Karnataka High Court
Shri. Kanteppa S/O Sharanappa Chengati vs The State Of Karnataka & Ors on 29 May, 2020
Equivalent citations: AIRONLINE 2020 KAR 1117
Bench: G.Narendar, M.Nagaprasanna
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®
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF MAY, 2020
PRESENT
THE HON'BLE MR. JUSTICE G. NARENDAR
AND
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION NO.204826/2019 (S-KAT)
BETWEEN:
SHRI.KANTEPPA
S/O SHARANAPPA CHENGATI,
AGED ABOUT 58 YEARS,
OCC: JUNIOR ENGINEER,
PWD SUB - DIVISION, JEWARGI,
DIST. KALABURAGI - 585 310,
R/O PLOT NO.55, NANDI COLONY,
NEAR SHIVANAND DALL MILL, GUNJ ROAD,
KALABURAGI, DIST. KALABURAGI - 585 106.
... PETITIONER
(BY SRI ARUNKUMAR AMARGUNDAPPA, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
BY ITS SECRETARY
DEPT. PWD, PORTS AND INLAND WATER
TRANSPORT, VIKASA SOUDHA,
BENGALURU - 560 001.
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2. THE CHIEF ENGINEER,
COMMUNICATION & BUILDING(SOUTH)
BENGALURU - 560 001.
3. THE ASSISTANT EXECUTIVE ENGINEER,
PWD, SUB - DIVISION, JEWARGI,
DIST. KALABURAGI - 585 310.
4. SHRI SIDDARAMA D. MODI,
AGE 52 YEARS, KBJNL, JBC,
SUB-DIVISION, CHIGARHALLI, NO.14
TQ:JEWARGI, DIST.KALABURAGI - 585 310.
... RESPONDENTS
(BY SMT. ARCHANA P TIWARI, AGA FOR R1 TO R3;
SRI HULEPPA HEROOR, ADV. FOR C/R 4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED ORDER DATED: 22.10.2019 PASSED IN
APPLICATION NO.20029/2019 BY THE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL AT KALABURAGI,
CONSEQUENTLY SET ASIDE ORDER BEARING
NO.CBS/112/KEM/VARGA:ESE:2019-20 DATED
20.09.2019 PASSED BY RESPONDENT NO.2 VIDE
ANNEXURE A & C RESPECTIVELY, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 27.02.2020, THIS DAY
NAGAPRASANNA J., PRONOUNCED THE FOLLOWING:
ORDER
Aggrieved by the order dated 22.10.2019 passed by the Karnataka State Administrative Tribunal, Kalaburagi 3 (hereinafter referred to as 'the Tribunal' for short) in application No.20029/2019 by which the Tribunal rejected the application filed by the petitioner challenging the order of transfer and posting of the 4th respondent, the applicant before the Tribunal has filed the instant writ petition.
2. Brief facts that are relevant for adjudication of the case are, the petitioner is an employee of Department of Public Works, Government of Karnataka. While working as Junior Engineer at PWD Sub-division, Aland, he was transferred to PWD Sub-division, Jewargi. Pursuant to the order of transfer dated 29.9.2018, the petitioner reported to duty as Junior Engineer, PWD Sub-division, Jewargi on 3.10.2018. While so working, by another order of transfer dated 20.9.2019, the 4th respondent was posted to the place of petitioner by the 2nd respondent and the petitioner was not shown any posting. In those circumstances the petitioner approached the Tribunal in application No.20029/2019 contending that the order of transfer and posting of the 4th respondent to the place of the petitioner 4 resulting in dislodging of the petitioner was premature. The Tribunal, entertaining the application, granted interim order of status-quo on 27.9.2019. After issuance of notice, the 4th respondent filed an application seeking vacation of the interim order that he had already taken charge of the post. The Tribunal considered the matter and, finally on 22.10.2019 dismissed the application filed by the petitioner on the ground that the transfer guidelines permitted premature transfer in certain circumstances, but, only with the prior approval of the Hon'ble Chief Minister, and, in the absence of the records, it was not possible to gather the information of the prior approval of the Hon'ble Chief minister and in that view of the matter, the Tribunal held that the 4th respondent ought to be permitted to report to duty at PWD Sub-division, Jewargi. Challenging the said order of the Tribunal, the applicant before the Tribunal has filed the instant writ petition. 5
3. We have heard Sri. Arun Kumar Amargundappa, learned Counsel appearing for the petitioner and Smt. Archana P. Tiwari, learned Additional Government Advocate for respondent Nos.1 to 3 and Sri Huleppa Heroor, learned Counsel appearing for caveator respondent No.4.
4. Learned Counsel for the petitioner contends that the petitioner is a Group 'C' employee and he is entitled to continue in a particular place for 4 years in terms of guidelines dated 7.6.2013. The learned Counsel contends that in terms of the transfer guidelines, premature transfer is permitted only on certain circumstances, where there should be reasons in writing recorded by the competent authority and the same being placed before the Hon'ble Chief Minister for prior approval. It is the contention of the learned Counsel for the petitioner that only to accommodate the 4th respondent, the transfer order was issued in blatant violation of the guidelines dated 7.6.2013 and the petitioner is entitled to continue until he completes 6 four years as he assumed the charge as Junior Engineer, PWD Sub-division, Jewargi, on 3.10.2018. The learned Counsel for the petitioner would also contend that the transfer is mala fide inasmuch as the 4threspondent is posted to the place of the petitioner and the petitioner is not shown any posting and is contrary to the law laid down by the learned Division Bench of this Court in the case of SEEMA. H Vs. STATE OF KARNATAKA reported in (2017) 2 AIR Kant R 59.
5. Per contra, learned Counsel for the 4th respondent would submit that the petitioner has no vested right to stay in a particular place as transfer is an incidence of service and the petitioner cannot seek indulgence of this Court in a matter pertaining to transfer except when the order of transfer is without authority of law or is malafide. The learned Counsel further submits that pursuant to the order of the Tribunal, the 4th respondent has assumed the charge of the post and is functioning.
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6. The learned Additional Government Advocate would submit that the posting of the 4th respondent to the post of Junior Engineer, PWD Sub-division, Jewargi was in public interest and the petitioner cannot claim any right over the post of Junior Engineer, at PWD Sub-division, Jewargi and he is in a transferable post, which is an incidence of service, all that the petitioner was supposed to do was to go and report to the head of the Department and seek for the posting orders and should not have approached the Tribunal questioning the orders and prayed to dismissed the petition.
7. We have given our anxious consideration to the contentions advanced by the learned Counsel for the parties and have perused the averments and material on record.
8. The facts that are not in dispute are that the petitioner is a Group 'C' employee in the Department of Public Works, Government of Karnataka. Transfer of 8 Government Servants in the State of Karnataka is regulated by the guidelines dated 7.6.2013. These guidelines have been declared to have a statutory force by two Full Bench judgements of this Court. Clauses 8 and 9 of the guidelines which are germane to the lis before us are extracted hereunder for the purpose of ready reference and they read as follows:
"8. Minimum period of stay at a place:
No Government servant shall ordinarily be transferred /deputed if he has not completed his tenure of posting in a place, as indicated below:
No. Cadre Number of years
1. All Group-A posts 2 years
2. All Group-B posts
3. All Group-C posts 4 years
4. All Group-D posts 7 years
The minimum period of stay for a particular post may be prescribed/revised from time to time by an order by the Administrative 9 Departments of the Secretariat, with the prior approval of the Chief Minister, in respect of certain types of sensitive cadres in the departments coming under their administrative control, depending upon the nature of duties assigned to the post.
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 recorded to this effect in writing:-
xxxxx b. However, before effecting any premature transfers and for making any transfer after the transfer period, and also for extending the 10 tenure of a Government servant for the reasons stated 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."
In terms of clause 8 of the afore extracted guidelines, group 'C' employee is entitled to a tenure, namely, four years in a particular place of posting and in terms of clause 9 premature transfer is permissible only in terms of the conditions stipulated in the guidelines. The petitioner, pursuant to an order of transfer dated 29.9.2018 was transferred from PWD Sub-division at Aland to PWD Sub-
division at Jewargi, as Junior Engineer. In terms of the said order, the petitioner assumed charge of the post on 3.10.2018. Again on 20.9.2019, even before the completion of the minimum tenure, the petitioner was disturbed, by posting the 4th respondent in place of the 11 petitioner while not showing any posting to the petitioner.
In those circumstances, the petitioner approached the Tribunal in application No.20029/2019. The Tribunal entraining the application was pleased to pass the following interim order:
" Learned GP is directed to accept notice on behalf of R1 to R3.
Issue notice to R4 by emergent process.
Heard the learned counsel for the applicant and also the learned GP for R1-R3 on interim prayer made by the learned counsel for the applicant.
I have perused the averments made in the application and also the documents produced by the applicant along with the application.
The main contention of the applicant that it is a premature transfer, within a period of nine months and it is also mentioned at Para - 3C, i.e., the Grounds for Interim Relief in the application that applicant is not yet relieved 12 from the post of Junior Engineer held by him a PWD, Jewargi Sub - Division.
Hence, both the parties are hereby directed to maintain status - quo, existing as on today till the next date of hearing.
Post the matter after four weeks."
9. In terms of the interim order of status quo, the petitioner claims that he continued to work as Junior Engineer, PWD Sub-division, Jewargi. The 4th respondent, who was the beneficiary of the transfer order, filed an application for vacating the interim order contending that the premature order of transfer was permissible under the guidelines with the prior approval of the Hon'ble Chief Minister. The Tribunal dismissed the application by its order 22.10.2019. The operative portion of the order reads as follows:
"6. After hearing the learned counsel for both the parties, I have perused the transfer guidelines dated 22.11.2001. The guidelines specifically provides for premature 13 transfers in certain circumstances but only with the approval of the Chief Minister.
Further, in the present case, the Government Pleader has not produced the concerned file to enable the Court to verify the specific reason mentioned in the concerned file, for posting the 4th respondent to the place of the applicant. In the absence of records, I am of the view that the 4th respondent ought to be permitted to report for duty at Jewargi and the applicant has to approach the authorities seeking posting order.
In the said view of the matter, posting of the 4th respondent in place of the applicant with due approval of the Hon'ble Chief Minister has to be upheld and therefore, application stands dismissed."
To state the least, the order of the Tribunal, as extracted hereinabove, is incomprehensible. The Tribunal, at the beginning of the paragraph of the order, holds that in terms of the guidelines dated 7.6.2013, premature transfer in certain circumstances was permissible, but only with the 14 approval of the Hon'ble Chief Minister and holds that the Government has not produced the concerned file to enable it to verify the specific reasons for posting of the 4th respondent. In the absence of the records, the Tribunal ought to have drawn adverse inference against the order of transfer, but shockingly upholds the order of transfer without even looking into the file and directs that the order of the transfer received the approval of the Hon'ble Chief Minister and on that ground dismisses the application of the petitioner.
10. 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 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 15 in ILR 2015 KAR 1955. Thus, the compliance of the guidelines becomes mandatory. The petitioner assumed charge of the post of Junior Engineer, PWD Sub-division, Jewargi, on 3.10.2018. The minimum tenure prescribed under the guidelines for a Group 'C' employee is four years. Clause 9 of the guidelines permits premature transfer of an employee only under certain circumstances i.e., the reasons to be recorded in writing and prior approval of the Hon'ble Chief Minister to be obtained. The recording of reasons is to be done by the competent authority which then has to be placed before the Hon'ble Chief Minister. It is only then a premature transfer will be in consonance with the guidelines. In the case on hand, there are no reasons recorded by the competent authority in the order of transfer or prior approval of the Hon'ble Chief Minister obtained for effecting the impugned transfer. The impugned order is issued by the 2nd respondent-Chief Engineer. There is no indication of prior approval of the Hon'ble Chief Minister. Thus, the transfer order dated 20.9.2019 is contrary to the operative guidelines. This view of ours, in this regard, is fortified by the judgment of 16 the learned Division Bench of this Court, in the case of RAJASHEKAR M. Vs. STATE OF KARNATAKA reported in 2019 (1) AIR Kant R 489. The specific issue that fell for consideration before the Division Bench of this Court was as follows:
"1. Whether the Chief Minister has absolute discretion under Government Order No.DPAR 22 STR 2013, Bangalore, dated 07.06.2013 to give prior approval for premature/ delayed transfers referred to in para 9 thereof ? This is the question that requires to be answered in this petition and it is answered in the negative. Under para 9(b) of the aforesaid Government Order, the Chief Minister, on perusal of the reasons recorded by the Competent Authority, may give his prior approval for premature/delayed transfer of a Government servant, only if he is satisfied that the case would fall under any of the circumstances stated in para 9(a)(i) to (viii) of the Government Order."17
The aforesaid issue has been answered at paragraph Nos.6 and 7, following the judgment of the Full Bench in the case of GANGADHARIAH S.N. (supra), which reads as follows:
"6. As could be seen from para 9 of the Government Order extracted above, premature/delayed transfer of Government servants is permitted in the circumstances stated in para 9(a)(i) to (viii) with the prior approval of the Chief Minister. It requires the competent authority to record reasons stating as to how the case would fall under any of the circumstances stated in para 9(a)(i) to (viii) of the Government Order to warrant premature / delayed transfer of a Government servant and the said reasons have to be placed before the Chief Minister to obtain his prior approval as mandated in para 9(b) of the Government Order. After perusal of the reasons, if the Chief Minister is satisfied that the case would fall under any of the circumstances stated in para 9(a)(i) to (viii) of the Government Order, only then the Chief Minister may give his prior approval for premature/delayed transfer of the Government servant. If prior 18 approval is given by the Chief Minister for transfers not falling under any of the circumstances stated in para 9(a)(i) to (viii) of the Government Order, it will be invalid in law and any premature/delayed transfer made pursuant thereto will be illegal and hence is liable to be set aside.
7. Learned Additional Government Advocate appearing for State of Karnataka fairly submitted that prior approval of the Chief Minister was not preceded by recording of any reasons by the Competent Authority to show that the premature transfer of the petitioner and respondent No.4 would fall under any of the circumstances stated in para 9(a)(i) to (viii) of the Government Order. Hence, we find no error in the order of the Tribunal in setting aside the order of transfer as it was contrary to para 9 of the Government Order laying down guidelines for transfer of Government servants."
In terms of the law laid down by the learned Division Bench, a premature transfer will have to be in compliance of clause 9 of the guidelines which mandates recording the 19 reasons by the competent authority and the Hon'ble Chief Minister approving the same. Both these acts should mandatorily precede the order of transfer. Both these circumstances are not complied with by the State Government in the instant case. Thus, the order dated 20.9.2019 was contrary to guidelines and the Tribunal ought to have interfered with the order of transfer.
11. The order of transfer is vitiated on yet another ground urged by the learned Counsel for the petitioner, namely, the transfer order dated 20.9.2019 being mala fide. The impugned order indicates posting of the 4th respondent to the place of the petitioner. But the petitioner is not shown any posting, which is contrary to the law laid down by the learned Division Bench of this Court in case of SEEMA. H (Supra), at paragraph Nos.7, 9 and 10, which read as follows:
7. There are two serious infirmities in the transfer order. One is that when the petitioner is transferred from the post of Assistant Conservator of Forest, there is no deer posting 20 order at a Particular post of the petitioner.
Unless the petitioner is lifted from one place and posted at another place, it cannot be said that any vacancy has arisen of the petitioner and such an exercise of the power cannot be appreciated even if one keeps in mind the administrative circumstances for the public interest as the case may be. It is hardly required to be stated that when 'A' is posted in place of 'B' from one place to another then only there will be a vacancy of 'A' and 'B' can be posted at the place of 'A'. If 'A' is lifted and his posting is kept in lurch and 'B' is posted vice-A such practice cannot be appreciated and deserves to be rather deprecated and the reason being that the officer who is lifted from one place is not certain at which place he has to join the duty and unless he joins the duty at different place, it cannot be said that vacancy in law had arisen at his original place. So long as there is no vacancy at the original place, the question of posting is without any foundation. Hence, the said transfer order can be said to be with the exercise of legal malafide.
9. In our view, taking into consideration the aforesaid two circumstances, it is a case for 21 interference with the transfer order. However, the Tribunal lost sight of the said aspects and did not interfere with the order of the transfer just because of the Chief Minister's approval. We need to record the approval of the Chief Minister though may be one of the requirement but thereby, if there is any other requirement for the transfer order, the same also needs to be examined. If the Tribunal finds that the transfer order is either by way of victimization or exfacie with legal malafide or otherwise it would be a case for interference. Since the aforesaid aspects were not considered by the Tribunal, we find the impugned order passed by the Tribunal as well as the order for transfer of the petitioner deserves to be interfered with.
10. Once the transfer order of the petitioner is found to be illegal, the necessary consequence posting of the petitioner will have to be restored at the original place i.e., the Assistant Conservator of Forest. It has been stated that when the petitioner and another Officer-respondent No. 4 has already taken over the charge. In these circumstances, the 22 said Officer will have to be shifted to another place. We had called upon learned AGA to enquire and report this Court as to whether the post of Assistant Conservator of Forest is vacant where the respondent No. 4 can be accommodated."
In terms of the law declared by the learned Division Bench, as extracted hereinabove, the order of transfer suffers from such illegality as well and the consequence is that, the petitioner will have to be reposted to the place that he was holding prior to the impugned order of transfer.
12. The Tribunal, being the Court of first instance, ought to have looked into the file before arriving at a conclusion that there is prior approval of the Hon'ble Chief Minister or otherwise. The Tribunal ought to have interfered with the order of transfer as it was contrary to the guidelines aforementioned. In the circumstances, the order of the Tribunal warrants appropriate interference in this petition.
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13. Hence, we pass the following:
ORDER
(i) The writ petition is allowed. The order of the Tribunal dated 22.10.2019 passed in application No.20029/2019 is set aside.
(ii) The order dated 20.9.2019 passed by the second respondent herein is quashed.
(iii) Respondent Nos.1 and 2 are directed to repost the petitioner within two weeks as Junior Engineer, PWD Sub-division, Jewargi, if not already posted and take further action in accordance with law.
(iv) There shall be no order as to costs.
Sd/-
JUDGE Sd/-
JUDGE Cs/-
CT:MJ