IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE SEVENTEENTH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE B.CHANDRA KUMAR WRIT PETITION NO : 3821 of 2009 Between: S. Mohan Reddy, S/o. S. Varada Reddy, Kadapa. ..... PETITIONER AND 1. Kalluru Hasan Saheb, S/o. K. Khader Saheb, working as Armed Reserved Police Constables in Kadapa District under case of Superintendent of Police, Kadapa City 2. Darsi Subramanyam, S/o. Late D.C. Thimmaiah, working as Armed Reserved Police Constables in Kadapa District under case of Superintendent of Police, Kadapa City 3. Nitturu Obulesu, S/o. N.P. Dashthagiri, working as Armed Reserved Police Constables in Kadapa District under case of Superintendent of Police, Kadapa City 4. Rachabattala Subbarayadu, S/o. R. Narayana Swamy, working as Armed Reserved Police Constables in Kadapa District under case of Superintendent of Police, Kadapa City 5. Tadipatri Devaraju, S/o. Late T. Balaraghava, working as Armed Reserved Police Constables in Kadapa District under case of Superintendent of Police, Kadapa City 6. Palli Pulla Reddy, S/o.P. Rami Reddy, working as Armed Reserved Police Constables in Kadapa District under case of Superintendent of Police, Kadapa City 7. The Government of Andhra Pradesh, Rep by its Principal Secretary, Home, Services-II, Secretariat, Hyderabad. 8. The Chairman State Level Police Recruitment Board, Hyderabad. 9. The Director General of Police, A.P. Hyderabad. 10. The Superintendent of Police, Kadapa. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue appropriate writ or order or direction direction mostly one which is in the nature of Writ of Certiorari calling for the records in and relating to the order dated 29-12-2008 in OA No. 4069 of 2008 of the AP Administrative Tribunal at Hyderabad and quash the same holding that the GO Ms.No. 26 Home (Ser-II) Department dated 5- 2-2008 is perfectly valid and well justified and pass Counsel for the Petitioner: MR.P.VEERA REDDY Counsel for the Respondents: GP FOR HOME The Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE B.CHANDRA KUMAR W.P.NO.3821 OF 2009 ORDER: (PER AGRJ) By way of this writ petition under Article 226 of the Constitution of India, the petitioner assails the order, dated 29.12.2008, passed by the Andhra Pradesh Administrative Tribunal, Hyderabad in O.A.No.4069 of 2008. 2. The respondents 1 to 6 working as Armed Police constables in Kadapa District under care of Superintendent of Police, Kadapa city filed O.A. stating that the respondents 1 and 2 herein were selected as Armed Reserved Police on 16.12.1984 and they were shown at Sl.Nos.79 and 82 in the Provisional Seniority List dated 15.03.2008 and respondents 3 and 4 were selected on 14.06.1987 and placed at S.No.102 and 106 respectively, whereas respondents 5 and 6 were selected on 31.01.1992 and their position in the seniority list is at Sl.No.214 and 222. The promotions to the posts of Armed Reserve Head Constables in Kadapa District has been ordered up to Sl.No.71 of 1984 batch. In that, the respondents 1 to 4 are hoping to be promoted as Armed Reserve Head Constables in their turn as per their seniority sooner or later. While the matter stood thus, the petitioner herein who was shown as 5th respondent in the O.A, was appointed as P.C. in the 11th Bn., APSP, Bakrapet, Kadapa District on 01.11.1994, who was working as Head Constable was transferred to the District Armed Reserve, Kadapa by relaxing the rules by the impugned G.O.Ms.No.26, Home (Services-II) Department, Dated 05.02.2008. Under the A.P. Police Subordinate Service Rules, there is no provision for the transfer of Head Constables of A.P. Special Police to District Armed Reserve as Head Constable. In the absence of any rule for relaxation, the Government by executive order cannot transfer the Head Constable working in A.P. Special Police to the District Armed Reserve, Kadapa and in the absence of any public interest, the reasons for relaxation has not been stated. The same will affect the promotion chances of the respondents 1 to 6 and hence, the O.A. In the above O.A, Principal Secretary to Government filed a counter affidavit stating that the mother of the writ petitioner represented that her son is working on deputation basis in State Intelligence Security Wing and desires for his transfer to the District Armed Reserve at Kadapa on compassionate and humanitarian grounds, since she requires constant medical treatment in their native village. After careful consideration of her request government issued orders in G.O.Ms.No.26, Home (Ser-II) Department, dated 05.02.2008 relaxing the rules and transferred the petitioner from 11th Battalion, Bhakarpet, Kadapa District to District Armed Reserve Kadapa. It is also further admitted that there is no provision for the transfer of Head Constable of A.P. Special Police to District Armed Reserve as Head Constable, but the said power was exercised under Rule 31 of A.P. State & Subordinate Service Rules for ordering the relaxation since the State Government has power to relax the rules under Rule 31 of the A.P. State Subordinate Service Rules. Non-quoting of source of power in the impugned G.O. would not vitiate the order under challenge, as long as the exercise of power could be traced to statutory provision or rule. In view of the transfer of the writ petitioner, he will automatically forego his seniority in the present working unit i.e. A.P. Special Police and he has to take last rank next below the last regular candidate in the category of Head Constable. Though, the impugned G.O is silent, the petitioner has to take last rank next below the last regular candidate in the category of Head Constable and the same is applies to the petitioner also. 3. The Tribunal after calling the file from the concerned department which leading to issuance of the impugned G.O, though came to the conclusion that the Government has power to relax the rules and the tribunals do not ordinarily interfere with the discretion of the government, but observed that the record as well as the counter affidavit filed by the writ petitioner did not indicate that the Government exercised discretion in the matter and simply endorsed on the letter addressed by the Speaker of the A.P. Legislative Assembly enclosing the representation of the mother of the writ petitioner for consideration of the Government on which, the department expressed its view that the rules do not permit transfer of a Head Constable from one unit to another unit and that there was no representation from the petitioner for his transfer and therefore, holding that it is a case of total non-exercise of discretion and acceptance of a request for transfer on a total unsustainable ground, allowed the O.A. setting aside the G.O.Ms.No.26 Home Department dated 5.2.2008. 4. The view taken by the tribunal in setting aside the order did not suffer from any infirmity for the reason that it is not the writ petitioner who made a representation for relaxation of the rules on which an opinion of both the units was sought by the government. Further, it has not been set out in the G.O that relaxation of rules are in public interest or in the exigency of the service and to remove hardship. Further the impugned G.O. was issued by total non -application of mind. Therefore, the impugned order passed by the Tribunal, does not suffer from any illegality in quashing the impugned G.O. Therefore, we find no merits in the writ petition. 4. Accordingly, the writ petition is dismissed. No costs. ____________________ A.GOPAL REDDY,J Dated: 17.03.2009 _______________________ B.CHANDRA KUMAR,J kvrm HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE B.CHANDRA KUMAR W.P.NO.3821 OF 2009 DATED: 17.03.2009