Andhra Pradesh High Court – Amravati
Dr. M. Penchalaiah, vs State Of Andhra Pradesh, on 28 February, 2025
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
WRIT PETITION No.2150 of 2025
Between:
DR. M. PENCHALAIAH, S/O. VENKATAIAH, AGED. 61 YEARS, DM
AND HO, NELLORE (UNDER ORDERS OF TRANSFER), NELLORE
DISTRICT, ANDHRA PRADESH STATE.
...PETITIONER
AND
STATE OF ANDHRA PRADESH, REP. BY ITS SPECIAL CHIEF
SECRETARY TO GOVERNMENT, HEALTH, MEDICAL AND FAMILY
WELFARE DEPARTMENT, SECRETARIAT BUILDING, AMARAVATHI,
GUNTUR DISTRICT AND 4 OTHERS.
...RESPONDENTS.
DATE OF ORDER PRONOUNCED : 28.02.2025
SUBMITTED FOR APPROVAL:
HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
1. Whether Reporters of Local Newspapers
may be allowed to see the order? : Yes/No
2. Whether the copy of order may be
marked to Law Reporters/Journals? : Yes/No
3. Whether His Lordship wish to
see the fair copy of the order? : Yes/No
___________________________
JUSTICE SUBBA REDDY SATTI
Page 2 of 16
* HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
+ WRIT PETITION No.2150 of 2025
% 28.02.2025
WRIT PETITION No.2150 of 2025
Between:
DR. M. PENCHALAIAH, S/O. VENKATAIAH, AGED. 61 YEARS, DM
AND HO, NELLORE (UNDER ORDERS OF TRANSFER), NELLORE
DISTRICT, ANDHRA PRADESH STATE.
...PETITIONER
AND
STATE OF ANDHRA PRADESH, REP. BY ITS SPECIAL CHIEF
SECRETARY TO GOVERNMENT, HEALTH, MEDICAL AND FAMILY
WELFARE DEPARTMENT, SECRETARIAT BUILDING, AMARAVATHI,
GUNTUR DISTRICT AND 4 OTHERS.
...RESPONDENTS.
! Counsel for Petitioners : Sri P.V.Krishnaiah
^ Counsel for Respondents : Sri K.Ramalingeswara Rao
GP for Services-II
Sri G.V.S.Kishore Kumar
< Gist:
> Head Note:
? Cases referred:
1) AIR 1991 SC 532
2) AIR 1993 SC 2486
3) (1993) 4 SCC 357
4) (1994) 6 SCC 98
5) (1995) 3 SCC 270
6) (2001) 8 SCC 574
7) (2009) 2 SCC 592
8) 2024 0 Supreme (SC) 225
9) AIR 1979 SC 49,51
This Court made the following:
Page 3 of 16
APHC010041212025
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3331]
(Special Original Jurisdiction)
FRIDAY, THE TWENTY EIGHTH DAY OF FEBRUARY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
WRIT PETITION NO: 2150/2025
Between:
Dr. M. Penchalaiah, ...PETITIONER
AND
State Of Andhra Pradesh and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. P V KRISHNAIAH
Counsel for the Respondent(S):
1. GP FOR SERVICES IV
2. GP FOR SERVICES I
3. G V S KISHORE KUMAR
The Court made the following:
ORDER
The above Writ Petition is filed impugning the G.O.Rt.No.781
Health, Medical & Family Welfare (B.I) Department dated 21.12.2024, as
modified by G.O.Rt.No.1 Health, Medical & Family Welfare (B.I)
Department dated 01.01.2025, whereby the petitioner was transferred
Page 4 of 16
and G.O.Rt.No.782 Health, Medical & Family Welfare (B.I) Department
dated 21.12.2024 issued by 1st respondent transferring the 5th
respondent to the place of petitioner, as illegal, arbitrary and violative of
Article 14, 16 and 21 of the Constitution of India.
2. a) Averments in the affidavit, in brief, are that the petitioner was
initially appointed as Civil Assistant Surgeon on 06.01.1992. He was
promoted to Deputy Civil Surgeon on 01.12.2007 and Civil Surgeon on
23.10.2019. The petitioner was posted as Additional DM & HO Chittoor,
and subsequently transferred and posted as DM & HO, Nellore vide
G.O.Rt.No.371, Health, Medical & Family Welfare Department dated
06.05.2022.
b) Be that as it may, the 1st respondent promoted 21 Deputy Civil
Surgeons (General Line) for the panel year 2023-2024 and issued
posting orders vide G.O.Rt.No.782 dated 21.12.2024, wherein the 5th
respondent was posted as DM & HO, Nellore in the petitioner‟s place.
The petitioner was transferred vide G.O.Rt.No.781 dated 21.12.2024 to
Rampachodavaram, A.S.Raju District. Impugning the said transfer
orders and also the transfer of the 5th respondent in the place of the
petitioner, the petitioner filed W.P.No.30642 of 2024. Pending the said
writ petition, the 1st respondent issued G.O.Rt.No.1 HM & FW
Department dated 01.01.2024 modifying the transfer of petitioner from
Rampachodravaram, A.S. Raju District by C.S.R.M.O 300 Bedded Super
Speciality Hospital, Kadapa in the existing vacancy caused due to
unwillingness letter submitted by Dr.K.Padmavathi, Deputy DM & HO,
Markapur, Prakasam District. The petitioner assailed his transfer as
malafide, without prior concurrence and stigmatic. The petitioner was
Page 5 of 16
transferred at the fag end of his career i.e. before one year of his
retirement.
c) In respect of the transfer of the 5th respondent to the place of the
petitioner, the petitioner contended that the respondent authorities failed
to adhere to the procedure contemplated in G.O.Ms.No.273 HM & FW
(02) Department dated 21.05.1999 and G.O.Rt.No.780 HM & FW (B1)
Department dated 15.09.2014. The 5th respondent does not have the
experience to hold the post of DM & HO.
3. a) A counter affidavit was filed on behalf of 1st respondent. It was
contended, interalia, that the Government took a comprehensive view of
the performance of DM & HOs in the State. Certain DM & HOs are not
performing their duties up to the mark and are poor in achieving the
desired targets as per key performance indicators. As such, the
Government, keeping in mind, that there is a ban on transfers, circulated
the file in e-office to the Chief Minister through the Minister for Health,
Medical and Family Welfare duly appraising the facts and the Chief
Minister approved on 20.12.2024. Accordingly, transfers and posting
orders are issued including the petitioner and 5th respondent. The
transfer of the petitioner is made on administrative grounds. The
concurrence of the Finance Department was obtained vide
U.O.No.FIN01-HR0PDPP (TRPO)/188/2024-HR-I (2665746), dated
30.12.2024, as the secretariat instance of e-office was not available from
21.12.2024 to 28.12.2024 due to migration of e-office system to the latest
version. The Government issued a concurrence order vide
G.O.Rt.No.784, HM & FW (B1) Department dated 31.12.2024.
b) It was pleaded in the counter affidavit that the 5th respondent
has the required experience to be appointed as DM & HO. Accordingly,
Page 6 of 16
counselling/interview was conducted on 13.12.2024 to 21 Deputy Civil
Surgeons (Promotees) and options were obtained on the same day as
per the available existing vacancies. Though the 5th respondent opted
separate place of posting on her choice during the counselling, keeping
in view the recommendations of the screening committee, she was
posted as DM & HO, Nellore on promotion.
4. A separate counter affidavit was filed on behalf of the 5th
respondent almost reiterating the contentions regarding experience and
the selection process.
5. Heard Sri P.V.Krishnaiah, learned counsel for the petitioner, Sri
K.Ramalingeswara Rao, learned Government Pleader for Services-II for
respondents 1 to 4 and Sri G.V.S.Kishore Kumar, learned counsel for 5th
respondent.
6. Learned counsel for the petitioner while reiterating the contentions,
as per the averments in the affidavit, would further contend that the
transfer of the petitioner is punitive. The 5th respondent did not opt for DM
& HO, Nellore and in fact, the 5th respondent opted for other three places,
since the post of DM & HO, Nellore was not vacant by that time. He
would submit that the respondent authorities failed to adhere to the
procedure laid down in G.O.Ms.No.780 dated 15.09.2014.
7. Learned Government Pleader for Services-II would submit that the
transfer of the petitioner was on administrative grounds and the 5th
respondent was posted in the place of the petitioner by following due
procedure. The respondent authorities followed the procedure and
promoted the 5th respondent as DM & HO and there was no infraction in
the procedure. Learned Government Pleader for Services-II submitted
Page 7 of 16
the file relating to the transfer of the petitioner as well as the promotion of
the 5th respondent and also the posting of the 5th respondent as DM &
HO, Nellore and other similarly situated candidates. Learned
Government Pleader for Services-II, across the bar, submitted the
complaint made by one Sunkarla Jayaramudu against the petitioner
making certain allegations and the inquiry report submitted by the inquiry
officer dated 29.12.2024 received by the office of the Director of Public
Health & Family Welfare, Vijayawada on 02.01.2025. A copy of the
same has also been handed over to the counsel representing Sri
Krishnaiah in the Court.
8. Now, the points for consideration are:
1) Whether the proceedings impugned i.e. transfer of the
petitioner legally sustainable or punitive?
2) Whether the transfer and posting of the 5th respondent as
DM & HO legally sustainable?
9. It is a settled principle of law that the transfer of a Government
servant, appointed to a particular cadre of transferable posts, from one
place to another is an incident of service. No Government servant or
employee of public undertaking has a legal or vested right to be posted at
any particular place. Transfer from one place to another is generally a
condition of service and the employee has no choice in the matter and it
is the prerogative of the employer. Transferring from one place to another
is necessary for the public interest and efficiency in public administration.
Normally courts are chary to interfere with an order of transfer made for
administrative reasons. However, if an order of transfer is found to be an
outcome of a mala fide exercise of power or for extraneous
considerations, the Court can interfere with such transfers.
Page 8 of 16
10. The Hon‟ble Apex Court in Shilpi Bose v. State of Bihar 1 ,
observed thus:
“4. In our opinion, the Courts should not interfere with a transfer
Order which are made in public interest and for administrative
reasons unless the transfer Orders are made in violation of any
mandatory statutory Rule or on the ground of malafide. A
Government servant holding a transferable post has no vested right
to remain posted at one place or the other, he is liable to be
transferred from one place to the other. Transfer Orders issued by
the competent authority do not violate any of his legal rights. Even if
a transfer Order is passed in violation of executive instructions
or Orders, the Courts ordinarily should not interfere with the
Order instead affected party should approach the higher
authorities in the Department. If the Courts continue to interfere
with day-to-day transfer Orders issued by the Government and its
subordinate authorities, there will be complete chaos in the
Administration which would not be conducive to public interest.”
(emphasis is mine)
11. In State of Punjab vs. Joginder Singh Dhatt2, the Hon‟ble Apex
Court observed as follows:
“3. … It is entirely for the employer to decide when, where, and at
what point of time a public servant is transferred from his present
posting …”
12. In Union of India and Others vs. S.L. Abbas3, the Hon‟ble Apex
Court observed that the scope of judicial review is available when there
1
AIR 1991 SC 532
2
AIR 1993 SC 2486
3
(1993) 4 SCC 357
Page 9 of 16
is a clear violation of statutory provision or the transfer is swayed by
mala-fide etc., It was observed as follows:
“7. Who should be transferred where, is a matter for the
appropriate authority to decide. Unless the order of transfer is vitiated
by mala-fides or is made in violation of any statutory provisions, the
court cannot interfere with it. While ordering the transfer, there is no
doubt, the authority must keep in mind the guidelines issued by the
Government on the subject…”
13. In N.K. Singh vs. Union of India and Others4, the Hon‟ble Apex
Court considered the aspect of the transfer of an employee, the
prerogative of an employer regarding transfer observed as follows:
“23. … Assessment of worth must be left to the bonafide decision
of the superiors in service and their honest assessment accepted as
a part of service discipline. Transfer of a government servant in a
transferable service is a necessary incident of the service career.
Assessment of the quality of men is to be made by the superiors
taking into account several factors including suitability of the person
for a particular post and exigencies of administration. Several
imponderables requiring the formation of a subjective opinion in that
sphere may be involved, at times. The only realistic approach is to
leave it to the wisdom of the hierarchical superiors to make that
decision. Unless the decision is vitiated by mala fides or infraction of
any professed norm or principle governing the transfer, which alone
can be scrutinized judicially, there are no judicially manageable
standards for scrutinizing all transfers and the courts lack the
necessary expertise for personnel management of all government4
(1994) 6 SCC 98
Page 10 of 16departments. This must be left, in the public interest, to the
departmental heads subject to the limited judicial scrutiny indicated.”
The Apex Court further observed that:
“24. … Challenge in courts of a transfer when the career
prospects remain unaffected and there is no detriment to the
government servant must be eschewed and interference by courts
should be rare, only when a judicially manageable and permissible
ground is made out. This litigation was ill-advised.”
14. In the State of M.P. and another Vs S.S.Kourav and others5, the
Hon‟ble Apex Court held as follows:
“The courts or tribunals are not appellate forums to decide on
transfers of officers on administrative grounds. It is for the
administration to take appropriate decisions and such decisions shall
stand unless they are vitiated either by mala fides or by extraneous
consideration without any factual background foundation. In this case
transfer order having been issued on administrative grounds,
expediency of those orders cannot be examined by the Court.”
15. In National Hydroelectric Power Corporation Ltd. Vs Shri
Bhagwan6, it was observed as follows:
“No government servant or employee of a public undertaking has any
legal right to be posted forever at any one particular place since the
transfer of a particular employee appointed to the class or category of
transferable post from one place to other is not only an incident but a
condition of service, necessary too in public interest and efficiency in
the public administration. Unless an order of transfer is shown to be5
(1995) 3 SCC 270
6
(2001) 8 SCC 574
Page 11 of 16an outcome of mala fide exercise of power or stated to be in violation
of statutory provisions prohibiting any such transfer, the Courts or the
tribunals cannot interfere with such orders as a matter routine, as
though they are the appellate authorities substituting their own
decisions for that of the management, as against such orders passed
in the interest of administrative exigencies of the service concerned.”
16. In Somesh Tiwari Vs. Union of India and others7, the Hon‟ble
Apex Court held thus:
“19. Indisputably an order of transfer is an administrative order.
There cannot be any doubt whatsoever that transfer, which is
ordinarily an incident of service should not be interfered with, save in
cases where inter alia mala fide on the part of the authority is proved.
Mala fide is of two kinds – one malice in fact and the second malice in
law.
20. The order in question would attract the principle of malice in
law as it was not based on any factor germane for passing an order
of transfer and based on an irrelevant ground i.e. on the allegations
made against the appellant in the anonymous complaint. It is one
thing to say that the employer is entitled to pass an order of transfer
in administrative exigencies but it is another thing to say that the
order of transfer is passed by way of or in lieu of punishment. When
an order of transfer is passed in lieu of punishment, the same is liable
to be set aside being wholly illegal.”
17. Recently the Hon‟ble Apex Court in Sri Pubi Lombi Vs. The State
of Arunachal Pradesh and Others 8 , reversed the judgment of the
Division Bench of the High Court and upheld the order of the learned
7
(2009) 2 SCC 592
8
2024 0 Supreme (SC) 225
Page 12 of 16
single Judge, wherein the learned single Judge declined to interfere in a
transfer. The Apex Court observed thus:
“10. In view of the foregoing enunciation of law by judicial decisions
of this Court, it is clear that in absence of (i) pleadings regarding
mala-fide, (ii) non-joining the person against whom allegation are
made, (iii) violation of any statutory provision (iv) the allegation of the
transfer being detrimental to the employee who is holding a
transferable post, judicial interference is not warranted. In the sequel
of the said settled norms, the scope of judicial review is not
permissible by the Courts in exercising of the jurisdiction under
Article 226 of the Constitution of India.”
18. In the case at hand, the main contention of the petitioner is that the
transfer proceedings suffer from legal malice. Before proceeding further
let the Court examine what is legal malice or malice in law.
19. Malice as stated in the Advance Law of Lexicon, 3rd Edition by P.
Ramanatha Aiyar read as follows:
“Malice – Unlawful intent Will; intent to commit an unlawful act or
cause harm, Express or actual malice is ill will or spite towards the
plaintiff or any indirect or improper motive in the defendant’s mind at
the time of the publication which is his sole or dominant motive for
publishing the words complained of. This must be distinguished from
legal malice or malice in law which means publication without law full
excuse and does not depend upon the defendant’s state of mind.
(1) The intent, without justification or excuse, to commit a wrongful
act. (2) Reckless disregard of the law or of a person’s legal rights. (3)
will: wickedness of heart. This sense is most typical in non-legal
contexts”.
Page 13 of 16
20. Malice in the legal sense imports (I) the absence of all elements of
justification, excuse or recognized mitigation, and (2) the presence of
either (a) an actual intent to cause the particular harm which is produced
or harm of the same general nature, or (b) the wanton and wilful doing of
an act with awareness of a plain and strong likelihood that such harm
may result. Malice, in its legal sense, does not necessarily signify ill-will
towards a particular individual, but denotes that condition of mind which
is manifested by the intentional doing of a wrongful act without just cause
or excuse. Therefore, the law implies malice where one deliberately
unlawfully injures another.
21. Malice in its legal sense means malice such as may be assumed
from the doing of a wrongful act intentionally but without just cause or
excuse, or for want of reasonable or probable cause.
(S.R.Venkaraman Vs Union of India9).
22. In the case at hand, the petitioner was transferred to Nellore as
DM& HO vide Ex P7 dated 06.05.2022. During general transfers, the
petitioner was not transferred. Later, it seems, a preliminary inquiry was
conducted based on certain allegations, and the petitioner also
participated in the inquiry.
23. As seen from the report submitted by the inquiry authority against
the petitioner, the petitioner, the DM & HO deputed employees from one
place to other places without the permission of the HOD concerned. The
petitioner also failed to oversee the administration. The inquiry officer
recommended that all the deputations/work orders given by the DM &
HO, Nellore, be cancelled and disciplinary action be initiated for violating
9
AIR 1979 SC 49, 51
Page 14 of 16
the instructions of DPH & FW willfully. The deputation orders given by the
DM & HO to the Senior Assistants working in the establishment section
by name, Mahesh, Saritha and Srikanth to be cancelled as they are not
justifiable. The deputation orders given by the RDM & HS to one
Venkateswara Rao, Office Superintendent, are also to be cancelled. The
other allegation is that the petitioner connived Dr.Vamsi Krishna Suman,
former Medical Officer, PHC, Krishnapuram, pursued regular PG in NMC,
Nellore while in service (later resignation was accepted), in drawing pay
and allowances. Even the inquiry officer recommended recovery of the
pay and allowance for 29 months.
24. It is pertinent to mention here that Dr.Vamsi Krishna Suman
prosecuted the PG course while discharging duties as Medical Officer,
PHC, Krishnapuram as Drawing and Disbursing Officer (DDO), he has
drawn and paid the salary from 05.05.2022 to September 2024.
25. This Court is not relying on the said report to adjudicate the issue
except to mention the same since it was passed on.
26. Of course, in the transfer proceedings, it was not mentioned
anything about the inquiry, however, it was mentioned that the transfer is
on administrative grounds. Though the learned counsel for the petitioner
would contend that the transfer order, qua, the petitioner suffers from
legal malice, failed to demonstrate any instances in that regard. A total of
seven DM & HOs were transferred vide G.O.Rt.No.781 dated 21.12.2024
and thereafter the petitioner was again transferred to another place by
way of G.O.Rt.No.1 dated 01.01.2025. The competent authority affected
the transfer on administrative grounds.
Page 15 of 16
27. Though the learned counsel would contend that, reasons were not
assigned, except using the words „administration‟ no precedents were
cited in support of the said contention. In fact, a Division Bench of this
Court in W.A.No.325 of 2019 dated 15.10.2019, observed that no
reasons need to be mentioned in transfer proceedings.
28. The note file produced before this Court would disclose that the
note was put up against certain officers working as DM & HOs on
10.12.2024, wherein the petitioner was shown one among them. In the
note file, it was mentioned that the officers shown are facing certain
allegations and charges pending and hence, the transfer on
administrative grounds is required. In fact, the note file also disclosed
promotions and transfers of 21 Deputy Civil Surgeons. It is a fact that
none of the promotees opted for the place of DM & HO, Nellore including
the 5th respondent.
29. As seen from the note file, since there is a ban on transfers, the
proposals were forwarded to the Chief Minister and the same was
approved on 20.12.2024 as per the Business Rules. However, the
financial concurrence was obtained on 30.12.2024, due to the reasons
explained in the counter, and thereafter G.O. was issued on 30.12.2024.
Once the Chief Minister approves the transfer, as per business rules, the
financial concurrence is only a formality. In fact, due to some technical
delay, the government order was issued with some delay. The delay, if
any, is of no consequence, because of the approval by the Chief
Minister.
30. Thus, the discussion supra, this Court is of the considered opinion
that the transfer of the petitioner neither suffers from legal malice nor is
punitive. The employer is the best person to choose the employee to
Page 16 of 16
work at a particular place. The employee cannot as a matter of right,
assail the transfer orders unless malice in law is established.
31. The petitioner also challenged the transfer of the 5th respondent as
DM& HO to Nellore. Once the petitioner transfer doesn‟t suffer from any
malice or punitive, in the considered opinion of this Court, the petitioner
has no locus to challenge the transfer of the 5th respondent. Regarding
the experience of the 5th respondent to hold the post of DM& HO, the 1st
and 2nd respondents considered all the aspects and thereafter only
posted the 5th respondent, though the petitioner did not opt for Nellore at
the counselling.
32. Given the discussion supra, this Court does not find any merit in
the writ petition and the writ petition is liable to be dismissed.
33. Accordingly, the Writ Petition is dismissed. No costs.
However, this order will not preclude the petitioner from making a
representation to the 1st respondent ventilating, grievance if any
regarding the transfer. If such a representation is made, the learned 1st
respondent or the concerned shall consider the same, strictly as per the
Rules.
As a sequel, pending miscellaneous petitions, if any, shall stand
closed.
__________________________
JUSTICE SUBBA REDDY SATTI
Note: LR copy to be marked
B/O
PVD