M.S. Ramachandra Rao, J.
1. The Background facts The petitioner is working as Asst.Manager in the A.P.Industrial Development Corporation Ltd ( 2nd respondent) ( for short ‘APIDC’) since 2013. His spouse is working as Manager in Telangana State in the Asset Management Department of the Telangana State Industrial Infrastructure Corporation (1st respondent) (for short ‘TSIDC’).
2. The erstwhile composite State of Andhra Pradesh was bifurcated into the new State of Telangana ( respondent no.3) and the residuary State of Andhra Pradesh (respondent no.4) w.e.f. 2.6.2014 by the A.P.Reorganisation Act,2014.
3. Petitioner’s grievance is that he was born at Raichur in the State of Karnataka, but his entire education was in Hyderabad in the new State of Telangana; and after the bifurcation of the composite State of Andhra Pradesh into the new State of Telangana and the residuary State of Andhra Pradesh, he ought to have been allotted to the 1st respondent Corporation (TSIDC) in the State of Telangana and not to the 2nd respondent Corporation (APIDC) in the State of A.P. on ‘spouse grounds’.
4. He contends that he had given option on 27.8.2014 to the Telangana unit of the 2nd respondent to be allotted to TSIDC, that the Joint Committee of TSIDC and APIDC (respondents 1 and 2) reported on 16.12.2015 that he is entitled to be allotted to the State of Telangana as his spouse is working in the said State; even the Dy.General Manager of the APIDC vide letter dt.21.5.2018 addressed to the Joint Managing Director, TSIDC Ltd stated that he had no objection for relieving him to the State of Telangana, but contrary to the same, by letter dt.17.12.2018, both the respondents had allotted him to the APIDC.
5. He also relies on para 18 (k) and (l) of the guidelines for final allocation of State cadre employees under the A.P.Reorganisation Act,2014 approved by the Government of India and which were communicated under G.O.Ms.No.312 dt.31.10.2014 which state:
“(k) Spouse of an All India Service (AIS) officer who belongs to a State cadre or is an employee of a State Government institution shall be allocated, where so desired by the spouse, to the State to which the AIS Officer is allocated;
(l) Spouses in State cadre in government or in State Government institutions, local bodies and those who are deemed allocated as per the Act, shall as far as practicable, be allotted to the same State, after considering options made by them and their local candidature. Spouses who are local candidates of a state shall be allocated to that state. Spouses who belong to different States may be allocated after considering their options.”
6. Admittedly, after 2-6-2014 when the composite State of Andhra Pradesh was bifurcated into the State of Telangana and the new Stateof Andhra Pradesh, both the said States constituted an “Officers Committee” for evolving a policy for inter-state transfers between the two States vide G.O.Rt.No.1634 General Administration (SPF & MC) Department dt.3.8.2016.
7. Basing on the recommendations of the said Committee, guidelines governing inter-state transfers were issued vide Circular Memo.No.9940/SPF & MC/ 2015 dt.7.8.2017 by the above Departments of both States to consider inter-state transfer of Local cadre (District/Zone/Multi Zonal) and State cadre employees on spouse grounds/criteria and on mutual basis and the same were accepted by the Government of Andhra Pradesh and Government of Telangana for implementation. Petitioner also relies on these guidelines.
The Stand of the respondent no.s 2 and 4 (APIDC and the State of AP)
8. It is contended by these respondents that after bifurcation of State of Andhra Pradesh, the APIDC has allocated its employees provisionally between two successor Corporations i.e. APIDC and TSIDC vide Office Orders dt.18-07-2014 and 25-07-2014; there were 62 employees as on 01-06-2014; as per the provisional allotment, 30 employees were allotted to the APIDC and 32 employees allotted to TSIDC; and the employees who belongs to other States were allocated to APIDC.
9. It is contended that the APIDC had initiated action and informed TSIDC vide its letter dt.21-05-2018 that it has no objection to relieve the eligible employees who have submitted options to work in TSIDC and that the APIDC is ready to relieve the petitioner but TSIDC had not given consent to take him.
10. It is contended that APIDC issued a Circular on 09-03-2015 calling for options from all employees along with necessary proof of documents to examine their requests for allotment to TSIDC; that 6 employees had given options to work in TSIDC including the petitioner claiming on Spouse Grounds as his spouse was working as Manager in Telangana State Industrial Infrastructure Corporation Limited, Hyderabad, attached to Government of Telangana State.
11. A Joint Committee was constituted with the officials of both TSIDC and APIDC to examine the options given by the employees; that the Joint Committee at its meetings held on 11-12-2015 and 16-12-2015 discussed the issue of options at length employee-wise and recommended that they have fulfilled the required norms and exercised their willingness to work in Telangana Unit and submitted its recommendations to consider their options to Joint Managing Director, TSIDC and C&MD, APIDC. The matter was placed before the Board of APIDC at its meeting held on 08-06-2017 and the Board considered the request/options submitted by the employees who exercised their willingness to work in TSIDC and decided to submitthe proposals to the Expert Committee since the final allocation of the employees had to be done by the Expert Committee.
12. Subsequently, APIDC, vide letter dt.21-05-2018, informed the TSIDC that they have no objection to relieve the employees who opted to work in TSIDC and requested to give their consent to enable APIDC to submit the same to the Expert Committee but, there was no response from TSIDC.
13. It is contended that both the TSIDC and APIDC submitted a letter to the Expert Committee stating that the allocation of employees between them is completed.
14. Thus the APIDC and the State of A.P (respondents 2 and 4) place the blame on the TSIDC for not responding to it’s request to relieve it’s employees to work in the TSIDC and not giving consent for it to submit the same to the Expert committee constituted for the said purpose.
The 1st respondent’s stand (TSIDC)
15. It is contended by the TSIDC that the AP Industrial Development Corporation Ltd. of the composite State of Andhra Pradesh, falls under the category of Schedule IX institutions of Andhra Pradesh Reorganization Act, 2014 and Government of Andhra Pradesh vide G.O.Rt.No.223 Inds & Com (SR) Dept. dt.30-05-2014 & G.O.Rt.No.226 Inds & Com (SR) Dept. dt.23-06-2014 constituted an Expert Committee headed by Dr.Sheela Bhide, I.A.S. (Retd.) to assist/finalize the demerger proposals prepared by all the Govt. Companies, Corporations and entities of Andhra Pradesh State, accordingly the Expert Committee had initiated distribution of assets and employees between the two successive Corporations.
16. It is contended that in the process of allocation of employees between Andhra and Telangana Units of Industrial Development Corporation, APIDC issued office order dt.18-07-2014 vide proceedings APIDC/APSRA/ALLOCATION/16/2014 (Annexure-II) provisionally distributing employees between Andhra Unit and Telangana Unit and in consonance of the same, the name of the petitioner is placed in Andhra Unit at serial No.14.
17. It is contended that subsequently APIDC had submitted its demerger plan to the Expert Committee constituted for demerger of Govt. Corporations, thereby after examining the proposals, the Expert Committee had sent its recommendations to both Government of Andhra Pradesh and Govt. of Telangana on 29-11-2018 (Annexure- III).
18. It is contended that subsequent to the provisional allocation and recommendations by the Expert Committee, instruction was given to both respective Corporations for distribution of assets as well as employees; later after due consultations, finally the CMD of APIDC and JMD of TSIDC, after completion of distribution of employees between the two successor Corporations have intimated to the Chairperson of Expert Committee vide letter No.APIDC/HRD/2018 dt.17-12-2018 (Annexure-IV) about the completion of distribution of employees and also reiterated that APIDC will not be submitting any further proposal to the Expert Committee in this regard, since it has completed the exercise of distribution of employees.
19. Thus the TSIDC blames the APIDC saying it did not submit any further proposal to the Expert committee.
20. It is contended that the Expert Committee constituted for the demerger of Govt. Corporations met on 18-12-2018 to discuss the proposal submitted by two successor Corporations for the division of employees of erstwhile M/s.Andhra Pradesh Industrial Development Corporation Ltd., and after examining the proposal and making a note of the facts stated above, it sent a letter No.3685/INF(SRC)/2014 dt.29-12-2018 (Annexure-v) to both Managing Directors of A.P.I.D.C. and T.S.I.D.C. respectively for taking further action.
21. It is contended that in fact no options were finalized either by the APIDC or by the Expert Committee and the final allocation of employees was considered by the Expert Committee and CMD’s of both the Corporations in pursuance to the provisional allocation; as such the provisional allocation became final which has been ratified by the Expert Committee and reported to the State Reorganisation Department, which is culmination of issue of distribution of employees between two successor Corporations.
22. It is contended that the provisional allocation of the employees of APIDC to successor Corporation was made on the basis of nativity declared by the employees in the Service Registers vide proceedings dt.18-07-2017 and dt. 25-07-2014 and the petitioner had declared that he is native of Raichur, Karnataka State in the declaration form submitted at the time of joining into the service, and later sought for allocation to TSIDC on the ground that his wife is working in Telangana State Corporation. It is stated that thereby it has been referred to Expert Committee which in turn, after series of reviews, instructed both the CMD’s of successor Corporations. Subsequently after due consideration of all the grounds set out by the employees, CMD of APIDC and JMD of TSIDC, in consonance of guidelines under Section 82 of the A.P. Reorganization Act, 2014 have completed distribution of employees vide APIDC/HRD/2018 dt.17-12-2018 which in turn was ratified by Expert Committee, and therefore the distribution of employees between the successor Corporations has been completed in all respects.
Consideration by this Court
23. There was an organization called the A.P.Industrial Development Corporation in the combined State of Andhra Pradesh. Petitioner was working in the said Corporation as Asst.Manager as on 2.6.2014.
24. After 2.6.2014, the said Corporation was put in Schedule IX to the A.P. Reorganisation Act,2014 and an Expert Committee headed by Ms.Sheela Bhide (IAS) was constituted vide G.O.Rt.No.223 dt.30.5.2014 and G.O.Rt.No.226 dt.23.6.2014 to assist/finalise the demerger proposals prepared by all the Govt.Companies, Corporations and entities of the erstwhile composite State.
25. There was a circular issued by the APIDC No.APIDC/APSRA/Allocation/116/2014 dt.18.7.2014 provisionally allotting the petitioner to the 2nd respondent (APIDC) , to which petitioner gave a representation Ex.P4 dt.24.7.2014 stating that his grandparents were residents of Raichur, part of the princely State of Hyderabad till 1.11.1956 when the States Reorganisation took place; he had declared it as his native place in his service register; after 1956, his father had migrated to the Hyderabad City and petitioner studied in Hyderabad from 1975 to 1994 as his parents acquired property there in 1975. He also specifically mentioned in that letter that his spouse was a native of Hyderabad and was employed in a Government Organisation for Telangana State.
26. This was reiterated by petitioner in another representation dt.27.8.2014 made to the Telangana Unit of the Industrial Development Corporation i.e TSIDC.
27. Thereafter options were called vide Circular dt.9.3.2015 by the APIDC from employees along with necessary proof of documents to examine their requests for allotment to TSIDC, the Telangana entity of the erstwhile APIDC.
28. It is also not in dispute that the Joint Committee of both the AP and Telangana entities of the erstwhile APIDC held meetings on 11.12.2015 and 16.12.2015 and considered the cases of all employees including the petitioner on the basis of their options and in their minutes (Ex.P11), the said Committee had even recommended that the petitioner be allotted for consideration to Telangana as his spouse was employed there.
29. On 19.1.2016, a note Ex.P10 was also prepared recommending petitioner’s allotment to the Telangana State. On this note there is an endorsement No.276 on 9.5.2016 as under:
“Discussed: Let the demerger plan be finalized and purely nativity to be the criteria for employees demerger. May be taken up appropriately.”
Beneath this is the signature of Jt.MD of TSIDC.
30. In view of this, nothing happened in spite of petitioner’s later representations dt.31.8.2017 (Ex.P6), Dt.20.4.2018 (Ex.P7) and dt.26.12.2018 (Ex.P8).
31. In para 10 of the counter affidavit filed by the respondent No.1 (TSIDC) it is admitted that provisional allocation was made only on basis of ‘nativity’ of petitioner taking it as Karnataka state (obviously overlooking the spouse factor i.e that his spouse is employed in Hyderabad in Telangana State) and in para 9 it is stated that no options were finalized either by the APIDC or the Expert Committee and the provisional allocation itself was made final. This indicates the non-application of mind by the TSIDC and APIDC and also the Expert Committee to the relevant factors to be taken for consideration.
32. It is settled law that concept of nativity in public service cannot be applied for allocation as it violates the fundamental right of the petitioner guaranteed by Art. 16(2) of the Constitution of India which states:
“Art.16(2): No citizen shall on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.”
33. In Telangana Judges Association and another v. Union of India (Order dt.3.10.2018 in W.P.(C) No.85 of 2015 = AIR 2018 SC 5510), the Supreme Court has categorically rejected the argument of the petitioners therein that ‘nativity’ has to be the sole basis of allocation of members of the District Judiciary to the State of Telangana and to the State of Andhra Pradesh. After considering the provisions of the A.P.Reorganisation Act, 2014 and Art.371-D of the Constitution of India, the Supreme Court held:
“51. The nativity for public employment runs counter to the fundamental right guaranteed Under Article 16(2) except when it is provided by a Parliamentary Law as per exception carved out in Article 16(3) of the Constitution of India.”
34. Therefore nativity of petitioner could not have been a valid criteria for allocation.
35. Even other wise, how the petitioner, who declared that his native place is Raichur in present State of Karnataka can be treated as a native of present State of Andhra Pradesh is not explained by both respondents. This is truly bizarre.
36. Clause 18(l) of the guidelines for final allocation of State cadre employees under the A.P.Reorganisation Act,2014 approved by the Government of India and which were communicated under G.O.Ms.No.312 dt.31.10.2014, referred to above in para 5 above, states:
“(l) Spouses in State cadre in Government or in State Government institutions, local bodies and those who are deemed allocated as per the Act, shall as far as practicable, be allotted to the same State, after considering options made by them and their local candidature. Spouses who are local candidates of a state shall be allocated to that state. Spouses who belong to different States may be allocated after considering their options”
37. Interpreting this clause, a Division Bench of this Court in Dr.S.Shoba Rani v. The State Reorganisation Department rep. by it’s Secretary, General Administration (SR) Department, A.P.Secretariat, Hyderabad and others (Order dt.27.2.2017 in WP.No.23775 of 2016 (DB)held:
“8. The basic principle underlying these guidelines is therefore to protect and keep together employed spouses who would otherwise be separated owing to the allocation undertaken pursuant to the bifurcation of the erstwhile State of Andhra Pradesh. Keeping the spirit and intent underlying this principle, the guidelines should be implemented. Merely because Clause (1) does not speak of employees working in Central Government Public Sector Undertakings, it does not mean that spouses of such employees, who are working in the State cadre, are not to be accommodated where they are working. Clause (1) states in no uncertain terms that allocation shall, as far as practicable, be made so as to keep the spouses together. The import and intent of bifurcation of the erstwhile State of Andhra Pradesh is not to break up marriages. The authorities therefore have to conceive, formulate and implement the guidelines keeping this in mind. Any shortfall in the guidelines in this regard cannot be taken literally to mean that spouses, whose cases do not fall within the four corners of the instructions as set out therein, are to be left out in the cold and must suffer marital separation.
9. In the present case, the husband of the petitioner is working in a nontransferable post in BHEL, a Central Government Public Sector Undertaking, at Visakhapatnam. Her children are also studying there. Significantly, she already suffered loss of seniority earlier to keep her family together.
10. This being the factual situation, the action of the authorities in turning a blind eye to her plight and her fervent request for allocation to Visakhapatnam cannot be countenanced. It is not in dispute that vacancies in the posts of Principal are available in the State of Andhra Pradesh and more particularly, at Visakhapatnam. In terms of the definition of 'allocable posts', vacancies are included therein as already stated supra. Clause (f) of Para 18 specifically states that if 'allocable posts' in the category remain after local candidates relatable to that State have been considered, then others who opt for that State may be allocated in order of seniority. This part of clause (f) of Para 18 seems to have been completely overlooked by the authorities. Thus, when there are vacancies available at Visakhapatnam in the cadre of Principal, the rejection of the petitioner's request for allocation to the State of Andhra Pradesh and for her retention at Visakhapatnam is wholly unsustainable. The writ petition is accordingly allowed.”
38. The above decision was also applied and followed by another Division bench presided over by Justice V. Ramasubramanian (as he then was) in M.S.D. Sujatha vs. Union of India and Ors (MANU/TL/0093/2019 = 2019(4) ALD 26 (DB). The Bench stated:
“The reliance placed by Mr. Krishna Murthy, learned Senior Counsel for the petitioner on the decision of this Court in Dr. S. Shobha Rani v. State Reorganization Department and the decision rendered in Writ Petition Nos. 14006 and 14062 of 2018, dated 12.10.2018, is appropriate in this regard. As observed by the Division Bench in both the above cases, the guidelines should not be so framed as to break families. In fact, in the later decision dated 12.10.2018, the Division Bench found fault with Clause - 6 (g) of the Circular Memo dated 07.08.2017 relating to interstate transfer of State Government employees.
Therefore, the challenge to sub-clauses (i) and (ii) of Clause-2 (k) of the guidelines is liable to be sustained.”
39. Another Division Bench of the Hyderabad High Court in Uzma Nikhath v. Govt. of India (Order dt.28.1.2019 in WP (TR) No.5680 of 2019 (DB), while interpreting clause (k) of the G.O.Ms.No.312 dt.31.10.2014 mentioned in para 5 above, also applied the same logic in Dr.S.Shoba Rani (2 Supra) and declared that concept being a spouse of an All India Service Officer, who belongs to the State cadre is wide enough to take within it’s purview those who are employed in institutions under the control of the Government of India as well.
The Division Bench held that since the petitioner’s husband in that case was employed in Indian National Center for Oceanic Information Services, an institution under the control of the Ministry of Earth Sciences of the Govt. of India at Hyderabad, the petitioner who was employed as Senior Assistant in the Office of the Director General and Inspector General of prisons in the combined State of A
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ndhra Pradesh was entitled to be allocated to the State of Telangana and could not have been allocated to the State of Andhra Pradesh. 40. Thus basic principle underlying the guidelines framed by both States on G.O.Ms.No.312 dt.31.10.2014 is therefore to protect and keep together employed spouses who would otherwise be separated owing to the allocation undertaken pursuant to the bifurcation of the erstwhile State of Andhra Pradesh. This policy appears to have been totally ignored by TSIDC and APIDC and also the Expert Committee. 41. Also, in our opinion, the critical words in clause (l) referred to above are: “Spouses … in State Government institutions…, shall as far as practicable, be allotted to the same State, after considering options made by them and their local candidature.” 42. On a plain reading of the above guideline, we are of the opion that the respondents ought to have allotted the petitioner to the TSIDC as his spouse is employed in the State of Telangana particularly when the Joint Committee had also recommended it in it’s meetings held on 11.12.2015 and 16.12.2015 (Ex.P11). The respondents could not have taken any decision to allocate him to APIDC on basis of his nativity on 9.5.2016 (as noted in Ex.P10) since he cannot be said to be a native of AP State and was a native of Raichur in Karnataka State. 43. We also hold that the respondents had clearly acted in contravention of the guidelines and violated Art.14 and 16(2) of the Constitution of India. 44. Accordingly, the Writ petition is allowed with costs of Rs.10,000/- to be paid equally by TSIDC and APIDC (respondents 1 and 2) ; the action of the respondents in allotting the petitioner to the APIDC and not allotting the petitioner to the 1st respondent Corporation(TSIDC) consequent on the bifurcation of the composite State of Andhra Pradesh under the A.P. Reorganisation Act,2014 is declared as arbitrary, illegal and violative of Art.14 and 16(2) of the Constitution of India; and the respondents are directed to allot the petitioner to the TSIDC (1st respondent) as Asst.Manager and pass consequential orders which may be found necessary to give effect to this decision within 4 weeks from the date of receipt of these orders. 45. As a sequel, miscellaneous petitions pending if any, in this Writ Petition, shall stand closed.