Karnataka High Court
Sri.C.S Yathiraj vs State Of Karnataka on 5 October, 2023
Author: K.Somashekar
Bench: K.Somashekar
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WP No. 20665 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF OCTOBER, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
WRIT PETITION NO.20665 OF 2023 (S-KSAT)
BETWEEN:
SRI C.S.YATHIRAJ
S/O G.CHANNAGANGAPPA,
AGED ABOUT 59 YEARS,
EXECUTIVE ENGINEER,
PUBLIC WORKS DEPARTMENT,
BENGALURU DIVISION,
K.R.CIRCLE, BENGALURU,
R/AT 3394/B, 6TH MAIN
3RD CROSS, HAMPINAGAR,
RPC LAYOUT, VIJAYANAGAR II STAGE,
Digitally BENGALURU-560 104.
signed by D
HEMA ...PETITIONER
Location:
HIGH (BY SRI S.M.CHANDRASHEKAR, SENIOR COUNSEL FOR
COURT OF
KARNATAKA SRI SUNIL KUMAR B.N., ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS
SECRETARY TO GOVERNMENT,
PUBLIC WORKS DEPARTMENT,
VIKASA SOUDHA,
BENGALURU-560 001.
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WP No. 20665 of 2023
2. SRI R.CHANDRASHEKAR
EXECUTIVE ENGINEER,
PUBLIC WORKS DEPARTMENT,
VIKASA SOUDHA,
BENGALURU-560 001.
...RESPONDENTS
(BY SRI MOHAMMED JAFFAR SHAH, AGA FOR R1;
SRI M.S.BHAGWAT, SENIOR COUNSEL FOR
SRI B.O.ANIL KUMAR, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF CONSTITUTION OF INDIA PRAYING TO ISSUE
WRIT OF CERTIORARI TO SET ASIDE/QUASH THE ORDER
DATED 06/09/2023 PASSED BY THE HON'BLE KARNATAKA
ADMINISTRATIVE TRIBUNAL IN APPLICATION NO.3080/2023,
VIDE ANNEXURE-A AND POST THE APPELLATE TO HIS EARLIER
PLACE i.e., PUBLIC WORK DEPARTMENT, BENGALURU
DIVISION, K.R.CIRCLE, BENGALURU, TO COMPLETE HIS
SERVICE.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, K.SOMASHEKAR J., MADE THE
FOLLOWING:
ORDER
This writ petition is filed challenging the order dated 06.09.2023 passed by the Karnataka Administrative Tribunal in Application No.3080 of 2023 (Annexure-A) and seeking to post the Applicant/Petitioner herein to his earlier place, i.e., Public Works Department, Bengaluru Division, K.R.Circle, Bengaluru, to complete the service. -3-
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2. Heard Shri.S.M.Chandrashekar, learned Senior Counsel appearing on behalf of Shri.Sunil Kumar.B.N., learned counsel who is on record for the petitioner, so also, Shri.Mohammed Jaffar Shah, learned Counsel appearing for Respondent No.1 and Shri.M.S.Bhagwat, learned Senior Counsel appearing on behalf of Shri.B.O.Anil Kumar, learned counsel who is on record for Caveator/Respondent No.2.
3. The case of the petitioner is that he is working in Department of Public Works and presently working as Executive Engineer. The age of the petitioner is about 59 years, and he is at the verge of retirement stage. He is due to retire on attaining the age of superannuation on 30.11.2023. It is the contention of the petitioner that when there is only three months is remaining to complete the service of the petitioner, at this stage, the 1st Respondent has passed the impugned order dated 03.07.2023 by transferring the 2nd Respondent in the place of the petitioner and in turn, the petitioner is -4- NC: 2023:KHC:36192-DB WP No. 20665 of 2023 prematurely transferred to Karnataka Road Development Corporation Limited (KRDCL). It is the further contention of the petitioner that transferring the 2nd respondent in the place of the petitioner by order dated 18.10.2021 is premature, contrary to the Transfer Guidelines dated 07.06.2013 and further, the petitioner is in the cadre of Executive Engineer which is Group 'A' post and the tenure prescribed under the Transfer Guideline is two years but the said fact was not considered. Aggrieved by the order dated 03.07.2023 passed by the 1st respondent transferring the 2nd respondent in the place of the petitioner, the applicant/petitioner herein approached the Karnataka State Administrative Tribunal, Bengaluru in Application No.3080 of 2023.
4. The Respondent No.1 has not filed any objection in Application No.3080 of 2023 before the Tribunal. The Respondent No.2 filed his Reply Statement before the Tribunal by placing reliance on a judgment reported in (2020)3 SCC 404 (Union of India and another -5- NC: 2023:KHC:36192-DB WP No. 20665 of 2023 Vs. Deepak K Niranjannath Pandit) wherein the Apex Court has held that the Government servant cannot claim a posting as of right to a place of his choice.
5. After hearing both sides, the Tribunal, by its order dated 06.09.2023 dismissed the application of the applicant, wherein it has indicated that Government servant cannot claim a posting as of right to a place of his choice. Since the order passed by the 1st respondent is in public interest and during the general transfers and also posting of the applicant is in Bengaluru itself.
6. The learned Senior Counsel for the petitioner has placed reliance on the judgment rendered by the Full Bench of this Court in the case of (Sri S.N.Gangadharaiah, Vs. The State of Karnataka and another) dated 13.04.2015 in Writ Petition No.58375 of 2013 (S-KAT) wherein it has held that:
"a) The Rules relating to transfer contained in the KCSRs and the definition of the term 'transfer' contained in Rule 8(4) of KCSR have no -6- NC: 2023:KHC:36192-DB WP No. 20665 of 2023 application for regulating transfer of Government servants as provided in the Government Order dated 07.06.2013.
b) Decision of the Division Bench of this Court in the case of K.Ramachandra Vs. State of Karnataka and others rendered in W.P.No.56164 of 2013 disposed of on 05.12.2013 does not lay down correct law, nor does it consider the decision of the Full Bench in the case of H.N.Chandru Vs. State of Karnataka and others - 2011 (3) KLJ 562 which was not brought to the notice of the Division Bench.
c) Consequently, we hold that posting of a Government servant from one office to an other within the same headquarters, to take up duties of a new post would tantamount to transfer within the meaning of Clause 3 (d) of the Government Order dated 07.06.2013.
In view of the above decision, the learned Senior Counsel seeks for interference of this Court by urging various grounds.
7. On the contrary, learned Senior Counsel appearing for Respondent No.2 submits that even the Tribunal in its order has observed that admittedly, the -7- NC: 2023:KHC:36192-DB WP No. 20665 of 2023 order dated 03.07.2023 is passed during the General Transfer period, in General Transfer the consideration of minimum period available that can be reduced as the General Transfer period will be for a short period, during that period, the Government has to transfer the officials for administrative reasons. Moreover, the applicant is posted to KRDCL, which is a part of Public Works Department, which is in Bengaluru itself and contended that posting the applicant in KRDCL will not affect any of his service condition and trouble the settlement of retrial benefits and there is no illegality in the order passed by the Tribunal and hence, it does not call for interference by this Court.
8. However, the learned AGA appearing for Respondent No.1 supported the order passed by the Tribunal and also supported the contentions of the 2nd Respondent. He further submitted that the 1st Respondent is ready to hand over charge.
9. The said submission is placed on record. -8-
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10. In view of the submissions made by the learned Counsels appearing on both sides, it is relevant to refer to the Government Order No.DPAR 22 STR, Bengaluru dated 07.06.2013 wherein Guideline No.9 reads as under:
"9. Premature/delayed Transfer:
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:-
(1) The employee due for transfer after completion of tenure at a place or posting or post has less than two years of service for retirement:
(2) The employee possesses special technical qualifications or experience for the particular job for which a suitable replacement is not immediately available -9- NC: 2023:KHC:36192-DB WP No. 20665 of 2023 (3) The employees working on a project or Flagship programmes of Government of India which are in the crucial stage of implementation and his withdrawal will seriously jeopardize timely completion of such projects:
(4) Where both the spouses are Government servants and if one of the spouses is transferred. then the other spouse may also be transferred to the same place or nearby place depending upon the availability of vacancy even if one of them has not completed the minimum period of stay.
(5) Where a female Government servant is a widow /spinster/unmarried divorcee, she may be transferred and in case she is appointed for the first time, may be posted to a place of her choice subject to availability of vacancy:
(6) Where a Government servant is an office-bearer of the Karnataka State Government Employees Association only, such Government servant shall not be transferred until the completion of the term for which he has been elected. In case no elections are held within three months of the completion of the said term, he may be transferred. In case he is reelected, he may be continued in the same place until the completion of the second term only.
(7) Where a Government servant is physically handicapped/challenged or disabled subject to certification by the Medical Board;
(8) Where a Government servant or his/her spouse or children are suffering from serious of terminal ailments, depending upon the availability of the
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(b) However, before effecting any premature transfers and for making any transfer after the transfer period, and also for extending the tenure of a Government servant for the reasons sta ted above, prior approval of the Hon'ble Chief Minister must be obtained without fail by the concerned Administrative Department of the Secretariat: The Principal Secretaries/ Secretaries to Government should not under any circumstances issue transfer orders and later seek ratification/post facto approval of the Chief Minister."
11. Keeping in view the contentious contentions of the learned Senior Counsel for the petitioner and so also the counter arguments advanced by the learned Senior Counsel for the respondents, we find that there is substance in the contention of the learned Senior Counsel for the petitioners as regards the Transfer Guidelines issued by the Government of Karnataka dated 07.06.2023. In view of the above and also keeping in view Article 226(1) of the Constitution of India, we proceed to pass the following:
ORDER
i) The Writ Petition is hereby allowed.
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ii) The order of transfer issued by the Competent Authority/Respondent No.1 vide Notification bearing No.Lo.E.95 Se.A.Su.2023 (6) dated 03.07.2023 at Annexure-A3 is hereby set aside only to the extent, for the petitioner who is attaining superannuation on 30.11.2023.
iii) Further, it is clarified that the petitioner shall be working in the same Unit, in the same posting as Executive Engineer, Public Works Department.
iv) However, the Competent Authority is directed to permit Respondent No.2, namely, Shri.R.Chandrashekar, Executive Engineer to take over charge in respect of the posting dated 03.07.2023.
Sd/-
JUDGE Sd/-
JUDGE DH