Karnataka High Court
Sri. Prem Singh S/O Bhikku Singh vs The State Of Karnataka & Anr on 28 February, 2020
Equivalent citations: AIRONLINE 2020 KAR 2028, 2021 (1) AKR 370
Bench: G.Narendar, M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
R
DATED THIS THE 28TH DAY OF FEBRUARY, 2020
PRESENT
THE HON'BLE MR.JUSTICE G.NARENDAR
AND
THE HON'BLE MR.JUSTICE M.NAGAPRASANNA
WRIT PETITION NO.212920/2020 (S-KAT)
Between:
Sri Prem Singh
S/o Bhikku Singh
Aged about 54 years
Working as Superintending Engineer
Public Works Department Circle
Kalaburagi-585 102
... Petitioner
(By Sri Ravi B.Patil &
Sri M.S.Bhagwath & Sri Pruthveesh M.N. Advocates)
And:
1. The State of Karnataka
Rep.by its Principal Secretary
Department of Public Works, Ports
And Inland Water Transport
Vikasa Soudha, Bangalore-560 001
2. Sri Prakash B.Srihari
Father's name not known to the petitioner
Major
Was working as Superintending Engineer
2
Public Works Department Circle
Kalaburagi-585 102
... Respondents
(By Sri I.Taranath Poojari, AGA for R1;
Sri D.L.Jagadeesh, Sr. Advocate A/w
Sri Krupa Sagar Patil &
Sri B.R.Patil, Advocates for C/R2)
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India praying to set aside the
impugned judgment and order dated 20.12.2019 passed in
Application No.6785/2019 by the Hon'ble Karnataka State
Administrative Tribunal, Kalaburagi (Annexure-A) and
consequently allow the said Application No.6785/2019 filed
by the petitioner before the Hon'ble Karnataka State
Administrative Tribunal as prayed for by him.
This writ petition having been heard and reserved
for orders on 07.02.2020, this day Nagaprasanna J.,
made the following:
ORDER
The instant writ petition assails the order dated 20.12.2019 passed by the Karnataka State Administrative Tribunal (hereinafter referred to as the 'Tribunal' for short), Kalaburagi, in application No.6785 of 2019, whereby the Tribunal dismissed the application 3 filed by the petitioner-applicant challenging his order of transfer and posting.
2. Shorn of unnecessary details, the skeletal material facts necessary for appreciation of the controversy are as follows:
The petitioner and the 2nd respondent, are both employees of the Department of Public Works, Water Resources and Inland Water Transport. By a notification, dated 8.11.2019, the petitioner, who was in the cadre of Executive Engineer, was placed on independent charge under Rule 32 of Karnataka Civil Service Rules, (for short 'KCSR'), in the cadre of Superintending Engineer. The name of the petitioner was found at Sl. No.34 in the said list. The Government, while placing the petitioner on independent charge under Rule 32 of the KCSR, posted him as Superintending Engineer, PWD Circle, Kalaburagi, in place of the 2nd respondent.4
3. On the same day, by a separate notification, the 2nd respondent, who was working as Superintending Engineer at PWD Circle, Kalaburagi, was transferred without a posting and was directed to report to the Water Resources Department. Both the above mentioned notifications had the prior approval of the Hon'ble Chief Minister.
4. On the same day, yet again, by another notification, the posting of the petitioner as Superintending Engineer, PWD Circle, Kalaburagi, was kept in abeyance. This was challenged by the petitioner before the Tribunal in application No.6785 of 2019. The Tribunal, while entertaining the application, by way of an interim order, permitted the petitioner to report to duties. On the strength of the interim order granted by the Tribunal, the petitioner assumed charge of the post on 11.11.2019 (Annexure-A7). Finally, the Tribunal, by its order dated 20.12.2019, held that the petitioner, 5 being an Officer under Rule 32 of KCSR, could not disturb the 2nd respondent who was the regular appointee to the post of Superintendent Engineer, and dismissed the application. Aggrieved by the order dated 20.12.2019, the petitioner-applicant before the Tribunal has filed the instant writ petition.
5. We have heard Sri M.S. Bhagwath for Sri Ravi B. Patil and Sri Pruthveesh M.H., learned Counsels appearing for the petitioner, Sri I. Taranath Poojari, learned Additional Government Advocate appearing for respondent No.1 and Sri D.L. Jagadeesh, learned Senior Advocate appearing for caveator-respondent No.2.
6. The facts that are not in dispute are that the petitioner, who is in a substantive cadre of Executive Engineer, on his independent charge arrangement under Rule 32 of KCSR was posted to the place of the 2nd respondent, namely Superintending Engineer, PWD Circle, Kalaburagi. On the same day, two other 6 notifications were issued, the first notification was posting the 2nd respondent who was working as Superintending Engineer, PWD Circle, Kalaburagi, to go and report to the Water Resources Department and no place was shown to the 2nd respondent. Another notification, the order of posting the petitioner was kept in abeyance. The petitioner challenged the notification, insofar as it pertains to keeping his transfer and posting in abeyance, before the Tribunal in application No.6785 of 2019. The Tribunal by its order dated 9.11.2019, directed the petitioner to take charge of the post. In terms of the interim order granted by the Tribunal, the petitioner took charge of the post of Superintending Engineer, PWD Circle, Kalaburagi on 11.11.2019. The Tribunal, after hearing the parties and considering the material available on record, dismissed the application by order dated 20.12.2019.
7
7. Learned Counsel for the petitioner would contend that the notification of transfer and posting being kept in abeyance is contrary to the guidelines and mala fide, as there is no reason assigned to keep the said notification in abeyance. The notification dated 8.11.2019 (Annexure-A9) is contrary to the guidelines inasmuch as it does not bear the prior approval of the Hon'ble Chief Minister. The learned Counsel further contends that the 2nd respondent has been in Kalaburagi close to ten years, and in the present place of posting, for more than three years two months.
8. It is the further contention of the learned Counsel for the petitioner that the 2nd respondent who was working as Superintending Engineer, PWD Circle, Kalaburagi, from 18.11.2016 has completed his minimum tenure, stipulated under the guidelines which is two years and he cannot have any grievance as to 8 which officer replaces him, be it an officer under Rule 32 of KCSR.
9. Per contra, learned Additional Government Advocate would contend that the posting of the petitioner to the place of the 2nd respondent was erroneous as the post was not vacant. When the notification of the transfer was made, the 2nd respondent was still holding the post and when he was still holding the post, the petitioner who was an officer under Rule 32 of the KCSR could not be posted to the place of the 2nd respondent, as the petitioner can be posted only to a vacant post. It is his submission that in the entire notification dated 08.11.2019, the only officer who has given posting to a particular place which was not vacant is the petitioner. The entire list does not contain the posting of any Officer to replace anybody and it was a mistake in the case of the petitioner. It is for that reason, the posting of the petitioner was kept in 9 abeyance on the very same day and the petitioner does not have any right to contend that the order keeping the notification in abeyance is contrary to the guidelines as his posting was not even a transfer.
10. The learned Additional Government Advocate would further contend that in the light of judgment of the Raghuram Shetty, the posting of an Officer under Rule 32 of the KCSR to a post which is not vacant would become contrary to law. Hence, the order of transfer was kept in abeyance.
11. Learned Counsel for the 2nd respondent, while adopting the submissions made by the learned Additional Government Advocate, would submit that merely because the 2nd respondent has completed his tenure, would not lead to a situation where he must be transferred. It was within the power of the Government to keep the transfer in abeyance and continue the 2nd respondent in the post. He would further assert that the 10 order keeping the notification in abeyance is approved by the Hon'ble Chief Minister. It is the further contention of the learned Counsel for the 2nd respondent that pursuant to the order of the Tribunal, the petitioner herein is given the posting on 23.12.2019 as Superintending Engineer (Designs), PWD, Kalaburagi and he has neither questioned the order nor obeyed it by reporting to duties.
12. We have given our anxious consideration to the contentions advanced by all the learned counsel and have perused the original file pertaining to the transfer and posting of the petitioner and the 2nd respondent in terms of which, the following points arise for our consideration:
1. Whether the transfer and posting and its subsequent order keeping it in abeyance are contrary to the guidelines and vitiated by malafides?11
2. Whether the petitioner who is an officer under Rule 32 of KCSR can be posted to a post which is held by a regular appointee?
3. Whether the transfer and posting of both the petitioner and the 2nd respondent are vitiated by bringing political influence?
Point No.1:
13. The petitioner was posted as Superintendent Engineer, PWD Circle by an order dated 08.11.2019, it was a composite order of transfer of 78 officers being given independent charge under Rule 32 of the KCSR and consequently posting them to various places. The name of the petitioner is found at Sl.No.34 in the said list and he was posted as Superintendent Engineer in place of the 2nd respondent. On the very same day, another order was made transferring the 2nd respondent who was holding the post of Superintendent Engineer, 12 PWD Circle, Kalaburagi to report to Water Resource Department for further posting. The action of the State Government did not stop there, by yet another notification on the same day i.e. on 08.11.2019, promotion, transfer and posting of the petitioner to the place of the 2nd respondent was kept in abeyance. From a perusal of the file, it is indicative of the fact that the first two notifications namely, the composite order of transfer and the transfer of the 2nd respondent to report to the Water Resources Department had the prior approval of the Hon'ble Chief Minister, the third notification of dated 08.11.2019 does not have the prior approval of the Hon'ble Chief Minister.
14. The third notification namely, keeping the order of the transfer and posting of the petitioner to the place of the 2nd respondent in abeyance does not indicate any reason whatsoever, either in the notification or in the original file. The reasons ought to 13 have been indicated in the light of the fact that out of the 78 officers who were promoted and transferred, a solitary case of the petitioner is kept in abeyance, which would clearly indicate, malice in law and suffers from want of bonafides, as without there being any compelling reason or administrative exigency, the transfer and posting of the petitioner to the place of the 2nd respondent could not have been kept in abeyance.
15. The contention of the petitioner that the order keeping it in abeyance is premature is unacceptable to us as the petitioner was not issued the movement order or did not assume charge of the post on 08.11.2019 pursuant to the notification, as on the very day, the order was kept in abeyance. The petitioner assumed the charge of the posting at PWD Circle, Kalaburagi on the strength of an interim order granted by the Tribunal. The assumption of the charge of the petitioner on 11.11.2019 cannot be said to be an 14 assumption of charge without judicial intervention. Ultimately the application filed by the petitioner came to be dismissed by the Tribunal. It cannot be held that the notification keeping the posting of the petitioner in abeyance is premature and contrary to clause 9 of the guidelines. The notification impugned cannot be said to be vitiated on this ground.
16. Thus, notification keeping the transfer and posting of the petitioner in abeyance is vitiated on account of want of reasons and not on any other ground. Hence, we answer point number one accordingly.
Point No.2
17. It is germane to notice Rule 32 of the KCSR which reads thus:
"32. Instead of appointing a Government servant to officiate, it is also permissible to appoint him to be in charge of the current duties of a vacant post. In such a case, a 15 "charge allowance" (additional pay) is payable as specified in Rule 68."
In terms of the afore-extracted Rule, it is permissible to the government to appoint a government servant to officiate in a vacant post. Note 1 to the said Rule reads thus:
"A Government servant can be appointed under this Rule to be in-charge of the current duties of a vacant post only if he is eligible to be promoted to officiate in that post according to the Cadre and Recruitment Rules applicable to that post or if he is holding a post in an equivalent or higher grade."
18. In the case on hand, the petitioner who was placed on independent charge under Rule 32 of the KCSR is posted to the place of the 2nd respondent. The 2nd respondent did not choose to challenge it, as on the very same day, the order was kept in abeyance. To 16 consider this point, the service of the 2nd respondent at Kalaburagi is required to be noticed.
Service particulars of the 2nd respondent from 9.7.2010 Sl. Place of Working Duration No.
1. Superintending Engineer, PWD From 09.07.2010 Circle, Kalaburagi to 11.12.2011
2. Superintending Engineer, Minor From 12.12.2011 Irrigation Circle, Kalaburagi to 18.11.2016
3. Superintending Engineer, PWD From 18.11.2016 Circle, Kalaburagi till the petitioner has taken charge of the post.
19. In terms of the service of the 2nd respondent at Kalaburagi, as tabulated herein above, it is seen that the 2nd respondent worked in the same post from 09.07.2010 to 11.12.2011 and was posted as Superintendent Engineer, Minor Irrigation Circle, Kalaburagi from 12.12.2011 to 18.11.2016 and from 18.11.2016 goes back to the same place i.e. Superintendent Engineer, PWD Circle, and is 17 functioning in the said post since 18.11.2016, which was over and above three years on the date of passage of the impugned order. Under the operative guidelines regulating transfer of Government servant in the State of Karnataka, the minimum tenure prescribed for Group-A post is two years and the 2nd respondent had completed two years long ago. Thus, on completion of two years, the 2nd respondent cannot have any grievance with regard to an officer under Rule 32 of the KCSR replacing him. It would not be violative of the law laid down by the learned Division Bench of this Court in the case of Raghuram Shetty. Once an officer completes his tenure, unless, the said person who replaces him is ineligible to hold the post under the Cadre and Recruitment Rules, it is only then, notwithstanding completion of tenure the person holding the post could have any grievance. In the instant case, the 2nd respondent has been in Kalaburagi for the last 10 years and in the present place namely Superintendent 18 Engineer, PWD Circle, Kalaburagi for the last three years and two months.
20. The Hon'ble Supreme Court in the case of Rajendra Singh and Others vs. State of Uttar Pradesh and Others reported in (2009) 15 Supreme Court Cases 178 has held that transfer being an incidence of service no person can claim that he or she to be posted on a particular place, unless the transfer is contrary to the statute or malafide. The Hon'ble Supreme Court has observed at paragraph Nos.8, 9 and 10 which read as follows:
"8. A government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the 19 contrary. No Government can function if the government servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires (see State of U.P. v. Gobardhan Lal [(2004) 11 SCC 402 : 2005 SCC (L&S) 55] , SCC p. 406, para 7).
9. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. In Shilpi Bose v. State of Bihar] this Court held: (SCC p. 661, para 4) "4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is 20 passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to-day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders."
10. In N.K. Singh v. Union of India this Court reiterated that: (SCC p. 103, para 6) "6. ... the scope of judicial review in matters of transfer of a government servant to an equivalent post without any adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides and violation of any specific provision...."
21. In terms of the law declared by the Hon'ble Supreme Court, the petitioner or the 2nd respondent 21 cannot be said to be claiming that they should work in a particular post. More so, the 2nd respondent as he has completed his minimum tenure under the operative guidelines.
22. Insofar as the judgment relied on by 2nd respondent, the Co-ordinate Bench of this Court in W.P.No.14393 of 2012 (S-KAT) in the case of Raghurama Shetty and Ors. vs. State and Ors., has held as follows:
"3. The learned Counsel for the petitioner assailing the impugned order contended that admittedly when an order is made under rule 32 of the Rules posting should be to a vacant post. Therefore, the second respondent could not have been posted to a post which is held by the petitioner and as such the said order is illegal. That apart, the authority who has passed the order was not competent to pass the said order. These two aspects have not been considered by the Tribunal and has 22 proceeded on the assumption that the petitioner was on deputation and he had completed 3 years of service and he had no substantive right. Therefore, the impugned order came to be passed, which is patently illegal and requires to be set aside."
23. It is germane to notice that the said judgment of the Division Bench came to be distinguished in a subsequent judgment by the learned Division Bench of this Court in W.P.No.44916 of 2014 (S-KAT) in the case of B.Madesh Vs. State of Karnataka wherein the learned Division Bench has held as follows:
"17. It is true that the posting of the petitioner as Deputy Commissioner of Excise, Bangalore West vide transfer order 01.09.2014 is under Rule 32 of the KCSR but the said posting is done after assessing not only the eligibility of petitioner but also the suitability, by the Departmental Promotion Committee constituted by the Government.23
Though transfer order dated 01.09.2014 cannot be considered as an order of promotion, it can be certainly said that Government has taken into consideration all W.P.No.44916/2014 relevant criteria before posting eligible officers found in the seniority list with independent charge of the post of Deputy Commissioners of Excise. If respondent No.3 had not completed one year of service as Deputy Commissioner of Excise, Bangalore West, it would have been certainly contrary to guidelines. His posting is on the basis of his completion of more than one year service as Deputy Commissioner of Excise, Bangalore West and therefore, his transfer is in accordance with the guidelines framed by the Government vide order dated 20.05.2014.
18. The facts in Raghurama Shetty's case are distinguishable vis-à-vis facts of the present case. The Tribunal has misapplied the decision rendered in Raghurama Shetty's case to the facts of the present case. It has proceeded on a wrong W.P.No.44916/2014 24 assumption that the petitioner's posting is purely under Rule 32 of KCSR that too against the post which is not vacant. Hence, we are inclined to interfere with the order passed by the KAT."
(emphasis supplied)
24. Thus, the learned Division Bench which subsequently considered Raghuram Shetty's case has clearly held that the question whether an officer under Rule 32 of the KCSR can replace a regular officer holding a regular post would arise being only if the officer holding the place on regular basis has not completed his minimum tenure. In the instant case, the 2nd respondent had completed his minimum tenure and the order of transfer was issued, the law declared in B. Madhesha's case is applicable to the fact situation and not the one declared in Raghuram Shetty's case. Hence, we hold that the transfer and posting of the petitioner who is officer under Rule 32 of the KCSR to the post of the 2nd respondent who was regularly holding the post 25 did not vitiate the transfer and posting of the petitioner qua the 2nd respondent. Hence, we answer point No.2 accordingly.
Point No.3
25. On a perusal of the original file, concerning the transfer and posting of both the petitioner and the 2nd respondent, it is seen that there are several letters given by the elected representatives both in favour of the petitioner and the 2nd respondent. It is seen that two elected representatives, one of Kalaburagi Rural constituency has addressed letters both to the Deputy Chief Minister and Secretary to the PWD. The MLA of Kalaburagi, Dakshina constituency has also addressed letters to the Deputy Chief Minister and Secretary to PWD. All these four letters were written on 8.11.2019 that is the date on which the 2nd respondent was transferred and directed to report to the Water Resources Department.
26
26. Letters in favour of the 2nd respondent read as follows.
1.
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PÀ®§ÄgÀV Constituency-43
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27. From the records, it is further noticed that during the pendency of the proceedings before the Tribunal, there were proceedings communicated to the 32 Hon'ble Chief Minister by a Minister recommending continuation of the petitioner in Kalaburagi.
28. The letter reads as follows:
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29. The aforementioned letters of the political representatives and the Minister, in favour of both the petitioner and the 2nd respondent would indicate that political interference in the matters of transfer or political pressure was brought in both by the petitioner and the 2nd respondent. Learned Additional Government Advocate appearing for the 1st respondent and learned counsel appearing for the 2nd respondent 34 have placed before us the judgment of the Hon'ble Supreme Court in case of Mohd. Masood Ahmad vs. State of U.P. And Others reported in 2007(8) SCC 150 and refer to paragraphs 7 and 8, wherein the Hon'ble Supreme Court has held as follows:
" 7. The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Roy v. Union of India [(1993) 1 SCC 148 : 1993 SCC (L&S) 138 : (1993) 23 ATC 426 : AIR 1993 SC 1236] , National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan [(2001) 8 SCC 574 : 2002 SCC (L&S) 21 : AIR 2001 SC 3309] , State Bank of India v. Anjan Sanyal [(2001) 5 SCC 508 : 2001 SCC (L&S) 858 : AIR 2001 SC 1748] . Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh v. State of U.P. [(1997) 3 ESC 1668 : 1998 All LJ 70] and Onkar Nath Tiwari v. Chief Engineer, Minor Irrigation Deptt. [(1997) 3 ESC 1866 : 1998 All LJ 245] has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a 35 court of law in exercise of its discretionary jurisdiction under Article 226 unless the court finds that either the order is mala fide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders.
8. Learned counsel for the appellant submitted that the impugned transfer order of the appellant from Muzaffarnagar to Mawana, District Meerut was made at the instance of an MLA. On the other hand, it has been stated in the counter- affidavit filed on behalf of Respondents 1 and 2 that the appellant has been transferred due to complaints against him. In our opinion, even if the allegation of the appellant is correct that he was transferred on the recommendation of an MLA, that by itself would not vitiate the transfer order. After all, it is the duty of the representatives of the people in the 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 an MP or MLA would be vitiated. It all depends on the facts and circumstances of an 36 individual case. In the present case, we see no infirmity in the impugned transfer order. "
Quoting the aforementioned judgment, the learned counsels would submit that it is permissible in law to act upon the recommendation of the MLA. The judgment of the Hon'ble Supreme Court in the case of Mohd. Masood Ahmad (Supra) is distinguishable on facts without much ado, inasmuch as the very paragraphs relied upon by the learned counsels would clearly indicate that it was the recommendation made by the MLA on the basis of the complaints that were received upon the officer whom the MLA had sought the transfer of. The facts in the instance case are entirely different. The 2nd respondent had completed his minimum tenure and has been in the same place for more than ten years, and in the same post for more than three years and two months, and the petitioner herein, who had just stepped into the post of the 2nd respondent, namely, 37 Superintending Engineer, PWD Circle, Kalaburagi, also brings in political pressure to continue him in the same post even during the pendency of the proceedings before the Tribunal.
30. It is apposite to refer to judgment of the Hon'ble Supreme Court in the case of Sarvesh Kumar Awasthi vs. UP Jal Nigam and Others reported in (2003) 11 SCC 740, wherein the Hon'ble Supreme Court has held in paragraph No.4, which reads thus:
4. In our view, transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily, mala fide or an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned.
For better administration the officers concerned must have freedom from fear 38 of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration.
31. In terms of the law declared by the Hon'ble Supreme Court as extracted hereinabove, transfer would get vitiated, if it is at the instance of politicians. In our view, political interference in transfers and posting of officers would result in politicization of public office and put public efficiency and good administration to peril.
32. The guidelines of transfer dated 22.11.2001 which was superseded by the guidelines of transfer dated 7.6.2013, which regulated and presently regulate the transfer of Government servants in the State of Karnataka, have been declared to have a statutory force by two Full Bench judgments of this Court in the case of 39 H.N. Chandru vs. State of Karnataka and Others reported in 2011 (3) KLJ 562 and in the case S.N. Gangadharaiah vs. State of Karnataka reported in ILR 2015 KAR 1955.
33. Apart from various regulatory measures contained in the guidelines, it would also contemplate a situation where officers bring political pressure amounting to political interference. Clause 12 of the guidelines reads thus:
"12. Bringing political pressure regarding transfers:
Transfer cannot be claimed as a matter of right by the Government servants. Bringing political pressure for transfers is prohibited. If any Government servant brings political pressure regarding his posting to a particular place at any time, in contravention of the instructions contained in Circular No.SI AA SU EE 26 SE NOU VA 93, dated 22.5.1993, official Memorandum 40 No.DPAR 41 STR 94, dated 5.8.1994 and Official Memorandum No.SI AA SU EE 54 SE NOU VA 93, dated 19.12.1994, he shall be proceeded with accordingly. It shall also be ensured that he is not posted to such a post."
34. In terms of the afore-extracted clause of the guidelines, it is clear that the transfer cannot be claimed as matter of right and bringing the political pressure for transfer is prohibited. Such persons who would bring political pressure shall not be posted to those posts.
35. In terms of clause 12 of the guidelines, the facts obtaining in the case on hand are considered on the touchstone of clause 12 of the guidelines. Both the petitioner and the 2nd respondent cannot be posted to the post of Superintending Engineer, PWD Circle, Kalaburagi, as both the petitioner and the 2nd 41 respondent have brought in political pressure, one, to remain there and one, to be posted to that place.
36. In terms of law declared by the Hon'ble Supreme Court and the clause 12 of the guidelines of transfer which have been held to have a statutory force, both the petitioner and 2nd respondent ought not to be posted to the PWD Circle, Kalaburagi as Superintendent Engineer. In view of the discussion herein above pertaining to bringing in political pressure to continue in the post and to get a transfer to the post, we direct 1st respondent not to post either of the two officers, namely petitioner and 2nd respondent to the post of Superintendent Engineer, PWD Circle, Kalaburagi.
37. In view of our findings on point Nos.1 and 2, the relief should have been granted to the writ petitioner. But, in view of our finding on point No.3 and for the reasons indicated therein, we pass the following: 42
ORDER
(i) Writ petition is allowed in part.
(ii) The order of the Tribunal in application No.6785/2019 dated 20.12.2019 is set aside.
(iii) The 1st respondent is directed not to post either the petitioner or the 2nd respondent to the post of Superintendent Engineer, PWD Circle, Kalaburagi.
(iv) There shall be no order as to costs.
Sd/-
JUDGE Sd/-
JUDGE CS/VNR