* THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION Nos.22930, 23199 and 23234 of 2011 % 08.09.2011 # Smt Dr K.Vijayal ... Petitioner VERSUS $ Government of A.P., rep. by its Principal Secretary, Health, Medical and Family Welfare Department, Secretariat Buildings, Hyderabad, And others. ... Respondents < GIST: > HEAD NOTE: ! Counsel for Petitioners: Sri Peri Prabhakar ^Counsel for Respondents: G.P. for Services-I ? Cases referred 1. AIR 1991 SC 532 2. (1981) 2 SCC 72 : AIR 1981 SC 1577 3. (1993) 1 SCC 148 : AIR 1993 SC 1236 4. 1993 Supp (1) SCC 704 5. (1993) 4 SCC 357 : AIR 1993 SC 2444 6. 1995 Supp (4) SCC 169 7. (2009) 15 SCC 178 THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION Nos.22930, 23199 and 23234 of 2011 08.09.2011 Between: Smt Dr.K.Vijayal …. Petitioner AND Government of A.P., rep. by its Principal Secretary, Health, Medical and Family Welfare Department, Secretariat Buildings, Hyderabad, and others. … Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION Nos.22930, 23199 and 23234 of 2011 COMMON ORDER: (Per Hon’ble Sri Justice V.V.S.Rao) These three writ petitions are filed against three different original applications, which were disposed of by the Andhra Pradesh Administrative Tribunal, by common order, dated 01.07.2011. The petitioner in all the matters and the respondents are the same. The dispute is about the transfer of the petitioner on promotion as Professor of Pharmacology to Kakatiya Medical College, Warangal. (KMC, Warangal). The dispute is also about the posting of one Dr.Nageswari Devi (hereafter referred to as ‘third respondent’) as Professor of Pharmacology from Kurnool Medical College to Osmania Medical College, Hyderabad (OMC). The third respondent is a senior most Professor in Pharmacology. She was posted to Kurnool Medical College on 25.07.2008. Her husband who was also a Professor retired from service on 31.07.2008. He was staying in Hyderabad. The third respondent made a representation in June, 2010 requesting the Government to transfer her to any one of the Medical Colleges in twin cities on the ground that she is required to take care of her children and sick mother, who was suffering from acute ill-health. The application was forwarded by the Director of Medical Education (DME) in December, 2010. The proposal was under active and favourable consideration before the Government. In the meanwhile, the Government issued orders in G.O.Ms.No.320, dated 22.11.2010 for approving the names of nine Associate Professors for inclusion in the panel of Associate Professors for the panel year 2010-2011 for promotion to the post of Professor of Pharmacology. The petitioner Dr.K.Vijayal was also included at serial No.9 in the approved panel. Departmental Promotion Committee was constituted and they recommended the promotion of nine empanelled Associate Professors to the posts of Professors. Thereafter, vide circular dated 08.02.2011, DME issued guidelines pointing out the priorities to be followed as per G.O.Ms.No.273, dated 21.05.1999 for transfer counselling first in the order of seniority. The counselling was scheduled on 11.02.2011 for giving postings to the newly promoted Professors in any of the notified vacancies. The petitioner opted for KMC, Warangal. The Government then issued G.O.Rt.No.548, dated 25.02.2011 promoting the petitioner as Professor of Pharmacology and posting her at KMC, Warangal. The Government Order also informs that the incumbent shall join in the promoted post within fifteen days from the date of receipt of the said order, failing which the order of temporary promotion shall be deemed to have been cancelled after stipulated period is over as per the Rules. The petitioner did not join in the promotion post. Alleging that though there was a clear vacancy of Professor in OMC, respondents 1 and 2 did not notify the same, and that had it been shown as vacancy, she would have opted for OMC, she filed O.A.No.1203 of 2011, praying for a declaration that the action of the respondents 1 and 2 in not conducting the counselling properly and not showing the vacancy in Professor of Pharmacology at OMC as illegal and arbitrary, and for a consequential direction to post her as Professor of Pharmacology at OMC. The learned Tribunal passed interim orders on 01.03.2011 prohibiting the posting of any other person in OMC. In the meanwhile, having considered the representation of the third respondent, the Government issued G.O.Rt.No.802, dated 30.03.2011 transferring and posting the third respondent as Professor of Pharmacology at OMC. Assailing the same, the petitioner filed O.A.No.1999 of 2011. The learned Tribunal passed interim orders suspending G.O.Rt.No.802, dated 30.03.2011. Therefore, the Government issued G.O.Rt.No.829, dated 08.04.2011 whereby and whereunder the order of transfer of the third respondent was cancelled and she was advised to report before the DME for further posting. Being aggrieved, the third respondent filed O.A.No.2763 of 2011. The Government filed counters in three Applications making similar averments. The salient aspects of the same, in brief, are as follows. The application made by the third respondent requesting for transfer to OMC was under consideration of the Government. Therefore, the vacancy of Professor of Pharmacology at OMC was not shown and instead the vacancy was shown at Kurnool Medical College for the purpose of counselling. This is general practice in vogue. Further Dr Y.Subba Ratnam, Associate Professor of Pharmacology, who was already promoted, requested to retain her at OMC as Professor in view of her impending retirement on 28.02.2011. Keeping this in view, the third respondent was posted to OMC, after retirement of Dr Y.Subba Ratnam and the petitioner was posted to KMC, Warangal as per her option. In the same counselling, Dr Sharon Sonia was posted to Kurnool Medical College as per her option. The petitioner was given posting as per her option and she did not join at Warangal. Hence, the promotion shall be deemed to have been cancelled under Rule 11(b) of the A.P.State and Subordinate Service Rules (the Rules, for brevity). The learned Tribunal considered three Original Applications together and noticed the following relevant admitted facts. The petitioner has been working in Hyderabad since 1999 except for the period from April, 2007 to December, 2007 when she worked in Rajiv Gandhi Institute of Medical Sciences, Kadapa. On her promotion in the transfer counselling she herself opted for posting at Warangal and without joining there, she started litigation. The third respondent has been working as Professor of Pharmacology in Kurnool Medical College from 25.07.2008 and she made request for transfer to OMC on the ground that her husband retired from service; the representation was pending by the date of counselling, and therefore, respondents 1 and 2 rightly did not show the vacancy at OMC out of counselling; the petitioner cannot seek retention at Hyderabad for more than ten years and she cannot seek retention even after promotion as Professor and refuse to join at the new place of posting. After noticing the dicta of the Supreme Court in Shilpi Bose v State of Bihar[1], the Tribunal dismissed the two Original Applications filed by the petitioner and allowed the Original Application being O.A.No.2763 of 2011 filed by the third respondent. The counsel for petitioner would contend that as on 11.02.2011 when the counselling was held for posting newly promoted Professors, there was a clear vacancy at OMC, the same was intentionally not shown as clear vacancy as the respondents 1 and 2 wanted to accommodate the third respondent, and therefore, the transfer is contrary to the policy of the Government. In this context, he relies on paragraph 2(k)(ii) of the Transfer and Posting Instructions applicable to A.P.Medical and Health Services issued vide G.O.Rt.No.1055, dated 01.06.2011. The same is to the effect that the Head of the Department (HoD) shall upload inter alia the vacancies existing in different cadres and concealment of any vacant post will be construed as deliberate violation by the HoD. Per contra, the Government Pleader for Services-I would submit that a Government employee is bound to obey the transfer order. The petitioner not only did not obey the transfer order by joining at KMC, Warangal but under Rule 11(b) of the Rules, her promotion stands forfeited especially when the learned Tribunal did not pass any orders staying her transfer to KMC, Warangal. He nextly points out the third respondent was already working as Professor at Kurnool Medical College and as her request for transfer to OMC was under active consideration, the vacancy was not shown as clear vacancy and the same does not suffer from any illegality or arbitrariness. In service law, the following assumptions and principles are well settled. The transfer of an employee is an incidence of service. It is either explicit or implied term of contract of service, and can be enforced by the competent authority for administrative reasons keeping in view the exigencies of administration. An administrative order of transfer is not immune from judicial review. Like any administrative decision, an order of transfer is subject to Court scrutiny; but the scrutiny is always deferential or intermediate review. On limited grounds, such decisions can be scrutinized by the Court. A strict scrutiny either with reference to a Statute, or the Rules made under proviso to Article 309 of the Constitution of India, or the administrative/executive policy guidelines is not called for, because a Government servant has no right nor earns any stigma. A Government servant cannot insist that he/she would work only at one particular place. An order of transfer by way of penalty or made by mala fide exercise of power, ordinarily cannot be justified unless it is made in the interest of employee himself. An order of transfer made in violation of administrative instructions cannot be interfered with. Even in such a case, the Court has to relegate the employee to the transferring authority or higher authority for necessary redressal. It is also well settled that the Court would not interfere when the transfer does not affect the service conditions, pay and other benefits attached to the post held by an aggrieved employee (Shanti Kumari v Regional Deputy Director, Health Services[2], Shilpi Bose, Rajendra Roy v Union of India[3], Union of India v N.P.Thomas[4], Union of India v S.L.Abbas[5], Abani Kanta Ray v State of Orissa[6] and Rajendra Singh v State of UP[7]). We would examine the submissions of the petitioner in the light of these principles. Government of Andhra Pradesh announced the policy adumbrating the transfers in various Government Departments. The innovative policy envisaged the system of counselling (Transfer Counselling) in which with reference to various clear vacancies available, the Government employee who completed the required service at a place as per the tenure policy – either two years or three years – is given choice to opt for three alternative places on priority. If there is no senior or no other employee asking for the same place, ordinarily, such Government employee is transferred to the place of his choice. This would eliminate the heartburn and also dispel any doubt in the mind of the employee that he/she is being transferred against her wishes. The Government also issued various department specific orders containing guidelines and ordering constitution of committees for conducting transfer counselling for posting of various categories of employees. One such is G.O.Ms.No.273, dated 21.05.1999 for the purpose of posting of Professors in Department of Medical Education. Under this, directions were issued to give priority in order of seniority to those employees who seek transfer on the grounds that spouse is working at other place, principal office bearers of recognized association, the remaining service is only one year, employee is physically handicapped and employee is a widow/unmarried women. The Government also issued various orders as and when required for the purpose of relaxing ban and transfers. The Government issued G.O.Ms.No.93, dated 14.05.2011 relaxing ban valid for the period from 16.05.2011 to 15.06.2011. Transfers are permitted during the period of relaxation. This directed that all transfers other than transfers for administrative reasons shall be done by counselling. All the employees seeking transfer will be asked for three preferences and will be accommodated to the extent possible. When more than one employee opts for a particular place, preference shall be given to the employee who has put in longest service in a particular station, subject to the employee not having charges pending against him/her. The Government Order also directs that no person shall be transferred before completion of two years service in a particular station as on 15.05.2011 and no person shall be retained beyond five years of service. In any event, the transfer of more than 20% of the employees in any cadre was prohibited to ensure that there would not be any dislocation of the work. While effecting transfers by counselling, the competent authority is required to give priority among the employees in the following manner. a. Longest standing employee downwards b. Employee working in ‘hardship areas’ c. Employees with outstanding record on request d. Employees with disabilities of 40% or more as certified by a competent authority as per “persons with disabilities (P.W.D) (Equal opportunities, protection of rights and full participation) Act, 1995. e. Husband and Wife cases (Only one of the spouses shall be shifted following the prescribed procedure). f. Employees having mentally retarded children to a place where medical facilities are available. g. Cases of compassionate appointment. h. Medical grounds for the diseases (either self or spouse or dependent children and dependent parents) of Cancer, Heart Operations, Neurosurgery, Bone TB, Kidney Transplantation to places where such facilities are available. As per G.O.Ms.No.93, dated 14.05.2011, no employee shall be transferred before completion of two years of service as on 15.05.2011. Further, “employees shall invariably be transferred from their existing location on promotion, unless no such post exist at a different location” (Paragraph 2(vii) and (xii) of G.O.Ms.No.93). The Government of Andhra Pradesh in Health, Medical and Family Welfare Department issued consequential orders, G.O.Rt.No.1055, dated 01.06.2011 containing guidelines in order to operationalise the transfers and postings of employees in the Department. Committees were constituted for considering the request for transfer of staff in various categories. For the posts of Professors/Associate and Assistant Professors in the Medical College/Teaching Hospitals in A.P.Medical Education Service, a three member committee consisting of Commissioner of Health and Family Welfare as Chairman, Director of Medical Education and Additional Director (Administration) as Members was established. Paragraph 2 of the said Government Order contains General Guidelines, as well as Guidelines for Transfer of Doctors and Nurses. The grievance redressal mechanism is also prescribed and Counselling Committee was empowered to receive representations of the employees expressing concern or grievance regarding transfer and to examine them in accordance with the Government Orders, instructions and guidelines and to pass appropriate orders. They could also refer the matter to higher authority. In addition, the Grievance Redressal Committee (GRC) was constituted consisting of Commissioner of Health and Family Welfare, Director of National Rural Health Mission (NRHM) and CEO of Arogya Sri to examine all the grievances relating to transfers and postings. As per paragraph 2(k) of the said GO, HoD shall upload the information regarding the names of the employees i.e., Faculty Members/Doctors/Officers/Nurses etc., who are working in the same station continuously for more than five and ten years separately, and vacancies existing in different cadres, newly created posts, vacancies of specialists, vacancies of regional labs, vacancies of RIMS Medical Colleges at Kadapa, Adilabad, Ongole and Srikakulam and the list of request for transfers. The Government Order being G.O.Ms.No.93, dated 14.05.2011 lifting ban on transfers and laying down conditions for making transfers during the period of relaxation of ban and/or G.O.Rt.No.1055, dated 01.06.2011 containing instructions regarding transfers and postings indisputably are executive instructions. They do not confer any right and they do not specifically deal with the question of giving postings to newly promoted Government servants, or newly promoted Associate Professors to the post of Professors. Further, these two Government Orders may not have any application to the issues that arise for consideration. The orders of the Government empanelling and promoting nine Associate Professors to the post of Professors, the Government Order posting the petitioner at KMC, Warangal, the Government Order transferring the third respondent from Kurnool to Hyderabad and the Government Order cancelling the said transfer order were all issued prior to the issue of G.O.Ms.No.93, dated 14.05.2011 and G.O.Rt.No.1055, dated 01.06.2011.Therefore, any reliance placed by the petitioner on these two Government Orders is misplaced. Indeed, no plea was raised before the learned Tribunal based on these two Government Orders. They do not help the petitioner in any manner. The Government issued G.O.Rt.No.802, dated 30.03.2011 transferring the third respondent from Kurnool Medical College to OMC, Hyderabad, in the existing vacancy and in relaxation of ban orders issued by the Government vide G.O.Ms.No.196, Finance (W&M) Department, dated 22.07.2009. This itself would justify the Government’s stand that the vacancy of Professor at OMC was not shown for the purpose of counselling on 11.02.2011 when newly promoted Associate Professors were considered for the purpose of giving postings to them. Secondly, the plea of the Government that in view of her retirement on 28.02.2011, Dr.Y.Subba Ratnam, Associate Professor in OMC was posted as Professor at OMC itself remains uncontroverted. In view of this, the decision of the respondents 1 and 2 not to treat the post of Professor at OMC as clear vacancy for the purpose of transfer counselling held on 11.02.2011, cannot be faulted. It is always open to the Government to consider the hardship of a Government employee and give necessary redressal in the matter of transfers and postings. Indisputably, the third respondent was already working as Professor from July, 2008 and she had already completed three years at Kurnool. When she made a request for transfer to take care of her children and sick mother at Hyderabad, the Government considered the request favourably and posted her. The transfer of third respondent, therefore, is nothing to do with the transfer and postings of newly promoted Associate Professors. We do not therefore find any arbitrariness in the action of the first respondent. The order of the learned Tribunal does not warrant any interference. As per Rule 11(b) of the Rules, if a person fails to join the post within the stipulated period of fifteen days, the promotion shall stand forfeited. A specific plea was raised in the counter affidavit before the learned Tribunal, which is reiterated by the Government Pleader before us. Indeed, G.O.Rt.No.548, dated 25.02.2011, whereunder the petitioner was promoted as Professor of Pharmacology and was posted at KMC, Warangal specifically adverts to this. The petitioner was advised to join in the promotion post within fifteen days from the date of receipt of said orders, failing which the orders of temporary promotion shall be deemed to have been cancelled after stipulated period is over. In this case, the petitioner was ventilating her grievance before the Tribunal. She filed O.A.No.1203 of 2011 on 01.03.2001 within a week after the issue of G.O.Rt.No.548, dated 25.02.2011. The matters were pending before the Tribunal till 01.07.2011 and these writ petitions are filed on 11.08.2011. Thus, all along the petitioner has been trying to seek redressal before the Tribunal or this Court. Therefore, we give liberty to the petitioner to approach the Government seeking extension of time for joining as Professor at KMC, Warangal. If such application is made, the Government is directed to consider it expeditiously. These writ petitions are devoid of any merit and subject to observations as above are accordingly dismissed. No costs. _______________ (V.V.S.RAO, J) ___________________ (K.G.SHANKAR, J) 08.09.2011 Pln Note: LR copy be marked (By order) pln [1] AIR 1991 SC 532 [2] (1981) 2 SCC 72 : AIR 1981 SC 1577 [3] (1993) 1 SCC 148 : AIR 1993 SC 1236 [4] 1993 Supp (1) SCC 704 [5] (1993) 4 SCC 357 : AIR 1993 SC 2444 [6] 1995 Supp (4) SCC 169 [7] (2009) 15 SCC 178