Karnataka High Court
P. Vasanth Kumar, vs State Of Karnataka on 20 December, 2013
Equivalent citations: 2014 (3) AKR 206
Bench: Mohan.M.Shantanagoudar, K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 20TH DAY OF DECEMBER, 2013
:PRESENT:
THE HON'BLE MR.JUSTICE MOHAN.M.SHANTANAGOUDAR
:AND:
THE HON'BLE MR.JUSTICE K.N. PHANEENDRA
WRIT PETITION NO.53163/2013 (S-KAT)
BETWEEN:
P. VASANTH KUMAR,
KAS (SENIOR SCALE)
S/O LATE PUTTAMADAIAH,
AGED ABOUT 40 YEARS,
WORKING AS SPECIAL DEPUTY COMMISSIONER
(LAND ACQUISITION),
BANGALORE DEVELOPMENT AUTHORITY,
BANGALORE-01. ... PETITIONER
(BY SRI JAYAKUMAR S. PATIL, SR. COUNSEL, FOR SMT.
BHARATHI NAGESH, ADV. )
AND:
1. STATE OF KARNATAKA,
REPRESENTED BY ITS PRINCIPAL SECRETARY
PERSONAL & ADMINISTRATIVE REFORMS,
VIDHANA SOUDHA,
BANGALORE-01.
2
2. SRI. N. CHANDRASHEKAR,
KAS (SENIOR SCALE)
AGED ABOUT 35 YEARS,
WORKING AS GENERAL MANAGER,
(ADMINISTRATION AND HUMAN RESOURCES)
KARNATAKA RENEWABEL ENERGY
DEVELOPMENT LIMITED,
PALACE ROAD,BANGALORE-01. ... RESPONDENTS
(BY SRI KANTHRAJ, ADDITIONAL ADVOCATE GENERAL
WITH SRI P.B. BAJENTRI, GA FOR R1
SRI ASHOK HARNAHALLI, SR. COUNSEL FOR SRI. SANDEEP
S. PATIL, ADV. FOR C/R2)
*****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 22.11.2013 IN APPLCIATION
NO. 7362/2013 PASSED BY THE TRIBUNAL, BANGALORE.
THIS WRIT PETITION HAVING BEEN 'RESERVED FOR
ORDERS' ON 17.12.2013, COMING ON FOR
'PRONOUNCEMENT OF ORDER' THIS DAY, K.N.
PHANEENDRA, J. MADE THE FOLLOWING:
ORDER
The undisputed facts of the case are that the petitioner was working as a Special Deputy Commissioner (Land Acquisition), Bangalore Development Authority, from 2.1.2013. The second respondent during that time was working as a General Manager (Administration and Human Resources), Karnataka Renewable Energy Development Limited, Bangalore (hereinafter referred to as 'KREDL' for 3 short). Vide Notification/Order No.CAASUE 106 AASEVA 13(PART-1) dated 14.11.2013, the petitioner was transferred to a vacant post of Joint Commissioner, Bangalore Metropolitan Task Force (hereinafter referred to as 'BMTF' for short), Bangalore, and respondent No.2 was brought to the place of the petitioner as Special Deputy Commissioner (Land Acquisition), Bangalore Development Authority. The said order was challenged on several grounds by the petitioner before the Karnataka Administrative Tribunal in Application No.7362/2013 and the Karnataka Administrative Tribunal has dismissed the said Application. Against which, the present Writ Petition has been filed.
2. So far as the procedural irregularity committed by the Government in directly transferring the petitioner as Joint Commissioner for BMTF without concurrence and consent of the Urban Development Department under which BMTF works are concerned, the same has been set at rest by the Karnataka Administrative Tribunal under the impugned order, by giving directions to the Government to issue transfer order after requisite order by the Urban 4 Development Department. Now the said ground is no more res-Integra between the parties.
3. Sri Jaya Kumar S. Patil, learned Senior Counsel for the petitioner raised two important grounds before this court, challenging the transfer order dated 14-11-2013:
(1) The transfer Order impugned before the Karnataka Administrative Tribunal was due to the malafide intention of the Government and the same has been done at the influence of the Co-
operative Minister who has given a letter to the Chief Minister on 3.9.2013.
(2) Secondly, it is contended that, with a sole malafide intention to accommodate respondent No.2, on the basis of an influence letter given by the Co-operative Minister dated 3-9-2013, the transfer order under challenge has been passed by the Government. Therefore, the said order is required to be quashed by this Court.
4. Per contra, Sri Ashok Harnahalli, learned counsel for the respondent No.2 submitted that the grounds urged before the Karnataka Administrative Tribunal are the same grounds 5 urged before this Court. The Karnataka Administrative Tribunal by assigning proper and adequate reasons dismissed the claim of the petitioner. Therefore, there is no room for interference with such reasoned Order passed by the Karnataka Administrative Tribunal. It is also contended by him that the alleged influence by the Minister, in no way stands to the reason because the said letter of the Minister, produced by the petitioner along with the Writ Petition does not find a place in the records. On the basis of the imaginary grounds, the said claim has been made by the petitioner. He further contends that the transfer order cannot be termed as a premature, because under the transfer policy rules dated 7-6-2013, the Government is empowered to pass even a premature transfer order depending upon the exigencies, by assigning proper reasons. When the Government came to know that, there are some allegations against the petitioner, in order to avoid un-necessary problems, it appears the Government has passed such a transfer order. On the other hand, the second respondent never aspired for any particular post and he never made any request in this regard. 6 Therefore, the transfer order stands to reason and it does not call for any interference at the hands of this Court.
5. Sri Kanthraj, learned Additional Advocate General submitted that the Order passed by the Government is with the concurrence and approval by the Chief Minister. The note sheet produced by the first respondent along with the statement of objections, discloses that either in the transfer order or in the note sheet approved by the Chief Minister, there is no whisper about any letter of influence by any Minister. There is no nexus between the alleged letter dated 3-9-2013 and the transfer order. Even otherwise, the Government is the Master to transfer its employees as per the administrative exigencies and depending upon the need of the services of the efficient employees required at a particular place. Such a discretion of the Government cannot be interfered with by this Court without any proper and substantial reasons. Therefore, he prayed for dismissal of the Writ Petition.
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6. We have carefully bestowed our attention to the records. In order to ascertain whether the transfer order is founded on malafide action of the Government, the court has to find out whether there exists any 'malice in law' or 'malice in fact' on the part of the Government. It is well recognized principle of law that any rule or statute which governs the transfer policy is deliberately violated, then such act affects the career prospects of the employee; it can be termed as 'malice in law'. On the other hand, if on the basis of the factual material, the Government is persuaded by any extraneous materials, or on the basis of any private vengeance or to accommodate some influential person, if such order is passed, then it amounts to 'malice in fact'. Therefore, the 'malice in fact' or 'malice in law' are the species germane from the word 'malafide' which is quite opposite to the word 'bonafide'. In this background, the only ground that remains for consideration before this court is:
"Whether the challenged transfer Order is founded on malafide intention?"8
7. It is brought to our notice that the alleged letter of the Co-operative Minister dated 3.9.2013 which appears to have been sent to the Office of the Chief Minister on 27.9.2013. In this letter, it is stated that the second respondent Sri N. Chandrasekhar, is getting promotion, after his promotion he may be posted as Special Deputy Commissioner (Land Acquisition), Bangalore Development Authority, in the place of Sri Vasanth Kumar (petitioner herein). It is contented that on the basis of this letter, the transfer order has been passed. The transfer order under challenge only shows that the petitioner and the respondents were transferred on the ground of Administrative and Public interest to their respective places shown in the transfer order i.e., to say respondent No.2 was transferred as Special Deputy Commissioner (Land Acquisition), Bangalore Development Authority and petitioner was transferred as Joint Commissioner, BMTF, Bangalore. This shows that earlier to their transfer, both of them were working in Bangalore; by means of the impugned transfer order they were posted to work in different departments in Bangalore itself. As rightly 9 contended, this order of transfer is simplicitor in nature; it does not show that it was made due to any extraneous influence or force or any private vengeance by the Government. Accepting for a moment that the above noted letter dated 3.9.2013 of the Minister, appears to have been reached the office of the Chief Minister on 27-9-2013, on the same day, i.e. 27.9.2013, the Government had passed earlier transfer order transferring respondent No.2 from Kolar to KREDL, Bangalore. Earlier to that, the respondent No.2 vide Order dated 24.8.2013 transferred from Special Land Acquisition Officer, Bangalore Development Authority, Bangalore to work as Additional Deputy Commissioner and Additional District Magistrate, Kolar District, Kolar. Therefore, on the basis of this letter dated 3.9.2013, respondent No.2 cannot be said to have been transferred to the present post.
8. Now, coming to the note sheet relied upon by the learned counsel which is produced along with the statement of objections by respondent No.2 marked at Annexure-R4 which shows that a note was put up stating that petitioner 10 Sri Vasanth Kumar, while working as Commissioner, Bangalore Development Authority, during this period there were lot of allegations against his working style and in fact those allegations were published in Prajavani, Times of India, Bangalore Mirror, Newspapers. In this back ground, it is not proper on the part of the Government to continue him in the said post and it is proposed in the said note sheet to transfer him as Joint Commissioner, BMTF, Bangalore. According to the learned counsel for the petitioner, this note sheet in fact is in pursuance of the letter of the Minister. In the note sheet, neither the letter of the Minister nor any contents of the said Minister's letter is mentioned. Therefore, this Court cannot with all definiteness, with all certainty reach to the conclusion that in pursuance of the letter sent by the Minister or being influenced by the said letter, the present transfer order is passed. Therefore, it cannot be said that only due to the existence of 'malice in fact' the transfer order is passed.
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9. It is also seen from Annexure-R1, the proceedings of the Government of Karnataka issuing guidelines regarding transfer of Government servants vide Government Order No.DPAR 4 STR 2013, Bangalore, dated 7.6.2013. Rule 9 of the said Order deals with Premature/delayed Transfer. Rule 9(a) of the said Rules reads as under:
"(a) generally there should be no premature transfers. The tenure of posting of a 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 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:-"
This particular provision empowers the Government even to effect premature transfers but the only rider is that, the authority has to record its reasons for the said transfer in writing if it feels that the employee proposed to be transferred 12 is not suitable for discharging the duties at the present place. Therefore, it goes without saying that if the reasons are assigned for premature transfer, with the approval of the Chief Minister, as per Rule 7 of the said rules/guidelines, then such an Order cannot be questioned styling it as a premature or malicious order. We have already referred to the transfer order passed coupled with the note sheet, the Government for its own reasons which are recorded in the note sheet after taking the approval of the Chief Minister passed the transfer order which is impugned before the Karnataka Administrative Tribunal and before this Court. Whether the reasons given by the Government is valid or not cannot be tested by this court on facts dealing with the matter under Article 226 of the Constitution of India.
10. The act of the Government in bringing back the respondent No.2 to Bangalore, though he was transferred few months back to Kolar may not be proper, but on that ground alone the transfer order cannot be interfered unless it is shown that the said Order is illegal and passed out of malice.
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11. In this back ground, the learned counsel for the respondent No.2 has relied upon a ruling reported in (2007) 8 SCC 150 - Mohd. Masood Ahmad Vs. State of U.P. & Others, wherein the Hon'ble Supreme Court has laid down two principles i.e.:
(1) Firstly, the transfer of the Government servants in the Government Departments is an exigency of service and is an administrative decision. Interference by the courts with transfer orders should only be in very rare cases. As repeatedly held in several decisions of the Supreme Court, the transfer should not be interfered with ordinarily by a court of law in exercise of its discretionary jurisdiction under Article 226 of the Constitution of India, unless the court finds that either the Order is malafide or the service rule prohibits such transfer or the authority who issue the order would not competent to pass Orders.
(emphasis supplied) (2) Secondly, on facts even if the allegations of the parties are correct, that the employee was transferred on the recommendation of an MLA, that itself would not vitiate the transfer order. It is the duty of the representative of the people in the 14 Legislature to express the grievances of the people and if there is any complaint against an official, the State Government is certainly within its jurisdiction to transfer such an employee. There can be no hard and fast rule that every transfer at the instance of MP or MLA would be vitiated. It all depends on facts and circumstances of the individual case.
12. The learned counsel for the petitioner also cited a judgment of the division bench of this Court in Writ Petition No.6650/2006 (S-KAT) between C.Channegowda Vs. State of Karnataka & Others, wherein, this court has held that:
"Where the transfer order smacks of political consideration, the Courts cannot shut its eyes and confirm such political interference orders. Confirmation of such orders would not be in the interest of public efficiency."
13. The tribunal has observed in the impugned order that there are some allegations against the petitioner published in the news papers, in order to avoid embarrassment to the Government; the transfer appears to have been made. It also held that it is the prerogative of the 15 Government to take steps to avoid un-necessary complications and to maintain transparency by exercising administrative powers, in order to issue transfer order as it feel necessary. Therefore, it does not call for any interference by the Tribunal.
14. In the light of the above said observations of the Tribunal and also applying the principles emanate from the above decisions, to the facts of this particular case, we are of the opinion that the Tribunal has not committed any error in dismissing the application before it.
15. We have already observed that the State Government has denied the receipt of any letter either from the Co-operative Minister or the Government, has acted upon any such letter. The argument of the learned counsel for the petitioner cannot be accepted, that the Minister has given such letter and it was acted upon; unless it is unequivocally and with all certainty, shown to the Court that, being influenced by that letter, the petitioner has been transferred by the Government. In the absence of such material, even if 16 it is considered that there was an influence letter given by the Minister, it cannot be said that out of any malice or with any malafide intention, the Government has transferred the petitioner, in order to accommodate respondent No.2. The file also does not disclose that the respondent No.2 was the aspirant to the said place of the petitioner or he made any representation or any request to the Government seeking his transfer to the petitioner's place.
16. It is to be borne in mind that the responsibility of good administration is that of the Government for maintenance of efficient, honest and experienced administrative heads is a must, for discharging of such responsibility by the Government. Therefore, the Government alone is the best judge to ascertain the existence of exigencies of such services, requiring transfer of some efficient officers. The Government in order to achieve this object need not give any reasons for such transfers. In this aspect also, if the transfer order is not shown to be the outcome of any malafide intention, such transfers cannot be interfered with ordinarily by this court. We have also perused the newspaper cuttings 17 produced along with the statement of objections by the respondents, wherein some allegations are made against the petitioner that his relative (Smt. Jayashree) had secured a site from BDA by giving false and wrong information to the BDA in the year 2006. Later she has also sought for permission to surrender that site and surrendered it. The allegations also disclose that, the BDA Commissioner assured to conduct an enquiry to investigate the matter. The allegations also disclose that suspicion is expressed regarding impartial and fair investigation referring to the position of the petitioner as Special Deputy Commissioner in the said Department who can have access to the file.
17. The learned counsel for the petitioner submitted that in the year 2006 the petitioner was not in the Government service. Therefore, abuse of his power does not arise. Nevertheless, the entire above noted allegations remain as allegations till the enquiry report is submitted. Though the said submissions are attractive, the same may not be accepted. It appears the above allegations have come to the knowledge of the Government, perhaps, as a precautionary 18 measure with an abundant caution, the petitioner has been transferred, and therefore the Government cannot be find fault with it. Looking to the above factual aspects as well as the legal aspects, we do not find any strong reasons to interfere with the Order passed by the Karnataka Administrative Tribunal.
18. Before parting with this judgment, in so many cases, we have been observing about the transfers of the Government servants, that the Government has been often transferring the Government servants in the midst of the year without following procedure under the transfer policy guidelines. It is observed, some of the officers were transferred for nominal sake, who had a long stay at a particular place and again brought back to the same place. In this particular case also, both respondent No.2 and the petitioner were brought back to Bangalore within a very short span of time. The Government cannot have a say that only these two Officers are efficient officers available in the State and their services are inevitably required at Bangalore. The Government should be indiscriminate in so far as its 19 employees are concerned. It should provide opportunity to other good, efficient, sincere officers working across the State, to work in the responsible posts as department heads in order to bring transparency in the said departments. We trust and hope that the Government would understand and respect our views and take care of all these things in future transfer orders, it will adhere to the transfer policies strictly and also adhere to the transparency in transfers.
19. With these observations, we proceed to pass the following:
ORDER The Writ Petition is hereby dismissed. Consequently, the Order passed by the Karnataka Administrative Tribunal is hereby confirmed.
Sd/-
JUDGE Sd/-
JUDGE PL