* THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND * THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + WRIT APPEAL NOS. 748, 753, 860 AND 915 OF 2006 W.A.No.748 of 2006 % Dated 01.11.2006 # Gurukula Vidyalaya Telangana Udyogula Sangam, rep., by its President Sri K. Narasimha Reddy, R.R. District. …. Petitioner Vs. $ The A.P. Educational Institutions Society rep., by its Secretary, III- Floor,Gagan Vihar, Nampally, Hydeabad and four others. …. Respondents ! Counsel for the Appellants-Petitioners: Sri Karnam Ramesh ^ Counsel for the Respondents: Sri Vijaya Bhaskar Moola, Standing Counsel <GIST: > HEAD NOTE: ? Cases referred [1] (1989) 2 SCC 602 2 (2003) 4 SCC 104 3 AIR 1966 SC 1283 4 (2001) 8 SCC 574 5 (2004) 7 SCC 405 6 (1995) 3 SCC 270 7 (1992) 1 SCC 306 8 (1993) 4 SCC 357 9 (2004) 11 SCC 402 THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT APPEAL NOS. 748, 753, 860 AND 915 OF 2006 COMMON ORDER: (per Hon’ble Sri Justice Ramesh Ranganathan) Transfer of an employee, appointed to a particular cadre of transferable posts, is an incident of service and is made in administrative exigencies. No government servant or an employee of a public undertaking has a legal right for being posted at any particular place. Transfer, from one place to the other, is generally a condition of service and the employee has no choice in the matter. Transfer is necessary in public interest and efficiency in public administration. It is, normally, not to be interfered with by Courts/Tribunals except in rare cases where it has been made in a vindictive manner. Whenever a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make a representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned employee must carry out the order of transfer. In the absence of any stay of the transfer order the employee has no justification to avoid or evade the transfer order merely on the ground of his having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance with the transfer order, he would expose himself to disciplinary action under the relevant rules. (Gujarat Electricity Board v. Atmaram Sungomal Poshani[1]; Public Services Tribunal Bar Association v. State of U.P[2]). The employer is entitled to decide, on a consideration of the necessities of administration, whether transfer of an employee should be made to a particular place. The employer is in the best position to judge as to how to distribute its employees at different places. Courts/Tribunals should be wary of interfering with such orders made by the employer in discharge of its managerial functions. If an order of transfer is made malafide or for some other ulterior purpose, Courts/ Tribunals may interfere and set aside such an order of transfer, as mala fide exercise of power is not considered an exercise of power in law. The finding of malafide should, however, be reached by Courts/Tribunals only if there is sufficient and proper evidence and such a finding should not be reached capriciously or on flimsy grounds. (Syndicate Bank Ltd. Vs. Workmen[3]). Questions, as to whether the transfers effected are in public interest or not, are normally not examined as this would essentially require factual adjudication and invariably depend upon the peculiar facts and circumstances of the case concerned. No government servant or employee of a public undertaking has any legal right to be posted forever at one particular place or to a place of his choice since transfer of a particular employee, appointed to the class or category of transferable posts, from one place to other is not only an incident, but a condition of service, necessary in public interest and efficiency in public administration. Unless an order of transfer is shown to be an outcome of malafide exercise or is in violation of statutory provisions prohibiting any such transfer, courts or the tribunals, normally, do not interfere with such orders as a matter of routine, as if they were appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. (National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan[4] and State of U.P. v. Siya Ram[5]). Courts or tribunals are not appellate forums to decide on transfer of employees on administrative grounds. Wheels of administration should be allowed to run smoothly and Courts/ tribunals are not expected to interdict the working of the administrative system by transferring officers to places it considers proper. It is for the administration to take appropriate decisions and such decisions shall stand unless they are vitiated either by malice or extraneous considerations. (State of M.P. v. S.S. Kourav[6]). Despite a plethora of judgments of the Supreme Court, orders of transfer and the guidelines issued in this regard still continue to be challenged before Courts/Tribunals and quite often we find interim orders being passed interdicting such orders of transfer. In the present batch of Writ Appeals the employer’s repeated attempts to effect transfers, ever since 2003, have been frustrated and the guidelines framed each year, to ensure that transfers are effected in a rational and transparent manner through a process of counseling, have not been implemented in view of its continued challenge before this Court. Now to the particulars of the Appeals before us. Writ Appeal No. 748 of 2006 is filed by the Gurukula Vidyalayala Telangana Udyogula Sangam aggrieved by the dismissal of W.P. No. 9856 of 2006 by order dated 22.06.2006. Writ Appeal No. 753 of 2006 is filed by Sri S. Subrahmanyam, and three others, aggrieved by the dismissal of W.P. No. 11291 of 2006 by order dated 22.06.2006. Writ Appeal No. 860 of 2006 is filed by Smt. K. Sharada, and ten others, and Writ Appeal No. 915 of 2006 is filed by Sri V. Gnanakumari, aggrieved by the interlocutory orders passed in W.P.M.P.No. 29724 of 2005 dated 03.11.2005, and W.P.M.P. No. 33313 of 2005 dated 28.04.2006, in W.P. No. 23174 of 2005. The appellants in these two Appeals had earlier, along with others, impleaded themselves as respondents 4 to 46 in W.P.No.23174 of 2005. All the four Writ Appeals were heard together and are now being disposed of by a common order. In both W.P. Nos. 9856 and 11291 of 2006, the action of the respondents herein in issuing proceedings dated 26.04.2006, effecting general transfers of teaching and non-teaching staff through counseling with effect from 10.05.2006, was under challenge and a direction was sought to declare the guidelines issued to effect transfers for the year 2006 as arbitrary, illegal, unfair, unjust and in violation of Articles 14 and 19 of the Constitution of India. W.P. No. 9856 of 2006 was filed by the Gurukula Vidyalayala Telangana Udyogula Sangam, an association representing the teaching and non-teaching staff working in the 1st respondent society, and W.P. No. 11291 of 2006 was filed by four junior lecturers working in the said society. Since the guidelines issued and the exercise of counseling carried out by the 1st respondent, in effecting transfer of its employees from one institution to the other, is under challenge in these Writ Appeals on several grounds, it is necessary that the facts, including the backdrop of the present litigation, be referred to. The 1st respondent, a Society registered under the A.P. Public Societies Registration Act 1350 fasli, was constituted in the year 1972. The 1st respondent-Society is an autonomous body, its management is vested in a Board of Governors, the Hon’ble Minister for School Education is its Chairperson, and the Secretary to the Government, School Education Department is its Vice Chairman. The 1st respondent society has its own Byelaws and service (recruitment) rules for its employees and has started several residential schools in different parts of the State of Andhra Pradesh. The state government had issued orders, in G.O.Rt. No. 505 dated 07.06.2003, constituting a committee for allotment of persons to different local cadres. After the committee submitted its recommendations, the State Government, in its memo dated 30.06.2003, permitted the 1st respondent society to implement the Presidential Order. The 1st respondent society issued proceedings dated 04.07.2003 referring to the permission granted by the state government in its memo dated 30.6.2003. A few of the employees of the 1st respondent society filed W.P. No. 14527 of 2003, questioning the proceedings of the government dated 30.06.2003 and that of the first respondent dated 04.07.2003, contending that the Presidential Order would not apply to the 1st respondent society. This Court passed interim orders on 06.08.2003 holding that, while the process of counseling may go on and the respondent-authorities may proceed to pass appropriate orders, considering the representation made by various employees of the society including those who had approached the Court, the impugned orders shall not be given effect to till the matter is heard and decided by the Court. In view of the said orders, the 1st respondent society kept the orders of transfer of it staff, effected during the period 28.07.2003 and 08.08.2003, in abeyance until further orders. Later, in the said writ petition, the 1st respondent society filed W.P.M.P. No. 22902 of 2005 seeking permission of this Court to effect transfers and promotions of its teaching and non-teaching staff, without giving effect to the impugned proceedings. This Court, by order dated 08.09.2005, while permitting the 1st respondent to effect transfers and promotions of its teaching and non-teaching staff, held that such promotions and transfers shall be subject to the result of the main writ petition and that the impugned proceedings in W.P.No.16201 of 2003 shall not be given effect to. Pursuant thereto the 1st respondent issued proceedings dated 20.10.2005 and 21.10.2005 for effecting general transfers of its staff through counseling scheduled to commence from 29.10.2005. In its proceedings dated 20.10.2005 the 1st respondent had declared its intention to adopt the guidelines of transfer issued by the Government, in G.O.Ms. No. 102 dated 05.08.2005, mutatis- mutandis to suit its requirements. W.P. No. 23174 of 2005 was filed questioning the proceedings of the 1st respondent dated 20.10.2005 and, in W.P.M.P. No. 29724 of 2005, the petitioners sought stay of all further proceedings, including the general transfers of teaching and non-teaching staff, pursuant to the proceedings of the 1st respondent dated 20.10.2005 and 21.10.2005. This Court initially passed an interim order on 28.10.2005. Later, by order in W.P.M.P. No. 29724 of 2005 in W.P. No. 23174 of 2005 dated 03.11.2005, this Court directed that it shall be open to the respondent-society to proceed with the proposed transfers, strictly in accordance with the guidelines formulated by it, that the individual grievances of the employees shall also be attended to as far as possible, and in case any employee felt aggrieved by such transfer, it was open to him or her to approach the competent authority or this Court. This Court further directed that the respondent-Society shall incorporate a clause, in the orders of transfer, to the effect that the transfer would be subject to the result of W.P. No. 16021 of 2003 and, if zonalisation of service was to be effected, corresponding orders of posting would be issued to the concerned employees. As it was represented that a large number of vacancies had been filled by effecting promotions in the recent past, as the petitioners had urged that the vacancies filled by the respondent-Society also be brought under the purview of counseling and the issue of transfer of employees had been pending since a long time, this Court directed that the postings made against various vacancies, by the respondent-society while effecting promotions, shall also be brought under the purview of counselling. W.P.M.P. No. 33313 of 2005 was filed “for being mentioned” and to modify the orders passed in W.P.M.P. No. 29724 of 2005 dated 03.11.2005 to the effect that the vacancies filled by way of promotion in the recent past be deleted from the purview of the ongoing counseling. This Court, by order dated 28.04.2006, did not find any basis to modify or vary its earlier order dated 03.11.2005. The 1st respondent issued proceedings dated 26.04.2006, for effecting general transfers of its teaching and non-teaching staff through counseling with effect from 10.05.2006, enclosing thereto the guidelines prescribing the criteria for transfer of staff, the preferential categories, the procedure for forwarding transfer applications, process of counseling etc. Questioning the proceedings dated 26.04.2006 and the guidelines for transfer for the year 2006, W.P. Nos. 9856 and 11291 of 2006 were filed. The Learned Single Judge, by order in W.P.Nos.9856 and 11291 of 2006 dated 22.6.2006, held that the rules issued by the government were not applicable in toto except to the extent the rules were adopted by the 1st respondent, that the rules framed in G.O.Ms.No.102 dated 5.8.2005 had not been adopted in toto, that transfers had been effected as per the guidelines framed by the society and that the ban orders, in G.O.Ms.No.71 dated 1.4.2006, were not applicable to the society. With regards the allegation that points were not given based on the length of service put in and that the action of the respondents in giving no points to junior lecturers was not justified, the Learned Judge noted that points were given as per the guidelines framed, that the points for length of service were dependent on the service rendered in rural areas, towns and cities and that points would differ having regard to the place of posting. The Learned Judge held that in such view of the matter the points given in the counseling were correct as per the guidelines. With regards the contention that if transfers were effected it would result in imbalance in several zones and that it would result in detriment to the interest of the employees belonging to the respective zones, the learned Judge took note of the order of this Court dated 3.11.2005 wherein the respondent- society was permitted to proceed with the transfers subject to certain conditions. The learned Judge held that, as the 1st respondent – society was an autonomous body, the rules framed by the Government in G.O.Ms.No.102 dated 5.8.2005 could not be applied instinctively for effecting transfers, that to a certain extent the rules were adopted and guidelines were framed to suit the requirements of the society and that there were separate set of guidelines, for effecting transfers, which governed the field. The learned Judge held that, in such an event, it was not open to the petitioners to contend that the transfers were in violation of the rules framed under G.O.Ms.No.102 dated 5.8.2005. The learned Judge also held that the petitioner’s contention, that the transfers had been effected during the ban imposed after 25.4.2006, could not be accepted for the reason that the said orders had not been adopted by the 1st respondent – society in the absence of which there was no hurdle for effecting administrative transfers and that the society, being an autonomous body registered under the Societies Registration Act, was governed by the decision of its Managing Committee and the guidelines framed by it for effecting transfers. The learned Judge held that non-finalisation of the seniority list was no ground to prevent administrative transfers having regard to the need and requirement in various schools run by the society in the State of Andhra Pradesh and that the transfers effected at the beginning of the academic year were to meet the exigencies and were an incidence of service. The Learned Judge held that it was open for the management to effect such transfers in the interest of the society which was the paramount consideration, that the petitioners allegation that the respondents gave more points to certain juniors in the category of junior lecturers than to seniors could not be accepted for the reason that seniority alone was not a factor for awarding such points and that it differed from person to person having regard to the place of posting, namely different villages, cities and towns and merely because one was senior to another would not automatically entitle him for more number of points and, in case points were not awarded correctly as per the guidelines, the guidelines also provided for an appeal against the orders of transfer. The Learned Judge, having noted that four of the lecturers who had filed writ petitions had completed more than 10 years at their respective places, held that if that be the case it was always open for the 1st respondent society to effect administrative transfers as per the guidelines framed by it. The learned Judge also held that there was no illegality in the impugned proceedings warranting interference under Article 226 of the Constitution of India and that the writ petitions were devoid of merit. Sri Karnam Ramesh, learned counsel for the appellants- petitioners, would reiterate the submissions urged before the learned single Judge. Learned counsel would refer to the A.P. Teachers (Regulation of Transfers) Rules 2005, notified in G.O.Ms.No.102 dated 5.8.2005, more particularly, to criteria 6 therein whereby no teacher, who has not completed two years of service in a particular school/office/institute as on the 1st of July of the year, shall be transferred. Learned counsel would refer to the proceedings of the 1st respondent dated 26.4.2006 wherein it is stated that the society had decided to adopt the rules for transfer issued in G.O.Ms.No.102 dated 5.8.2005 mutatis-mutandis to suit the requirement of the APREI Society and that a copy of the rules/guidelines for transfer, proposed to be adopted for the society, were enclosed thereto. Learned counsel would refer to the “Guidelines for effecting transfers – 2006”, more particularly to clause II(i), wherein all members of the staff were held eligible to apply for transfers with zero service, to sub-clause(vi) which provides that no employee rejoining duty after leave shall be posted to any other new institution and that he/she shall be posted only to the place wherefrom he/she had gone on leave and to sub- clause (xiv) of Clause II whereunder TGTs who were promoted as PGTs in the year 2005 were also required to submit applications for transfer and attend counseling as per the orders of the High Court in W.P.M.P.No.29724 of 2005 in W.P.23174 of 2005 dated 3.11.2005, that the posts of PGTs held by them would be shown as vacant and that they shall be called at the end of counseling on the day of counseling for that particular subject as per seniority without entitlement points for choosing the places. Learned counsel would refer to G.O.Ms.No.71 dated 1.4.2006 wherein the government had lifted the ban on transfers only for the period between 10.4.2006 to 25.4.2006 and had directed that all transfers be completed on or before 25.4.2006 and that the ban orders on transfers of employees would again be in force from 26.4.2006. Learned counsel would submit that since the ban orders were reimposed from 26.4.2006 it was not open to the respondent- society to effect transfers thereafter. Learned counsel would refer to the averments in the counter affidavit of the respondents, wherein it was stated that G.O.Ms.No.71 dated1.4.2006 was not applicable to them, to submit that it was not open for the 1st respondent to contend that the government order in G.O.Ms.No.71 dated 1.4.2006 was not applicable to the society. Learned counsel would content that non-inclusion of Principals in the counseling process is arbitrary and illegal. According to the learned counsel, the Learned Single Judge had erred in holding that non-finalisation of the seniority list was not a ground to prevent administrative transfers having regard to the need and requirement in various schools run by the Society in the State of A.P. Learned Counsel would submit that, since under the guidelines points were awarded on the basis of seniority, seniority was a relevant criteria in the counseling process being undertaken for effecting transfers. Learned counsel would also find fault with guideline no.(iv), which prescribes that no employee who has rejoined after leave shall be posted to any other new institution and that he/she shall be posted only to the place wherefrom he/she had gone on leave, to contend that merely because an employee has gone on leave, it does not disentitle him from choosing any other place to which he/she should be transferred to under the counseling process. Learned counsel would refer to a few instances to submit that in the case of those employees, the respondent – society had not adhered to the guidelines for effecting transfers. While adopting these submissions, Sri P.Kesava Rao, learned counsel for the appellants, would submit that the rules in the G.O.Ms.No.102 dated 5.8.2005 are statutory rules and since statutory rules have been adopted mutatis-mutandis by the respondent-society, it must be deemed that the transfer of employees in the 1st respondent-society is governed by statutory rules. Learned counsel would submit that the 2006 guidelines, being administrative instructions, cannot run contrary to the statutory rules under G.O.Ms.No.102 dated 5.8.2005 and, since statutory rules govern the field, the 1st respondent-society is bound to adhere to the statutory rules and its failure to do so would entitle the employees to seek a mandamus from this Court to the 1st respondent. Learned counsel would submit that the respondents had resorted to selective compliance with the guidelines only to ensure that candidates of their choice were given plum postings to the detriment of other employees. Sri M.Venkata Rama Reddy and Sri M.Subba Reddy, learned counsel for the appellants, would submit that the interim orders of this Court, in W.P.M.P.29724 of 2005 in W.P.23174 of 2005 dated 3.11.2005 which was affirmed in W.P.M.P.33313 of 2005 dated 28.4.2006, required the appellants in W.A.Nos.860 and 915 of 2006 also to subject themselves to the counseling process. Learned Counsel would submit that there was no justification in the appellants herein, who were promoted and given postings in the recent past, being included in the counseling process of 2005 or in their being subjected to transfer along with others in the counseling being held for the year 2006. Learned counsel would submit that this Court, in proceedings under Article 226 of the Constitution of India, could not impose conditions or lay down guidelines prescribing the manner in which or the persons who should be transferred from one place to another. According to the Learned Counsel, though the interim orders passed by the learned Single Judge was for transfers to be effected in the year 2005 and, while the 1st respondent had not effected transfers in the year 2005, the 2006 transfer guidelines required those candidates also to subject themselves to the process of counseling held for effecting transfers. Sri P.Srinivas, learned counsel appearing on behalf of Sri Vijaya Bhaskar Moola, learned standing counsel for the respondent-society, would submit that the 1st respondent, being a distinct legal entry, was not automatically bound by government orders, or the statutory rules made applicable to government servants, unless the said G.Os. or rules were adopted in toto by the 1st respondent society. Learned counsel would submit that, while the 1st respondent had taken the rules made under G.O.Ms.No.102 dated 5.8.2005 as the basis, it had, to meet its peculiar needs, made certain changes thereto and had prescribed guidelines for effecting transfers in the year 2006. Learned counsel would submit that the 1st respondent is adhering to the guidelines both in letter and spirit and that the guidelines themselves provide for an appeal to the vice-chairman against orders of transfers passed by the secretary. Learned counsel would submit that in case an individual employee is aggrieved by his orders of transfer, on the ground that the guidelines have been violated, it was always open for him to bring it to the notice of the vice-chairman by way of an appeal under clause xiv of the