Karnataka High Court
Akash Reddy vs The Managing Director And Ors on 22 November, 2023
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2023:KHC-K:8767
WP No. 202705 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
WRIT PETITION NO.202705/2023 (S-TR)
BETWEEN:
SRI AKASH REDDY
S/O BHEEMSHA KOTEGAON,
AGED ABOUT 33 YEARS,
OCC: ASSISTANT EXECUTIVE ENGINEER,
KRIDL, HUMNABAD SUB-DIVISION,
DISTRICT BIDAR-585330.
...PETITIONER
(BY SRI GOURISH S. KHASHAMPUR, ADVOCATE)
Digitally signed
by LUCYGRACE AND:
Location: HIGH
COURT OF 1. THE MANAGING DIRECTOR,
KARNATAKA KARNATAKA RURAL INFRASTRUCTURE
DEVELOPMENT LIMITED,
GRAMIN ABHIVRUDDHI BHAVAN,
4TH AND 5TH FLOOR, ANANDRAO CIRCLE,
BENGALURU-586009.
2. EXECUTIVE ENGINEER
KARNATAKA RURAL INFRASTRUCTURE
DEVELOPMENT LIMITED,
BIDAR-585401
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NC: 2023:KHC-K:8767
WP No. 202705 of 2023
3. SMT. MAHESHWARI S.,
AGED ABOUT 29 YEARS,
OCC: ASSISTANT EXECUTIVE ENGINEER,
KRIDL, BIDAR DIVISION, AEE (TECHNICAL),
R/O TRIPURANT,
BASAVA KALYAN,
DISTRICT BIDAR-585401.
...RESPONDENTS
(BY SRI AMEET KUMAR DESHPANDE, SENIOR COUNSEL
FOR SRI M.M. SANGOND, ADVOCATE FOR R1 & R2;
SRI R.J. BHUSARE, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE A WRIT IN THE NATURE OF CERTIORARI BY
QUASHING THE IMPUGNED ORDER ¸ÀA:PÉDgïLrJ¯ï/¹§âA¢/
¹.Dgï-127/2023-24/4 DATED 22.09.2023 PASSED BY
RESPONDENT NO.1 AT ANNEXURE - 'F' AND ISSUE A
WRIT IN THE NATURE OF CERTIORARI BY QUASHING THE
IMPUGNED ORDER ¸ÀA:PÉDgïLrJ¯ï/¹§âA¢/ ¹.Dgï-127/2023-
24/3 DATED 22.09.2023 PASSED BY RESPONDENT NO.1
AT ANNEXURE 'G'.
THIS PETITION, COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner is before this Court aggrieved by the order at Annexures - F and G, both dated 22.09.2023 passed by the first respondent, in which, the petitioner has been transferred from the post of Assistant Executive Engineer, -3- NC: 2023:KHC-K:8767 WP No. 202705 of 2023 KRIDL Humnabad Sub-Division to the non-executive post at KRIDL Devdurga Sub-Division and private respondent No.3 has been transferred from Bidar KRIDL Sub-Division to the place of petitioner at KRIDL Humnabad Sub- Division.
2. It is the case of the petitioner that he was appointed as an Assistant Engineer in the Department of Karnataka Rural Infrastructure Development Limited (for short 'KRIDL') in the year 2018. That he was transferred from Bidar, Sub-Division to Humnabad Sub-Division as Assistant Engineer on 05.11.2022 as per Annexure - A. On 07.11.2022 petitioner reported to the duty and also assumed charge as per Annexure - D. Being aggrieved by the order at Annexure - A respondent No.3 herein had approached this Court by filing a writ petition in WP No.200010/2023 and the order at Annexure - A was put on hold. The said writ petition was subsequently withdrawn by respondent No.3. Accordingly, the petitioner in fact received the charge on 23.01.2023 from the 3rd -4- NC: 2023:KHC-K:8767 WP No. 202705 of 2023 respondent as per Annexure - C. It is the further case of the petitioner that on and from 21.02.2023 he was promoted and transferred to the post of Assistant Executive Engineer Humnabad Sub-Division, KRIDL, as per Annexure - D and was posted to the vacant post. Thus, petitioner reported to his duty and assumed the charge as Assistant Executive Engineer, KRIDL, Humnabad Sub- Division, on 28.02.2023 as per Annexure - E. That ever since the date of promotion and posting as above, the petitioner has been discharging his duties efficiently. It is his further case that the 1st respondent by order dated 22.09.2023 as per Annexure - F transferred the petitioner from the post of Assistant Executive Engineer, KRIDL Humanabad Sub-Division to the post of Assistant Executive Engineer, Devdurga Sub-Division, on the premise of complaints having been received against the petitioner for not carrying out the works assigned. Thereafter, respondent No.1 has issued another order dated 22.09.2023 as per the Annexure - G in and by which respondent No.3 has been directed to assume the -5- NC: 2023:KHC-K:8767 WP No. 202705 of 2023 charge which was held by the petitioner till then. Aggrieved by the aforesaid orders the petitioner is before this Court.
3. The statement of objections have been filed by the first respondent denying the petition averments and contending that the originally petitioner was given additional charge in the present office as Assistant Executive Engineer and he had taken the said charge on 07.11.2022, that despite he having taken the charge and working as Assistant Executive Engineer at Humnabad Sub-Division, he was not discharging his duties sincerely and properly. That the complaint dated 04.06.2023 was received by the first respondent from one Shivakumar S. Tunga, State President of Kalyana Karnataka Rakshana Vedike alleging that petitioner was not working properly and sincerely and that he was not responding to the phone calls. It is also stated that the local people had also made number of complaints against the petitioner regarding dereliction of his duties. That a communication dated -6- NC: 2023:KHC-K:8767 WP No. 202705 of 2023 11.08.2023 as per Annexure - R2 was also addressed by the PDO, Dhannuru Village Panchayat narrating pending works of the panchayat and similar allegation against the petitioner regarding execution of the panchayat work. That the Chief Executive Officer, Zilla Panchyat, Bidar, had also addressed a letter dated 22.08.2023 to the first respondent referring to list of 28 approved pending works as per Annexure - R3 and had alleged that the petitioner had fully neglected the execution of the work. The Executive Engineer, KRIDL Bidar had directed the petitioner vide letter dated 12.09.2023 as per Annexure - R4 calling upon the petitioner to take proper care and execute the pending work on time and also directed the petitioner to respond properly to the phone calls of MLA and MP who are the public representatives. That the letter as per the Child Development Planning Officer of Basavakalyan was also addressed on 04.10.2023 as per Annexure - R5 requesting the petitioner to complete the incomplete building work and to put compound wall as early as possible. Similar letter dated 05.10.2023 was -7- NC: 2023:KHC-K:8767 WP No. 202705 of 2023 addressed by Deputy Director of Animal Husbandry and Veterinary Services, Bidar as per Annexure - R6 to the Executive Engineer, KRIDL, Bidar, requesting to complete the building work of veterinary Hospital at Chittaguppa which is sanctioned in ESVHD project. Thus, referring all these correspondence, it is stated that the amount sanctioned for construction of various projects had not been spent and the work was not completed. It is contended that though most of the amount sanctioned had been utilized there was no progress in the work despite availability of the funds. It is also contended under the circumstances that the Competent Authorities felt that the petitioner was not discharging the duties properly and in furtherance to the provisions of Clause 9(a) of the Transfer Guidelines to Rules, 2013, the petitioner has been transferred prematurely. Thus, it is contended that the transfer of petitioner is for the reason of his work being not satisfactory and that there is no other grounds of his transfer. Hence, prays to dismiss the petition. -8-
NC: 2023:KHC-K:8767 WP No. 202705 of 2023
4. Heard the learned counsel for the parties and perused the records.
5. Sri Gourish S. Khashampur, learned counsel appearing for the petitioner reiterating the grounds urged in the memorandum of petition submits that the pending works of the projects as alleged to have been not performed by the petitioner are pending since the year 2012-2013 onwards. It is his further submission that the petitioner was initially posted as in-charge of Assistant Executive Engineer with effect from 23.01.2023 and assumed regular charge on and from 28.02.2023 on his promotion. It is his further submission that within 2 months of petitioner assuming charge of said post, due to Election Code of Conduct instructions were issued not to proceed with any of the project works. The impugned order has been passed based on the complaint dated 04.06.2023 given by the President of Kalyana Karnataka Rakshana Vedike at Annexure - R1.
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NC: 2023:KHC-K:8767 WP No. 202705 of 2023
6. Learned counsel further submits that even as per Transfer Guidelines of 2013 petitioner being Grade-II Officer ought to have been retained in the post for minimum period of 2 years and could not have been transferred prematurely. It is submitted that all that is stated in the impugned order is slow progress of the work and no any specific allegation is made against the petitioner. He refers to Transfer Guidelines condition No.6 produced at Page No.35 of statement of objections.
7. Learned counsel further submits that even if there were any allegations of serious nature the petitioner ought to have been given an opportunity before passing the impugned order. He concludes by saying that present order passed is only to accommodate respondent No.3 to the post of petitioner, thus, the entire exercise is mala fide exercise of power warranting interference.
8. Sri Ameet Kumar Deshpande, learned Senior counsel appearing for learned counsel Sri M.M. Sangond,
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NC: 2023:KHC-K:8767 WP No. 202705 of 2023 appearing for respondent No.1 and 2, reiterating the contents of the statement of objections submits that the petitioner has no vested rights to continue in the post to which he has been transferred. He submits that in terms of Clause 9 of the Transfer Guidelines produced at Annexure - R13 to the statement of objections respondent No.1 being the competent authority is well within its power to transfer the employees even before expiry of the period described under clause 9. Elaborating the submission learned Senior Counsel refers to the judgment of the Apex Court in the case of Union of India and Others v. Debnath and Another - AIR 2004 SUPREME COURT, 1632 referring to Paragraph 12, 13, 14 and 15 of the said judgment, submits that petitioner is not entitled for any prior notice or any enquiry as the power to transfer it is exclusively within the domain of the Competent Authority to transfer the employees. Thus, he submits the transfer of the petitioner cannot be found fault with as it falls within the administration power of respondent No.1.
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NC: 2023:KHC-K:8767 WP No. 202705 of 2023
9. Sri R.J. Bhusare, learned counsel for respondent No.3 submits that he supplements the submission made by the learned Senior Counsel for respondent Nos.1 and 2.
10. Heard the learned counsel for the parties and perused the records.
11. It is settled position of law that transfer is incident of service and an employee has no say except if the transfer is effected in mala fide exercise of power or to accommodate someone in his place for ulterior purposes. The reasons assigned in Annexure - F dated 22.09.2023 are as under:
"PÀ£ÁðlPÀ UÁæ«ÄÃt ªÀÄÆ®¸ËPÀAiÀÄð C©üªÀÈ¢Þ ¤AiÀÄ«ÄvÀ ¸ÀA¸ÉAÜ iÀÄ ºÀĪÀÄ£Á¨Ázï G¥À «¨sÁUÀ PÀbÃÉ jAiÀÄ°è ºÁ° ¸ÀºÁAiÀÄPÀ PÁAiÀÄð¥Á®PÀ C©üAiÀÄAvÀgg À ÀÄ DV PÀvÀðªÀå ¤ªÀð»¸ÀÄwÛgÀĪÀ ²æà DPÁ±ï gÉrØ EªÀgÀ ªÉÄÃ¯É G¥À «¨sÁUÀz°À è ««zsÀ AiÉÆÃd£É PÁªÀÄUÁjUÀ¼ÀÄ ªÀÄAzÀUÀwAiÀÄ°è ¸ÁUÀÄwÛz.É JA§ÄzÀgÀ §UÉÎ G¯ÉÃè RzÀ°è ¹éÃPÀÈwAiÀiÁVgÀĪÀ zÀÆgÀÄUÀ¼À »£É߯ÉAiÀÄ°è ¸Àzj À AiÀĪÀg£ À ÀÄß ¸ÁªÀðd¤PÀ ºÁUÀÆ DqÀ½vÁvÀäPÀ »vÀzÀȶ¬ Ö ÄAzÀ vÀPtÀë ¢AzÀ C£À¬ é ĸÀĪÀAvÉ ºÁUÀÆ ªÀÄÄA¢£À DzÉñÀzªÀ g À « É UÀÆ zÉêÀzÀÄUÀð G¥À «¨sÁUÀzÀ ¸ÀºÁAiÀÄPÀ PÁAiÀÄð¥Á®PÀ C©üAiÀÄAvÀgg À ÁV ¤AiÉÆÃd£É ªÀiÁr DzÉò¹zÉ.
¸ÀA¸ÉAÜ iÀÄ zÉêÀzÀÄUÀð G¥À «¨sÁUÀz°À è ¸ÀºÁAiÀÄPÀ PÁAiÀÄð¥Á®PÀ C©üAiÀÄAvÀgg À ÁVgÀĪÀ ²æà DzÀ±ïð EªÀgÀ ¸À¼ Ü À ¤AiÀÄÄQÛAiÀÄ£ÀÄß ¥ÀævÉåÃPÀ DzÉñÀzÀ ªÀÄÆ®PÀ eÁj ªÀiÁqÀ¯ÁUÀĪÀÅzÀÄ."
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NC: 2023:KHC-K:8767 WP No. 202705 of 2023
12. In the statement of objections at Paragraph 3, respondent No.1 has specifically adverted to reasons for transferring the petitioner, namely, the complaint that was received on 04.06.2023 as per Annexure - R1 from one Sri Shivakumar S. Tunga, State President of Kalyankarnataka Rakshna Vedike. It is necessary to note that the issuance of impugned order is on account of complaint at Annexure - R1. Even as disclosed by the respondents at Paragraph 3 of the statement of objections, though several references are made with regard to letters purportedly issued as per Annexures - R2 to R6 by the various officers purportedly calling upon the petitioner to complete the work, it is necessary to see that admittedly petitioner was posted as in-charge to the post of Assistant Executive Engineer on 23.01.2023 and was promoted to the said post on 21.02.2023 and on 28.02.2023 he reported to the promoted post and due to the Election Code of Conduct, instructions were issued to the petitioner not to process the project during the month of April 2023. Further, by communication dated
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NC: 2023:KHC-K:8767 WP No. 202705 of 2023 23.05.2023 produced before this Court instructions were issued to stop all work and not to release funds until further orders. The complaint at Ex.R1 alleging slow progress of work made against petitioner is dated 04.06.2023. On perusal of these materials what emanates is that the petitioner worked in the post of Assistant Executive Engineer only for a period of 03 [three] months. Admittedly, the projects which have been looked after by the Assistant Executive Engineer of the first respondent have been pending since the year 2012-13. It is therefore impossible to imagine the petitioner, who has admittedly assumed the charge of office on 23.01.2023/28.02.2023 as above, to have had completed the project within the period of 02 [two] months of he assuming the charge of office, more particularly, when the instructions were issued not to proceed with the work and not release funds in view of Election Code of Conduct.
13. Though in the statement of objections as well as in the submissions learned Senior Counsel referred to
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NC: 2023:KHC-K:8767 WP No. 202705 of 2023 Clause 9C of the Transfer Guidelines produced at Annexure
- R13 there seems to be no compliance even to the said Clause 9 of the Transfer Guidelines. It is appropriate to extract the said Clause 9C for reference:
"9. CªÀ¢¥ ü ÀƪÀð / CªÀ¢ü «ÄÃjzÀ ªÀUÁðªÀuU É ¼ À ÀÄ:-
C. ¸ÁªÀiÁ£ÀåªÁV CªÀ¢¥ ü ÀƪÀð ªÀUÁðªÀuU É ¼À £ À ÀÄß ªÀiÁqÀvP À z ÀÌ ® ÀÝ .è F PɼP À AÀ qÀ ¸ÀAzÀ¨sÀðUÀ¼° À è ¸ÀPª Àë ÀÄ ¥Áæ¢Ãü PÁgÀªÀÅ °TvÀªÁV PÁgÀtUÀ¼£ À ÀÄß zÁR°¹ ¸ÀPÁðj £ËPÀg£ À ÀÄ MAzÀÄ ¸À¼ Ü z À À°g è §À ºÀÄzÁzÀ ¸ÉêÁªÀ¢Aü iÀÄ£ÀÄß «¸Àj Û ¸À§ºÀÄzÀÄ CxÀªÁ PÀrvÀUÉƽ¸À§ºÀÄzÀÄ. ¥À¸ æ ÀÄÛvÀ ¸À¼ Ü zÀ °À è PÀvÀðªÀå ¤ªÀð»¸À®Ä AiÀiÁªÀÅzÉà ¸ÀPÁðj £ËPÀg£ À ÀÄ (CªÀ£ÀÄ CxÀªÁ CªÀ¼ÀÄ) ¸ÀÆPÀª Û ÁVgÀĪÀÅ¢®èªAÉ zÀÄ ¸ÀPª Àë ÀÄ ¥Áæ¢P ü ÁjUÉ C¤¹zÀ°.è PÀArPÉ 8gÀ°è w½¸À¯ÁVgÀĪÀ PÀ¤µÀ× CªÀ¢üAiÀÄ£ÀÄß PÀrvÀUÉƽ¹ ¸ÀA§A¢ü¹zÀ ¸ÀPÁðj £ËPÀgg À £ À ÀÄß CªÀ¢¥ ü ÀÆtð ªÀUÁð¬Ä¸À§ºÀÄzÁVzÀÄ.Ý F §UÉÎ PÁgÀtUÀ¼£ À ÀÄß °TvÀªÁV zÁR°¸ÀĪÀÅzÀÄ. "
14. A perusal of the aforesaid clause reveals that no doubt respondent No.1 is within his authority to prematurely transfer the said employee, but the same shall be supported by the reasons. The said order ought to have been passed by applying mind into the matter. Perusal of Annexure - F in the light of clause 9C makes it very clear that no such exercise is done in the instant case.
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NC: 2023:KHC-K:8767 WP No. 202705 of 2023
15. There is yet another aspect which requires to be seen is as already noted above, the 3rd respondent aggrieved by issuance of Annexure - A posting the petitioner to the current post had approached this Court by filing WP No.200013/2023, which was apparently withdrawn subsequently.
16. The 3rd respondent was admittedly working at Bidar and still continued to work at Bidar. Attempts are being made by the 3rd respondent questioning/challenging posting of the petitioner to the present place at Humnabad. The possibility of impugned order having been passed to accommodate the 3rd respondent in the circumstance of the case cannot be ruled out. The holistic reading of the matter placed on record and the reasons assigned in the impugned order and explanation provided, in the objections statement leaves no doubt that the exercise of power under Rule 9(a) of the Transfer Guidelines in the instant case is arbitrary and same cannot be sustained.
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NC: 2023:KHC-K:8767 WP No. 202705 of 2023
17. For the aforesaid reasons and analysis, the petition is allowed. The impugned order is set aside.
18. Needless to state that allowing of this petition shall not come in the way of respondent No.1 taking any action strictly in accordance with law.
19. In view of disposal of writ petition, pending IAs, if any, shall also stand disposed of.
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JUDGE SBS List No.: 2 Sl No.: 6