Karnataka High Court
Shivaji A Kawale S/O Ambaji Kawale vs The State Of Karnataka on 6 June, 2017
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF JUNE, 2017
PRESENT
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR. JUSTICE B.A.PATIL
WRIT PETITION No.200881/2017 (S-KAT)
BETWEEN:
Sri.Shivaji A Kawale,
S/o Ambaji Kawale,
Age about 59 Years,
Occ: Assistant Executive Engineer,
M.I. Sub-Division,
Kalaburagi-585101. ...PETITIONER
(By Smt. Ratna N. Shivayogimath, Advocate)
AND:
1. The State of Karnataka,
Represented by its Secretary,
Public Works, Ports and Inland Water,
Transport Department, (Services-A),
Vikas Soudha, Bengaluru-01.
2. The State of Karnataka,
Represented by its Secretary,
Water Resources Department,
(Minor Irrigation),
2
Vikas Soudha,
Bengaluru-01.
3. The Chief Engineer,
(Minor Irrigation), (North),
Vijayapura-585 101.
4. The Superintending Engineer,
Minor Irrigation Division,
Kalaburagi-585 103.
5. Sri. Siddarama Ajagonda,
Age : Major,
Assistant Executive Engineer,
Working as Technical Assistant,
Minor Irrigation Division,
Kalaburagi- 585 103. ...RESPONDENTS
(By Sri R.V.Nadagouda, A.A.G. and
Smt. Archana P. Tiwari, A.G.A. for
respondent Nos.1 to 4.)
(Sri. S.S. Halalli, Advocate for respondent No.5)
*****
This Writ Petition is filed under Articles 226 & 227 of
the Constitution of India, praying to issue writ or order,
with in the nature of Certiorari, quashing the order dated
20.02.2017 passed by the Karnataka State Administrative
Tribunal, at Bengaluru, in Application No.7540/2016 vide
Annexure-D etc.
This petition coming on for preliminary hearing this
day, Nagarathna J., made the following:
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ORDER
Though the writ petition is listed for preliminary hearing, with consent of the learned counsel on both sides, it is heard finally.
2. This writ petition assails order dated 20.02.2017, passed in Application No.7540/2016, by the Karnataka State Administrative Tribunal, Bengaluru, (hereinafter, referred to as the "Tribunal", for the sake of brevity).
3. The petitioner herein had approached the Tribunal, being aggrieved by the order of transfer dated 30.07.2016 (at Annexure-A3). By that order, petitioner was transferred from the post of Assistant Executive Engineer, Minor Irrigation, Sub Division, Kalaburagi, to the post of Technical Assistant, Minor Irrigation Department, Kalaburagi. According to the petitioner, the said transfer is in violation of 4 Guidelines regarding transfer of Government servants dated 10.06.2013. That the petitioner was transferred on 31.03.2015, to the post in which he was working as per Annexure-A1 dated 06.03.2015 and that within a period of two years, he is transferred by the impugned order dated 30.07.2016 at Annexure-A3 without compliance of Guideline 9(b), in as much as, the said transfer is premature and the approval of the Hon'ble Chief Minister has not been obtained. In the circumstances, petitioner sought for quashing of Annexure-A3, in so far as, it affected his transfer and consequently, to restrain respondent No.5 from occupying his post.
4. The Tribunal by the impugned order has disposed of the application by holding in substance that although on 30.07.2016, which is the impugned order of transfer, the petitioner had not completed two years in his post, nevertheless, during the 5 pendency of the application, the said period had lapsed and therefore, there would be no hardship and impediment for the petitioner to report to duty at the post to which he is transferred to by the impugned order. Being aggrieved by the said observations of the Tribunal and further, by a direction given by the Tribunal to the petitioner to relieve himself from the post in which he was posted at the time of transfer and to report to duty as a Technical Assistant, at Minor Irrigation Department, Kalaburagi, as per impugned notification dated 30.07.2016 marked as Annexure-A3, this writ petition has been preferred.
5. We have heard learned counsel for the petitioner, learned Additional Advocate General for respondent Nos.1 to 4 and learned counsel for respondent No.5.
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6. At the outset, petitioner's counsel drew our attention to the series of orders that have been passed in respect of respondent No.5 and to the Guidelines and as to how the impugned order dated 30.07.2016 (at Annexure-A3), transferring the petitioner to the post which has been held by respondent No.5 and vice-versa have been violated. Learned counsel contended that respondent No.5 was promoted as Assistant Executive Engineer on 19.05.2016 (Annexure-A4) by the State Government, in exercise of powers vested under Rule 32 of Karnataka Civil Service Rules and his services were at the disposal of the Department of Water Resources but he did not report to duty. Instead on 15.07.2016, a notification was issued as per Annexure-A5 by which, respondent's services came to be withdrawn from the Department of Water Resources and made over to the Minor Irrigation Department. Then 7 respondent No.5 was posted as Technical Assistant (TA), Minor Irrigation Department, Kalaburagi, which was a vacant post as per order dated 27.07.2016 (Annexure-A6), but within a period of three days i.e., on 30.07.2016, respondent No.5 was transferred to the post of the petitioner and the petitioner was directed to take charge of the post held by 5th respondent, which is the impugned order vide Annexure-A3. Learned counsel submitted that respondent No.5 appears to be a very influential officer, who has been seeking transfers and postings as per his whims and desires, as a result the impugned order dated 30.07.2015 at Annexure-A3 has been issued.
7. Learned counsel for petitioner placed reliance on the Guidelines regarding transfer of Government servant dated 10.06.2013, to contend that petitioner came to be transferred to his post in the Minor 8 Irrigation, Sub Division, by order dated 06.03.2015, as per Annexure-A1 and that the impugned order of transfer of the petitioner at at Annexure A3 is dated 30.07.2016, which is within a period of two years. That the same is a case of premature transfer as per Guideline 8 and that he could not have been transferred prematurely. Learned counsel further contended that prior approval of the Hon'ble Chief Minister is required under Guideline 9(b) in the case of a premature transfer. It is an admitted position that there is no such prior approval of Hon'ble Chief Minister in the instant case. She therefore contended that the Tribunal ought to have allowed the application by setting aside the order of transfer rather than holding that during the pendency of the application before the Tribunal, as the two year period since petitioner's transfer to the post he was holding prior to the impugned transfer had lapsed, there was no 9 illegality or irregularity in the impugned order of transfer dated 30.07.2016. She contended that the impugned order of the Tribunal dated 30.07.2016 may be quashed.
8. Per contra, learned Additional Advocate General, drew our attention to Guideline 13 and contended that petitioner ought to have approached the competent authority seeking review of the order of transfer rather than having rushed to the Tribunal, which has rightly not granted relief to the petitioner. He contended that the impugned order would not call for any interference in this writ petition. He also submitted that although, no submission has been made before the Tribunal with regard to availing of remedy under Guideline 13, nevertheless, the same being available to the petitioner, he ought to have assailed the same and that the Government servants cannot be permitted to assail transfer orders before the 10 Tribunal without exhausting the remedy under Guideline 13. Of course, he very fairly submitted that in the instant case, there was no prior approval of the Hon'ble Chief Minister, before transfer of the petitioner by the impugned order.
9. Learned counsel for respondent No.5 vehemently contended that the impugned transfer is not at his instance that it has been made on account of administrative exigencies. He contended that there are several cases wherein this Court has taken a view that if during the pendency of the proceeding, two year period had lapsed, then orders of transfer have been given effect to. Also, a contention could be raised before the Tribunal also, as in the instant case, as two year period has lapsed. Thus, the petitioner cannot have any grievance with regard to the order of transfer. He submitted that the writ petition may be dismissed, as it is devoid of merits.
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10. Learned counsel for the petitioner by way of reply drew our attention to the fact that Guideline 9(b) is a mandatory provision and if such a provision had not been complied with there is no point in approaching the very same authority, which had issued the order of transfer, which is the competent authority, to review the order and that the petitioner has rightly approached the Tribunal assailing his transfer. While reiterating her submissions, learned counsel contended that relief may be granted to the petitioner.
11. Having heard learned counsel for the parties, we find that the impugned order of transfer (Annexure-A3) is dated 30.07.2016. By that order, the petitioner was transferred and ordered to take charge of the post which was held by respondent No.5 and consequently, respondent No.5 was ordered to occupy the post of the petitioner. Petitioner was 12 transferred to the post of Assistant Executive Engineer, Minor Irrigation, Sub Division, Kalaburagi, vide order dated 06.03.2015 (Annexure-A1). He was directed to occupy the said vacant post on retirement of the incumbent with effect from 31.03.2015. Accordingly, he took charge of the said post on the said date. The impugned order of transfer is dated 30.07.2016, which is within the period of two years, in fact, it has been only one year and four months. Under the circumstances, it is held that the order of transfer is premature. If the transfer is premature, it should be with the prior approval of the Hon'ble Chief Minister. In fact, Guideline 9 states that generally, there should be no premature transfers and that the minimum period of stay at a place is as prescribed in Guideline 8 which can be reduced and the concerned Government servant could be transferred prematurely, if the competent authority feels that he 13 or she is not suitable for discharging the duties at the present place and the reasons are recorded to that effect in writing. Further, in such an event of premature transfer, there has to be prior approval of the Hon'ble Chief Minister, as per Guideline 9(b) , which reads as under :-
"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 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."14
A reading of the aforesaid provision would indicate that the premature transfer requires prior approval of the Hon'ble Chief Minister which "must be obtained without fail by the concerned Administrative Department of Secretariat". The provision further states that the concerned officers "should not under any circumstance issue transfer orders and later seek ratification/post facto approval of the Chief Minister". The above expression in Guideline 9(b) would indicate that prior approval of the Hon'ble Chief Minister is mandatory requirement and a prerequisite, particularly, having regard to the words "without fail"
and "should not under any circumstances issue transfer orders and later seek ratification/post facto approval of the Hon'ble Chief Minister".
12. Admittedly, in the instant case, the petitioner has been transferred prematurely and there is no prior approval and though the order of transfer is liable to 15 be quashed. Learned Additional Advocate General however, contended that the petitioner ought to have availed the remedy under Guideline 13 before rushing to the Tribunal. Guideline 13 reads as under :-
"13. Review of the decisions of the Competent authority:-
"(i) A government servant may, within a period of one week from the date of the order of his transfer make an application to the Competent Authority accompanied by a copy of the order, seeking a review specifying therein, the reasons for the same;
(ii) The Competent Authority shall consider all the circumstances of the case and pass such orders as it deems fit subject to the provisions contained in this order."
The said guideline pertains to review of the decision of the competent authority. It may be noted that it is only the competent authority, which can issue an order of transfer of Government servants and 16 it is only that authority, which can review its decision of transfer. Therefore, the provision of review is not an appeal or a revision to a higher authority, but the very authority, which has ordered for transfer, has to review the order under that provision. Further, a review of an order cannot be a substitute for an appeal or a revision to a judicial forum. In fact the review contemplated under Guideline 13 is an administrative review and not a judicial review of an administrative action which the petitioner had sought in the instant case. Thus, when a Government servant is aggrieved by an order of transfer he can seek judicial review of the same, particularly having regard to there being a strong reason for doing so, as in the instant case, where there is a clear violation of the Guidelines for transfer. Thus, it cannot be stated that even in such a case, the petitioner ought to have availed the remedy of an administrative review under 17 Guideline 13. The object of seeking review under Guideline 13 is wholly different. If there has been compliance of all Guideline (which is not so in the instant case) and there were other reasons, on the basis of which, the petitioner sought review, then possibly it would have been correct on the part of the learned Additional Advocate General to contend that the petitioner ought to have availed remedy of review as per Guideline 13. But in the instant case, as we have already held, there has been infraction of Guideline 9(b), resulting in an illegal transfer. Thus it cannot still be contended that in such a case also, the competent authority who has issued the order of transfer would have to review the order of transfer.
13. In this context, we refer to the observations of the Hon'ble Supreme Court in State of U.P. vs. Mohammad Nooh (AIR 1958 SC 86), wherein it has been observed that there is no rule with regard to 18 certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. Provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute (right of administrative review in the instant case). The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior Court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior Court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law.
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In the aforesaid decision, reference has been made to the eloquent expression used by the Calcutta High Court in Assistant Collector of Customs vs. Soorajmull Nagarmull [AIR 1952 Cal 656], by observing that when an appeal or a revision (in the instant case, a review) is to the same department, then it is "from Caesar to Caesar and which might not be regarded with any great confidence".
Thus, administrative review of the impugned transfer order in the instant case was not an adequate remedy for the petitioner herein and the petitioner approaching the Tribunal, which is a judicial authority to review the order of transfer by way of a judicial review cannot be found fault with. The existence of the administrative review under Guideline 13 is not per se a bar to issuance of writ of certiorari in the instant case. Therefore, we find no fault in the 20 petitioner approaching the Tribunal seeking a judicial remedy by assailing the order of transfer.
14. Further in this regard, we would like to refer to a recent decision of Division Bench of this Court in the case of Alla Saheb vs. The State of Karnataka, Department of Urban Development and Others (ILR 2017 KAR 86) of which one of us (Nagarathna J.), was a member to hold that the directives framed from time to time as Guidelines regulating transfer of the State Government employees or public servants are not mere guidelines leaving it to the discretion of the State Government either to follow them or not to follow them. It is not as if the said guidelines would not confer any right in favour of the concerned Government servants. The Guidelines having been framed in exercise of the executive power of the State conferred under Article 162 of Constitution of India have a statutory force. In 21 saying so, the Division Bench has reiterated the observations made in the earlier opinions of the Full Bench in the case of Chandru H.N. vs. State of Karnataka and Others [2011 (3) KLJ 562 (FB)] and in case of S.N. Gangadharaiah, K.A.S. vs. The State of Karnataka, represented by its Principal Secretary, Department of Personnel and Administrative Reforms (Services-II) and Another [ILR 2015 Karnataka 1955].
15. The only other aspect which requires to be considered is the contention raised by the learned counsel for respondent No.5 to the effect that in two cases namely, in the case of Sri Banu Beerappa Harikantra vs. The State of Karnataka, and others (W.P.No.34081/2013 disposed of on 23.08.2013) and Kariyappa vs. Banu and others (W.P.No.80794/2013 disposed of on 22.07.2013), the Division Bench of this Court has approved the 22 approach of the Tribunal as in the instant case, to the effect that, during the pendency of the matter before the Tribunal two year period had lapsed and in such a case, it would not be necessary to interfere with the impugned order of transfer. No doubt, in the said orders, it may have been observed so, but those cases did not give rise to the contention as has been raised in the instant case, as to whether there has been compliance of Guideline 9(b) of the said Guideline. As we have held that Guideline 9(b) is mandatory and there being no compliance with the said Guideline in the instant case, the impugned order of transfer will have to be quashed. Respondent No.5 cannot seek any assistance from the orders of the Division Bench of this Court referred to above.
16. As we are holding that the impugned order of transfer is illegal on account of there being infraction of Guideline 9(b), we do not wish to respond 23 to the contention of petitioner's counsel that respondent No.5 being an influential officer had sought to occupy the post held by the petitioner and it is in that regard the impugned order of transfer has been made.
17. In the result, the writ petition is allowed. The impugned order of transfer dated 30.07.2016- Annexure-A3, concerning the petitioner is quashed.
18. It is stated at the Bar that respondent No.5 is working as Technical Assistant, Minor Irrigation, Sub-Division, Kalaburagi. He shall continue to occupy the said post until further orders are issued by the State Government.
Sd/-
JUDGE Sd/ JUDGE RSP/*mvs