Central Administrative Tribunal - Bangalore
Gangu Bai Ramesh Manakar vs Department Of Personnel And Training on 2 August, 2024
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OA.No.170/00387/2024/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00387/2024
ORDER RESERVED ON: 30.07.2024
ORDER PRONOUNCED ON: 02.08.2024
CORAM:
HON'BLE MR. JUSTICE B.K. SHRIVASTAVA, MEMBER(J)
Smt. Gangu Bai Ramesh Manakar, IAS
Presently working as Deputy Commissioner
Uttara Kannada District, Karwar
Aged about 51 years
And residing at # No. 25,
NY Athani Road,
Near Yankanchi Hospital,
Bijapur, Vijayapura - 586 102. ... Applicant
(By Shri Prabhuling Navadgi, Sr. Advocate along with
Shri Skanda Kumar, Advocate)
Vs.
1. Union of India
Represented by its Secretary (Adm)
Department of Personnel & Training,
Ministry of Personnel, PG & Pensions,
Government of India,
North Block, New Delhi - 110 001.
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OA.No.170/00387/2024/CAT/BANGALORE
2. State of Karnataka
Represented by its Chief Secretary
To Government, Department of
Personnel and Administrative
Reforms (Services - I), Vidhana
Soudha, Bangalore - 560 001.
3. The Under Secretary to Govt. of Karnataka
Department of Personnel &
Administrative Reforms (Services - I),
Vidhana Soudha, Bangalore - 560 001.
4. Smt. Lakshmipriya K, IAS
Presently working as Director,
Abdul Nazir Sab State Institute
Of Rural Development & Panchayat Raj
(ANSSIRD), Mysuru - 570 011
Age: Not known ...Respondents
(By Shri S. Prakash Shetty, Sr. Panel Counsel for Respondent
No.1, Shri Reuben Jacob, Additional Advocate General along with
Shri M. Rajakumar for Respondents No. 2 & 3, None appears for
Respondent No.4)
ORDER
PER: JUSTICE B.K. SHRIVASTAVA, MEMBER (J)
This OA has been filed on 08.07.2024 against the order dated 05.07.2024 (Annexure - A3) by which the applicant has been transferred from the post of "Deputy Commissioner, Uttara Kannada District Karwar" to the post of "Chief Editor, 3 OA.No.170/00387/2024/CAT/BANGALORE Karnataka Gazetteer Department, Bengaluru". The reliefs claimed in para 8 of the OA are as under:-
"(a) Issue a writ of appropriate nature to set aside the impugned transfer notification e-DPAR 197 SAS 2024 dated 5.7.2024 Annexure - A3 issued by the 3rd respondent which is passed in contravention of '2014 Amendment Rules.'
(b) Issue such other appropriate writ, order or direction as this Hon'ble Tribunal deems fit to grant in the interest of justice and equity, including the award of costs of this application."
2. It is an admitted fact that the applicant is an officer of Indian Administrative Service. By order dated 25.07.2023 (Annexure - A1) the applicant was posted as "Deputy Commissioner, Uttara Kannada district Karwar". Thereafter, by order dated 05.07.2024 (Annexure - A3) the applicant has been transferred from the aforesaid post and posted as "Chief Editor, Karnataka Gazetteer Department, Bengaluru."
3. The applicant challenged the aforesaid order dated 05.07.2024 (Annexure - A3) upon the ground that as per Rule 7 of I.A.S. (Cadre) Rules, 1954, she was entitled for a period of two years. It is again submitted by the applicant that in compliance with the Hon'ble Supreme Court judgment T.S.R. 4 OA.No.170/00387/2024/CAT/BANGALORE Subramanian vs. Union of India AIR 2014 SC 263, the rules were amended and the committee was required to be constituted. Minimum tenure of posting is prescribed for two years. The transfer order dated 05.07.2024 is passed in contravention of the rules and judgment. The Civil Service Board is the competent authority for transfer before the minimum prescribed period. But without any recommendation the impugned order has been passed. Therefore, she filed this OA and seeks the relief stated in para 1 of this judgment.
4. Respondent No.1 is the formal party, therefore, he did not file any reply statement. Respondent No.4 was also served but she did not appear and did not file any reply before the Tribunal.
5. The Respondents No. 2 & 3 contested the case by filing their reply on 12.07.2024. It is submitted by the respondents that the reasons behind the transfer are elaborately explained in G.O. dated 05.07.2024. In the interest of "effective District Administration", the transfer order has been passed. It is submitted that the PS Revenue Department submitted the DO letter dated 01.07.2024 against the applicant, therefore, the 5 OA.No.170/00387/2024/CAT/BANGALORE decision has been taken by the Government to transfer the applicant from the present place of posting. Hence, as per respondents, no interference is required.
6. It is also mentioned in the reply by the respondents that Civil Services Board was constituted vide order dated 31.01.2014 but by letter dated 12.03.2014 the same was kept in abeyance.
7. It is also submitted in para 15 of the reply filed by Respondents No. 2 & 3 that the applicant was waiting for posting and was posted as Secretary, Karnataka Information Commission, Bengaluru vide notification dated 19.06.2023 and thereafter was transferred as Deputy Commissioner, vide order dated 25.07.2023 (Annexure - A1). Applicant did not challenge the Annexure - A1 while the aforesaid transfer was also before the period of two years.
8. It is not in dispute that by "Indian Administrative Service (Cadre) Rules, 1954", the minimum tenure was prescribed in Rule 7. In Rule 7(c)(3) it was prescribed that an officer may be transferred before the minimum prescribed tenure only on the 6 OA.No.170/00387/2024/CAT/BANGALORE recommendation of the committee on minimum tenure as specified in the Schedule annexed to the Rules.
9. In the case of T.S.R. Subramanian vs. Union of India (2013) 15 SCC 732 = AIR 2014 SC 263, the Hon'ble Supreme Court issued the direction to constitute the committee and in compliance with the aforesaid judgment, on 28.01.2014 the Central Government amended the "Indian Administrative Service (Cadre) Rules, 1954". In place of existing Rule 7, the Central Government substituted the amended rule as under:-
"7. Postings.-(1) All appointments of cadre officers shall be made on the recommendation of the Civil Services Board as specified in the Schedule annexed to these rules. (2) All appointments to cadre posts referred to in sub-rule (1) shall be made -
(a) in the case of a State Cadre, by the State Government; and
(b) in the case of a Joint Cadre, by the State Government concerned;
(3) A cadre officer, appointed to any cadre post shall hold the office for at least two years unless in the meantime he or she has been promoted, retired or sent on deputation outside the State or training exceeding two months. (4) A cadre officer, appointed to any ex-cadre post shall hold office for such period as may be specified by the State 7 OA.No.170/00387/2024/CAT/BANGALORE Government for that post, unless in the meantime he or she has been promoted, retired or sent on deputation outside the State or training exceeding two months.
(5) The Central Government or the State Government as the case may be, may transfer a cadre officer before the minimum specified period on the recommendation of the Civil Services Board as specified in the Schedule annexed to these rules:
Provided that the Competent Authority may reject the recommendation of the Civil Services Board by recording the reasons therefor."
10. Therefore, it appears that in Rule 7(3) the minimum period of two years was prescribed for a posting at one place but in sub-rule 5 the powers were given to the Central Government or the State Government to transfer before the aforesaid period upon the recommendation of "Civil Service Board" specified in the Schedule annexed to the Rules.
11. By the aforesaid amendment, the composition of the Civil Services Board was also indicated and the function and procedure was also prescribed. The Board was empowered to examine the cases of transfer before the prescribed period and the powers were also given to consider the report of 8 OA.No.170/00387/2024/CAT/BANGALORE Administrative Department along with any other inputs. The composition of the Board was prescribed as under:-
"1. Composition of the Civil Services Board:
Every State Government shall constitute a Civil Services Board which shall consist of -
(i) Chief Secretary Chairman
(ii) Senior most Additional Chief Secretary or Chairman, Board of Revenue or Financial Commissioner or an officer of equivalent rank and status Member
(iii) Principal Secretary or Secretary, Department of Personnel in the State Government Member Secretary
2. Functions.-- (a) The Civil Services Board shall make recommendation for all appointments of cadre officers.
(b) The Civil Services Board shall examine the cases of officers who are proposed to be transferred before completion of minimum period of service as specified under sub-rules (3) and (4) of rule 7 of the Indian Administrative Service (Cadre) Rules, 1954.
(c) The Civil Services Board may consider for transfer before the tenure fixed under sub-rules (3) and (4) of rule 7 of the Indian Administrative Service (Cadre) Rules, 1954 based on such circumstances as it thinks fit.
(d) The Civil Services Board may recommend the Competent Authority the names of officers for transfer before completion of minimum tenure with reasons to be recorded in writing.
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OA.No.170/00387/2024/CAT/BANGALORE
3. Procedure.-- (a) The Civil Services Board shall seek detailed justification from the Administrative Department of the concerned State Government for the transfer of an officer before the specified tenure.
(b) The Civil Services Board shall--
(i) consider the report of the Administrative Department along with any other inputs it may have from other reliable sources;
(ii) obtain the comments or views of the officer proposed to be transferred based on the circumstances presented to it in justification of the proposal;
(iii) not make recommendation for premature transfer of Cadre Officers unless it has been satisfied itself of the reasons for such premature transfer.
(c) The Civil Services Board shall submit a quarterly report in such Form as it thinks fit to the Central Government clearly stating the details of officers recommended to be transferred before the minimum specified tenure and the reasons therefor:
Provided that the Competent Authority may reject the recommendation of the Civil Services Board for the reasons to be recorded in writing."
12. It is submitted by the respondents counsel that the Board was constituted by the Karnataka State Government, but by order dated 12.03.2014 the aforesaid has been kept in abeyance. It is also not in dispute that in the Cabinet meeting held on 10 OA.No.170/00387/2024/CAT/BANGALORE 03.03.2014 in an informal discussion, the Cabinet resolved to keep the order dated 31.01.2014 in abeyance "temporarily". But the said order is continued till today.
13. The aforesaid issue had also come to the notice of Division Bench of Hon'ble High Court of Karnataka in Mr. Sharath B vs. Union of India in Writ Petition No. 7689/2021 order dated 08.07.2021. The Division Bench discussed the matter in detail. In para 20 of the aforesaid judgment, the Court observed:-
"20. Aforesaid facts would clearly indicate that decision taken by the Cabinet to constitute CSB has been kept in abeyance for an indefinite period and is without any basis and also contrary to the directions issued by the Hon'ble Apex court in T.S.R.SUBRAMANIAM's case. It would be of necessity to note that act of the State Government ought to have been in consonance with the Rules namely, 1954 Rules and not in derogation of it. The Central Government in order to give effect to the directions issued by the Hon'ble Apex Court in T.S.R.SUBRAMANIAM's case amended the 1954 Rules in exercise of its power conferred under sub- section (1) of Section 3 of the 1951 Act by bringing in 2014 Rules."11
OA.No.170/00387/2024/CAT/BANGALORE
14. Therefore, it appears that the committee is not functioning at present. The aforesaid situation was also considered in the aforesaid case of Division Bench of Hon'ble High Court of Karnataka and in para 34 and 36 the Court observed as under:-
"34. It is to be noted that learned Advocate General sought to sustain the order dated 12.03.2014 and the consequential order of transfer also on the ground that previous conventions had been followed on account of CSB having been kept in abeyance. As to what was the previous convention that was followed whether by way of any extant rules, Government Orders, Circulars or notifications is not forthcoming and it has remained a mystery. In other words, the so called convention has not seen the light of the day. Hence, said contention cannot be accepted. Even assuming for a moment that constitution of CSB was kept in abeyance, the rigour of amended Rule 7(3) would not either get erased or evaporated or recede to background. To put it differently, sub-rule (3) of Rule 7 as amended in 2014 by the Central Government would be applicable and tenure of two years fixed thereunder would continue to remain in force and operate.
36. Learned Advocate General has also fairly submitted before the tribunal that there is no provision under any particular enactment which enabled the State Government 12 OA.No.170/00387/2024/CAT/BANGALORE to keep the Government Order dated 31.01.2014 in abeyance by order dated 12.03.2014. In the aforesaid background, we hope and trust the State Government would take immediate steps to constitute the CSB at the earliest so as to give effect to the mandate of law laid down by Hon'ble Apex Court and to comply with the rigour of sub-rule (3) of Rule 7 of 1954 Rules. However, we make it clear that said constitution of CSB shall be made expeditiously, at any rate, within an outer limit of two months from the date of receipt of copy of this order. In the absence of CSB, the orders passed hitherto effected cannot be nullified. However, it would suffice to observe that competent authority under Rule 36 of the Karnataka Government (Transaction of Business) Rules, 1977 as prescribed under Second Schedule shall re-visit the order of transfer dated 29.09.2020 (Annexure-R1) and pass suitable orders without being influenced by its earlier order. Accordingly, the writ petitions stand disposed of."
15. Therefore, it can be said that the restriction of two years as per sub-rule 3 of Rule 7 as amended in 2014 is in existence and before the aforesaid period the transfer order can only be passed by the Government but upon the basis of some material against the applicant. It was said in the Division Bench case that in the absence of CSB the order passed cannot be nullified. The competent authority under Rule 36 of the Karnataka 13 OA.No.170/00387/2024/CAT/BANGALORE Government (Transaction of Business) Rules, 1977 as prescribed under Second Schedule is empowered to examine the matter.
16. In the present case, it is mentioned in the impugned order Annexure - A3 that "as ordered in the G.O. No. DPAR 197 SAS 2024 dated 05.07.2024". Annexure - R1 was also filed along with the reply statement filed by Respondents No. 2 & 3. It will be useful to refer the aforesaid document as it is:-
"PROCEEDINGS OF THE GOVERNMENT OF KARNATAKA Sub: Transfer of Deputy Commissioner, Uttara Kannada District, Karwar- regarding.
Read: D.O. Letter dated 01.07.2024 from Principal Secretary to Government, Revenue Department addressed to Chief Secretary to Government, GoK.
Preamble:
In the D.O. Letter read above, it has been informed that Smt. Gangu Bai Ramesh Manakar, IAS, Deputy Commissioner, Uttara Kannada District, Karwar has not been coordinating with Naval authorities and is not resolving the issues locally. Further, the said official is not working by giving top priority to Naval issues and project 14 OA.No.170/00387/2024/CAT/BANGALORE Seabird which is of national importance. In spite of the District in-charge Secretary giving instructions to the said officials, the pending issues related to navy and project Seabird have not been resolved.
The Principal Secretary to Government, Revenue Department has also enclosed the reports which shows that the said official has kept more than 280 'change of land use' cases pending as on 30-06-2024. Further, the work of seeding Adhaar details with RTC is also going at a very slow pace.
It is also further informed in the above letter that Smt. Gangu Bai Ramesh Manakar, IAS, while previously working as Director, Atal Jana Snehi Kendra (AJSK), appointed DEO's in excess of sanctions given by Finance Department and has committed financial and administrative irregularities.
The contents in the D.O letter have been examined and found primafacie correct and hence, the following orders.
GOVERNMENT ORDER No. DPAR 197 SAS 2024, BENGALURU, DATED: 05th July, 2024.
In the interest of effective District administration, Smt. Gangu Bai Ramesh Manakar, IAS (KN:2012), Deputy Commissioner, Uttara Kannada District, Karwar is transferred with immediate effect and posted until further orders as Chief Editor, Karnataka Gazetteer Department, 15 OA.No.170/00387/2024/CAT/BANGALORE Bengaluru vice Smt. Archana M.S., IAS transferred. Further, Smt. Lakshmipriya K., IAS (KN: 2015), Director, Abdul Nazir Sab State Institute of Rural Development and Panchayat Raj (ANSSIRD), Mysuru, is transferred with immediate effect and posted until further orders as Deputy Commissioner, Uttara Kannada District, Karwar vice Smt. Gangu Bai Ramesh Manakar, IAS transferred.
BY ORDER AND IN THE NAME OF THE GOVERNOR OF KARNATAKA (T. Mahanthesh) Under Secretary to Government, Department of Personnel & Administrative Reform (Services-1)"
17. It appears from the aforesaid document that the DO letter dated 01.07.2024 was received from the "Principal Secretary to the Government Revenue Department". The copy of the aforesaid letter was also annexed as Annexure - R2. This is the detailed report against the applicant indicating six charges or allegations against the applicant. It will not be proper to mention the aforesaid charges here. It appears from para 4 of the aforesaid letter that an interim report dated 13.09.2023 (Annexure - R3) submitted by "Regional Commissioner, Bengaluru" was also attached with the DO dated 01.07.2024. After taking into 16 OA.No.170/00387/2024/CAT/BANGALORE consideration the aforesaid preliminary enquiry report and the DO letter of the Principal Secretary, Revenue Department, the Government has taken the decision to transfer the applicant.
18. It is argued by the learned counsel for the applicant that the opportunity of hearing against the allegations was not provided before passing the transfer order. The learned counsel for the respondents submitted that the aforesaid report was also provided to the applicant along with the transfer order. The applicant did not challenge the content of the aforesaid report in the present petition. In Union of India & others vs. Janardhan Debanath and another (2004) 4 SCC 245 the Court considered the aforesaid type of argument and stated in para 12 & 14 as under:-
"12. That brings us to the other question as to whether the use of the expression 'undesirable' warranted an enquiry before the transfer. Strong reliance was placed by learned counsel for the respondents on a decision of this Court in Jagdish Mitter v. The Union of India (AIR 1964 SC 449, para 21, p.456) to contend that whenever there is a use of the word 'undesirable' it casts a stigma and it cannot be done without holding a regular enquiry. The submission is clearly without substance. The said case relates to use of the expression 'undesirable' in an order affecting the 17 OA.No.170/00387/2024/CAT/BANGALORE continuance in service by way of discharge. The decision has therefore no application to the facts of the present case. The manner, nature and extent of exercise to be undertaken by Courts/Tribunals in a case to adjudge whether it casts a stigma or constitutes one by way of punishment would also very much depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions - status, service prospects financially and same yardstick, norms or standards cannot be applied to all category of cases. Transfers unless they involve any such adverse impact or visits the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration.
14. The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any mis-behaviour is a question which can be gone into in a departmental proceeding. For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was mis-behaviour or conduct unbecoming of an employee is 18 OA.No.170/00387/2024/CAT/BANGALORE unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for this Court to direct one way or the other. The judgment of the High Court is clearly indefensible and is set aside. The writ petitions filed before the High Court deserve to be dismissed which we direct. The appeals are allowed with no order as to costs."
19. The counsel for respondents also cited Rajendra Singh & others vs. State of Uttar Pradesh & others (2009) 15 SCC
178. In the aforesaid case in para 8 the Court said that a Government servant has no vested right to remain posted at a place of 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. The transfer of employee is not only 19 OA.No.170/00387/2024/CAT/BANGALORE an incident inherent in the terms of appointment but also implicit as an essential condition of service. In para 8 the Court stated:-
"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 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; SCC p. 406, para 7)."
20. As far as powers of Court are concerned, the non- applicant draws attention towards Al-Can Export Pvt.Ltd vs. Prestige H.M. Polycontainers Ltd & others (2024) SCC Online 1679. In para 74, the Court said that it is well-settled principle in law that issuance of a writ or quashing / setting aside of an order if revives another pernicious or wrong or illegal order then in that eventuality the writ court should not interfere in the matter and should refuse to exercise its discretionary power conferred upon it under Article 226 of the Constitution of India. 20
OA.No.170/00387/2024/CAT/BANGALORE The writ court should not quash the order if it revives a wrong or illegal order.
21. It also appears that the applicant was posted as Deputy Commissioner vide order dated 25.07.2023. Before the aforesaid posting, she was an I.A.S waiting for posting and was posted as Secretary, Karnataka Information Commission, Bengaluru vide order dated 19.06.2023. Therefore, it appears that after the transfer by order dated 19.06.2023, within a short time she was again transferred by order dated 25.07.2023. The aforesaid order was not challenged by the applicant at that time upon the ground of the tenure of two years. It is true that in the case of Mr. Sharath B (supra) in para 35, the Court said that the right of the applicant does not get wiped out by virtue of he having not questioned the same at an earlier point of time. Therefore, it is true that the applicant did not challenge the previous premature transfer but his claim cannot be rejected only upon the aforesaid ground.
22. It appears from the entire record that the Government took the decision upon the DO letter dated 01.07.2024 (Annexure
- R2) written by Principal Secretary to the Government (Revenue Department) and the preliminary report dated 21 OA.No.170/00387/2024/CAT/BANGALORE 13.09.2023 (Annexure - R3) which was submitted by Regional Commissioner, Bangalore. Both documents have been considered by the Government. Prima facie, it can be said that sufficient material was available for taking an administrative decision of the transfer of the applicant. The charges cannot be examined in detail at this stage. The Government is empowered to take a decision in the interest of better administration also. Therefore, in view of this Tribunal, any sufficient ground is not found to interfere in the impugned order by which the applicant has been transferred.
23. Therefore, this OA having no any force, stands dismissed. Parties shall bear their own costs.
(JUSTICE B.K. SHRIVASTAVA) MEMBER (J) /ms/