Karnataka High Court
Sri B C Shivanna vs The State Of Karnataka on 25 August, 2012
Author: A.S.Bopanna
Bench: A.S. Bopanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF AUGUST, 2012
BEFORE
THE HON'BLE MR. JUSTICE A.S. BOPANNA
WRIT PETITION NO. 22822/2012 (S-TR)
BETWEEN:
SRI B.C. SHIVANNA,
S/O. LATE CHANNAIAH,
AGED ABOUT 58 YEARS,
SUPERINTENDENT ENGINEER
(ELECTRICAL),
NO. 168, 5TH CROSS, 6TH MAIN,
KEB LAYOUT, GEDDALAHALLI,
BANGALORE - 94
... PETITIONER
(BY SRI K.H. SOMASHEKAR, ADV.)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS
PRINCIPAL SECRETARY ENERGY,
VIDHANA SOUDHA,
BANGALORE - 1.
2. THE MANAGING DIRECTOR,
BANGALORE ELECTRICITY SUPPLY
COMPANY (BESCOM),
K.R. CIRCLE,
BANGALORE - 560 001.
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3. THE GENERAL MANAGER,
(ADMINISTRATION & HUMAN
RESOURCE DEVELOPMENT),
BANGALORE ELECTRICITY SUPPLY,
COMPANY (BESCOM),
K.R. CIRCLE,
BANGALORE - 560 001.
4. MR B. VIRAMUDI,
AGED ABOUT 52 YEARS,
SUPERINTENDENT ENGINEER
(ELECTRICAL),
BESCOM, KOLAR
... RESPONDENTS
(BY SRI RAVIVARMA KUMAR, SR. COUNSEL FOR R2, R3 &
R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL
FOR THE RECORDS FROM THE RESPONDENTS TO DECIDE
THE ISSUE INVOLVED IN THE ABOVE CASE AND QUASH
THE ORDER DATED 03.07.2012 MADE IN NO.
BESCOM/BC31/3259 (4)/2011-12 ISSUED BY THE 3RD
RESPONDENT, TRANSFERRING THE PETITIONER FROM
BANGALORE BESCOM TO KOLAR BESCOM VIDE
ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR HEARING
INTERLOCUTORY APPLICATION THIS DAY, THE COURT
PASSED THE FOLLOWING:
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ORDER
The petitioner is before this Court assailing the order dated 03.07.2012, which is impugned at Annexure-A to the petition. By the said order, the petitioner has been transferred from Bangalore to Kolar Circle of BESCOM. The order is questioned on the ground that it smacks of malafides and favoritism inasmuch as the 4th respondent is favoured and therefore the interest of the petitioner has been affected by transferring him within 20 days from the date of his earlier transfer.
2. Heard Sri. Somashekar, learned counsel appearing for the petitioner and Sri. Prashanth T. Pandit, learned counsel appearing for respondents no. 2 to 4 and perused the petitioner papers.
3. The case of the petitioner is that he was working in GESCOM at Raichur and he was transferred to Bangalore by the order dated 08.06.2012 (Annexure-B) and thereafter he has been given a posting in Bangalore as per the order dated 15.06.2012, (Annexure-C) Immediately, within 20 days from the date of posting in Bangalore, the petitioner has been transferred to Kolar vide impugned 4 order dated 03.07.2012, (Annexure-A).
4. At the outset it is contended that the order is not bonafide nor is it in the public interest nor was there any service exigency inasmuch as the 4th respondent had not even completed about a year after posting to Kolar. In that regard, it is also contended that respondents no. 2 and 3 have failed to adhere to the office memorandum dated 19.04.2005, (Annexure-E) which prescribes certain guidelines with regard to transfer. One amongst which is the tenure, which has been indicated in respect of different categories of posts. It is his case that insofar as Superintendent Engineers, the tenure fixed in one place is for 2 years and therefore the respondents no. 2 and 3 could not have transferred in violation of the said guidelines. Further, it is also his contention that several other persons are working in Bangalore for more than 4 years and even upto 16 years in one place, who have not been transferred yet, the petitioner has been chosen for the discriminative treatment. It is therefore contended that order is not sustainable.
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5. The stand of the respondents is that the petitioner had only been transferred from Raichur of its GESCOM division to the BESCOM division at Bangalore. Thereafter, since Kolar is also within the BESCOM jurisdiction, he has been posted to the said place. It is further contended that the guidelines does not provide any right to the petitioner. It is only a guideline for the respondents no. 2 and 3 to be kept in view. However, in the event of there being service exigencies, it would also be open for the respondents no. 2 and 3 to effect transfers accordingly.
6. It is their further case that, when the transfer order has been passed by a Competent Authority, the same cannot be challenged by an employee without making any representation to the employer. Further, it is sought to be pointed out that in a circumstance where there is acute drought in the region and power supply has to be maintained, the service of the petitioner was very much essential in Kolar and therefore he has been transferred to the said place. In that view, by filing an objection statement to the writ petition, the respondents seek to contend that the order is not liable to be interfered 6 by this Court inasmuch as it would affect the planning of the respondents in posting appropriate persons to the appropriate places. The learned counsel for the respondents no. 2 and 3 would also contend that it is the uniform view of the Court that the transfer orders would not be interfered by the Court nor does the guidelines provide any statutory right to the employees. Therefore, it is contended that the writ petition is liable to be dismissed.
7. In the light of the rival contentions, the position of law relied on by the learned counsel for the parties also requires to be noticed. The learned counsel for the respondents no. 2 and 3 at the outset relying on the decision of the Hon'ble Supreme Court in the case of Chief General Manager (Telecom) N.E. Telcom Circle v. Rajendra Ch. Bhattacharjee, reported in CDJ 1995 SC 214 sought to contend that the Hon'ble Supreme Court has held that the Government employee or an employee of the public undertaking has no legal right to insist for being posted to any particular place. In the said decision, it is also held that when an employee holds a transferable post and when it is provided in the service conditions, he has no choice in the 7 matter of posting and in such circumstances, there should be no interference with the orders of transfer.
8. The decision in the case of Union of India and Others v. S.L. Abbas, reported in CDJ 1993 SC 446 is relied on to contend that whenever an employee is aggrieved by an order of transfer, the representation must be made to the employer and the guidelines are to be enforced only insofar as it is possible and the same does not provide legally enforceable right. The decision in the case of Shanti Kumari v. Regional Deputy Director, Health Services, Patna and Others reported in CDJ 1981 SC 205 is relied on to contend that the transfer of Government servant could be made due to exigencies of service or due to administrative reasons and the Court should not interfere in such matters and in that regard, Hon'ble Hight Court directed filing of representation, which has been up held by the Hon'ble Supreme Court.
9. The case relating to Union of India v. N.P. Thomas, reported in CDJ 1992 SC 050 was relied on to contend that even after 8 a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead, the affected party should approach the Higher authorities and such interference would cause chaos in the administration.
10. The learned counsel for the petitioner on the other hand relying on a decision of the Full bench of this Court in the case of Mr. Chandru H.N. v. State of Karnataka and Others reported in ILR 2011 KAR 1585 contended that this Court by placing reliance on the judgment of the Hon'ble Supreme Court has arrived at a conclusion that in the absence of there being Statutory Rules, the instructions issued under Article 162 of the Constitution of India would have statutory force and the same can be enforced.
11. Having noticed the legal position putforth by the respective learned counsel for the parties, the position of law is well settled insofar as the transfer orders that if the same is passed by a Competent Authority and if it is passed in a bonafide manner and in public interest, the Courts should not ordinarily interfere with such 9 orders. However, if malafides are shown in the order of transfer, the employee should not be put to a helpless position and the Court will have to redress the injustice.
12. Therefore, keeping in view the broad guidelines laid down by the Hon'ble Supreme Court in several matters, the facts in each case would have to be noticed to arrive at a conclusion, whether the case on hand requires interference or not. Keeping in view the contentions which are putforth and the facts which would arise for consideration, it is seen that in the very decision relied on by the learned counsel for the respondents no. 2 and 3 in the case of Union of India and Others v. S.L. Abbas, the Hon'ble Supreme Court has made this aspect clear that unless the order of transfer is vitiated by malafides or is made in violation of any statutory provisions, the Court cannot interfere with it. Which therefore indicates that what has to be noticed is as to whether in the facts there is room for interference by the Court. Having taken note of the position of law, this Court is also very conscious of the fact that only in appropriate case, the Court would interfere with the transfer orders.
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13. Hence, the facts in the instant case is to be noticed. Unlike in other cases, where the general orders of transfer is challenged, the instant case is not one where there is a general transfer of several employees. At the outset, this aspect of the matter requires to be borne in mind. Only two of the employees have been shuffled inasmuch as the petitioner has been posted to a place from which place the 4th respondent has been transferred to Bangalore. Having noticed this aspect of the matter, the next aspect, which requires to be considered is whether the contention of the respondent that it was in public interest and only due to service exigencies is to be accepted. Before adverting to this fact, it is also to be noticed that notwithstanding the fact that the Full bench of this Court has arrived at the conclusion that the guidelines would have statutory force in the absence of there being rules, in the instant case, the same need not be gone into detail, since evidently the petitioner has been shifted within 20 days. In this regard, the fact that the petitioner was working at Raichur in another division of the Power Corporation namely in GESCOM is not in dispute and he was transferred from the said place 11 and reported at Bangalore on 13.06.2012.
14. By the present order of transfer on 03.07.2012, he has been moved out of Bangalore, but the contention of the respondents no. 2 and 3 no doubt is that the division in Kolar is also a part of the BESCOM and therefore it cannot be considered as a transfer outside Bangalore. The fact that the posting at Bangalore and at Kolar are different cannot be in dispute not withstanding the fact that both the place are within BESCOM itself. Further, the reasons putforth for such transfer of only two persons, when it was not a regular transfer is that, service of the petitioner was required in Kolar due to the situation of drought, which is prevailing therein and the power supply was to be maintained. In order to appreciate this condition, what requires to be noticed is that undisputedly the 4th respondent had worked in Kolar only for a period of 8 months and in a fact situation, if actually the power supply was acute and there was drought, there should have been continuity of working which was more the reason for the respondents no. 2 and 3 to continue the 4th respondent in the said place instead of putting a new person in the new place, which 12 would take more time to acquaint himself in new place. Therefore the reasons putforth in my view does not appear to be bonafide.
15. Further more, though the petitioner had been brought from Raichur to Bangalore by the order dated 08.06.2012, he had been given a posting in Bangalore by the order dated 15.06.2012, (Annexure-C). Though at the time of argument, the learned counsel for the respondents sought to contend that the Managing Director had made a note that the said posting is temporary in Bangalore, the same is not forthcoming from the order itself as it indicates that the petitioner after being transferred to Bangalore from Raichur had been given regular posting in Bangalore by the order dated 15.06.2012. In such circumstances, the very manner in which the petitioner has been shifted from Bangalore in preferring the 4th respondent to be brought back to Bangalore after a short tenure of 8 months would indicate that the reasons putforth in the instant case cannot be accepted as bonafide and in the guise of transferring an employee in the public interest, the respondents have made an attempt to pick and choose employees for posting at their whims and fancies. Further, it is seen from the list 13 produced along with the rejoinder that several employees have been continuing in Bangalore ranging from 4 to 16 years.
16. Therefore in such circumstances, when the orders are passed, the employee should not be placed in a helpless position more particularly when he has been shifted out of place within 20 days after being posted to Bangalore. In the instant facts and circumstances, keeping in view the guidelines laid down by the Hon'ble Supreme Court, I am of the opinion that the order impugned smacks of malafides and as such the insistence on the respondents that he should make a representation would not serve the purpose inasmuch as it appears that the respondents no. 2 and 3 have made up their mind to reject the representation, which is evident from the very contention which have been putforth in the objection statement.
17. Therefore, keeping all these aspects in view, I am of the opinion that the order dated 03.07.2012 in the present facts cannot be sustained as the one being in public interest and service exigencies. For the manifold reasons stated above, the order dated 03.07.2012 14 Annexure-A stands quashed, the petition is allowed in the above terms. No costs.
Sd/-
JUDGE ST*