Karnataka High Court
Sri. N Mohammed Zubair vs The State Of Karnataka on 14 June, 2019
Author: G.Narendar
Bench: G.Narendar
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R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF JUNE, 2019
PRESENT
THE HON'BLE MR. JUSTICE G.NARENDAR
AND
THE HON'BLE MR. JUSTICE BELLUNKE A.S.
WRIT PETITION No.107015/2018 (S-KAT)
BETWEEN:
SRI. N MOHAMMED ZUBAIR,
S/O. NANNEMIYA SAB,
AGE:44 YEARS,
KAS (JUNIOR SCALE) OFFICER,
WORKING AS ASSISTANT COMMISSIONER,
DHARWAD SUB DIVISION,
DHARWAD. ... PETITIONER
(BY SRI JAGADISH PATIL AND
SRI SURESH S.S., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP.BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF PERSONAL AND
ADMINISTRATIVE REFORMS,
VIDHANA SOUDHA,
BENGALURU-1.
2. THE STATE OF KARNATAKA,
REP.BY ITS PRICNIPAL SECRETARY,.
REVENUE DEPARTMENT,
M S BUILDING, BENGALURU-01.
3. THE DEPUTY COMMISSIONER,
DHARWAD DISTRICT,
DHARWAD-01.
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4. SMT GEETA E KOULAGI
MAJOR,
KAS (JUNIOR SCALE) OFFICER,
WORKING AS ASSISTANT COMMISSIONER.
CHIKKODI SUB DIVISION,
CHIKKODI-591201,
BELAGAVI DISTRICT. ...RESPONDENTS
(BY SRI RAVI HOSAMANI, AGA FOR R1 TO R3,
SRI NANJUND REDDY, SR. COUNSEL FOR
SRI K.L.PATIL, ADVOCATE FOR R4)
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED NOTIFICATION/ORDER PASSED BY RESPONDENT
NO.1 VIDE SiAaSuE 2017 AaSeVa 2018 DATED:18.08.2018 I.E,
ANNEXURE-A7 AND ALSO ORDER PASSED BY HON'BLE
ADMINISTRATIVE TRIBUNAL, BANGALORE IN APPLICATION
NO.6623/2018 DATED:11.10.2018 I.E., ANNEXURE-D BY
ALLOWING THIS WRIT PETITION.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, THIS DAY G.NARENDAR J.,
PRONOUNCED THE FOLLOWING:
RESERVED ON : 29.03.2019
PRONOUNCED ON : 14.06.2019
ORDER
Heard Sri Ananth Mandgi, learned Senior Counsel along with Sri Jagadish Patil, learned counsel for the petitioner and Sri Nanjund Reddy, learned Senior Counsel along with Sri K.L.Patil, learned counsel for -3- respondent No.4 and the learned Additional Government Advocate on behalf of respondents 1 to 3.
2. The instant petition has a checkered history. The petitioner had approached the Karnataka Administrative Tribunal (for short 'the Tribunal') calling in question the transfer order bearing No.SiAaSuE 107 AaSeVa 2018 dated 18.08.2018 produced as Annexure- A7 to the application registered as Application No.6623/2018.
3. Initially the Tribunal was pleased to grant an the interim order of stay staying the operation thereby disabling the 4th respondent from occupying the post in which post the petitioner is working and discharging his duties. Thereafter, the matter was heard and by order 11.10.2018, the Tribunal construing the impugned order as an order transferring the petitioner proceeded to hold that if no posting is shown, the petitioner ought to have reported before the department of Personnel and Administrative Reforms. It further held that the -4- transfer of the petitioner was an Election Transfer (Assembly Elections of 2018) and the elections having been completed, the petitioner ought to have reported back to his previous posting as an officer on special duty with the Hon'ble Speaker, the Legislative Assembly. Holding thus, the Tribunal was pleased to reject the application. Aggrieved, by the same, the petitioner is before this Court in the instant writ petition.
4. This Court by considered order dated 02.11.2018 was pleased to grant interim relief by staying the operation of the impugned order dated 18.08.2018 in so far as it related to the petitioner. Further, this Court was further pleased to direct respondents 1 to 3 to give a posting to the 4th respondent. Aggrieved by the interim relief granted by this Court, the 4th respondent approached the Hon'ble Apex Court by way of SLA (C) No.31854/2018. The Hon'ble Apex Court after taking note of the fact that the appeal was directed against an interim order, deemed it appropriate to request this -5- Court to dispose of the pending writ petition expeditiously and preferably within three weeks from the date of receipt of a copy of the said order. The Hon'ble Apex Court further reiterated that part of the interim order directing that the 4th respondent herein and the petitioner being assigned a posting by observing that public interest demands that an official should not be without any posting and also permitted the State to pass such orders in the nature of pro ten arrangement till the petition is disposed of. The Hon'ble Apex Court observed that it is not expressing any opinion on merits and demerits on the arguments advanced by the counsel and further proceeded to adjourn the proceedings to 15.03.2019.
5. Thereafter, the copy of the interim order of the Hon'ble Apex Court was placed before a bench comprising of BVNJ and BASJ on 27.02.2019. After perusing the same, the petition was directed to be listed on 08.03.2019. On account of change of roster, the matter was listed before this bench on 08.03.2019 for -6- the first time. This Court after adverting to the orders of the Hon'ble Apex Court directed to list the matter on 12.03.2019. On 12.03.2019, the Court after hearing the learned Senior Counsel on behalf of the petitioner and the learned counsel for the 4th respondent and the learned Additional Government Advocate had ordered and passed a detailed order as below:
"During the course of hearing and on perusal of the order of transfer impugned at Annexure-A7 dated 18.08.2018, the notification reads as under:
"F PɼÀPÀAqÀ PÉ.J.J¸ï. (»jAiÀÄ ±ÉæÃtÂ/ QjAiÀÄ ±ÉæÃtÂ) C¢üPÁjUÀ¼À£ÀÄß ¸ÁªÀðd¤PÀ ºÁUÀÆ DqÀ½vÁvÀäPÀ »vÀzÀȶ֬ÄAzÀ, F PÀÆqÀ¯Éà eÁjUÉ §gÀĪÀAvÉ ºÁUÀÆ ªÀÄÄA¢£À DzÉñÀzÀªÀgÉUÉ CªÀgÄÀ UÀ¼À ºÉ¸Àj£À ªÀÄÄAzÉ ¸ÀÆa¹gÀĪÀ ºÀÄzÉÝUÀ½UÉ ªÀUÁð¬Ä¹ £ÉëĸÀ¯ÁVzÉ."
On a reading and understanding of the above, what one can gather is that the officers whose names are found in the list have been transferred to the place or post detailed against their names. On perusal, it is seen that the name of the 4th respondent is found at Sl.No.5. As against her name, it is ordered as under:
"G¥À«¨sÁUÁ¢üPÁj, zsÁgÀªÁqÀ G¥À«¨sÁUÀ, zsÁgÀªÁqÀ - ²æà J£ï. ªÉƺÀªÀÄäzï dĨÉÃgÀ EªÀgÀ eÁUÀPÉÌ."
We have perused the impugned proceedings in its entirety. The name of the petitioner does not find a -7- place in column No.2 which details the names of the officers who are supposed to have been transferred under the said order. The impugned order details 15 names in column No.2. The name of the petitioner is not found in column No.2. That apart, the proceedings of the Government of Karnataka has stipulated guidelines in respect of transfer of government servants that had been issued on 22.11.2001. In super-session of the same, the Government Order No.DPAR 2 STR 2017 Bengaluru, dated 27.03.2017 came to be issued and Clause 3 of the said Government Order pertains to Explanation and (d) defines transfer to mean as under:
'Transfer' means the posting of a Government servant from one headquarters to another headquarters or from one office to another within the same headquarters, to take up duties of a new post or in consequence of a change of headquarters;
A note is appended to it which reads as under:
"Note:- Movement of a Government servant within the same office/unit from one post to another one or desk/compilation to another one under the same head office shall not be treated as transfer."
If the preamble to the impugned Notification dated 18.08.2018 is read in conjunction with clause 3
(d), prima facie we are of the opinion that transfer means movement of a government servant pursuant to posting from one headquarter to another headquarter or from one office to another within the same headquarter to take up duties of a new post or in consequence of a change of headquarter. Implying thereby, there must be an order or proceedings of the -8- government authorizing or sanctioning the posting of the government servant from one post to another post or one headquarter to another post or from one post to another headquarter on account of the change of headquarter. On a plain reading of the impugned notification, we are unable to discern any of the above much any directing the transfer or posting of the petitioner. In that view, the same is put to the learned Principal Government Advocate by the bench. On the bench expressing the above view, the learned counsels have sought time to examine the issue. Hence, hearing was adjourned to 15.03.2019."
6. The writ petition was listed on 15.03.2019 again on which date piecemeal arguments were advanced and time was sought for by the parties and on request of the parties, the hearing was adjourned to 25.03.2019 and thereafter 25.03.2019 the case was adjourned to 29.03.2019 on which date the matter was heard and reserved.
7. In the interregnum, the 4th respondent engaged the services of the learned senior counsel Sri Nanjund Reddy. No clarifications as sought for by this court on 12.03.2019 was furnished.
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8. The facts in brief are as follows:
The petitioner is a KAS Officer (Junior Scale) who is presently discharging his duties as Assistant Commissioner, Dharwad Sub-division, since from 19.03.2018 pursuant to the transfer order dated 13.03.2018. That subsequently, the 1st respondent effected transfers of about 51 officers including the petitioner vide notification dated 31.03.2018 . That the transfers were in consultation and on the recommendation of the Election Commission in view of the General Elections notified to the State Assembly.
That the petitioner was transferred to Mysore in the place of one P.Jayamadhava, pursuant to the notification dated 31.03.2018. That after the conclusion of the Assembly Elections, another order came to be issued on 06.06.2018 repatriating the petitioner back to his original place of posting i.e., at Dharwad Sub-division, as ordered under transfer order dated 13.03.2018. Pursuant to his repatriation, the petitioner resumed his charge on 07.06.2018 as
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Assistant Commissioner, Dharwad Sub-division. Thereafter, it is the case of the petitioner that the 1st respondent by impugned proceedings dated 18.08.2018, proceeded to issue the notification by which the 4th respondent is transferred to the post occupied by the petitioner.
9. It is contended by the learned counsel for the petitioner that the order impugned is contrary to the Transfer Guidelines vide Government Order dated 07.06.2013. It is contended that the petitioner was transferred as Assistant Commissioner, Dharwad Sub- division under the transfer notification dated 13.03.2018 and that he took charge on 19.03.2018. That, as per the Government Order dated 07.06.2013, the 1st respondent had stipulated a minimum tenure of two years in respect of a Group-'A' Officer. That immediately thereafter, the Election Commission of India issued a press note dated 27.03.2018 whereby the schedule for conducting the general election to the State Legislative Assembly came to be issued and as per
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paragraph 11 of the press note pertaining to Model Code of Conduct, it is stipulated that the same comes into effect immediately.
10. Paragraph 22 of the Press Note relates to conduct of officials. It is noted that all the Government Officials entrusted with election related responsibilities and duties are deemed to be on deputation to the Election Commission of India and subject to its control, supervision and discipline.
11. It is submitted on behalf of the petitioner that after the coming into force of the Model Code of Conduct, a notification came to be issued by the 1st respondent dated 31.03.2018 whereby 51 officials including the petitioner were transferred/deputed to various places in view of the impending elections. It is contended that in obedience to the said notification, all the Officers have reported to their respective places. That the petitioner was deputed to function as the General Manager of CHESCOM, Mysore, in the place of
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one P.Jayamadhava and the said person came to be transferred to the office occupied by the petitioner i.e., Assistant Commissioner, Dharwad Sub-division. That after the completion of the election process to the State Assembly, another notification dated 06.06.2018 came to be issued by the 1st respondent under which Notification all the officials including the petitioner and the said Jayamadhava came to be retransferred/repatriated back to their original place of posting. That pursuant to the said notification, the petitioner again reassumed the charge in his earlier post of Assistant Commissioner, Dharwad Sub-division. Thereafter, it is contended that suddenly the 1st respondent issued the impugned notification dated 18.8.2018. Under the said notification, the 1st respondent ordered the transfer of the 4th respondent to the post in which the petitioner was discharging his function and no place of posting was shown to the petitioner.
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12. Though, it was contended that the petition requires to be allowed on the short point of the impugned transfer being contrary to the transfer guidelines stipulated by the 1st respondent itself, as the petitioner was sought to be disturbed in less than five months from the date of his reporting in the present post pursuant to the order of transfer dated 13.03.2018 and that the Group-'A' Officers are entitled to a tenure protection of two years. That the impugned order of transfer is vitiated by malafides as the transfer order has been made solely at the behest of the 4th respondent and in order to accommodate the 4th respondent. It was argued that the 4th respondent is an influential person with a long reach in the corridors of power. That though malafides are alleged and also canvassed during the arguments, not much material is placed to demonstrate the same.
13. It is vehemently contended by the learned counsel for the petitioner that the Tribunal erred in construing the transfer order dated 13.03.2018 as an election
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transfer as the elections were not notified as on the said date. That the press note notifying the schedule for the Assembly Election was issued only on 27.03.2018 and hence, the finding by the Tribunal that the transfer is an election transfer is without basis and contrary to the material on record. The submission on behalf of the petitioner is fairly admittedly by the learned Additional Government Advocate, a minimum period of two years tenure is ensured under the transfer guidelines in respect of Group-'A' Officers.
14. Further, learned counsel petitioner has placed before the court the press note by the Election Commissioner of India and the same is dated 27.03.2018. Thus, there can be no dispute with regard to the fact that the transfer of the petitioner effected vide notification dated 13.03.2018 is not an election transfer.
15. It has also been convincingly canvassed by the learned counsel for the petitioner that the election
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transfer was pursuant to the notification dated 31.03.2018 only and that the election transfer or deputation came to end vide notification dated 06.06.2018 whereby the petitioner was retransferred/repatriated back to his place of posting as evidenced by the transfer notification dated 13.03.2018. The Tribunal has not adverted to any of these factual aspects and has proceeded to dispose of the application in a perfunctory manner. That apart, as stated supra, it was observed and pointed out by the Court that prima facie the impugned order of transfer vide Annexure-A7 did not bear out the name of the petitioner as one of the officials under transfer as the name of the petitioner was not included in column (2) with the heading as below:
PÀæªÀÄ ¸ÀA. C¢üPÁjAiÀÄ ºÉ¸ÀgÀÄ ªÀÄvÀÄÛ ªÀUÁð¬Ä¹ £ÉëĸÀ¯ÁzÀ ¥Àæ¸ÀÄÛvÀ ºÀÄzÉÝ ²æÃ/²æêÀÄw ºÀÄzÉÝ
16. The transfer order is in a tabular form and first column contains the serial number and the second column details the name of the officer and his current
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place of post and the third column describes the place to which the officer is transferred.
17. Admittedly, the name of the petitioner is found only in the third column i.e, the column pertaining to a place to which the official is transferred. Though, this lacunae is pointed out, no efforts were made by either the 4th respondent or the learned Additional Government Advocate to clarify the lacunae.
18. Per contra, the learned Senior Counsel Sri.D.N.Nanjundreddy would invite the attention of the Court to document No.4 produced along with the memo filed into Court on 02.11.2018 . He would contend that the only grievance of the petitioner was that no place of posting has been shown and that the said grievance has been subsequently addressed by the 1st respondent by its notification dated 29.10.2018. He would point out that the petitioner by the said notification has been transferred to the post of Joint Managing Director, Smart City Project, Hubballi-Dharwad. We have
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perused the said notification. Though the order reads as an order of transfer, it is interesting to note the details set out at Sl.No.4 of the second column, wherein the name of the officer i.e., the petitioner is detailed and below his name it is described as an officer without posting. Thereby the only inference that can be drawn is that the petitioner is said to have been transferred from no post or office because of the second column. The heading of the second column is as under:
"Name of the officer and post i.e., the post which is presently occupied."
19. Admittedly, as pointed out by this Court earlier, under the order impugned, the name of the petitioner is not found in the second column, i.e., in the list of officers who have been transferred. If that be so, the only fall out or the implication that flows is that, the 4th respondent is transferred to an occupied post without the incumbent occupant (petitioner) being transferred out of the post. If that is the inference that is to be drawn in respect of the impugned transfer order, then
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the reliance on the notification dated 29.10.2018 is of no avail. As the notification does not order his transfer from the post occupied by him i.e., Assistant Commissioner Dharwad Sub-Division to which post he has been validly transferred under the notification dated 13.03.2018.
20. The learned Senior Counsel would make an attempt to convince the Court that the omission to include the name in the list of transferred officers i.e., in column (2), is not a material irregularity and that the mere fact that the name of the petitioner is mentioned in the notification would suffice to construe that the official stood transferred. If we have to accept the said contention, it would be virtually amount to creating a legal fiction of deemed transfer.
21. The learned Senior Counsel Sri. D.N.Najundreddy would contend that, even otherwise the order transferring the 4th respondent to the post of the Assistant Commissioner, Dharwad Sub-division is
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validly made. In that view of the matter, the petitioner as an obedient government servant was required to handover charge and he cannot resist the same and the only option left with the petitioner was to report to the Head of the Department pursuant to the Government Order No.DPAR-2/STR/2017 Bengaluru dated 27.03.2017.
22. The learned AGA would fairly submit that there is no provision under the KCSR Rules or the Transfer Guidelines with regard to the deemed transfer. Rule 8(49) of KCSR Rules defines transfer in a restricted sense, whereas Guideline 3(d) explains transfer in a more inclusive manner, while the note to Guideline 3(d) clarifies that a movement of the government servant in a same unit from one post to the other post and desk etc., is not treated as transfer. Guideline or Instruction 4 deals with the process of transfer and Guideline 5 pertains to restriction of transfer while Guideline 6 deals with the responsibility of the competent authority while effecting transfers or giving postings. The use of
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the very word 'effect transfers' would indicate that the movements of the officers ought to be preceded by an act of the competent authority which would imply a proceeding. Thus, the contention that the petitioner is deemed to have been transferred in view of the transfer of the 4th respondent to the post occupied by him prima facie appears to be fallacious and fallible.
23. It is also brought to the notice of the Court that, pursuant to the orders of the Hon'ble Apex Court, the 4th respondent has now been appointed as the Joint Managing Director of Hubballi-Dharwad Smart City Project.
24. We have also perused the statement of objections preferred by respondents 1 to 3. Apart from narrating the sequence of events. We do not find any clarifications with regard to the lacunas as pointed out by this Court vide order dated 12.03.2019. Though various arguments are addressed with regard to the deemed transfer and the alleged subsequent transfer order dated 29.10.2018,
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we are not convinced with the legitimacy and efficacy of the said order. The onus was on the 1st respondent to clarify as to whether the petitioner stood transferred under the impugned order or transferred in the light of the query raised by this Court on 12.03.2019. Unfortunately, the respondents 1 to 3 had maintained a stoic silence.
25. The learned senior counsel appearing on behalf of the petitioner placed reliance on the ruling of the Hon'ble Apex Court reported in 1994 3 SCC 434 in the case of State of Orissa Vs. Dr.Sivasanker Lal Bajoria and Another to contend that there can be no appointment against an occupied post. Secondly, he places reliance on the ruling of the Hon'ble Apex Court reported in (2010) 13 SCC 336 in the case of Sant Lal Gupta and Others Vs. Modern Cooperative Group Housing Society Limited and Others, he would contend that the law does not permit a party to do indirectly what it cannot do directly. Enlarging further he would contend that, if the law mandates that the
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particular act, act of transfer as in the present case, is required to be done only under an order of transfer, it cannot be gainfully argued that the order of transfer of the 4th respondent ought to be construed as deemed transfer of the petitioner. He would further contend that the Courts cannot legislate what the legislature has designedly omitted. He would place reliance on the ruling of the Hon'ble Apex Court reported in (1999) 6 SCC 82 reported in Ajaib Singh Vs. Sirhind Cooperative Marketing-cum-processing Service Society Limited and Another, to contend that legislation is beyond the scope of the jurisdiction of the courts.
26. Though several contentions have been raised, we find that none of these contentions have been addressed or raised before the Tribunal. In fact in the impugned order paragraph 3 reads as under:
"Learned Government Pleader submits that he has not received any instructions or parawise remarks in this case"
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27. It is apparent that there is no active participation of the respondents 1 to 3 in the decision making process and as stated supra, the issue of deemed transfer or the efficacy of the order dated 29.10.2018 have not been considered by the Tribunal. The Tribunal being the final fact finding body, we are of the opinion that the matter be remitted back to the Tribunal to render a finding on merits after adverting to all the facts. It is made clear that, while so remitting the matter to the Tribunal, the finding of the Tribunal that the transfer of the petitioner to the office of the Assistant Commissioner, Dharwad Sub-Division as an election transfer is set aside and the said issue is not left open. As certain other issues have been pointed out by this Court, more particularly with regard to the aspect of deemed transfer, we deem it fit to remit the same to the Tribunal for reconsideration of the application on merits.
28. Accordingly, the impugned order is set aside and it is made clear that the petitioner shall be continued in
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the post of the Assistant Commissioner, Dharwad Sub- Division till the decision of the Tribunal is rendered or till the petitioner completes the minimum tenure, whichever is earlier.
Petition stands ordered in the above terms. In view of the above, there shall be no order as to costs.
(Sd/-) JUDGE (Sd/-) JUDGE jm/gab