APHC010587182024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3331] TUESDAY, THE TWENTY FIRST DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI WRIT PETITION NO: 30642/2024 Between: 1. DR. M. PENCHALAIAH,, S/O. VENKATAIAH, AGED 61 YEARS, DM AND HO, NELLORE, NELLORE DISTRICT, ANDHRA PRADESH STATE. ...PETITIONER AND 1. STATE OF ANDHRA PRADESH, REP. BY ITS SPECIAL CHIEF SECRETARY TO GOVERNMENT, HEALTH, MEDICAL AND FAMILY WELFARE DEPARTMENT, SECRETARIAT BUILDING, AMARAVATHI, GUNTUR DISTRICT. 2. THE COMMISSIONER, HEALTH AND FAMILY WELFARE DEPARTMENT, STATE OF ANDHRA PRADESH, MANGALAGIRI, GUNTUR DISTRICT. 3. THE DIRECTOR OF PUBLIC HEALTH AND FAMILY WELFARE DEPARTMENT, STATE OF ANDHRA PRADESH, VIJAYAWADA, KRISHNA DISTRICT. 4. STATE OF ANDHRA PRADESH, REP. BY ITS SPECIAL CHIEF SECRETARY TO GOVERNMENT, FINANCE (HR.I-PIG. AND POLICY) DEPARTMENT, SECRETARIAT BUILDING, VELAGDPUDI, AMARAVATHI, GUNTUR DISTRICT. Page 2 of 7 SRS,J W.P.No.30642 of 2024 5. DR V SUJATHA, DEPUTY CIVIL SURGEON, RHC, ATMAKUR, ANANTHAPURAMU DISTRICT, (UNDER ORDERS OF PROMOTION AS CIVIL SURGEON (GENERAL LINE) AND POSTING AS DM AND HO, NELLORE). ...RESPONDENT(S): Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased tomay be pleased to issue a Writ, Order or Direction, more particularly one in the nature of a writ of Mandamus under Article 226 of the Constitution of India, declaring the G.O. Rt. No.781, Health, Medical Family Welfare (B1) Department dated 21-12-2024 and G.O. Rt. No. 782, Health, Medical Family Welfare (B1) Department dated 21-12-2024 issued by the 1st Respondent in so far as Petitioner s transfer and party Respondent s posting respectively is concerned as arbitrary, illegal, discriminatory. malafide, unconstitutional violating Articles 14, 16 and 21 of the Constitution of India apart from contrary to Rule 38 of A.P. State Subordinate Service Rules, and set aside the same, and issue consequential direction directing the Respondents to allow the Petitioner to continue as DM HO, Nellore with a liberty to Respondent Nos. 1 to 3 to issue appropriate posting to the party Respondent against the existing vacancies for the panel year 2023-24 or as on the date of issuing the impugned GOs or as of now, and pass such IA NO: 1 OF 2024 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to suspend the operation of the G.O. Rt. No.781, Health, Medical & Family Welfare (B1) Department dated 21-12- 2024 and G.O. Rt. No. 782, Health, Medical & Family Welfare (B1) Department dated 21-12- 2024 issued by the 1st Respondent in so far as Petitioner’s transfer and party Respondent’s posting respectively is concerned, with a direction to continue the Petitioner as DM & HO, Nellore and with a liberty to Respondent Nos. 1 to 3 to issue appropriate posting to the party Respondent against the existing vacancies for the panel year 20-23-24 or as on the date of issuing the impugned GOs or as of now, pending disposal of the Writ Petition. Page 3 of 7 SRS,J W.P.No.30642 of 2024 Counsel for the Petitioner: 1. P V KRISHNAIAH Counsel for the Respondent(S): 1. GP FOR SERVICES IV 2. G V S KISHORE KUMAR The Court made the following ORDER: Impugning G.O.Rt.No.781 Health, Medical & Family Welfare (B1) Department dated 21.12.2024, transferring the petitioner to Additional DM & HO (T), Rampachodavaram, A.S. Raju District and G.O.Rt.No.782 Health, Medical and Family Welfare (B1) Department dated 21.12.2024, transferring respondent No.5 in the petitioner’s place, is concerned, the above writ petition is filed. By the proceedings impugned, other employees were also transferred. However, the relief is confined so far as the petitioner and respondent No.5, are concerned. 2. 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 as Civil Surgeon on 23.10.2019. The petitioner was posted as Additional DM & HO, Chittoor. Subsequently, by G.O.Rt.No.371, Health, Medical & Family Welfare (B1) Department dated 06.05.2022 (Ex.P3), the petitioner was transferred and posted as DM & HO Nellore. Be that as it may, respondent No.1 promoted 21 Deputy Civil Surgeons to Civil Surgeons (General Line) for the panel year 2023-24 and issued posting orders vide G.O.Rt.No.782 dated 21.12.2024 (Ex.P2), wherein respondent No.5 was posted as DMHO Nellore, in the petitioner’s place, by transferring the petitioner vide G.O.Rt.No.781 dated 21.12.2024, to Rampachodavaram, A.S. Raju District. Impugning the petitioner’s transfer and transfer of respondent No.5, in the petitioner’s place, the present writ petition is filed. Page 4 of 7 SRS,J W.P.No.30642 of 2024 3. Separate Counter affidavits were filed on behalf of respondents 1 and 5. 4. Heard Sri P.V. Krishnaiah, learned counsel for the petitioner; Sri Ramalingeswar Rao, learned Government Pleader for Services-II, for respondents 2 to 4 and Sri T.V.S. Kishore Kumar, learned counsel for respondent No.5. 5. Learned counsel for the petitioner would submit that the transfer of the petitioner is punitive. Mere mentioning the words ‘administrative grounds’ is not sufficient. The petitioner is retiring on 31.12.2025 and hence, the petitioner’s transfer is impermissible. No counseling was conducted on the promotes. Respondent No.5 has not opted for the place where the petitioner is working i.e. Nellore. The DMHO, Nellore is not shown as vacant. The transfers were enforced when the ban was in force. No administrative grounds were mentioned in the counter affidavit filed on behalf of respondent No.1 and hence, the transfer of the petitioner suffers from arbitrariness. 6. Learned Government Pleader for Services, apart from filing counter produced a copy of G.O.Rt.No.1 Health Medical and Family Welfare (B1) Department, dated 01.01.2025, whereby the petitioner’s transfer order, impugned in this writ petition was modified. The petitioner was transferred and posted as C.S.R.M.O., 300 bedded Super Specialty Hospital, Kadapa, in the existing vacancy and contended that due to the change of cause of action, this writ petition, itself is not maintainable. 7. Learned counsel for the petitioner, in reply, while placing reliance on N.J. Prabhakar v. State of Andhra Pradesh1 contended that despite G.O.Rt.No.1, dated 01.01.2025, the cause in the writ petition survives. 8. Whether the cause in the writ petition, filed by the petitioner impugning G.O.Rt.No.781, dated 21.12.2024, still survives, because of the petitioner’s 1 1988 (Supp) Supreme Court Cases 429 SRS,J W.P.No.30642 of 2024 transfer to another place, vide G.O.Rt.No.1 dated 01.01.2025, pending the writ petition, without assailing G.O.Rt.No.1 dated 01.01.2025? 9. In N.J. Prabhakar’s case, the A.P. Tribunal passed an order in favor of the petitioner therein, directing his reinstatement into service. The State Government annulled the said order, in exercise of power under Article 371-D (5) of the Constitution of India. Learned counsel for the State contended that pending the litigation, a fresh inquiry was made against the petitioner, and a final order was passed dismissing the petitioner from service, therefore, given the subsequent developments, the petitioner need not be reinstated. The Hon’ble Apex Court did not accept the contention of the learned counsel for the State and opined that the annulment order was liable to be quashed, in view of the principle, that where the foundation falls the superstructure too must go, as held in P. Sambamurthy v. State of Andhra Pradesh2. 10. In the case at hand, vide G.O.Rt.No.781 dated 21.12.2024, impugned in the writ petition, the petitioner was transferred from DM & HO, Nellore to Addl. DM & HO (T) Rampachodavaram, A.S. Raju District. Respondent No.5 was transferred to the petitioner’s place vide G.O.Rt.No.782 of 2024 dated 21.12.2024. Of course, the petitioner challenged both government orders insofar as his transfer and transfer of the 5th respondent is concerned. Pending the writ petition, the petitioner was again transferred and posted to C.S.R.M.O. 300, bedded Super Specialty Hospital, Kadapa, in the existing vacancy. The petitioner’s transfer vide G.O.Rt.No.1 dated 01.01.2025, is a different cause of action and cannot be clubbed with G.O.Rt.No.781 dated 21.12.2024. 11. Even assuming for the sake of argument, if G.O.Ms.No.781 is set aside, it will not affect or annul the validity of G.O.Rt.No.1 dated 01.01.2025. Unless and until the petitioner assails G.O.Rt.No.1 dated 01.01.2025, if 2 (198) 1 SCC 362 SRS,J W.P.No.30642 of 2024 aggrieved, in the opinion of this Court, this writ petition assailing G.O.Rt.No.781 dated 21.12.2024, per se, is not maintainable. The ratio laid down in N.J. Prabhakar’s case does not apply to the fact situation. 12. Given the facts and circumstances of the case, without going into the contentions urged by the learned counsel for the petitioner and the averments made in the counter affidavit, the writ petition is disposed of giving liberty to the petitioner to challenge the proceedings issued vide G.O.Rt.No.1 dated 01.01.2025, if he is still aggrieved. This Court makes it clear that this Court has not gone into the merits of the issue. As a sequel, pending miscellaneous petitions, if any, shall stand closed. ___________________________ JUSTICE SUBBA REDDY SATTI Date: 21.01.2025 IKN SRS,J W.P.No.30642 of 2024 THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI WRIT PETITION NO: 30642 / 2024 Date: 21.01.2025 IKN