HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE VILAS V.AFZULPURKAR WRIT APPEAL Nos.1395, 1396, 1397 and 1398 OF 2009 %18.02.2010 # 1. D.K.Mohan Rao and others … Petitioners VERSUS $ The Food Corporation of India, represented by its Chairman/Managing Director and three others. … Respondents < GIST: > HEAD NOTE: !Counsel for Appellant: Smt. M.Bhaskara Lakshmi. ^Counsel for Respondent: Sri B.Anjaneyulu. ? Cases referred 1. (2004) 11 SCC 402 2. AIR 1993 SC 2444 3. 2004(12) SCC 299 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE EIGHTEENTH DAY OF FEBRUARY TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE VILAS V.AFZULPURKAR WRIT APPEAL Nos.1395, 1396, 1397 and 1398 OF 2009 WRIT APPEAL No.1395 OF 2009 Between: D.K.Mohan Rao … Petitioner And The Food Corporation of India, represented by its Chairman/Managing Director and three others. … Respondents WRIT APPEAL No.1396 OF 2009 Between: B.V.V.Appa Rao. … Petitioner And The Food Corporation of India, represented by its Chairman/Managing Director and three others. … Respondents WRIT APPEAL No.1397 OF 2009 Between: V.Venkata Ramana … Petitioner And The Food Corporation of India, represented by its Chairman/Managing Director and three others. … Respondents WRIT APPEAL No.1395 OF 2009 Between: Nemani Dattatreyulu. … Petitioner And The Food Corporation of India, represented by its Chairman/Managing Director and three others. … Respondents This Court made the following: HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE VILAS V.AFZULPURKAR WRIT APPEAL Nos.1395, 1396, 1397 & 1398 OF 2009 And WA.MP.No.3009 of 2009 in WA.No.1395 of 2009, WA.MP.No.3014 of 2009 in WA.No.1396 of 2009, WA.MP.No.3012 of 2009 in WA.No.1397 of 2009 & WA.MP.No.3015 of 2009 in WA.No.1398 of 2009 And WA.MP.No.2906 of 2009 in WA.No.1395 of 2009 COMMON ORDER: - (per Hon’ble Sri Justice VVAJ) Since a common issue is involved in all these appeals, they were heard together and being disposed of by this common order. These four appeals are directed against the common orders of the learned Single Judge of this Court in dismissing W.P.Nos.23294 of 2009 and batch, dated 13.11.2009; filed questioning the transfer order dated 01.06.2009. The appellants/writ petitioners, who are working in the respondent-Food Corporation of India, contended that by the impugned order of transfer, dated 01.06.2009, they were transferred to Karnataka region and the said transfer order is questioned in the writ petitions, being arbitrary and in violation of the transfer guidelines framed by the respondent-Corporation. The main contention that was urged before the learned Single Judge and also before us is that, many seniors who were promoted ahead of the appellants were retained in the A.P. region, whereas the appellants are subjected to transfer to Karnataka region. The appellants placed reliance on the guidelines dated 18.10.2002 framed by the respondent-Corporation. The writ petitions filed by the appellants were opposed by the respondent-Corporation primarily contending that the guidelines, which the appellants are relying upon, are no more in force and are superseded by Circular No.EP-03-2002-33, dated 21.11.2002 and the fresh guidelines only governs the situation. The respondent- Corporation also denied the allegation of arbitrariness in the said transfers and they have filed a detailed counter-affidavit contending that there is an acute shortage of Officers in Karnataka region to the extent of 50% of the total sanctioned strength and on account thereof, under the earlier transfer orders altogether 22 officers were transferred to Karnataka region and subsequently, by the impugned transfer orders, 13 officers were transferred from A.P. region to Karnataka region including the appellants/writ petitioners. It is also mentioned that out of the said 13 officers, 7 officers have already joined duty at Karnataka and about 300 other officers of various cadres have also complied with such inter-regional transfer orders between 2008 and 2009. It was also contended that the appellants along with others 52 in number, who have been promoted on 22.12.2008 as Manager (Technical) on regular basis, were continued in A.P. region, but on account of the shortage of manpower in Karnataka region and apart from the earlier transfers, the present proceedings under the impugned order were effected covering officers at Sl.Nos.30 to 52 from A.P. region to Karnataka region, which includes the appellants. The learned Single Judge of this Court considering the rival contentions, held that the transfer of an employee is only an incident inherent in the terms of appointment and such an order warrants no interference unless it is shown to be an outcome of a mala fide exercise of power or in violation of any statutory provisions or where the order is found to be without jurisdiction. Further, following the ratio laid down in State of U.P. v. Gobardhan Lal[1], the learned Single Judge came to the conclusion that the impugned transfer order does not violate any statutory provision and in the absence of any specific averment of mala fide intention being alleged in the order of transfer, it could not be interfered with and accordingly, dismissed the writ petitions. On dismissal of the writ petitions, these writ appeals are preferred and when the appellants/petitioners failed to join at the transferred places, they were placed under suspension by the respondent-Corporation vide orders dated 30.11.2009 and hence W.A.M.P.Nos.3009, 3015, 3014 and 3012 of 2009 in W.A.No.1395, 1398, 1396 and 1397 of 2009 respectively, were filed for amendment of the prayer in the writ petitions. This court by order, dated 14.12.2009 granted interim suspension of the order dated 30.11.2009 and also suspended the transfer order dated 01.06.2009, pending further orders. The respondent-Corporation has now filed applications seeking vacation of the said interim orders. Heard the learned counsel for the appellants and the learned Advocate General appearing for the respondent-Corporation. The learned counsel for the appellants has placed reliance upon the transfer guidelines dated 18.10.2002 and Clause II thereof, which reads as follows:- “Officials who have not at all moved since appointment in the same grade/even after their promotion and continuing in the same District will move first.” Based on the above, the learned counsel would contend that while admittedly the appellants were promoted in the year 2008, and retained at A.P. region, but earlier thereto, though several officers were promoted in between the period 2000-2004, they have been retained even now in the A.P. region only. The learned counsel for the appellants has relied upon a list of such managers enclosed to the writ appeals as Appendix – I and II and would contend that the said officers who are having more than three years of service for superannuation are retained. Whereas the respondent-Corporation has adopted a policy of pick and choose and transferred only the appellants. The learned counsel also pointed out that incorrect information was given by the respondent-Corporation before the learned Single Judge to the effect that the appellants have all along worked at A.P. region only and have not moved out, but, in fact three of the appellants have already worked in Karnataka region and the said fact is now admitted by the respondent-Corporation in the counter-affidavit filed by them in these writ appeals, which reads as follows: “…The petitioner is continuing in A.P. region since 1976 in various grades, but the petitioner not moved from the State to other States after he became the Manager (QC) in December, 2008. in other grade he moved for about one year, but he has not served in other states after his promotion as Manager (QC). The Officer who has sworn the Affidavit is duly authorized to do so according to the Headquarters instruction and he need not be a party to the writ petition….” The learned counsel also submits, no doubt, transfer guidelines relied upon by the appellants have been superseded by the fresh transfer guidelines dated 21.11.2002, but, however, even as per the counter affidavits; the respondent-Corporation is still following the earlier guidelines and pointing out the Clause II under earlier guidelines extracted above, the learned counsel submits that the officers who were promoted earlier to the appellants and retained at A.P. region have been allowed to continue in the A.P. region, whereas the appellants alone are transferred, which is in violation of Clause II referred to above. The leaned counsel therefore, submits that the impugned proceedings are clearly arbitrary. Per contra, the learned Advocate General submits that in the affidavit filed in support of the writ petitions, there is no allegation by the appellants as to the specific violation of any guidelines. Further, admittedly, there is no allegation of any mala fide exercise of power or specific pleading about discrimination to accept omni bus allegations. The learned Advocate General submits that neither the earlier guidelines nor the present guidelines have been violated in any manner and, therefore, submits that in fact the officers at Sl.Nos.30 to 52, in the seniority list who have been transferred to Karnataka region, which include the appellants, shows that there is no pick and choose policy as alleged. He therefore, contends that it is not as if the officers are picked up from the seniority for transfer and on the contrary enmass all the officers at Sl.Nos.30 to 52 have been transferred. The learned Advocate General has placed reliance upon the fresh transfer guidelines dated 21.11.2002, which specifically says in para IV under the caption Miscellaneous which is as follows:- “ IV. Miscellaneous:- i) The competent authorities while effecting the transfer may consider economy aspect, administrative requirement, exigencies of work. The endeavour should be to post the right person at the right place so that the interest of the Corporation is best served…. iii) Notwithstanding anything contained in these guidelines any employee is liable to be transferred anywhere in India in accordance with Regulation 17 of the FCI (Staff) Regulations, 1971.” He also placed reliance upon the decision of the Supreme Court cited before the learned Single Judge in Gobardhan Lal’s case (1 supra) and submits that the judgment of the learned Single Judge warrants no interference. We have considered the aforesaid rival contentions. It is no doubt true that there are hardly any pleadings in support of the allegation of the appellants that any specific guideline of transfer is violated. Apart from that, it is accepted by the learned counsel for the appellants that the guidelines have no statutory force and the reliance upon the guidelines, dated 18.10.2002 under Clause II is apparently read out of context. A reading of the said guidelines dated 18.10.2002 shows that while reiterating the earlier guidelines issued by head quarters No.IR(S)/14/1/2001, dated 04.09.1990 while making transfers the respondent-Corporation was directed to follow the scheme under the circular dated 18.10.2002 while effecting inter-regional transfers. Clause II which is relied upon by the learned counsel is again read out of context without reading Clause III along with the same, which reads as under: - “Retained promotes who have also not moved after their promotion will follow next, to the extent required.” It is therefore, clear that even as per the aforesaid guidelines dated 18.10.2002, such promotees would be subjected to inter- regional transfers, as and when required, and in a factual situation if required, the promotees who are retained and continued in A.P. region may also be required to be transferred in future. Further, in fact the said transfer guidelines are superseded by the guidelines dated 21.11.2002 and there being no allegation of violation of any of the Clauses under the said revised guidelines, we are unable to accept the contention of the learned counsel for the appellants that the impugned transfers are in violation of the guidelines relating to transfer. Thus the legal position in this respect is already well settled by the Hon’ble Supreme Court in Union of India and others v. S.L.Abbas[2], which reads as follows: “Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind, the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right.” In addition to the above, the jurisdiction of the Courts or Tribunals with respect to challenge to the transfer order is admittedly on very limited grounds and is well settled by several decisions of the Hon’ble Supreme Court and this Court. The decision of the Supreme Court in Gobardhan Lal’s case (1 supra), which was followed by the learned Single Judge of this Court, clearly lays down that the transfer is a prerogative of the authorities concerned. The ratio of the said decision applies to the facts and circumstances of the present case and the learned Single Judge has rightly followed the same. In fact, in another decision of the Supreme Court in Kendriya Vidyala Sangathan v. Damodar Prasad Pandey[3] also it was held that the order of transfer cannot be interfered with by the Court unless it is shown to be clearly arbitrary or visited by mala fide or infraction of any prescribed norms or principles governing the transfer. The learned counsel for the appellants has also drawn our attention to certain orders of the respondent-Corporation dated 20.06.2007, 08.10.2007, 18.01.2008, 21.06.2008 and 14.07.2009, wherein the transfer orders of the employees in Karnataka region either have been cancelled or kept in abeyance. Apparently those orders were passed by the respondent-Corporation on the representations of the respective employees by pointing out the hardship etc., with respect to each of such grievance. Even with respect to the present transfer policy also, the Respondent-Corporation has issued a clarification dated 22.06.2009, wherein at paragraph 2 they have stated that in order to further facilitate the aggrieved individuals and to mitigate their grievances, the Corporation has also created a ‘web site’ on which any one can send his/her grievance to the E-mail Id grievance.fcisz@gmail.com. Thus the Corporation has also provided The reddressal grievance system. If at all the appellants are aggrieved, it is open for them to approach the respondent- Corporation with their individual grievance. However, the invocation of jurisdiction of this Court under Article 226 of the Constitution of India against the order of transfer is clearly misplaced and untenable and the learned Single Judge of this Court was justified in dismissing the writ petitions. Further, the learned counsel for the appellants fairly submitted that the applications seeking amendment so as to permit the appellants to challenge the orders of suspension passed after dismissal of the writ petitions for dis-obeying the transfer orders, cannot be a subject matter of controversy in the present writ petitions, as it is beyond the scope of the writ petitions. The said orders of suspension, therefore, cannot be adjudicated in these appeals arising out of the judgment of the learned Single Judge upholding the orders of transfer. The said applications, therefore, are dismissed, as they are beyond the scope of the writ petitions and these writ appeals. The learned counsel for the appellants states that some of the appellants have already worked in Karnataka region and that fact was not brought to the notice of the learned Single Judge and for that reason a separate application in W.A.M.P.No.2906 of 2009 in W.A.No.1395 of 2009, to receive the additional material in evidence in proving the said factum, was filed. Since we have already observed that it is open for the appellants to submit their respective grievance, if any, to the respondent-Corporation, the appellants are free to agitate this aspect also, in the said grievance. Accordingly, we dismiss the said WA.MPs. Further, the learned counsel for the appellants requested two weeks time for making a representation and till such representation is considered, the stay granted by this Court may be continued. We however see no reason to accede to the request to continue the stay. It is made clear that firstly the appellants have to join in the places where they were transferred and may make representations within two weeks from the date of joining into service and on making such representation, respondent-Corporation is directed to consider the same and pass appropriate orders. Accordingly, all the writ appeals are dismissed. No order as to costs. _________________ A.GOPAL REDDY, J ________________________ VILAS V.AFZULPURKAR, J 18.02.2010 lmv [1] (2004) 11 SCC 402 [2] AIR 1993 SC 2444 [3] 2004(12) SCC 299