Karnataka High Court
Sri. Arun Mallappa Musalimari vs The State Of Karnataka on 15 December, 2022
Bench: G.Narendar, P.N.Desai
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER, 2022
PRESENT
THE HON'BLE MR. JUSTICE G. NARENDAR
AND
THE HON'BLE MR. JUSTICE P.N.DESAI
WRIT PETITION NO.19580 OF 2022( S-KSAT)
BETWEEN:
SRI. ARUN MALLAPPA MUSALIMARI
S/O SRI MALLAPPA MUSALIMARI,
AGED ABOUT 40 YEARS,
SECTION OFFICER,
PRESENTLY WAITING FOR POSTING
KARNATAKA GOVERNMENT SECRETARIAT,
VIDHANA SOUDHA,
BENGALURU-560 001.
RESIDING AT SIDDARUDA ASHRAMA,
MYSORE ROAD,
NEAR MYSORE ROAD METRO STATION,
NAYANDAHALLI,
BENGALURU-560 026.
... PETITIONER
(BY SRI. N.K. RAMESH, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY ITS SECRETARY,
DEPARTMENT OF PERSONNEL AND
ADMINISTRATIVE REFORMS,
VIDHANA SOUDHA,
BENGALURU-560 001.
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2. THE STATE OF KARNATAKA
BY ITS ADDITIONAL CHIEF SECRETARY,
PUBLIC WORKS DEPARTMENT (SERVICES-A)
KARNATAKA GOVERNMENT SECRETARIAT,
VIKASA SOUDHA,
BENGALURU-560 001.
3. SRI G V SRINIVAS,
S/O VENKATACHALAIAH,
AGED ABOUT 41 YEARS,
WORKING AS SECTION OFFICER,
PUBLIC WORKS DEPARTMENT (SERVICES-A)
KARNATAKA GOVERNMENT SECRETARIAT,
VIKASA SOUDHA,
BENGALURU-560 001.
R/AT NO.64-65,
ADVAITH APARTMENT,
4TH MAIN, 3RD CROSS,
NEW EXTENSION, K.R PURAM,
BENGALURU-560 036.
... RESPONDENTS
(BY SRI. H.R SHOWARI, AGA FOR R1 AND R2,
SRI. G.B. NANDISH GOWDA, ADVOCATE FOR R3.)
THIS W.P IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO i) CALL FOR THE RECORDS RELATING
TO THE PASSING OF THE ORDER DATED 03/09/2022 PASSED IN
APPLICATION NO. 3021/2022 AS PER (ANNEXURE-A) ON THE FILE OF THE
HON BLE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, BENGALURU
ii)ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT OR ORDER OR
DIRECTION QUASHING THE ORDER DATED 03/09/2022 MADE IN
APPLICATION NO.3021/2022 PASSED BY THE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL, BEING ARBITRARY, ERRONEOUS AND
OPPOSED TO LAW EQUITY AND JUSTICE (ANNEXURE-A) AND ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS,
COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, P.N.DESAI J,
PASSED THE FOLLOWING:
3
ORDER
This petition is filed challenging the order dated 03.09.2022 passed in application No.3021/2022 by the Karnataka State Administrative Tribunal, Bengaluru (hereinafter referred to as 'Tribunal' for short) wherein the application filed by the respondent No.3 is allowed.
2. In brief the contention of petitioner is that, the third respondent was working as Section Officer in Karnataka Government Secretariat. The minimum tenure for a Section Officer from one place to another, which is a Group 'B' post is two years. The applicant was working from 27.07.2021. In the meanwhile, the third respondent is posted to the place of applicant before completion of minimum tenure. Hence, he has challenged the same by filing an application before tribunal. The said application was dismissed by the tribunal. Challenging the same, this petition is filed.
3. It is contended that the tribunal after hearing the matter, perusing the record and considering the guidelines issued by the Government of Karnataka has set aside the said order of posting of 4 this petitioner and permitted respondent No.3 to continue in the said office till the petitioner is given some post.
4. Heard the learned counsel for the petitioner Sri. N.K. Ramesh, Sri. H.R. Showri, learned AGA for respondents No.1 and 2 and Sri. G.B. Nandish Gowda, learned counsel for respondent No.3.
5. Learned counsel for the petitioner argued that the order of tribunal is erroneous and opposed to law. The petitioner has already reported to duty and working from 16.07.2022. The tribunal without appreciating approval of the Hon'ble Chief Minister has set aside the impugned order dated 14.07.2022. Learned counsel also relied upon the decision of Division Bench of this Court where one of us (GNJ) was party in W.P.No.11934/2022 (S-KSAT) dated 25.08.2022. The tribunal failed to note that, the impugned order of transfer dated 14.07.2022 is passed for administrative reasons and the same is already implemented.
6. Against this, learned counsel for respondent No.3 argued that tribunal has appreciated the records secured from the Government and no reasons are assigned as to why the third 5 respondent - applicant needs to be disturbed prematurely. Learned counsel also stated that the transfer is premature and against the Transfer Guidelines which are statutory in nature. Hence, prayed to reject the same.
7. The Government Advocate produced the records and file relating to transfer of the petitioner.
8. The undisputed contention is that the petitioner in this case was promoted on 05.03.2022 and he was reported to duty to his promotional post in Rural Development and Panchayat Raj Department (for short 'RDPR'). He was given a posting as District Officer, Backward Classes Department, Belagavi, but the post of District Officer is being a higher post, the petitioner could not have been posted for the same. On 25.05.2022 the petitioner was posted as a Section Officer to Health and Family Welfare Department (for short H&FW). The petitioner was on leave and he did not report to the duty. It is also evident that on the basis of the letter given by the Minister, Public Works Department (for short PWD) a movement order was issued on 14.07.2022 after the 6 approval of the Hon'ble Chief Minister transferring the respondent No.3 and the petitioner.
9. We have perused the order of the tribunal. The tribunal held that PWD is a service related Department and service guidelines dated 17.06.2013 are not applicable is not correct, in view of the corrigendum issued by the Government. It is also evident that both petitioner and respondent No.3 are working as Section Officers in the Karnataka Government Secretariat. Both are 'B' Group cadre officials. Therefore, the minimum tenure of two years provided for a Group 'B' Officer as per the Government Order dated 14.02.2015 which is stated in the transfer guidelines dated 07.06.2013. The tribunal has considered the transfer guidelines at paragraphs Nos.10 and 11 referred to premature/delayed transfer, held that the said rules have got statutory force, they are not merely guidelines. When the guidelines were violated affecting the rights of a Government servant, they are enforced according to law. The Tribunal observed at paragraph No.10 as under:
"10. Para 9 of the ¹C¸ÀÄE 25 ¸Éã˪À 2013 dated 7.6.2013 refers to premature/delayed transfers of government servants. Premature transfers of the Government 7 servants are permitted n the circumstances stated in para 9(i) to (viii) with the prior approval of the Chief Minister. But the competent authority is required to record the reasons for such transfer. The said clauses of Para 9 are extracted below:
"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 9 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 are recorded to this effect in writing:-
(i) The employee due for transfer after completion of tenure at a place or posting or post has less than two years of service for retirement;
(ii) The employee possesses special technical qualifications or experience for the particular job for which a suitable replacement is not immediately available;
(iii) The employees working on a project or Flagship programmes of Government of India which are in the crucial stage of implementation and his withdrawal will seriously jeopardize timely completion of such projects;
(iv) Where both the spouses are Government servants and if one of the spouses is transferred, then the other 8 spouse may also be transferred to the same place or nearby place depending upon the availability of vacancy even if one of them has not completed the minimum period of stay;
(v) Where a female Government servant is a widow/spinster/unmarried divorcee, she may be transferred and in case she is appointed for the first time, may be posted to a place of her choice subject to availability of vacancy;
(vi) Where a Government servant is an office-bearer of the Karnataka State Government Employees Association only, such Government servant shall not be transferred until the completion of the term for which he has been elected. In case no elections are held within three months of the completion of the said term, he may be transferred. In case he is reelected, he may be continued in the same place until the completion of the second term only;
(vii) Where a Government servant is physically handicapped/challenged or disabled subject to certification by the Medical Board;
(viii) Where a Government servant or his/her spouse or children are suffering from serious or terminal ailments, depending upon the availability of the facility of medical treatment at WP No.45916/2018 the requested place subject to certification by the Medical Board;
Thus, apart from the circumstances for premature transfer as above, obtaining prior approval of the Chief Minister by recording reasons is mandatory. 9
11. In two decisions of the Full Bench of the Hon'ble High Court of Karnataka in H.N. Chandru Vs. State of Karnataka and others (2011 (3) KLJ 562) and in the case of S.N. Gangadharaiah vs. State of Karnataka (ILR 2015 KAR 1955), the Court has held that the Government order (7.6.2013) laying down the transfer guidelines are statutory in nature. It was made clear in the above orders that the guidelines framed regulating the transfers of government servants are not mere guidelines leaving it to the discretion of the Government either to follow them or not to follow them but they have been framed in exercise of the executive power of the State conferred under Article 162 of the Constitution of India. Therefore, they have statutory force. The Court also held that the guidelines were enforceable, meaning that when the guidelines were violated affecting the rights of any government servants, then they can be enforced according to law."
Further, the tribunal after perusal of the record, from the Government file passed a detailed order relying on decision of Hon'ble Division Bench of this Court in the case of Sri. Rajashekar M. Vs. State of Karnataka and observed at paragraph no. 13 as under:
"13. The transfer order of the 3rd respondent merely states that transfer was issued in administrative exigencies and in public interest. We directed that the Government file be produced before the Court to understand the reasons for the many transfers issued to the 3rd respondent and also for reason that the last impugned order prematurely disturbed the applicant. It is revealed from the Government file that the Minister for Public 10 Works Department had given a note on 24.6.2022 No. Lo.E.S/269/2022 Gru.Ka addressed to Secretary, DPAR, to provide the services of the 3rd respondent Sri.Arun Mallappa Musalimari, Section Officer to the Public Works Department. Based on which the impugned order has been issued. The only reason given in the Note is that the services of the 3rd respondent are essential to the Public Works Department of which he is the Minister. No other reasons are forthcoming in the file as to why the applicant needs to be disturbed prematurely. We rely on the order of the Hon'ble High Court in Rajashekar M vs. State of Karnataka (2019 (1) AIR Kant 489) Para 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 WP No.45916/2018 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 11 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."
10. We have also perused the file relating to transfer and the note also. The note shows that respondent No.3 is working as Section Officer in PWD Department from 23.07.2021 and the request note of Minister of PWD was put up to transfer the petitioner to the PWD department. Note also shows that the petitioner was posted to H&FW department. He did not join to the duty and it is stated that he was on leave from 22.05.2022 to 08.07.2022. He has not taken the charge. In the meanwhile, a request letter to transfer him to PWD was given on 26.02.2022. It is very interesting to note that at Sl.No.4 of note shows that the transfer of respondent No.3 who is working from 26.07.2021 would be the premature transfer. Note No.10 and 11 shows that the Secretary, PWD has also put up a note stating that respondent No.3 is discharging his duties in effective manner and his services are required and he has requested to continue the services of respondent No.3. Therefore, a file was put up to drop the said proceedings as the 12 petitioner was already posted to H&FW department. But in view of the order of the Chief Minister, the transfer was effected. The petitioner was posted to PWD department by transferring respondent No.3. The Additional Chief Secretary, PWD has also recommended to the Secretary, DPAR to continue petitioner in the position of respondent No.3/PWD department.
11. Therefore, looking into these records, perusing the Government file it reveals that there is no valid reasons available in the Government file to transfer petitioner to PWD. On the other hand, the Additional Chief Secretary, PWD has noted that respondent No.3 Section Officer is effectively discharging his duties and he is very useful to the department. Therefore, tribunal considering all these aspects has passed the impugned order for continuation of the third respondent till completion of his tenure as per the transfer guidelines and the respondents Nos.1 and 2 are directed to give posting to the petitioner.
12. Viewed from any angle, if the present application is considered, then the said transfer order falls short of principles laid in 13 the case of Sri. Rajashekar M. referred supra and in the case of Gangadhariaiah, S.N. referred supra. We find no ground to interfere with the order of the tribunal. Accordingly, writ petition being devoid of merits is liable to be dismissed. Accordingly, we pass the following:
ORDER The writ petition is hereby dismissed.
No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE BVK