Ch.Prakash Rao vs State Of Telangana

In this writ petition, the petitioner is seeking a writ of mandamus declaring the G.O.Rt.No.26, Environment, Forests, Science and Technology (FOR-II) Department, dated 03.04.2023 issued by the respondent No.1, as illegal, arbitrary, discriminatory, unconstitutional and consequently to set aside the same and issue directions to the respondents to continue the petitioner as Divisional Forest Officer, Khammam, till his retirement i.e., upto 30.04.2024 and to pass such other order or orders in the interest of justice.

Brief facts leading to the filing of the present writ petition are that the petitioner was working as Forest Divisional Officer in the office of Forest Divisional Officer, Khammam, in the cadre of Deputy Conservator of Forests and vide proceedings dated 18.01.2019, the authorities surrendered the petitioner to the Head of the Department on the ground that the petitioner had interfered with the Grampanchayat Elections. Aggrieved, the petitioner had approached this Court by filing W.P.No.7016 of 2019 which was disposed of by this Court vide orders dated 03.04.2019, directing the respondents to consider the representation of the petitioner and also by duly taking into consideration the fact that the elections of the Grampanchayat were over in the month of January, 2019. Subsequently, the petitioner was retained/reposted as Divisional Forest Officer, Khammam, which he was holding.

It is submitted that the petitioner has undergone by-pass surgery at Yashoda Hospital, Hyderabad on 21.05.2014 and required constant medical supervision and in February, 2022, the petitioner suffered with Corcinoma of right tonsil (throat cancer) and he is undergoing treatment and the petitioner submits that he is going to retire on attaining the age of superannuation on 30.04.2024. It is submitted that there is also a ban on transfers in terms of G.O.Ms.No.61, Finance Department (HRM-I), dated 24.05.2018 and the same was relaxed for a period between 25.05.2018 to 15.06.2018. Thereafter, the petitioner submitted that the policy of the Government was to post wife and husband at one place and since the petitioner’s wife was working as SGT in Primary School, Danavaigudem, Khammam Urban Mandal since 2012, the petitioner had requested the respondents to give preference to him as he has undergone by-pass surgery and also since his wife was working in the said area.

It is submitted that at the instance of the respondent No.4, the authorities initiated action to accommodate him in place of the petitioner and on coming to know about the said efforts of the respondent No.4, the petitioner had submitted a representation on 04.02.2023 requesting the authorities not to disturb the petitioner from his present place of posting and to retain him on the ground of his pending treatment, medical grounds and spouse grounds. It is the case of the petitioner that disregarding all the above, the respondents have issued G.O.Rt.No.26, Environment, Forests, Science and Technology (FOR-II) Department, dated 03.04.2023, transferring the petitioner as Forest Divisional Officer, Flying Squad, Yadadri. Challenging the same, the present writ petition has been filed.

Initially, vide orders dated 19.04.2023 in I.A.No.1 of 2023, this Court had directed the respondents to consider the representation filed by the petitioner on 04.02.2023 on medical and spouse grounds for posting as Forest Divisional Officer at Mahabubabad or at Yellandu, if clear vacancy is available. The respondents, however, rejected the same vide orders dated 08.05.2023 and the petitioner was posted as Forest Divisional Officer/Flying Squad Party, Yadadri HQ at Nalgonda.

Learned Government Pleader for the respondents has filed a counter affidavit stating that the petitioner was working as Forest Divisional Officer, Khammam from 11.10.2016 till date and has completed 6 years of service and has thus overstayed at one station. It is further submitted that his spouse was working as SGT in Primary School, Danavaigudem, Khammam Urban Mandal since 2012 and therefore, in view of the administrative requirement and since the petitioner and his wife were continued at one place for a long period, they cannot be continued in the same place on one or the other pretext. It is also stated that Nalgonda is the nearer to Hyderabad and he can avail best treatment in Hyderabad with a short journey. It is further stated that the post of Divisional Forest Officer at Mahabubabad or Yellandu Division are not vacant in view of posting of other officers in the said places. It is further submitted that the transfer is an exigency of service and therefore, the petitioner cannot seek continuation of service at one single place.

Though the learned counsel for the petitioner has raised a ground that the petitioner should be continued at Khammam on account of his nearing the age of superannuation as on 30.04.2024, there is no reply to the same in the counter affidavit.

Learned Government Pleader for the respondents, has relied upon the judgments of the Hon’ble Supreme Court in the following cases in support of his contentions:

Shanti Kumari Vs. Regional Deputy Director, Health Services, Patna Division, Patna and Others (1981) 2 SCC 72;

N.K.Singh Vs. Union of India and Others (1994) 6 SCC 98;

Rajendra Singh and Others Vs. State of Uttar Pradesh and Others (2009) 15 SCC 178.

Learned counsel for the petitioner also placed reliance upon the decision of the Hon’ble Supreme Court in the case of M.P.Power Management Company Limited, Jabalpur Vs. Sky Power Southeast Solar India Private Limited and Others (2023) 2 SCC 703, in support of his contentions that to judge an order to be an arbitrary, the Court has to attend to the facts and circumstances of the case and if there is absence of good faith and the action is actuated with an oblique motive, it could be characterized as being arbitrary and the wholly unreasonable decision which is little different from a perverse decision under the Wednesbury doctrine would qualify as an arbitrary decision under Article 14. It is submitted that the order of the authorities below is totally without any application of mind to the facts and circumstances of the case and therefore, it is liable to be set aside.

Having regard to the rival contentions and the material on record, this Court finds that the petitioner has been continuing at Khammam since 2016 and when he was sought to be transferred in the year 2019, it was not on administrative grounds, but it was on the ground that the petitioner has interfered with the Grampanchayat Elections. It was after intervention by this Court that the petitioner was retained at Khammam. As per the policy of the Government, a person would not be transferred from one place to another if it is within a period of one year before the retirement. The G.O.Ms.No.61, dated 24.05.2018 had issued guidelines for transfer and posting of employees by lifting ban on transfers and one of the conditions for employees to be transferred thereunder was “no person shall be retained beyond five years of service in a particular station as on 31.05.2018 and it was also provided that the employees who are retiring before 31.05.2019 shall not be transferred even if they have completed five years of service unless they make a specific request for their transfer”. As on the said date i.e., 31.05.2018, the petitioner has admittedly not completed five years of service, therefore, he was not considered for transfer and he would have completed five years in the year 2021, but when the respondents sought to transfer the petitioner, he had only one year of service left before retirement. The G.O.Ms.No.182, dated 21.05.2016 also provides for inter local cadre transfer of Government employees on spouse grounds. Though the learned counsel for the petitioner has relied upon such policy, he has not filed any document or any G.O., in support of such contention except for referring to G.O.Ms.No.61, dated 24.05.2018 of Clause (II)(b) thereunder.

Thus, this Court finds that the transfer order is dated 03.04.2023 and the petitioner was due to retire on 30.04.2024 which is only little beyond the period of one year. As seen from the order dated 08.05.2023, the respondents have not dealt with the spouse grounds as well as the retirement ground before rejecting the representation of the petitioner and they have rejected only on medical grounds by observing that Hyderabad would be nearer to Yadadri and the petitioner would get best of the treatment. In view of the same, this Court is inclined to set aside both G.O.Rt.No.26, dated 03.04.2023 and the subsequent transfer order dated 08.05.2023 and direct the respondents to consider the representation of the petitioner for retaining him at Khammam till the date of his retirement i.e., 30.04.2024.

Accordingly, this writ petition is allowed. There shall be no order as to costs.

Miscellaneous petitions, if any, pending in this writ petition, shall stand closed.