Telangana High Court
J.Swarnalatha vs The State Of Telangana on 15 April, 2021
Author: M.S.Ramachandra Rao
Bench: M.S.Ramachandra Rao, T.Vinod Kumar
HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T.VINOD KUMAR
Interlocutory Application No.1 of 2021 in Writ Petition No.20576 of 2020
and
Writ Petition No.20576 of 2020
COMMON ORDER:(Per Sri Justice M.S.Ramachandra Rao) The background facts The petitioner was appointed to the post of Assistant Executive Engineer in Zone-IV in the Irrigation Department in the erstwhile combined State of Andhra Pradesh on 14.08.2013. She was given posting at A.P. Engineering Research Labs, Hyderabad as a Research Assistant where she continued up to 02.12.2014.
2. The combined State of Andhra Pradesh was bifurcated w.e.f. 02.06.2014 into the new State of Telangana and the residuary State of Andhra Pradesh under the A.P. Reorganization Act, 2014 (for short, 'the Act').
3. Subsequent to the said bifurcation, the petitioner was posted to the Office of the Chief Engineer, Medium Irrigation (A.P.) as Assistant Executive Engineer and continued at Hyderabad from 03.12.2014 to 18.08.2015.
4. Petitioner's husband has local status of Telangana State and is employed as a Senior Manager in Bharat Heavy Electricals Limited, Hyderabad (for short, 'BHEL').
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5. There was a policy of deputation adopted by both States on reciprocal basis, and on that basis, petitioner was posted on 20.08.2015 to I.B. Division, Sangareddy and the petitioner is continuing in the Office of the Superintending Engineer, Irrigation Circle, Nirmal. Her deputation was extended from time to time and the five year period was completed by August, 2020. Further extension of deputation was also recommended by the Engineer-in- Chief, Irrigation Circle, Telangana State to the Principal Secretary, Irrigation and Command Area Development vide letter dt.26.03.2020, which was pending as on the date of the filing of the Writ Petition.
6. Petitioner contends that she made an application on 23.04.2018 requesting for permanent transfer from the State of Andhra Pradesh to the State of Telangana on spouse / mutual transfer grounds pointing out that her marriage took place in 2005 and that her husband was employed in BHEL at Hyderabad, and. She also mentioned that one Smt.K. Nivedita, who had local status of Vijayawada, Andhra Pradesh had been allotted to the State of Telangana and was willing to work in the State of Andhra Pradesh by taking the last rank; and on such mutual transfer grounds also apart from spouse ground, petitioner's application be considered for permanent allotment to the State of Telangana.
7. On 19.03.2018, petitioner's application was rejected vide Memo No.8284/Ser.I(1)/2017 (AEEM)-3 dt.19.03.2018 by the Principal Secretary to Government of Telangana, Irrigation and 3 C.A.D. (Ser.I) Department (3rd respondent) stating that both the petitioner and Smt. K. Nivedita are having local status of State of Andhra Pradesh and therefore transfer on mutual grounds as per para 6(g) of the guidelines framed for such inter-State transfers cannot be granted.
8. Assailing the same, petitioner has filed this Writ Petition. Contentions of petitioner
9. Petitioner contends that the 3rd respondent erred in not considering her case for inter-State transfer as per Clause (g) of the circular Memo dt.07.08.2017 for inter-State transfers; the said Clause cannot be restricted to only spouses working in the State Government and ought to be extended to even cases where the spouse is working in Public Sector undertakings of the State or Central Governments such as BHEL; and otherwise it would be violative of Article 14, 16 and 21 of the Constitution of India. Reliance is placed on the orders passed by this Court in Vetcha Srividya v. State of Telangana1 , Jangam Venkatachalam v. State of Telangana2 and P. Damodar vs. Telangana State Industrial Development Corporation Ltd.3. Order dt.18.11.2020 in I.A.No.2 of 2020
10. On 18.11.2020, in I.A.No.2 of 2020, while issuing notice to respondents, this Court granted interim direction to (a) the State of 1 Order dt. 26.12.2018 in WP.No.44167 of 2018 (DB) 2 order dt.12.10.2018 in WP.No.14006 and 14062 of 2018 (DB) 3 2020 (4) A.L.D. 388 (D.B.) 4 Telangana rep. by its Principal Secretary, G.A.D. Department (1st respondent), (b) State of Telangana rep. by its Principal Secretary, Irrigation and CAD (Services.I) Department (3rd respondent) and
(c) the State of Andhra Pradesh, rep. by its Principal Secretary, Irrigation and CAD (Services.I) Department (4th respondent) to continue her as Assistant Executive Engineer in the State of Telangana.
I.A.NO.1 OF 2021 in Writ Petition No.20576 of 2020
11. I.A.No.1 of 2021 was filed by the petitioner to receive (a) copy of her application dt.23.08.2017 made to the Engineer-in-Chief (A.W.), Water Resources Department of the Government of Andhra Pradesh requesting for permanent transfer from the State of Andhra Pradesh to the State of Telangana on spouse grounds and mutual transfer grounds, (b) the proceedings dt.23.08.2017 of the Superintending Engineer, I & C.A.D.D. Department, Irrigation Circle, Nirmal to the Engineer-in-Chief, I & CAD, Administration Wing, Hyderabad of the State of Telangana, and (c) another representation made on 23.04.2018 to the Special Chief Secretary to the Government, Irrigation and CAD Department, Government of Telangana for inter-State transfer to the State of Telangana.
12. This application is not opposed and is accordingly allowed, and the said documents are received.
5The stand of the State of Andhra Pradesh (respondent nos.2, 4 and 6)
13. The State of Andhra Pradesh supported the case of petitioner and relied upon the order in Y.N.V.Dhanalaxmi v. State of Telangana4 where a similar case akin to that of the petitioner was allowed by this Court and a direction was given to both States to effect inter-State transfers in those cases on spouse grounds notwithstanding the fact that they do not fall within the four corners of the guidelines framed vide Circular dt.07.08.2017. It is stated that the petitioner would be considered for permanent transfer by the Water Resources Department of the Government of Andhra Pradesh to the State of Telangana if the State of Telangana gives its consent for permanent inter-State transfer on spouse grounds. The stand of the Government of Telangana (respondent nos.1, 3 and 5)
14. It is the case of these respondents that the petitioner had been appointed as Assistant Executive Engineer on 14.08.2013 in the combined State of Andhra Pradesh in the Irrigation and CAD Department, but her local zone and allotted zone was Zone-IV of the State of Andhra Pradesh.
15. It is admitted that there was a policy for allowing inter-State deputation of zonal cadre employees on reciprocal basis and the petitioner was given the said benefit for five years.
16. These respondents rely on para no.6(g) of the Circular Memo No.9940/SPF & M.C./2015 dt.07.08.2017 which laid down the 4 order dt.12.10.2018 in Writ Petition No.44220 and 44232 of 2018 (DB) 6 guidelines for inter-State transfer of local cadre (District / Zone / Multi-Zonal) and State-cadre employees on spouse grounds and on mutual basis; and contended that as per the said para the other spouse should also be working on regular basis in the State Government and that one of the spouses must be local to the State to which the transfer is sought i.e that unless petitioner's husband is a State Government employee in the State of Telangana, she is not entitled for consideration for an inter-State transfer; that Smt. K. Nivedita, Assistant Executive Engineer, was allotted to Zone-V of Telangana State, with whom the petitioner sought transfer on mutual grounds, but since both of them are natives of the State of A.P., their requests for inter-State transfer on 'mutual basis' was not accepted vide proceedings dt.20.04.2018.
17. It is contended that the orders passed by this Court in Jangam Venkatachalam (2 supra) are applicable only to the petitioners therein and not to the petitioner in this Writ Petition.
18. It was submitted that petitioner belongs to the State of Andhra Pradesh, and as per para no.6(a) of the Circular, her representation for transfer has to be processed by the 6th respondent, but no correspondence was done from respondent nos.2, 4, and 6 to respondent nos.1, 3 and 5 regarding the request of the petitioner for inter-State transfer on spouse grounds. It is contended that petitioner cannot seek transfer on spouse grounds because she had sought 7 transfer on 'mutual transfer' grounds with Smt. K. Nivedita and that her case has to be dismissed.
The consideration by the Court :
19. From the facts narrated above, it is clear that the petitioner was appointed as Assistant Executive Engineer and joined in the I & CAD Department of the erstwhile combined State of Andhra Pradesh on 14.08.2013, and she was appointed and allotted to Zone-IV of the composite State of Andhra Pradesh.
20. No doubt, she belongs to the zonal cadre and not State cadre.
21. It is also true that pursuant to the deputation policy adopted by both States, petitioner was allowed to continue in the State of Telangana from 20.08.2015 till August, 2020.
22. But both States had issued Circular Memo No.9940/SPF & MC/2015 dt.07.08.2017 providing for inter-State transfer of Government employees in local cadre.
23. Para 6(g) of the said Circular states as under :
"6(g) In case of request transfer on spouse grounds, only one spouse shall be transferred to other State where the spouse is working on regular basis in State Government subject to condition that one of the spouses must be local to the State to which transfer is sought. This condition shall also be applicable to the transfers on mutual basis and such transfers shall be restricted to State Government employees only.
On such a transfer the employee may be asked to join any post that the Government offer as long as it is in the same pay scale."8
24. Thus, the above guideline permitted inter-State transfer on both spouse grounds and mutual basis.
25. It is not in dispute that within the time stipulated in the said guidelines, petitioner made a representation on 23.08.2017 to the Engineer-in-Chief (AW), Water Resources Department, Government of Andhra Pradesh seeking transfer to the State of Telangana on both spouse grounds as well as mutual transfer grounds.
26. By the impugned order passed on 19.03.2018, her request on 'mutual transfer' basis with Smt. K. Nivedita, another Assistant Executive Engineer in the I & CAD Department alone was considered and rejected by the 3rd respondent on the ground that both have local status of the State of Andhra Pradesh.
27. There was no consideration of the representation of inter-State transfer of the petitioner on spouse basis at all.
28. Be that as it may, it is not in dispute that this Court had considered claims for inter-State transfer of employees in local cadre / zonal cadre on spouse grounds even though the spouses were not employed in the other State as State Government employees and were employed in P.S.Us of either State or Central Government.
29. This issue fell for consideration by a Division Bench of this Court in Jangam Venkatachalam ( 2 supra) by this Court. In that case, the spouses of employees of State Government were employed in A.P. Transmission Corporation, East Godavari District and as 9 Assistant Professor in J.N.T.U. Kakinada, East Godavari District falling in the residuary State of Andhra Pradesh, but the petitioners had been posted in the State of Telangana. The Court followed its earlier decision in Dr. S. Shoba Rani vs. State Reorganization Department5 wherein it was held that basic principle underlying the guidelines for inter-State transfer on spouse grounds was to protect and keep together employed spouses who would otherwise be separated owing to the allocation undertaken pursuant to the bifurcation of the erstwhile combined State of Andhra Pradesh; that the import and intent of bifurcation of the erstwhile State of Andhra Pradesh was not to break-up marriages; that authorities have to conceive, formulate and implement guidelines keeping this in mind; any shortfall in guidelines cannot be taken literally to mean that spouses, whose cases do not fall within the four corners as set out therein, are to be left out in the cold and must suffer marital separation. It observed that there is no justification forthcoming as to why the State Government employees whose spouses are working for Central Government / Central Government P.S.U.s / Universities etc., should be discriminated against when compared to State Government employees whose spouses are working for the other State Government. It held that there is no justification in discriminating against a State Government employee only on the ground that his / her spouse is working elsewhere and not in the service of the other State Government. It observed that deputation for a short period is not 5 2017 (2) A.L.T. 264 (D.B.) 10 a remedy at all since it is confined to five years only and what would happen to married State Government employees after expiry of the period of deputation was left unaddressed. It allowed the Writ Petitions and directed both States to effect inter-State transfers on spouse grounds even though they do not fall within the four corners of the Circular dt.07.08.2017.
30. This principle was reiterated in Vetcha Srividya (1 supra) in relation to employees of Irrigation Department in the cadre of Assistant Executive Engineers whose husbands were employed in Defence Research and Development Organization and an aided school and the Transmission Corporation of the State of Andhra Pradesh.
31. The principle that bifurcation of the State should not cause marital separation of spouses on the ground that one of them is a State Government employee and the other is not, but is employed in Central Government, Central Government P.S.U.s, State Government P.S.U.s, University / Banks etc. was also followed in P. Damodar (3 supra), M.S.D. Sujatha vs. Union of India and others6 and Uzma Nikhath vs. Government of India7.
32. Therefore, in our considered opinion, merely because the spouse of petitioner is not an employee of the State of Telangana, but is employed in a Central Government P.S.U. like BHEL at Hyderabad, petitioner cannot be forced to undergo marital separation 6 2019 (4) A.L.D. 26 (D.B.) 7 Order dt.28.01.2019 in W.P.(TR).No.5680 of 2019 11 merely because her case is not covered by para no.6(g) of the in Circular dt.07.08.2017 issued by both States.
33. Accordingly, the Writ Petition is allowed, and a direction is issued to all the respondents to effect inter-State transfer of petitioner from the State of Andhra Pradesh to the State of Telangana on spouse grounds within four (04) weeks from the date of receipt of copy of this order; and the proceeding Memo No.8284/SER.I(1) / 2017 (AEEM-3) dt.19.03.2018 issued by 3rd respondent is set aside. No costs.
34. Pending miscellaneous petitions, if any, in this Writ Petition shall stand dismissed.
____________________________ M.S.RAMACHANDRA RAO, J ____________________ T.VINOD KUMAR, J Date: 15-04-2021 Ndr