Karnataka High Court
Smt Zohara Jabeen vs The State Of Karnataka on 6 September, 2022
Bench: G.Narendar, P.N.Desai
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF SEPTEMBER, 2022
PRESENT
THE HON'BLE MR. JUSTICE G.NARENDAR
AND
THE HON'BLE MR. JUSTICE C M JOSHI
WRIT PETITION NO.12410 OF 2022 (S-KSAT)
BETWEEN:
SMT ZOHARA JABEEN
W/O SARWAR MLYAN
AGED ABOUT 52 YEARS
WORKING AS FINANCIAL OFFICER
AT KIDWAI MEMORIAL INSTITUTE
OF ONCOLOGY, DR H.M.MARIGOWDA ROAD
BENGLAURU-560 029
R/AT H.NO.12, 9TH CROSS
NEAR NAVARANG FUNCTIONAL HALL
BISMILLA NAGAR
BANNERGHATTA ROAD CROSS
BENGALURU-560 029 ... PETITIONER
(BY SRI.GIRIKUMAR S. V., ADV.)
AND:
1. THE STATE OF KARNATAKA
REP BY ITS ADDL. CHIEF SECRETARY
DEPARTMENT OF FINANCE
VIDHANA SOUDHA, BANGALORE-560 001
2. THE STATE OF KARNATAKA
REP BY ITS PRINCIPAL SECRETARY
DEPARTMENT OF HEALTH AND FAMILY WELFARE
(MEDICAL EDUCATION)
2
VIDHANA SOUDHA,
BANGALORE-560 001.
3. THE PRINCIPLE DIRECTOR
KARNATAKA STATE AUDIT AND
ACCOUNTS DEPARTMENT
3RD FLOOR, TTMC A BLOCK
NGO COLONY, WILSON GARDEN
BENGALURU, KARNATAKA-560 027
4. THE DIRECTOR
KIDWAI MEMORIAL INSTITUTE OF ONCOLOGY
DR H.M.MARIGOWDA ROAD
BENGALURU-560 029
5. SRI.T.VENUGOPAL REDDY
MAJOR, WORKING AS PRINCIPAL
ADMIN (FINANCE)
KARNATAKA URBAN INFRASTRUCTURE
DEVELOPMENT AND FINANCE CORPORATION,
NAGARABHIBRIDDHI BHAVAN
22, 17TH F CROSS, OLD MADRAS ROAD
NEAR BMTC BUS DEPOT, INDIRANAGAR
BENGALURU-560 038.
... RESPONDENTS
(BY SMT. SHILPA S. GOGI, HCGP FOR R1 TO R4;
SRI. A. S. PONNANNA, SR. COUNSEL FOR
SRI. M. KESHAVA REDDY, ADV. FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR
RECORDS FROM THE RESPONDENT NO.1 IN RESPECT OF THE
IMPUGNED ORDER DATED 15/03/2022 AT ANNEXURE-A5, TO
QUASH THE IMPUGNED ORDER DATED 30-05-2022 MADE IN
APPLICATION NO.1227/2022 PASSED BY THE KARNATAKA
STATE ADMINISTRATIVE SERVICES TRIBUNAL AND
CONSEQUENTLY ALLOW THE APPLICAITON NO.1227/2022 AT
ANNEXURE-B AND TO DIRECT THE 1ST RESPONDENT TO
CONTINUE THE APPLICANT AS FINANCE OFFICER, KIDWAI
MEMORIAL INSTITUTE OF ONCOLOGY, BENGALURU AND ETC.
3
THIS WRIT PETITION COMING ON FOR "ORDERS" THIS
DAY, G.NARENDAR J., MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioner and learned Senior Counsel Sri A.S. Ponnanna, for Sri M. Keshava Reddy, for respondent No.5.
2. Learned Senior Counsel for respondent No.5 would submit that transfer involved in this petition is already decided by this Court in respect of one other person whose name is found at Sl.No.6 of the impugned order, namely, Manjunath Hegde, whose writ petition in W.P.No.9246/2022 came to be allowed and the transfer of the said petitioner came to be set aside on the short ground that there are no reasons recorded in support of the proposal recommending premature transfer.
3. This Court while allowing the earlier writ petition in W.P.No.9246/2022 has pleased to observe in paras 5 to 10 as under:
"5. Learned counsel for respondent No.2 argued that the transfer order of the petitioner has been approved 4 by Hon'ble Chief Minister and respondent No.2 has already joined the post and discharging his duty. Learned counsel argued that the transfer is an incidence of service based on the service of an employee, no employee has a right to claim particular place of posting. The transfer order in question is not only of respondent No.2, but it consists of seven other Government servants. He relied upon a decision of Division Bench of this Court in the case of Sri. C. MANJUNATH v. THE STATE OF KARNATAKA and others in W.P.No.8634/2020 dated 08.09.2020 and the case of DR. K.T. SUBHAS CHANDRA v. THE COMMISSIONER OF COLLEGIATE EDUCATION DEPARTMENT, BANGALORE in W.P.No.47197/2013 and connected matters dated 17.12.2013. In the case on hand, as the approval of Hon'ble Chief Minister has been obtained before the transfer, the contention of the petitioner that the transfer guidelines are not followed is not tenable. Hence, prayed to reject the petition.
6. Learned HCGP as directed produced the file relating to the transfer of the petitioner.
7. The transfer guidelines of Government of Karnataka dated 22.11.2001 was superseded by the guidelines of transfer dated 07.06.2013, which presently regulate the transfer of Government servants in the State of Karnataka. Those guidelines have been declared to 5 have a statutory force by virtue of Full Bench judgment of this Court in the case of H.N. CHANDRU v. STATE OF KARNATAKA AND OTHERS reported in 2011 (3) KLJ 562 and in the case of S.N. GANGADHARAIAH, K.A.S., v. The STATE OF KARNATAKA reported in ILR 2015 KAR 1955. Thus, the compliance of the guidelines is mandatory. This view of ours, is fortified by the judgment of the Co- ordinate Bench of this Court, in the case of SRI. RAJASHEKAR M. v. THE 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 at para 1 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.'
8. 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. referred supra which reads as follows:6
"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 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 7 the Government Order laying down guidelines for transfer of Government servants."
9. In terms of the law laid down by the co-ordinate Bench of this Court, the premature transfer will have to be in compliance of clause 9 of the guidelines which mandates recording the reasons by the competent authority and the Hon'ble Chief Minister approving the same. These acts mandatorily should precede the order of premature transfer. Both these circumstances are not complied with by the State Government in the instant case. Thus, the order dated 15.03.2022 is contrary to guidelines and the Tribunal ought to have interfered with the order of transfer.
10. There is no dispute about the proposition laid down in Dr. K.T. SUBHAS CHANDRA's case supra relied by respondent's counsel wherein there is reference to Hon'ble Supreme Court Judgment in the case of UNION OF INDIA AND OTHERS v. S.L. ABBAS, (1993) 4 SCC 357, the coordinate Bench has expressed its displeasure on the mal practices of the Government in implementing the transfer policy and not following the guidelines and rules framed by them. In DR. K.T. SUBHAS CHANDRA's case supra, the coordinate Bench affirmed the transfer order due to paucity of time. There is no dispute that if necessary in the public interest and for efficiency of public administration, the State 8 Government can transfer its employee from one place to another. If there is no malafides attributed to such transfer, then the court will not interfere. In view of the clear position of law laid in the above referred decisions, if the records in present case are perused, absolutely no reasons, at the time of approval of Chief Minister are placed. Learned counsel for the petitioner stated that respondent No.1 was shown earlier some other posting simply because he was not satisfied, subsequently, he was transferred to the place of the petitioner. Learned counsel stated there is no reason as to why proposal has been changed. Therefore, viewed from any angle, if the present application is considered, then the said transfer order falls short of principles laid in the case of SRI.RAJASHEKAR. M referred supra and in the case of GANGADHARAIAH. S.N. referred supra. Therefore, in view of the discussion made above, we hold that the transfer order dated 15.03.2022 suffers from illegality. The tribunal is not justified in upholding the order. Therefore, the order being illegal needs to be set- aside."
As such, as fairly stated by the learned Senior counsel for respondent No.5 the reasoning recorded by this Court while disposing of the above writ petition in W.P.No.9246/2022 also squarely applies to the facts of the instant case.
94. In that view of the matter, the writ petition is allowed and the impugned order dated 15-3-2022 passed by the 1st respondent insofar as it pertains to the petitioner and 5th respondent is set aside. The order dated 30-05-2022 passed by the Tribunal in Application No.1227/2022 is also set aside.
No costs.
Sd/-
JUDGE Sd/-
JUDGE tsn* CT-HS