IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE SIXTEENTH DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH AND THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No: 71 of 2010 BETWEEN: G. Yadagiri. ... PETITIONER AND K. Ram Prasad and three others. ...RESPONDENTS Counsel for the Petitioner: MR. M. SURENDER RAO Counsel for the Respondent No.1: MR. M. RATNA REDDY Counsel for the Respondents 2 and 3: GP FOR SERVICES The Court made the following: ORDER: (per Hon’ble Sri Justice Vilas V. Afzulpurkar) This writ petition is filed by the third respondent in O.A.No.12343 of 2009 seeking to question the final orders of the Andhra Pradesh Administrative Tribunal dated 18.12.2009 allowing the said OA. 2. The first respondent in the writ petition is the applicant in the OA. For the sake of convenience, the parties are referred to as they are arrayed in the OA. Facts, in brief, are as follows: (a) The applicant has been working at Hyderabad from 19.05.2001 as Assistant Executive Engineer till 30.05.2006. He was then promoted as Deputy Executive Engineer and continued to work at Hyderabad whereas the third respondent initially was working as Assistant Executive Engineer at Hyderabad for the period 2003-2005 and he was then transferred on deputation to Nalgonda and continued to work there for the period 2005 – 2006 and thereafter, he was regularly transferred to Nalgonda in 2006 and promoted as Deputy Executive Engineer in December 2007 and continued to work at Nalgonda. He was on medical leave from 21.02.2009 to 17.06.2009 and after returning from leave reported to the Engineer-in-Chief on 18.06.2009. (b) Under G.O.Ms.No.169 Finance (W&M) Department dated 17.06.2009 the ban on transfers was lifted for the period 17.06.2009 to 16.07.2009. While the applicant did not apply under the said GO, the third respondent applied and opted for Hyderabad. While the said GO was in operation, the elections to the Greater Hyderabad Municipal Corporation (GHMC) were announced and within the GHMC limits the Government under G.O.Rt.No.893 Municipal Administration & Urban Development (Elec.II) Department dated 27.06.2009 imposed ban on transfers of all officials working within the limits of GHMC till the completion of elections to GHMC. A further order was issued by the Government in G.O.Rt.No.1366 Municipal Administration & Urban Development (Elec.II) Department dated 12.10.2009 wherein the Government directed that no transfer of the officers and staff involved in the election duty should be made from today until the conclusion of elections to GHMC. The said ban was in operation till 30.11.2009. Meanwhile, the Government had issued G.O.Ms.No.196 Finance (W&M) Department dated 22.07.2009 wherein with reference to the ban orders it was clarified that the said orders of ban on all transfers shall operate except the following cases: (i) Posting orders to the employees on account of promotion shall be issued to the clear existing vacancies without shifting any other employees. (ii) Posting orders to the employees due to disbandment of posts, reversions, repatriations, deputation (on Foreign Service only), disciplinary proceedings and returning from long leave of more than three months, shall be issued in clear existing vacancies without shifting other employees. Clause (4) of the said GO provided that appointing authority is competent to issue posting orders with reference to cases at Para 3 referred to above without reference to Finance Department. (c) Based on the above Government orders, under G.O.Ms.No.196 dated 22.07.2009, the third respondent, who had returned from medical leave and reported to Engineer-in-Chief on 18.06.2009 was transferred under the impugned G.O.Rt.No.1318 Transport Roads & Buildings (SER.II) Department dated 01.12.2009. The third respondent was transferred in the place of the applicant at Hyderabad and applicant was directed to report before Engineer-in-Chief (R&B) for further posting. The above G.O.Rt.No.1318 dated 01.12.2009 was questioned by the applicant before the tribunal and it has been set aside under the impugned order. Hence, this writ petition at the instance of the third respondent. 3. We have heard Sri M. Surender Rao, learned counsel for the third respondent, learned Government Pleader for the official respondents and Sri M. Ratna Reddy, learned counsel appearing for the applicant. 4. The learned counsel for the third respondent/writ petitioner submitted that the applicant has all along been working at Hyderabad and has put in more than eight years of service in Hyderabad and as such, he is compulsorily liable to be transferred in terms of G.O.Ms.No.169 dated 17.06.2009. He has placed reliance upon clause (2)(vii) of G.O.Ms.No.169 dated 17.06.2009 to contend that service of the applicant at Hyderabad is to be counted in all the cadres for calculating his period of stay. He also submitted that the third respondent/writ petitioner has been away from Hyderabad from 2005 onwards and as he was returning from leave in terms of G.O.Ms.No.196 dated 22.07.2009 and in view of the ban on transfers imposed on account of GHMC elections, having been not in force after 30.11.2009, the impugned order of transfer was fully justified. He also submitted that the transfer of the employee being an incident of service, unless it is shown to be an outcome of malafide exercise of power or is violative of any statutory provision, judicial interference is not called for and in support of the aforesaid proposition he relied upon a decision of the Supreme Court in NATIONAL HYDROELECTRIC POWER CORPORATION LTD. v. SHRI BHAGWAN[1]. 5. He further submits that there is reference in the impugned order of the tribunal that the applicant as well as the third respondent have obtained letters of recommendation from MLA’s and Ministers and that by itself is not a ground to set aside the transfer in view of the decision of the Supreme Court in MOHD. MASOOD AHMAD v. STATE OF U.P.[2], which held that the transfer of an employee on the recommendation of the MLA does not vitiate the transfer order. He also cited another decision of the Supreme Court in GOVT. OF A.P. v. G. VENKATARATNAM[3] for the proposition that judicial review of an order of transfer is not justified, as the impugned order of transfer neither suffers from violation of any statutory rules nor can it be described as malafide. 6. Per contra, the learned counsel for the applicant submits that the impugned transfer order said to be issued in terms of G.O.Ms.No.196 dated 22.07.2009 is clearly untenable inasmuch as the present case does not fall in the exceptions carved out in the said G.O.Ms.No.196. As extracted above, under the exceptions stipulated under paras 3 and 4 of the said GO, the ban is relaxed only in certain cases where shifting of any existing employee was not involved. Similarly, the case of the third respondent/writ petitioner would not fall within the category of returning from long leave of more than three months as admittedly the third respondent was on leave from 21.01.2009, as in that clause also such transfer was to be made in clear existing vacancies without shifting other employees. Under the impugned transfer order, the applicant, who was working in the said post has been shifted out without any posting orders and as such, the impugned transfer order is not in an existing clear vacancy. He also submitted that the ban under G.O.Ms.No.169 dated 17.06.2009 was relaxed only for one month, but on account of GHMC elections, within the said relaxation period the ban continued to operate from 27.06.2009 till 30.11.2009. There was, therefore, no justification for such transfer. He also contended that the applicant being within 20% of the employees is not subjected to the transfer even under G.O.Ms.No.169 dated 17.06.2009. 7. We have considered the aforesaid contentions in the light of the findings of the tribunal under the impugned order. It is not in dispute that the ban imposed on transfers was relaxed under G.O.Ms.No.169 dated 17.06.2009 only for a period of one month i.e. 17.06.2009 to 16.07.2009. During the said relaxation period though the transfers were effected in the rest of the State, within the GHMC limits there was a ban in operation from 27.06.2009 till 30.11.2009, as referred to above. Thus, the lifting of ban under G.O.Ms.No.169 dated 17.06.2009 was operative in the GHMC limits also only for a period of ten days. Further, when the said ban automatically applied after expiry of relaxation period. It is not as if the relaxation under G.O.Ms.No.169 dated 17.06.2009 was extended for the balance of the one- month period after the ban in GHMC limits ceased to operate after 30.11.2009. Secondly, the impugned transfer order refers to G.O.Ms.No.196 dated 22.07.2009 which carves out exceptions to the ban for certain contingencies only as enumerated in paras 3 and 4 of the said GO. We are unable to find any justification to hold that notwithstanding one-month relaxation available under G.O.Ms.No.169 dated 17.06.2009; the third respondent/writ petitioner could be transferred after the relaxation period was over on 16.07.2009. Further under G.O.Ms.No.196 dated 22.07.2009 also we were unable to find any exception in the case of the third respondent/writ petitioner, as he was not transferred on account of exceptional circumstances in a clear existing vacancy. Even assuming that the third respondent deserves to be transferred as an exceptional case under G.O.Ms.No.196 dated 22.07.2009, such transfer could not have been to displace the applicant, who was working in the post and no clear vacancy existed. 8. The contention of Mr. Surender Rao that the post held by the applicant is required to be treated as vacant in view of his long period of stay at Hyderabad also does not appear justified inasmuch as the period of relaxation under G.O.Ms.No.169 dated 17.06.2009 expired long back i.e. 16.07.2009 whereas the impugned transfer order is dated 01.12.2009. We are, therefore, of the view that when the impugned transfer order was issued the ban on transfer continued to operate. 9. Mr. Surender Rao also contended that transfer being an incident of service and a right of an employer, the scrutiny of such transfer ought not to be made by treating the executive instructions issued under various Government orders, as above, strictly in accordance with the said G.O’s. The aforesaid contention also does not commend itself, as the very transfer of the third respondent in the OA is based on G.O.Ms.No.196 dated 22.07.2009, which is an exception to G.O.Ms.No.169 dated 17.06.2009. Even if the said G.O’s are Executive instructions, it has to be remembered that it is the policy of the Government, which is laid down in the said G.O’s for uniform application, to avoid arbitrariness and selective treatment to the employees. The applicant also was seeking relief of transfer within the said declared policy. Therefore, the general power of employer to transfer cannot override the declared policy of the Government on the said subject. 10. The tribunal has considered the matter in the light of all the circumstances and has recorded a finding that at the time of counseling in G.O.Ms.No.169 dated 17.06.2009, the applicant was not called for counseling and the applicant was not transferred in the said counseling conducted under the aforesaid GO. The tribunal also found that the applicant is an Office Bearer of an employees association and as such, he is protected from transfer as per clause (6) of the said G.O.Ms.No.169 dated 17.06.2009. The said additional ground upheld by the tribunal for setting aside the impugned transfer order is also required to be taken into consideration, though not agitated by the learned counsel for the petitioner. 11. In the overall facts and circumstances of the case, the ratio of the decisions cited by the learned counsel for the petitioner being not applicable to the facts and circumstances of the present case, no interference is called for in the impugned order of the tribunal. The writ petition is liable to be dismissed and is accordingly dismissed. There shall be no order as to costs. ______________ V. ESWARAIAH, J _____________________ VILAS V. AFZULPURKAR, J April 16, 2010 DSK [1] (2001) 8 SCC 574 [2] (2007) 8 SCC 150 [3] (2008) 9 SCC 345