Andhra Pradesh High Court: Government Orders Framing Guidelines For Transfer & Postings Of Employees Have Statutory Force In Absence Of Rules
The Andhra Pradesh High Court was hearing a batch of Writ Petitions filed against the proceedings by which the employees were transferred to different stations.
The Andhra Pradesh High Court reiterated that in the absence of Rules, the Government Orders issued under Article 162 of the Constitution framing guidelines for transfer and postings of employees have statutory force.
The Court reiterated thus in a batch of Writ Petitions filed against the proceedings by which the employees were transferred to different stations.
A Single Bench of Justice Subba Reddy Satti observed, “… in the absence of any rules providing for regulating the transfer and providing guidelines therein, the executive order issued in the exercise of power under Article 162 of the Constitution of India will have statutory force and can be enforced, as the extent of executive power of the State to make laws is subject to the provisions of the Constitution and the executive power of the State shall extend to the matters in respect to which legislature has power to make laws.”
The Bench said that one should not be oblivious that the executive instructions or administrative directions concerning transfers and postings do not confer any indefeasible right to claim transfer or posting in favour of an employee.
Advocates G.V.S. Kishore Kumar, A. Rajendra Babu, Sodum Anvesha, Narra Srinivasa Rao, and Bethapudi Manoj Kumar represented the Petitioners while Assistant Government Pleader (AGP) R.S. Manidhar Pingali represented the Respondents.
Brief Facts
The Petitioners were the office bearers of registered associations. The Government had issued Orders framing guidelines or instructions in respect of transfers and postings of employees. The said Government Orders were issued under Article 162 of the Constitution. There were no separate set of Rules or Regulations regulating the transfer of employees, except the guidelines being issued by the Government from time to time.
In the principles for transfers and postings, it was adumbrated that the employees who have completed a period of continuous stay of 5 years at a station as of July 31, 2024, shall invariably be transferred. Employees, other than those who completed 5 years of stay at a station, shall also be eligible for transfer on administrative exigencies or a personal request. Such employees too shall exercise preference for stations. The Petitioners were before the High Court challenging their transfer to different stations.
Issue
The question for consideration before the Court was whether failure to act upon the guidelines would amount to arbitrariness and the guidelines have any statutory force.
Reasoning
The High Court in the above regard, held, “… this Court is of the considered opinion that G.O.Ms.No.75 dated 17.08.2024 framing guidelines for transfers and postings of employees have statutory force.”
The Court said that the employer shall be bound by the guidelines/instructions and the failure of the employer to adhere to the guidelines, which prescribe the procedure, amounts to arbitrariness and thus, violative of Article 14 of the Constitution.
“Equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it effects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment”, it added.
The Court further noted that in this case, despite the guidelines issued by the State, the transferring authority failed to adhere to the said guidelines and affected transfers and such an act is arbitrary and amenable to the jurisdiction of the Court.
“In the cases at hand, there are flagrant violations and the authority affecting transfers violated the guidelines issued by the State. … It is a well-settled principle of law that pleading cannot substitute a reason in an administrative order”, it observed.
The Court also said that the employer is the best person to place an employee at a particular place and the Order of transfer of an employee will not visit the employee of grave consequence as he would be required to function from a different place or unit, subject to such transfer.
“… the executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer and posting. The individual convenience of persons who are employed in the service is subject to the overarching needs of the administration”, it emphasised.
The Court concluded that in the absence of any infringement of any fundamental or statutory rights apparent, the Court is loath to interfere with those matters.
Accordingly, the High Court allowed some of the Petitions while dismissed the remaining ones.
Cause Title- S.V.K. Kumar v. The State of AP and Others (Case Number: WRIT PETITION NO: 21204/2024)
