THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR W.P.No.1190 of 2010 ORDER: (per the Hon’ble Sri Justice V.Eswaraiah) The petitioner questions the order of the Tribunal in O.A.No.12513 of 2009, dated 31-12-2009, allowing the said application filed by the 4th respondent herein. 2. The 4th respondent herein is the applicant in the said O.A. and the petitioner herein is the 4th respondent in the said O.A. 3. The applicant filed the said O.A. seeking to declare the action of the 1st respondent herein in issuing G.O.Rt.No.1828, dated 04-12-2009, transferring him from the post of Deputy Executive Engineer (Incharge), JRP Head Works Sub-Division of JRP Division of I.C., Bobbili, to B.R.R. Vamsadhara Project Circle, Srikakulam, as illegal and arbitrary and consequently, to set aside the said transfer orders. 4. The applicant, while working as Assistant Engineer in the office of the Superintending Engineer, Irrigation Circle, Visakhapatnam, was transferred to the office of the Superintending Engineer, JRP Head Works Sub-Division of JRP Division of Irrigation Circle, Bobbili, to work as Incharge Deputy Executive Engineer, vide proceedings, dated 29-06-2009, of the 2nd respondent in the O.A. Pursuant thereto, he was relieved on 02-07- 2009 and joined duty at Bobbili on 04-07-2009. While so, the 1st respondent issued G.O.Rt.No.1828, dated 04-12-2009, transferring the applicant to B.R.R. Vamsadhara Project Circle, Srikakulam. Aggrieved thereby, the applicant filed the said O.A., which was allowed on 31-12-2009. Aggrieved by the same, the present writ petition is filed. 5. When the matter is taken up for hearing, the learned Government Pleader has produced the record. 6. A perusal of the record goes to show that while the applicant was working at Bobbili, the M.L.A. of Kurupam Assembly Constituency, Vizianagaram District, made a complaint against the applicant making certain allegations and requested for his transfer to other circle. Basing on the said representation, the Hon’ble Minister for Transport put up a note, dated 29-07- 2009, and called for the remarks and accordingly, the 2nd respondent herein submitted his remarks vide letter No.Rc/ENC/E7/1319/2009, dated 30-07- 2009, stating that the allegations made against the applicant have been examined in detail and the applicant had already took over the charge of the post of the Deputy Executive Engineer, J.R.P.Head Works, Sub-Division, Bobbili, on 04-07-2009, and as such, the applicant cannot be transferred from outside the Circle in view of the ban on transfers imposed by the Government. Thereafter, the Hon’ble Minister for Transport addressed a D.O. Letter to the Hon’ble Minister for Major and Medium Irrigation on 10-08-2009 for shifting the applicant from the place of his work, on which, the Hon’ble Minister for Major and Minor Irrigation made an endorsement, dated 20-08- 2009, to the Principal Secretary to examine and circulate the file immediately. Thereafter, a note was put up by the Assistant Secretary, Irrigation & CAD (Ser.I.2) Department, para 7 of which reads as follows:- “With reference to the endorsement of Hon’ble Minister, the file is submitted for suitable orders on the transfer of D.Kishore Kumar DEE in one of the existing (3) vacancies available at BRR Vamshadara Project Circle, Srikakulam.” 7. The said note was signed by the Principal Secretary and thereafter by the Minister for Major and Medium Irrigation. Again a note was put on 07-09- 2009, which reads as follows:- “With reference to the orders in circulation from the Hon’ble M(M&MI) at para 7 ante, the proposal to transfer Sri D.Kishore Kumar Dy.E.E. from JRP Head works Sub Division of JRP Division of Irrigation Circle, Bobbili and post him to BRR Vamsadhara Project Circle, Srikakulam, in one of the existing vacancies, on administrative grounds as agreed by the M(M&MI), may be sent to Finance (W&M) Department for their concurrence as per the G.O.Ms.No.196, Finance (W&M) Department, dated 22-07-2009.” 8. The said note was approved by the Principal Secretary (I & CAD) marking the same to the Finance Department for its concurrence. The Finance Department returned the file requesting to indicate the action taken in respect of the irregularities committed by the individual (applicant) as per paragraphs 2 and 3 of the note file. 9. With regard to the alleged irregularities, the file has been sent to the Vigilance Department to indicate whether any disciplinary action is pending against the applicant. But, no report has been received from the Vigilance or any other Department. Thereafter, on 25-11-2009, the proposal of I&CAD Department for transfer of the applicant from JRP Head Works Sub-Division of JRP Division of I.C., Bobbili to BRR Vamshadhara Project Circle, Srikakulam, in one of the existing vacancies on administrative grounds was accepted by the Finance Department. Pursuant thereto, the impugned order was passed. 10. Learned counsel appearing for the petitioner submits that the transfer order was considered and approved by the Administrative Department as well as the Finance Department and was issued in relaxation of ban orders on administrative grounds. The 4th respondent, after receipt of the transfer order, had handed over complete charge and got himself relieved on 10-12-2009. Thereafter, instead of reporting at the new place of posting, the 4th respondent has approached the Tribunal by filing O.A.No.12513 of 2009. The Tribunal, without noticing the aforesaid facts, erroneously allowed the O.A. Therefore, the order of the Tribunal is liable to be set aside. 11. Learned counsel appearing for the 4th respondent-applicant submits that the applicant has been transferred to B.R.R.Vamsadhara Project Circle, Srikakulam, within a period of six months only due to political reasons, even though there is ban on transfers. The Tribunal, after considering the material on record, rightly allowed the O.A. setting aside the said transfer order. Therefore, there is no need to interfere with the order of the Tribunal. Insofar as the alleged allegations against the applicant are concerned, the Chief Engineer vide his letter No.CA/NC/VSP/VRS/06, dated 31-10-2006, sent remarks to the Secretary to the Government, alleging that no irregularity was committed by the applicant, which reads as follows:- “With reference to the Government Memos cited on the subject of non-payment of bills by Sri D.Kishore Kumar, Assistant Engineer for the work of Execution of Channels to Vengalarayasagaram Project, it is to inform that detailed enquiry has been conducted by the under signed with the officials and has gone through the old Records. The petitioners were awarded with the work of execution of Field Channels, as they represent respective WUA. Out of four petitioners (Ayacutdars), payment was already made to three Ayacutdars by the officials in proper Departmental Procedure. Regarding, non-payment of bill to Sri Sree Ramakrishna, Ayacutdar and Contractor, it is to inform that the Bill was kept pending for want of Funds and the Superintending Engineer has already addressed the competent authority for release of L.O.C. to clear the liabilities. As far as this pending Bill is concerned, it is to further inform that Sri D.Kishore Kumar has recorded the Bill and submitted to his Deputy Executive Engineer for checking in 3/1999 itself. Prima facie, it could not be established now that the said Assistant Engineer has demanded for money as Bribe, as alleged by the petitioners/Ayacutdars, since the incident has said to have been occurred in 1999. The Records show that there was no delay on the part of Sri D.Kishore Kumar, Assistant Engineer in recording the bills of Contractors, who have executed the Field Channels and was done by him well in time. Further, he has handedover the records i.e., M.books, pending bills already recorded etc., to his successors Sri A.Murali Mohan in 12/2000. Therefore, it cannot be established that he involved in non-payment of work bills with malafide intention. As such no irregularity was committed by Sri D.Kishore Kumar, Assistant Engineer in the present case.” 12. A perusal of the record goes to show that the same allegations are again recorded in the note file for getting the concurrence of the Finance Department. The file indicates that the actual decision for transferring the applicant from the existing place to BRR circle are emanated from the endorsement No.90/MTR/09, dated 28-08-2009 of the Principal Secretary to Government, Irrigation Department, on the letter addressed by the M.L.A. of Kurupam Assembly Constituency, which reads as follows:- “Further, to my D.O.Lr.No.180, dated 10-08-2009, the letter from M.L.A., Kurupam, is forwarded considering the request for diverting his services immediately to Vamsadhara Circle, SKLM District.” 13. The request of M.L.A. for diverting the services of the applicant to another circle appears to be considered as per the said endorsement only, but not at the instance of the Minister for M&MI. As per para No.7 of the note file, it was stated that with reference to the endorsement of Hon’ble Minister, the note file was submitted for suitable orders. In this context, the endorsement of the Hon’ble Minister means the endorsement made by the Hon’ble Minister for Transport, but not the Hon’ble Minister for M&MI. The endorsement of the Hon’ble Minister for M&MI, dated 20-08-2009 on the D.O. letter of the Hon’ble Minister for Transport, dated 10-08-2009, was only to examine and circulate the file immediately. There was no earlier decision that was taken by the Hon’ble Minister for M&MI for his transfer. 14. It is not in dispute that the Government relaxed the ban on transfers for the period from 17-06-2009 to 16-07-2009 vide orders in G.O.Ms.No.169, dated 17-06-2009. After the said period is over, the ban orders were again imposed vide orders in G.O.Ms.No.196, Finance, dated 22-07-2009, on all other proceedings, except in respect of 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, deputations (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.” 15. Even, in the aforesaid exceptional cases, the appointing authority is competent to issue posting orders to the employees in the aforesaid exceptional cases without any reference to the Finance Department. 16. From a perusal of the above, it is clear that while giving posting orders, the existing employee shall not be shifted. But, however, as per para 6 of G.O.Ms.No.196, dated 22-07-2009, any existing vacancies are to be filled up for administrative efficiency with the persons, who have completed one year of active service at the present station, with concurrence of the Finance Department. If the said transfer is not justifiable for administrative efficiency, the existing vacancy cannot be filled up. Whereas the impugned order of the Government shows that the transfer is made only on administrative grounds. In fact, on the administrative grounds also, the applicant cannot be transferred as per para 6 of the ban orders in G.O.Ms.No.196. However, we are of the opinion that the Government has got power to transfer any individual where the disciplinary proceedings are pending, taking into consideration the interest of the administration or public. The Government has also got the power to relax ban orders in exceptional cases. But, we do not see any exceptional circumstances warranting transfer of the applicant from the existing place. As a matter of fact, the applicant was transferred on the recommendation made by two M.L.As and one M.P. vide their letters, dated 20-06-2009 and 29-06-2009 respectively during lifting of ban on transfers. Similarly, the petitioner herein was transferred and posted at Parvathipuram and he applied leave on 07-12-2009 and approached the Superintending Engineer requesting to post him in the place of the applicant and accordingly, the Superintending Engineer vide his proceedings, dated 09-12-2009 posted him in the place of the applicant, as the applicant was transferred by the aforesaid G.O. 17. We are of the opinion that as per the order of the Government in G.O.Ms.No.196, an employee, who returns from long leave for more than three months, can be posted in a clear existing vacancy. The petitioner herein was on leave for two days only. If that be so, it is for the 3rd respondent-Superintending Engineer to post him in the existing place, where he was working but not in the place of the applicant. 18. Having regard to the facts and circumstances of the case, we are of the opinion that the Tribunal has rightly allowed the O.A. and we do not see any error committed by the Tribunal and as such, we see no merits to interfere with the impugned order of the Tribunal. 19. Accordingly, the writ petition is dismissed. There shall be no order as to costs. ________________ V.ESWARAIAH, J ________________________ VILAS V. AFZULPURKAR, J Dated: 11-02-2010 Prv