Karnataka High Court
Sri Dayanand Bhandari vs The State Of Karnataka on 26 June, 2020
Equivalent citations: AIRONLINE 2020 KAR 1346, 2020 (3) AKR 715
Author: N S Sanjay Gowda
Bench: N.S.Sanjay Gowda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JUNE 2020
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
WRIT PETITION No.6715/2020 (S-TR)
BETWEEN:
SRI. DAYANAND BHANDARI,
S/O LATE SEETHARAM,
AGED ABOUT 49 YEARS,
WORKING AS ASSISTANT COMMISSIONER
(SENIOR SCALE),
BENGALURU NORTH SUB-DIVISION,
KANDAYA BHAVAN, K.G.ROAD,
BENGALURU-560 009.NOW UNDER TRANSFER AS
CAO-KSHIP, LATER UNDER TRANSFER AS
SECRETARY-KERC.
RESIDING AT:
No.1851, 6TH CROSS,
20TH MAIN ROAD, R.K.COLONY,
MARENAHALLI, 2ND PHASE,
J.P. NAGAR, BENGALURU-560 078 ... PETITIONER
(BY SRI. S.S.NAGANAND, SENIOR COUNSEL FOR SRI.
AFSAR AHMED.S, ADVOCATE (THROUGH VIDEO
CONFERENCE)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS,
THE CHIEF SECRETARY TO GOVERNMENT,
VIDHANA SOUDHA, BENGALURU-560 001.
2
2. THE PRINCIPAL SECRETARY,
GOVERNMENT OF KARNATAKA,
DEPARTMENT OF PERSONNEL &
ADMINISTRATIVE REFORMS,
VIDHANA SOUDHA, BENGALURU-560 001.
3. THE PRINCIPAL SECRETARY,
DEPARTMENT OF REVENUE,
GOVERNMENT OF KARNATAKA,
MULTISTORY BUILDING,
BENGALURU-560 001.
4. THE DEPUTY SECRETARY,
GOVERNMENT OF KARNATAKA,
DEPARTMENT OF PERSONNEL ADMINISTRATIVE,
REFORMS(SERVICES-2),
Dr.AMBEDKAR VEEDHI,
BENGALURU-560 001.
5. THE UNDER SECRETARY,
GOVERNMENT OF KARNATAKA,
DEPARTMENT OF PERSONNEL ADMINISTRATIVE,
REFORMS (SERVICES-2),
DR. AMBEDKAR VEEDHI,
BENGALURU-560 01.
6. SRI. RANGANATH, S/O KENCHAPPA,
AGED ABOUT 49 YEARS,
WORKING AS SPECIAL LAND
ACQUISITION OFFICER,
NATIONAL HIGHWAY BENGALURU,
NOW UNDER TRANSFER TO
ASSISTANT COMMISSIONER,
BENGALURU NORTH SUB-DIVISION,
KANDAYA BHAVAN, K.G. ROAD,
BENGALURU-560 009. ... RESPONDENTS
(BY SRI. PRABHULING K NAVADG, ADVOCATE GENERAL AND
SRI. R. SUBRAMANYA, ADDL. ADVOCATE GENERALALONG
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WITH SRI. M.V.RAMESH JOIS, AGA FOR R-1 TO R-5, SRI.
M.S.BHAGWAT, ADVOCATE FOR R-6
(THROUGH VIDEO CONFERENCE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE IMPUGNED TRANSFER ORDERS DATED 24.03.2020,
ISSUED BY THE R-4 IS HEREWITH PRODUCED AT
ANNEXURE-E, AND LATER MODIFIED ORDER DATED
09.04.2020 ISSUED BY THE R-5 IS HEREWITH PRODUCED
AT ANNEXURE-F & ETC.,
THIS WRIT PETITION HAVING BEEN RESERVED FOR
ORDER, COMING ON FOR PRONOUNCEMENT THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. The petitioner is an Assistant Commissioner who was posted to work as Assistant Commissioner, Bengaluru North Division, Bengaluru, by an order dated 12.07.2019.
2. The petitioner during this posting was promoted to the post of Assistant Commissioner (Senior Scale) and he was continued in the same post of Assistant Commissioner, Bengaluru North, by an order dated 20.09.2019. In fact, by the very same order, the said post was also upgraded as a K.A.S. (Senior Scale) post.
3. Thereafter, in the month of March, 2020 i.e., within a period of six months, the petitioner, by an order dated 4 24.03.2020 (Annexure-E to the Writ Petition), was transferred as Chief Administrative Officer, Karnataka State Highway Improvement Project (hereinafter referred to as 'KSHIP').
4. Thereafter, by an order dated 09.04.2020 (Annexure-F to the Writ Petition), the order dated 24.03.2020 was modified and instead of being posted as the Chief Administrative Officer, KSHIP, the petitioner was posted as Secretary to the Karnataka Electricity Regulatory Commission (hereinafter referred to as 'KERC').
5. The petitioner, as a consequence, filed this writ petition challenging not only the order dated 24.03.2020 by which he was transferred to KSHIP, but also the subsequent order dated 09.04.2020 by which the earlier order of transfer was modified and he was posted as Secretary to KERC.
6. The petitioner, being a Government servant, in the normal circumstances, was required to have availed the remedy of approaching the Karnataka State Administrative Tribunal 5 (hereinafter referred to as 'the Tribunal'), under the Administrative Tribunals Act, to impugn the orders of transfer passed against him.
7. However, on 08.05.2020, when the matter was posted before this Court and the bar to entertain the present writ petition was raised by the State and the 6th respondent, the learned Senior Counsel for the petitioner Sri. S.S. Naganand submitted that the Tribunal was non functional due to the lock down declared by the Government and thus the normal remedy available to the petitioner became unavailable to him.
8. This Court, thereafter, directed the Registry to ascertain from the Tribunal whether the Tribunal was entertaining Applications through video conferencing during the lockdown. On being contacted telephonically by the Registry, the Registry of the Tribunal informed the Registry of this Court that the Tribunal had no option of video conferencing and that the physical filing of Applications was a must.
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9. In view of the said fact, this Court came to the conclusion that compelling the Counsel for the petitioner to physically appear and to physically file an Application, in the present scenario, was not desirable and it was therefore a fit case to entertain the Writ Petition.
10. As against this order, it was stated at the Bar, that the 6th respondent had preferred a Writ Appeal in W.A.No.284/2020 but the same was dismissed as withdrawn.
11. Thus, the order dated 08.05.2020 passed in this Writ Petition, to entertain the writ petition has become final and the writ petition is therefore required to be considered on merits. Accordingly on 19.05.2020, the writ petition was heard on merits.
12. Sri S.S. Naganand, learned Senior Counsel appearing for petitioner, the learned Additional Advocate General for the State and Sri M.S. Bhagawat, learned counsel for the sixth respondent were heard through video conferencing. 7
13. In order to ensure that there was no misapprehension caused to the learned counsel regarding the arguments that they advanced through video conferencing, they were permitted to file the written submissions within a period of seven days and the judgment was reserved.
14. Pursuant to the order dated 19.05.2020, the State e-filed their statement of objections on 22.05.2020 and the Learned counsel for the petitioner e-filed his written submissions on 20.05.2020.
15. Thereafter on 26.05.2020, the State moved a memo for posting the matter for 'Being Spoken To' on 28.5.2020. In the said memo, it was stated that since the sixth respondent had been posted in the place of petitioner to the post of Assistant Commissioner due to the prevailing situation arising out of the pandemic, the learned Advocate General himself intended to make submissions in the matter. This request was acceded to and the matter was accordingly posted "For Being spoken to" on 28.5.2020.
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16. On 28.05.2020, the learned Advocate General addressed arguments on the merits of the matter and after arguing for a while sought for time to get further instructions. The said request was acceded to and the matter was adjourned to 01.06.2020.
17. On 30.05.2020, the State passed an order withdrawing both the order of transfer dated 24.03.2020 and the order dated 9.4.2020, by which the earlier posting was modified.
18. By virtue of this withdrawal of the transfer order, in the normal circumstances, the prayers sought for in the writ petition would have been rendered infructuous.
19. However, in the very same order, by which, the impugned order of transfer was withdrawn, the State proceeded to pass another order by which the petitioner was once again transferred as Secretary KERC and sixth respondent was ordered to be posted in his place. In other words, while withdrawing the impugned order of transfer, the State proceeded to issue another order of transfer, reiterating 9 the earlier transfer order passed on 24.03.2020 and as modified on 9.4.2020.
20. In this order dated 30.05.2020, it was stated that due to the prevailing situation arising out of the pandemic crisis, it was necessary to have an officer who had knowledge about the local area to manage the situation and it was therefore necessary to transfer the sixth respondent in the place of the petitioner. It was stated in the said order that the sixth respondent was being transferred in the place of petitioner as the Assistant Commissioner, Bengaluru North Taluk and that he was being posted as the Nodal Officer for Covid-19 of the Bengaluru North Division under S. 14, 18 and S. 72 of the Disaster Management Act (hereinafter referred to as 'DMA').
21. The petitioner, while being transferred as Secretary, KERC was also directed to work as per the directions of Sri M. Maheshwar Rao, the Special Officer of B.B.M.P. (West), Rajarajeshwarinagar Division.
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22. On 01.06.2020, when the matter was re-listed, the petitioner filed an application seeking to amend the writ petition whereby he sought to impugn the order of transfer dated 30.05.2020. The State sought for time to respond to the said application and accordingly, a week's time was granted to the State to file a response. The State was also directed to produce the entire original files pertaining to the transfer order dated 30.05.2020.
23. The matter was thereafter posted on 11.06.2020, on which day both the learned Advocate General as well as the learned Senior Counsel Sri S.S. Naganand appearing for the petitioner were heard on the merits of the entire matter including the merits of the order of transfer dated 30.05.2020 which had been passed after the judgment had been reserved in the writ petition.
24. On the same day, the application for amendment was also allowed and the State was permitted to file additional statement of objections and also to state as to who was the competent authority as envisaged in paragraph 3(1) of the 11 Government Order dated 07.06.2013 in relation to the petitioner.
25. In compliance of the said order, the State e-filed its Additional Statement of Objections. In these objections, the State stated that the competent authority contemplated under para 3 (a) of the Guidelines was the Chief Minister.
26. In response, the petitioner has filed a memo contending that the Chief Minister cannot be considered as the competent authority since the Rules referred to by the State in its additional statement of objections related to merely the procedure that was required to be followed for submission of certain matters to the Chief Minister under the Transaction of Business Rules.
27. The Learned Advocate General, in continuation of the arguments advanced by the Learned AAG, sought to argue that physical hearing of the matters had begun before the Tribunal and since a fresh order of transfer was made on 30.05.2020, the petitioner was required to approach the 12 Tribunal. It was argued that the earlier prevailing situation had changed and therefore, the petitioner was to be relegated to the remedy of approaching the Tribunal.
28. On the other hand, the learned Senior Counsel Sri S.S. Naganand contended that this Court had already held that compelling the physical appearance of Counsel before the Tribunal, which even as of now, did not provide for an option of arguing through video conferencing, was not permissible in view of the decision of the Apex Court in suo moto W.P.(Civil) No.1/2020.
29. In the light of the above submission, it would be necessary to consider the preliminary objection raised by the Learned Advocate General, before proceeding further.
30. It cannot be in dispute that in view of the directions of the Apex Court in the afore mentioned writ petition stated supra, compelling the physical appearance of Counsel before the Tribunal was not desirable. In fact, it was for this very reason, this Court thought it fit to entertain the writ petition and the challenge to the said order was not 13 made by the State and the challenge made by the 6th respondent was withdrawn.
31. Admittedly, even as of today, the Tribunal has not provided hearing through video conferencing as an option, and as a consequence, the reasons stated in the order dated 08.05.2020 passed in this petition would still prevail and subsist. In this view of the matter, the preliminary objection raised by the Learned Advocate General regarding jurisdiction is overruled.
32. As a consequence, the only question that remains to be considered in this petition is whether the order dated 30.05.2020, by which the earlier orders of transfer were reiterated, is legal and valid.
33. The Learned Advocate General, during the course of his arguments, very fairly admitted that the transfer of the petitioner was indeed a premature transfer as contemplated in the Government Order dated 07.06.2013 (hereinafter referred to as Guidelines). The Learned Advocate General also admitted that a transfer of a 14 government servant would necessarily have to be governed by the Guidelines. He, however, contended that having regard to the fact that the State was forced to draw officers from various places solely to meet the situation arising due to the prevailing pandemic to discharge its functions under the Disaster Management Act, adherence to the stipulations in Guidelines regarding transfers should not be insisted upon or construed literally.
34. In other words, he sought to contend that the Guidelines would govern the Transfers only during normal times and during times of a crisis such as the prevailing one arising out the pandemic, the State should not be compelled to abide by the guidelines dated 07.06.2013.
35. The Learned Advocate General also contended that having regard to the fact that in several decisions of the Supreme Court, the State had an unfettered liberty to exercise its discretion during emergencies, the State should have the maximum possible discretion in the matter of posting officers of its choice to tackle the emergent situation and the State ought not be compelled to continue the petitioner 15 in the post of Assistant Commissioner of Bengaluru North. He stated that interests of the public would be better served by utilizing the services of the sixth respondent due to his earlier posting and his knowledge of the local conditions.
36. The Learned Advocate General also stated that though the Guidelines was an executive order issued under Article 162 of the Constitution of India, it had nevertheless, acquired the force of a statute in view of the decision of the Full Bench of this Court rendered in the case of Sri S.N. Gangadharaiah, K.A.S., VS. The State of Karnataka - ILR 2015 KAR 1955 and ILR 2011 KAR 1585.
37. In view of the further statement of the learned Advocate General that the guidelines had acquired the force of a statute, pursuant to the Full Bench decision of this Court and were thus enforceable in a Court of law, it cannot be in serious dispute that the impugned order of transfer passed by the State would have to satisfy the terms stipulated in the guidelines.
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38. The Learned Advocate General lastly contended that the order of transfer was basically made to ensure that the measures taken to mitigate the crisis arising out of Covid- 19 as envisaged under the Disaster Management Act and having regard to the fact that the provisions of Disaster Management Act had an overriding effect under Section 72, it would be improper and unfair to force the State to abide by the Government guidelines dated 07.06.2013. In other words, the Learned Advocate General sought to contend that having regard to the fact that there was a disaster as contemplated under the Disaster Management Act prevailing in the country, the State should be granted liberty to take such measures which it deemed necessary and its endeavors should not be hampered by interfering with an order of transfer.
39. Learned Senior Counsel Sri S.S. Naganand, on the other hand, contended that in view of the candid admission of the Learned Advocate General that the impugned order was indeed a premature transfer and the transfer would have to be in adherence to the guidelines dated 17 07.06.2013 and the State was obliged to abide by every stipulation in the Government Order dated 07.06.2013. He contended that the State cannot wriggle out of its own guidelines by raising the bogey of a pandemic crisis engulfing the State. He submitted that the petitioner himself was assigned as a Frontline officer for discharge of Covid-19 duties, as could be seen in the very order of transfer dated 30.05.2020, and therefore it did not lie in the mouth of the State to say that the petitioner would not be suitable to discharge his duties as Assistant Commissioner Bengaluru North.
40. Learned Senior Counsel also submitted that in the first order of transfer dated 24.03.2020, there were absolutely no reasons assigned in the transfer and the same was a contravention of the Government Order dated 07.06.2013. He submitted that the present order of transfer dated 30.05.2020 passed nearly after two months after the first order also did not contain any reason as to why the continuance of the petitioner as the Assistant Commissioner, Bengalur North was not desirable. He 18 contended that the order of transfer dated 30.5.2020 was in no way relatable to the pandemic and the State was merely using the pandemic as a ruse to reiterate and justify its transfer.
41. The Learned Senior Counsel contended that the State cannot resort to any of the provisions of Disaster Management Act, since none of the provisions of the Act enabled the authorities stipulated under the Act to possess any control or superintendence over any Government employee. He submitted that authorities contemplated under the Disaster Management Act would operate in a completely different field which was in no way relatable to the discharge of the functions of a Government servant and the authorities under the said Act possessed no power to direct the State to place a particular official at a particular post.
42. In the light of these submissions, the principal question to be decided in this writ petition is as to whether the order of transfer dated 30.05.2020 was justified and is in accordance with law.
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43. In the light of the clear statement by the Learned Advocate General that the Guidelines would govern the transfer of Government servants and that the impugned order of transfer dated 30.05.2020 was indeed a premature transfer as contemplated under the Guidelines, the applicability of the Guidelines cannot be in serious doubt.
44. If the Guidelines are to be applicable to the instant transfer, then it will have to be examined whether the State had adhered to the terms stipulated in the guidelines before passing the order of transfer.
45. Before proceeding further, it would be necessary to briefly state the parameters prescribed for a premature transfer in the Guidelines.
46. Para 9(a) and 9(b) of the Guidelines read as follows:-
"9. Premature/delayed Transfer a. Generally there should be no premature transfers. The tenure of posting of Government servant may be extended or reduced by the competent Authority in the following cases after recording the reasons for the same in writing. The minimum period of stay at a place as prescribed in Para 8 can be reduced and the concerned Government Servant transferred prematurely if the competent authority 20 feels that he or she is not suitable for discharging the duties at the present place and the reasons are recorded to this effect in writing:
i. The employee due for transfer after completion of tenure at a place or posting or post has less than two years of service for retirement;
ii. The employee possesses special technical qualification or experience for the particular job for which a suitable replacement is not immediately available;
iii. The employees working on a project or Flagship programmes of Government of India which are in the crucial stage of implementation and his withdrawal will seriously jeopardize timely completion of such projects;
iv. Where both the spouses are Government servants and if one of the spouses is transferred, then the other spouse may also be transferred to the same place or nearby place depending upon the availability of the vacancy even if one of them has not completed the minimum period of stay;
v. Where a female Government servant is a widow/spinster/unmarried divorcee, she may be transferred and in case she is appointed for the first time, may be posted to a place of her choice subject to availability of vacancy;
vi. Where a servant is an office-bearer of the Karnataka State Government Employees association only, such Government servant shall not be transferred until the completion of the term for which he has been elected. In case no elections are held within three months of the completion of the said term, he may be transferred. In case he is re-elected, he may be continued in the same place until the completion of the second term only.21
vii. Where a Government servant is physically/ handicapped/ challenged or disabled subject to the certification of Medical Board;
viii. Where a Government servant or his/ her spouse or children are suffering from serious terminal ailments, depending upon the availability of the facility of medical treatment, the requested place subject to certification by the Medical Board;
b. However, before effecting any premature transfers and for making any transfer after the transfer period and also for extending the tenure of a Government servant for the reasons stated above, prior approval of the Hon'ble Chief Minister must be obtained without the concerned Administration Department of the Secretariat. The Principal Secretaries to Government should not under any circumstances issue transfer orders later seek ratification/ post facto approval of the Chief Minister.
[emphasis supplied]
47. As could be seen from Para 9(a) of the Guidelines, there is a general embargo on premature transfers. However, two exceptions are provided in Para 9 (a).
48. The first exception for effecting a premature transfer is when the competent authority, records in writing, that any one or more of the eight situations stated therein have arisen in the case of a particular Government servant. 22
49. The second exception for effecting a premature transfer is when the competent authority feels that a particular Government servant is not suitable for discharging his duties at the present place, he can record reasons to that effect in writing and reduce the minimum period of stay prescribed in Para 8 and effect a premature transfer.
50. Thus, whenever the competent authority is of the view that a situation as stipulated in Para 9(a) (i) to (viii) has arisen or he is of the view that a Government Servant is not suitable for discharging his duties at his present place, a premature transfer of the Government servant can be effected.
51. The common feature, however, in both the cases is that the competent authority is obliged to record his reasons in writing.
52. Para 9 (b) lays down a further safeguard against premature transfers and this is obviously to ensure that a Competent Authority does not misuse the option available to him in effecting a premature transfer. Para 9 (b) 23 mandates that no premature transfer can be effected without obtaining the prior approval of the Chief Minister, the highest functionary of the Government.
53. Thus, whenever a premature transfer is to be effected, firstly, reasons are to be recorded by the competent authority in writing for the premature transfer and before that is given effect to, the prior approval of the Chief Minister must be obtained.
54. It is also to be noticed that Para 9 (b) expressly forbids the practice of effecting the premature transfer of a Government servant and thereafter seeking its ratification by the Chief Minister.
55. This is, obviously because, the Chief Minister before he grants his approval to the premature transfer must have the benefit of considering the reasons recorded in writing by the Competent Authority and satisfying himself that a premature transfer was warranted. In other words, it is only on the consideration of the written reasoning of the Competent Authority, can the Chief Minister apply his 24 mind and proceed to either grant or refuse his approval for effecting the premature transfer.
56. Having regard to the manner in which a double safeguard is ensconced in Para 9 of the Guidelines for a premature transfer, it is clear that adherence to all clauses of Para 9 is mandatory and can never be construed as directory.
57. In the instant case, however, the State states that the competent authority envisaged in the Guidelines is the Chief Minister himself and the State contends that if the Chief Minister, the highest functionary of the State, himself was of the view that there were strong and compelling reasons to transfer the petitioner, the same cannot be said to be either arbitrary or in contravention of the Guidelines.
58. Without going into the debatable question as to who the competent authority as envisaged in para 3 (a) of the guidelines is, it would be necessary that the legality of the impugned order of transfer be considered on the 25 assumption that the Chief Minister himself is the competent authority.
59. In order to ascertain the legality of the transfer order, it would be relevant to consider the noting in the original file relating to the order of transfer dated 30.05.2020. The noting reads as follows:
¸ÀPÁðgÀzÀ DzÉñÀ ¸ÀASÉå: ¹D¸ÀÄE 2029, ¢£ÁAPÀ: 24-03-2020 ªÀÄvÀÄÛ ¹D¸ÀÄE 75 D¸ÉêÀ 2020, ¢£ÁAPÀ: 09-04-2020 gÀ DzÉñÀU¼ À À£ÀÄß »A¥ÀqAÉ iÀÄ®Ä ¸ÀÆa¹zÉ.
¨ÉAUÀ¼ÀÆgÀÄ £ÀUg À z À ÁzÀåAvÀ PÉÆëqï-19 (PÉÆgÉÆãÁ ªÉÊgÀ¸ï) ¤AiÀÄAvÀt æ PÁÌV ¸ÀªÀÄxÀðªÁzÀ C¢üPÁjUÀ¼£ À ÀÄß £ÉëĸÀĪÀ CªÀ±ÀåPÀvÉ EzÀÄÝ, ¸Àzj À £ÉêÀÄPÀªÁUÀĪÀ C¢üPÁjAiÀÄÄ vÀªÀÄä ªÁå¦ÛAiÀÄ°è §gÀĪÀ PÉÆëqï-19 gÀ ZÉPï¥ÉÆøïÖU¼ À À ¤ªÀðºÀu,É ¥Àj¹ÜUÉ C£ÀÄUÀÄtªÁV ¸ÁA¹ÜPÀ PÁégAÀ mÉÊ£ï PÉÃAzÀU æ ¼ À £ À ÀÄß ¸Áܦ¸ÀĪÀ ªÀÄvÀÄÛ ºÁ° EgÀĪÀ ¸ÁA¹ÜPÀ PÁégAÀ mÉÊ£ï PÉÃAzÀU æ ¼ À £ À ÀÄß ¤ªÀð»¸ÀĪÀ ºÁUÀÆ EvÀgÉ PÉÆëqï-19 UÉ ¸ÀA§A¢ü¹zÀ J¯Áè PÁAiÀÄðUÀ¼À ªÉÄðéZÁgÀuAÉ iÀÄ£ÀÄß ¤ªÀð»¸À¨ÃÉ PÁVgÀÄvÀÛz.É ¸Àzj À C¢üPÁjAiÀÄÄ ¸ÀܽÃAiÀÄ PÉëÃvÀz æ À ªÀiÁ»w ºÉÆA¢zÀªg À ÁVzÀÄÝ, AiÀıÀ¹éAiÀiÁV PÁAiÀÄð¤ªÀð»¸À®Ä ªÀÄvÀÄÛ ¥Àj¹ÜwAiÀÄ£ÀÄß ¤¨sÁ¬Ä¸À¨ÃÉ PÁVgÀĪÀÅzÀjAzÀ, ²æà PÉ. gÀAUÀ£ÁxÀ, PÉ.J.J¸ï (»jAiÀÄ ±ÉÃæ tÂ), «±ÉõÀ ¨sÀƸÁé¢Ãü £Á¢üPÁj, gÁ¶ÖçÃAiÀÄ ºÉzÁÝj, ¨ÉAUÀ¼ÀÆgÀÄ EªÀg£ À ÀÄß G¥À «¨sÁUÁ¢üPÁj, ¨ÉAUÀ¼ÀÆgÀÄ GvÀÛgÀ «¨sÁUÀ, ¨ÉAUÀ¼ÀÆgÀÄ ªÀÄvÀÄÛ ¨ÉAUÀ¼ÀÆgÀÄ GvÀÛgÀ «¨sÁUÀPÉÌ PÉÆëqï-19 £ÉÆÃqÀ¯ï C¢üPÁjAiÀÄ£ÁßV gÁ¶ÖçÃAiÀÄ «¥ÀvÀÄÛ 26 ¤ªÀðºÀuÁ PÁAiÉÄÝ PÀ®A 14, 18 ªÀÄvÀÄÛ 72 gÀrAiÀÄ°è ªÀUÁð¬Ä¸À®Ä C£ÀĪÉÆâ¹zÉ.
²æà zÀAiÀiÁ£ÀAzÀ ¨sAÀ qÁj, PÉ.J.J¸ï. (»jAiÀÄ ±ÉÃæ tÂ), G¥À«¨sÁUÁ¢üPÁj, ¨ÉAUÀ¼ÀÆgÀÄ GvÀÛgÀ «¨sÁUÀ, ¨ÉAUÀ¼ÀÆgÀÄ EªÀg£ À ÀÄß PÁAiÀÄðzÀ²ð, PÀ£ÁðlPÀ «zÀÄåvï ¤AiÀÄAvÀu æ Á DAiÉÆÃUÀ, ¨ÉAUÀ¼ÀÆgÀÄ ºÁUÀÆ PÉÆëqï-19 ¸ÀA§AzsÀ ©.©.JA.¦. ªÁå¦ÛAiÀÄ ¥À²ª Ñ ÀÄ ªÀÄvÀÄÛ gÁdgÁeÉñÀéj£ÀUg À À ªÀ®AiÀÄzÀ «±ÉõÁ¢üPÁjAiÀiÁzÀ ²æà JA. ªÀĺÉñÀégï gÁªï, ¨sÁ.D.¸ÉÃ., ¸ÀPÁðgÀzÀ ¥Àz æ sÁ£À PÁAiÀÄðzÀ²ð, ªÁtÂdå ªÀÄvÀÄÛ PÉÊUÁjPÉ E¯ÁSÉ (UÀt) , EªÀgÀÄ ¤ÃqÀĪÀ ¤zÉÃð±À£U À ¼ À À£ÀÄß ¥Á°¸ÀĪÀAvÉ ¸ÀÆa¹, ªÀUÁð¬Ä¸ÀÄ®Ä C£ÀĪÉÆâ¹zÉ.
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60. As could be seen from the above, the noting emanated from the Chief Minister himself and it was not preceded by the recording of any reasons for the transfer by any other authority. It will have to be therefore seen if the order of the Chief Minister satisfies the requirement of the second portion of para 9 (a) of the Guidelines.
61. A bare reading of the noting would indicate that the Chief Minister was of the view that the posting of the 6th respondent to the post of Assistant Commissioner, Bengaluru North was desirable because he had local 27 knowledge of the area. Thus, the Chief Minister was only recording the reason as why the 6th respondent's posting as the Assistant Commissioner, Bengaluru North was desirable and he was not recording any reason as to why the petitioner was not suitable for being continued as the Assistant Commissioner, Bengaluru North.
62. In order to satisfy the stipulation found in Para 9 (a), however, it was essential for the Chief Minister to record reasons as to why the petitioner was not suitable to be continued as the Assistant Commissioner, Bengaluru North, as contemplated in Para 9 (a) of the Guidelines. Unless, the Chief Minister recorded specific reasons for coming to the conclusion that the petitioner was not suitable to be continued as the Assistant Commissioner, Bengaluru North, it was not permissible for him to order the premature transfer of the petitioner from the post of Assistant Commissioner, Bengaluru North.
63. It is to be borne in mind that a premature transfer is an exception to the general embargo on premature transfers and is permissible only under the circumstances available 28 under para 9 (a) of the Guidelines and a premature transfer cannot be resorted to lightly or casually. In other words, unless, there are justifiable reasons for not continuing a Government Servant in a particular post, the State cannot resort to invoke its exceptional power to prematurely transfer the Government Servant.
64. In the instant case, since there are absolutely no reasons recorded regarding the non-suitability of the petitioner to continue as the Assistant Commissioner, Bengaluru North, the premature transfer of the petitioner is in clear contravention of the mandate of Para 9 (a) of the Guidelines and cannot be therefore sustained.
65. It is to be noted that the petitioner is entitled to the tenure prescribed in the Guidelines. Since the Guidelines have acquired the force of a statute, the tenure prescribed therein would also have acquired the force of a statute and would be enforceable in law, in view of the law declared by the Full Bench in the case stated above. This vested right of the petitioner to have the benefit of a prescribed tenure under the Guidelines cannot be divested unless the 29 procedure stipulated therein is scrupulously adhered to. The order of transfer, therefore, does not clearly satisfy the requirement of the Guidelines.
66. Since the Learned Advocate General has advanced an argument regarding the need to have the 6th respondent to work as an Assistant Commissioner, Bengaluru North in the light of the prevailing pandemic and the overriding provisions of the Disaster Management Act, is concerned, it would have to be examined whether the order of transfer of a Government Servant can be traced to or actually related to any of the provisions of the Disaster Management Act, so as to enable the bypassing the Guidelines.
67. The Disaster Management Act has been enacted for the purpose of having a law to provide for the effective management of disasters and for matter connected therein and the said Act provides for establishment of three authorities, one at the National Level, one at the State Level and one at the District Level as envisaged in Chapter II, III and IV of the Disaster Management Act. 30
68. The National Disaster Management Authority (hereinafter referred as the NDMA) at the National Level is entrusted with the responsibility for laying down the policies, plans and guidelines for disaster management for ensuring timely and effective response to a disaster.
69. The NDMA is empowered to constitute an Advisory committee consisting of experts in the filed of management and having practical experience of disaster management at the National. State or District level to make recommendations on different aspects of the disaster management.
70. On the constitution of the NDMA, the Central Government is obliged to constitute a National Executive Committee to assist the NDMA in the performance of its functions under the Disaster Management Act and this Executive Committee is required to assist the NDMA and is entrusted with the responsibility of implementing the policies and plans of the NDMA and ensure the compliance of the directions issued by the Central Government. This National Executive Committee is tasked with the drawing 31 up of a plan for disaster management for the whole of the country called the National plan.
71. Chapter III of the DMA envisages the setting up a State Disaster Management Authority (SDMA) immediately on the constitution of the NDMA for the State and the said authority shall be headed by the Chief Minister and comprise of a maximum of 9 persons to be nominated by the Chief Minister including the chairperson of the State Executive Committee. The SDMA is empowered to constitute an Advisory Committee in the same manner as the NDMA and the SDMA is entrusted with the responsibility of laying down policies and plans for disaster management in the State.
72. The State Government, immediately, on the constitution of the SDMA is also required to constitute a State Executive Committee to assist the SDMA in the performance of its functions and to coordinate action in accordance with the guidelines laid down by the SDMA. This State Executive Committee is given the responsibility of implementing the National and State Plan and act as the coordinating and 32 monitoring body for the management of disaster in the State. The State Executive Committee is also given the task of preparing the State Plan.
73. The State Executive Committee, for the purpose of assisting and protecting the community affected by the disaster or for providing relief to such community or for preventing or combating disruption or dealing with the effects of any threatening disaster situation, take the steps enumerated in S. 24 of the Disaster Management Act.
74. Chapter IV of the Disaster Management Act contemplates the constitution of a District Management Authority and since for the purposes of this petition, the order of transfer is not traceable to the District Management Authority, the same are not being discussed.
75. Thus, the scheme of the Act is to basically provide for establishment of Disaster Management Authorities for laying down policies and plans for disaster management and at the same time provide for establishment of an Executive Committees to assist the Disaster Management 33 Authorities in the performance of its functions and for coordinating action in accordance with the guidelines laid down by them and also to ensure compliance of directions issued by the Governments.
76. The provisions of the Disaster Management Act, however, does not contemplate or provide for the Authorities envisaged therein to in any way step into the shoes of the Government or for that matter act as the Government itself and to take decisions as if it was the Government. The Authorities, contemplated under the Disaster Management Act, cannot therefore decide on the postings of Government servants to mitigate and manage a situation arising out a disaster.
77. The Authorities under the Disaster Management Act are empowered to prepare Plans in anticipation of a Disaster and the measures that are required to be taken to mitigate the effects of any Disaster. In other words, the law enjoins the preparation of a Plan in advance to combat a situation arising out of a Disaster and the Authorities are empowered to ensure coordination and implementation of 34 the Policies and Plans, which are prepared in advance and they are also expected to take such further steps as are necessary to mitigate the disaster.
78. The Act does not however empower the Management Authorities or the Executive Committees to exercise any control or superintendence over the Government servants. Thus, it follows, that the Chief Minister cannot fall back on the provisions of the Disaster Management Act to exercise powers of transfer of Government servants and the Chief Minister cannot in the face of a Disaster override the Guidelines prescribed for transfer of a Government Servant. The reliance placed on S. 14, 18 of the Disaster Management Act cited in the impugned order of transfer cannot therefore validate the order of transfer as one being made to mitigate or to take effective steps to tackle a Disaster as contemplated under the Disaster Management Act.
79. It is to be stated here that the recording of reasons, prescribed in the Guidelines, even in the face of a disaster, for finding a particular Government servant as not being 35 suitable for discharge of duties in a particular post, cannot be said to an onerous or an impossible task. The argument of the State that strict adherence to the Guidelines should not be insisted in the face of a Disaster cannot be accepted.
80. If the argument of the State that in an emergent situation, such as the prevailing pandemic, adherence to the Guidelines should not be insisted upon were to be accepted, then, the decision of the Full Bench that the Guidelines have the force of a statute and can be enforced would be rendered nugatory and this is clearly impermissible.
81. The argument that S. 72 of the Disaster Management Act has an overriding effect and therefore the transfer made in the face of a disaster would have the effect of overriding the Guidelines cannot also be accepted, because, as narrated above, the scheme of the Disaster Management Act does not provide for even the Authorities envisaged therein to exercise control or superintendence over Government employees of various departments. There is 36 nothing in the Act, which confers upon the Authorities therein the power to decide on the posting of the employees of various Government Departments for S. 72 to be invoked and to say that the Guidelines are in contradiction of the powers of the Authorities under the Act and thus the overriding effect of the Act would apply to a transfer of a Government servant. This argument of the overriding power under S. 72 of the Disaster Management Act cannot therefore sustain.
82. The argument of the Learned Advocate General that in the prevailing situation, the Government should be given the maximum possible discretion and the transfer order should not be disturbed in view of the emergent situation cannot also be accepted because the discretion to prematurely a transfer has already been provided in the Guidelines and all that the Government is required to do is to adhere to the terms stipulated therein.
83. It is not even the argument of the petitioner's counsel that the Government does not have the discretion to make a premature transfer and all that was argued by the 37 petitioner was that the requisite procedure that was required to be followed before effecting the premature transfer was not complied with.
84. In the instant case, as stated above, the procedure prescribed in the guidelines for effecting a premature transfer has not been adhered to and consequently the order of transfer dated 30.5.2020, Annexure N, is required to be quashed and it is accordingly quashed. Consequently, writ petition stands allowed.
85. The petitioner as a consequence would be entitled to continue in the post of the Assistant Commissioner, Bangalore North for the remaining period of his tenure as prescribed in the Guidelines dated 7.6.2013.
86. The 6th respondent is directed to hand over charge to the petitioner.
87. It is needless to state that this order will not come in the way of the State, if it so desires, to invoke the power available under the Guidelines to prematurely transfer the 38 petitioner, subject of course, to strict adherence to the stipulations made in the Guidelines dated 7.6.2013.
88. The Registry is directed to return the original files to the Office of the Advocate General, under due acknowledgment.
Sd/-
JUDGE NM/Naa