IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FOURTH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 3911 of 2009 Between: S. Raghubushan Rao S/o. Gangadhar Rao Visakhapatnam, R/o. MIG-3, B/78, Sector -9 MVP Colony, Visakhapatnam, ..... PETITIONER AND 1 The A.P. State Housing Corporation Ltd., Rep. by its Managing Director, Urdu Lane, Himayathnagar, Hyderabad. 2 The District Collector/Executive Director A.P. State Housing Corporation Ltd., Visakhapatnam 3 The Superintendent Engineer (Housing) APSHCL, VUDA Complex, Udgyog Bhavan Siripuram Junction, Visakhapatnam .....RESPONDENT(S) 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 to issue a writ order or direction more in the nature of writ of Mandamus declaring the action of the 2nd respondent is transferring the petitioner from Dy. Executive Engineer HQ-1, Urban Visakhapatnam to Dy. Executive Engineer, G. Madugula Vide Rc No. 22/208/E dt. 19-2- 2009 as illegal, arbitrary and without jurisidiction and consequently set aside the same and pass Counsel for the Petitioner: MR.M.V.RAMA RAO Counsel for the Respondent No.: MR.K.MOHAN RAMI REDDY The Court made the following : O R D E R: 1. The petitioner-S.Raghabushan Rao has filed this writ petition with a prayer to issue a Writ of Mandamus declaring the action of the District Collector/Executive Director, A.P. State Housing Corporation Limited, Visakhapatnam-2nd respondent in transferring him from Headquarters-I, Urban, Visakhapatnam to G.Madugula as Deputy Executive Engineer vide Roc.No.22/2008/E, dated 19.2.2009 as illegal and arbitrary. 2. The background facts of the case in a nutshell leading to filing of this Writ Petition by the petitioner are: He was appointed as Assistant Engineer in the year 1982 in the 1st respondent-Corporation and promoted as Dy.Executive Engineer in the year 1992. While working as Deputy Executive Engineer(H) at Eluru, West Godavari District, he was transferred and posted as Deputy Executive Engineer, Headquarters, Visakhapatnam by the Managing Director of 1st respondent-Corporation vide proceedings No.A1/3034/2007, dated 27.8.2007. He assumed charge on 22.9.2007 as Deputy Executive Engineer, Urban(H). Additional posts in the cadre of Deputy Executive Engineer were created under GO.Ms.No.144, dated 3.6.2008 and thereby many Assistant Engineers were promoted as Deputy Executive Engineers. This necessitated the re-allocation/transfers of Deputy Executive Engineers. Counseling was held by the Managing Director of 1st respondent through video conference on 9/10-6-2008. He was posted as Deputy Executive Engineer, Urban Project-I, Visakhapatnam as per his option in the counseling. While so, 2nd respondent transferred him to G.Madugula section with additional charge of G.K.Veedhi and Chintapalli Mandals. According to him, under Rule 24 of Chapter II of A.P.S.H.C.L.Service Rules issued vide G.O.Ms.NO.33 Housing (RH), Department, dated 16.5.1998, it is 1st respondent who is the competent authority to issue posting and transfer in the cadre of Deputy Executive Engineers and therefore the transfer order issued by 2nd respondent transferring him to G.Madugula with additional charge of G.K.Veedhi and Chintapalli Mandals is contrary to the A.P.S.H.C.L.Service Rules and thus the transfer order is to be declared as illegal, arbitrary and without jurisdiction. 3. When the writ petition came up for admission on 3.3.2008 K.Mohan Ram Reddy, learned Standing Counsel of A.P.State Housing Corporation Limited received notice on behalf of the respondents and sought time for filing counter. R1 filed counter on 18.3.2009. It is stated in the counter affidavit that the petitioner has been transferred and posted to G.Madugula section with additional charge of G.K.Veedhi and Chiontapalli Mandals on purely administrative grounds by the 2nd respondent and the action of 2nd respondent has been ratified by 1st respondent by a memo dated 26.2.2009. 4. When the writ petition came up for admission hearing, with the consent of learned counsel appearing for the parties, it is taken up for final disposal. 5. Heard learned counsel appearing for the petitioner and learned Standing Counsel appearing for respondents. 6. Learned counsel appearing for the petitioner submits that as per A.P.State Housing Corporation Limited General Service Rules, the Managing Director is the appointing authority to the cadre of Deputy Executive Engineer and therefore any transfer effected by the authority other than the appointing authority or the higher authority is contrary to the service rules and in which case the order impugned in the writ petition where under the petitioner has been transferred by 2nd respondent to G.Madugula is liable to be quashed. He placed reliance on the decision of Karnataka High Court in S.INAYATHULLA V. DEPUTY CONSERVATOR OF FORESTS, CHICKMAGALUR[1], wherein the order passed by the Conservator of Forests placing the petitioner under suspension came to be quashed on the ground that he is not a competent authority. The facts of the cited case are that the petitioner therein came to be kept under suspension by the conservator of forests. He challenged the validity of the suspension order on the ground of incompetency of Conservator of Forests. The respondent therein pleaded that the action of the Conservator of Forests placing the petitioner therein under suspension has been ratified by the Chief Conservator of Forests. The Karnataka High Court repealing the contention of the respondent therein has observed as under: “ 6. The power of suspension is a very powerful weapon and it is required to be exercised with all care and caution, and it is because of this, it is made to vest only with the three authorities mentioned above. No other authority other than the authorities mentioned above, can exercise power of suspension. The Conservator of Forests could not have passed an order placing the petitioner under suspension, as such the impugned order, in the eye of law, has no efficacy whatsoever. Therefore, the Chief Conservator of Forests could not have ratified such an order. Of course, it was open for the Chief Conservator of Forests (General) to take that order into account and to pass an order independent of the impugned order, to place the petitioner under suspension, but what had been done by the Chief Conservator of Forests was to simply ratify the order. The order of suspension requires application of mind and to arrive at a decision that a disciplinary enquiry is required to be held against the official who is going to be placed under suspension. That being so, the order of ratification which does not satisfy any of the aforesaid requirements cannot even be treated as an independent order of suspension, and as such, it cannot be held to be a valid order so as to place the official under suspension at least from the date of its passing. In the instant case, except passing the aforesaid order of ratification, there is no other material placed before the Court that the Chief Conservator of Forests on the basis of the materials placed before him is of the view that there is a case for holding a departmental enquiry. Under these circumstances, the order passed by the 2nd respondent is liable to be quashed. 7. Accordingly, the order passed by the 2nd respondent placing the petitioner under suspension is hereby quashed. It is also further held that the order dated 8th march 1982 passed by the Chief Conservator of Forests cannot have the effect of placing the petitioner under suspension even from its date. However, it is made clear that it is open for the Chief Conservator of Forests or the authority to which he is subordinate to take action in the matter in accordance with law.” He also placed reliance on the judgment of the Supreme Court in MARATHWADA UNIVESITY V. SESHRAO BALWANT RAO CHAVAN[2], wherein the Supreme Court held that when statute prescribes a particular body to exercise a power, it must be exercised by that body alone and not by others unless it is delegated. 7. Whereas it is contended by learned Standing Counsel appearing for R1 and R2 that the petitioner came to be transferred to G.Madugula with additional charge of G.K.Veedhi and Chiontapalli Mandals on administrative grounds by the 2nd respondent and his action came to be ratified by 1st respondent and in which case, the transfer orders does not suffer from any flaw warranting interference of this court in exercise of the powers under Article 226 of the Constitution of India. In support of his submissions, reliance has been placed on the judgment of the Gauhati High Court in PARESH CHOUDHURY V. STATE OF ASSAM[3], wherein the learned single Judge of Gauhati High Court held that the transfer guidelines would not have any statutory force and are only directory and not mandatory in nature. 8. Indisputably the petitioner is holding the post of Deputy Executive Engineer. Under Rule 24 of A.P. State Housing Corporation Limited General Service Rules, the postings and transfers of various classes and categories of posts shall be made by the appointing authority or any higher authority. The Managing Director shall with the approval by the Board or the Government as the case may be issue instructions or guidelines from time to time to be followed regarding the postings and transfers. Annexure Ii, Chapter II of the A.P. State Housing Corporation Limited General Service Rules details various categories of posts, method of appointment, qualification, appointing authority, scale of pay, etc. For the post of Deputy Executive Engineer, the appointing authority is the Managing Director i.e. 1st respondent. By reading the service Rules and Annexure thereto, I am in no doubt to conclude that 2nd respondent is neither the appointing authority nor the higher authority of the appointing authority to the cadre of Deputy Executive Engineers. The transfer order issued by the 2nd respondent transferring the petitioner to G.Madugula section is not in accordance with the service rules. 9. A plea has been advanced by the learned Standing Counsel that the action of 2nd respondent has been ratified and therefore the transfer order passed by the 2nd respondent is to be treated as in accordance with the service rules. I am unable to accede to the contention since the transfer orders issued by the 2nd respondent is vitiated because of his incompetency to pass the same. The illegal order cannot be ratified by 1st respondent under the garb that he is the appointing authority. 10. In that view of the matter, the writ petition is allowed setting aside proceedings Rc.No.22/2008/E, dated 19.02.2009 issued by the 2nd respondent. However, this order does not preclude the 1st respondent to transfer the petitioner to any other place, if so required, on administrative ground. 24th March, 2009. (B.Seshasayana Reddy,J) Note: Issue C.C. within two days. B/O tnb ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1) 2 CD copies Form-NIC-OGS/WP{VSMI} THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO.3911 OF 2009 24TH MARCH 2009. [1] 1982 KANTLJ (2) 432 [2] (1989) 3 SCC 132 [3] 2004 GAULT (3) 295