In Absence Of Rules Regulating Transfer Of Govt Employees, Orders Issued Under Article 162 Will Have Statutory Force: Andhra Pradesh HC

The Andhra Pradesh High Court has confirmed that in the absence of any Rules governing the transfer of Employees, an executive order/ Government order issued under Article 162 of the Indian Constitution, which lays down guidelines relating to transfer, shall have statutory force.

“The administrative authority while exercising jurisdiction and effect transfers in pursuance of G.O.Ms.No.75 dated 17.08.2024, shall adhere to the guidelines/instructions prescribed therein. In fact, the authority is bound by the regulations. Of course, while exercising jurisdiction under Article 226 of the Constitution of India, the Court cannot substitute its opinion. It is entrusted with the responsibility of ensuring the lawfulness of the executive decisions. 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. At the same time, the employer shall be bound by the guidelines/instructions. The failure of the employer to adhere to the guidelines, which prescribe the procedure, in the opinion of this Court, amounts to arbitrariness and thus, violative of Article 14 of the Constitution of India.”

The order was passed by Justice Subba Reddy Satti in a batch of Writ petitions filed by Officer Bearers of registered associations challenging their transfer as being against the guidelines enumerated in GOMS NO. 75 Dt. 17.08.2024.

The petitioners contended that as per Sub Clause No.5 (a) of para No.V of the GO, the office bearers of recognized employee associations, could not be transferred at the State level, District level and Division/Mandal level until they completed 3 terms or 9 years of stay in a particular station. That the exception to this rule was clause IV (11 & 12), which stipulated that officer bearers could be transferred before the lapse of the said period upon the recording of reasons.

The petitioners contended that no reasons were mentioned, making their transfer invalid.

The question that fell upon the Bench for consideration was whether an Administrative Order/ Government Order would hold statutory weight.

“In the light of the above pronouncements, 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.”

Thus, the petitions filed by the officer bearers were allowed.

Another batch that was heard along with the petitions was the challenge made to the transfers to ITDA (Integrated Tribal Development Agency) or from ITDA was dismissed, owing to the fact that no exception to the rule of transfers was carved out in relation to ITDA Areas, like in the case of Officer bearers.

Relying on the Ratnagiri Gas and Power (P) Ltd. Vs. RDS Projects Ltd., the Court reiterated that the power of judicial review in matters of transfer should be restricted only to manifestly arbitrary matters, which infringe fundamental and statutory rights.

“Given the discussion supra, the W.P.Nos.21204, 21206, 21210, 22151, 22644, 22647 and 21535 of 2024 are Allowed. The W.P.No.21865, 22098, 22395 and 22399 of 2024 are Dismissed.”

S V K Kumar vs. State of AP & Batch.

Counsel for petitioners: GVS Kishore Kumar, A Rajendra Babu, Sodum Anvesha, Srinivasa Rao Narra, Manoj Kumar Bethapudi.

Counsel for respondent: GP For Services I

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