State. The respondents 2 and 5 shall post the petitioner in any vacancy of Post Graduate Teacher (English) which becomes available in Krishna District in State of Andhra Pradesh either at A.P.Model School, Maddulaparva or in A.P.Model School, Gampalagudem or any other Model School in the said District subsequently.
37. As a sequel, miscellaneous petitions pending if any, in this Writ Petition, shall stand closed.
____________________________ M.S.RAMACHANDRA RAO, J _______________________ T.AMARNATH GOUD, J Date:27.04.2020 SVV/NDR/VSV Note: L.R. copies to be marked.
B/o Svv