Karnataka High Court
Sri C Manjunath vs The State Of Karnataka on 8 September, 2020
Equivalent citations: AIRONLINE 2020 KAR 2164, 2021 (1) AKR 140
Bench: Aravind Kumar, Pradeep Singh Yerur
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 8TH DAY OF SEPTEMBER, 2020
PRESENT
THE HON'BLE Mr. JUSTICE ARAVIND KUMAR
AND
THE HON'BLE Mr. JUSTICE PRADEEP SINGH YERUR
WRIT PETITION No.8634 OF 2020 (S-KSAT)
BETWEEN:
SRI. C MANJUNATH,
AGED ABOUT 46 YEARS,
S/o LATE CHINNAPPA,
PRESENTLY WORKING AS
ASSISTANT COMMISSIONER (JR.SCALE),
DODDABALLAPUR SUB DIVISION,
BENGALURU RURAL DISTRICT,
R/A NO. 58, 20TH MAIN,
SAHAKARANAGAR,
BENGALURU - 560 092.
... PETITIONER
(BY SRI ASHOK HARANAHALLI, SENIOR COUNSEL FOR
SRI SRINIVAS RAO S.S. AND
SRI ANOOP HARANAHALLI, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS
PRINCIPAL SECRETARY TO GOVERNMENT,
REVENUE DEPARTMENT, M.S.BUILDING,
BENGALURU - 560 001.
2 PRINCIPAL SECRERTARY TO GOVERNMENT,
D.P.A.R. (SERVICES-2),
VIDHANA SOUDHA,
BENGALURU - 560 001.
2
3. SRI. ARUL KUMAR,
KAS (JUNIOR SCALE),
JOINT DIRECTOR (ADMINISTRATION),
DEPARTMENT OF PUBLIC INSTRUCTIONS,
NRUPATHUNGA ROAD,
BENGALURU - 560 001.
... RESPONDENTS
(BY SRI V.LAKSHMINARAYAN, SENIOR COUNSEL FOR
SRI ASHWIN KUMAR H., ADVCOATE FOR R3;
SRI DHYAN CHINNAPPA, ADDITIONAL ADVOCATE
GENERAL FOR R1 AND R2)
***
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 227 OF CONSTITUTION OF INDIA, PRAYING TO QUASH
THE IMPUGNED ORDER DATED 17.06.2020 VIDE ANNX-A
PASSED BY THE HON'BLE TRIBUNAL IN APPL NO. 1667/2020.
THIS WRIT PETITION HAVING HEARD AND
RESERVED FOR PRONOUNCEMENT OF JUDGMENT ON
03.08.2020 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, PRADEEP SINGH YERUR. J.,
MADE THE FOLLOWING:
ORDER
Petitioner has sought for quashing of the order dated 17.06.2020 passed by the Karnataka State Administrative Tribunal at Bengaluru (in short 'the Tribunal') in Application No.1667/2020 at Annexure-A, whereunder application filed by the petitioner challenging his order of transfer dated 11.05.2020 came to be dismissed.
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2. We have heard Mr. Ashok Haranahalli, learned Senior counsel appearing on behalf of Sri Anoop Haranahalli for petitioner, Mr.V.Lakshminarayana, learned Senior counsel on behalf of Sri Ashwin Kumar for respondent No.3 and Mr. Dhyan Chinnappa, learned Addl. Advocate General appearing on behalf of the respondent No.1 and 2 - State, through Video Conferencing and they have agreed that the audio and video is proper and in good quality.
3. The brief facts of the case are as follows:
a) It is the case of the petitioner that he was working as Assistant Commissioner, Doddaballapura Sub-Division, Doddaballapura since 20.09.2018 pursuant to order dated 15.09.2018 passed by the respondent No.2 and prior to this position petitioner had completed his term as Assistant Commissioner, Karnataka State Highway Improvement Project (K-ship), Bengaluru between 11.08.2015 and 15.09.2018.
b) Respondent No.1 by order dated 19.08.2019 posted one Mr. B.R.Harish, to the post of the 4 petitioner without passing any order with respect to place of posting to petitioner. It was the grievance of the petitioner that he had not completed the requisite period as contemplated in the transfer guidelines. The said transfer was illegal transfer and accordingly he challenged the said transfer order dated 19.08.2019 before the Tribunal by filing the application No.5079/2019. Subsequently, the respondent No.2 prematurely transferred the petitioner during the pendency of the said application before the Tribunal to the post of Special Land Acquisition Officer, KIADB, Dharwad by an order dated 06.09.2019 and the petitioner challenged the said order by filing another application before the Tribunal in Application No.5580/2019. Tribunal heard both the applications and passed a common order and allowed the applications filed by petitioner on 13.09.2019 on the ground that said orders of transfer were pre-mature.
c) Being aggrieved by the said order Sri B.R. Harish challenged the same before this 5 Court in W.P. No.44032/2019 and this Court was pleased to remand the matter back to the Tribunal vide order dated 23.09.2019 with a direction to consider the case of the respective parties after receiving the statement of objections and perusing the records of the Government and to pass suitable orders. Thereafter Tribunal disposed of the application by an order dated 04.10.2019 reiterating the earlier final order dated 13.09.2019. It is stated that said B.R.Harish again challenged the said order by filing another writ petition in W.P. No.49927/2019. However, during the pendency of the said writ petition, said B.R.Harish was given a posting order and writ petition was disposed of on 19.11.2019 as grievance of the petitioner had been addressed.
d) It is the case of the petitioner herein that by revised Official Memorandum dated 08.04.2020, petitioner was designated as Member of the Containment Committee of COVID-19 and also as Member of Quarantine 6 Infrastructure Team and Member of Consumable Management (Procurement) Committee vide a Memorandum dated 17.04.2020. Petitioner was also placed incharge of prevention of COVID-19 and was designated as Sub-Division Incident Commander, which was subsequently modified as per Memorandum dated 25.05.2020 as Member Consumable Management and Committee to oversee the availability of drugs and essential medical equipment for control of Corona virus.
e) It is the case of the petitioner that he was transferred prematurely by order dated 11.05.2020, though he had not completed his minimum tenure of two years at the present post as Assistant Commissioner, Doddaballapur Sub-Division, Doddaballapur; it is his further case that respondent No.3 has been posted to his place and he has already assumed the charge of the post of the petitioner without complying with Rule 12 of the KCS Rules on 12.05.2020.
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f) Aggrieved by the said order date 11.05.2020 petitioner challenged the same before the Tribunal by filing an Application No.1667/2020.
Respondent Nos.1 and 2 - State and respondent No.3, filed their detailed statement of objections before the Tribunal. Tribunal after considering the statement of objections and arguments of the parties and statement of objections filed, dismissed the said application of the petitioner vide its order dated 17.06.2020, by holding that transfer was made during the General Transfer Period and that no ground was made out by the petitioner to interfere with the same.
Petitioner is before this court challenging the aforesaid order of rejection of his application by the Tribunal in the instant writ petition.
4. Mr. Ashok Haranahalli, learned Senior counsel appearing on behalf of petitioner has contended:
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(a) That order of transfer of the petitioner dated 11.05.2020 is premature as petitioner had not completed his minimum tenure of two years as Assistant Commissioner, Doddaballapura Sub-
Division, Doddaballapura. He would contend that petitioner had assumed charge of his office on 20.09.2019 and has been transferred on 11.05.2020 to the post of respondent No.3, ie., Joint Director (Admn.), Department of Public Instructions, Bengaluru which clearly establishes that order of transfer is premature by four months and ten days and is in violation of transfer guidelines dated 07.06.2013.
(b) Learned Senior counsel further contends that there are no reasons assigned while passing order of transfer and it merely states that petitioner has been transferred and hence, it is not a reasoned order. He would contend that order dated 11.05.2019 is bad in law and violative of transfer policy namely, in violation of clause 9(a) of Transfer Guidelines of 2013, as per Government Order No. DPAR 22 STR 2013, Bangalore, dated 07.06.2013. 9
(c) It is further contended by the learned Senior counsel that transfer has been made during general transfer period and no reasons are provided as to how the same can circumvent the transfer guidelines and general transfer period is only applicable after a lapse of the stipulated period of two years.
(d) Learned Senior counsel further contends that Clause 9(b) of the Transfer Guidelines 2013 states that before effecting a premature tra- nsfer, prior approval of the Chief Minister must be obtained without fail by the concerned Administrative Department of the Secretariat and that the law does not provide any scope for post facto approval of the Chief Minister. He further contends that respondents have not placed any document to establish that approval of the Chief Minister has been obtained before passing the order of transfer and this fact has not been brought to the notice of the Tribunal before impugned order came to be passed.
(e) Learned Senior counsel further contends that in case of general transfer the approval of the 10 Chief Minister is not a necessary requirement, but if there is any transfer made during this period in violation of Clause 9(b), then requirement of the approval of the Chief Minister is mandatory and same could be effected only to meet any exceptional circumstances on the ground of administrative exigencies.
(f) Learned Senior counsel further contends that Clause 4(a) of the Transfer Guidelines, makes it clear that Transfer/Deputation shall be made by the Competent Authority subject to conditions indicated therein, which would mean that completion of minimum number of years at one place would apply to all transfer / deputation vide Clause 8.
(g) Learned Senior counsel further contends that order of transfer dated 11.05.2020 has been passed during the general transfer period and thereby it is perverse and illegal. Tribunal failed to consider the grounds urged by the petitioner that transfer was premature; approval of the Chief Minister was not obtained, and it was not 11 in view of any administrative exigency or public interest. Therefore, it dilutes the rigour of transfer guidelines dated 07.06.2013.
(h) Hence, according to the learned Senior counsel order passed by the Tribunal is violative of transfer policy and premature transfer of the petitioner without recording any reason for such transfer and/or posting respondent No.3 to the said post. Further, the order of the Tribunal is arbitrary in nature, which is not for any administrative exigency or public interest and it is tainted with malafide intention of respondent-State.
5. On these submissions learned Senior counsel sought for quashing of the impugned order dated 17.06.2020 passed by the Tribunal.
6. Per contra, Mr. V. Lakshminarayana, learned Senior counsel appearing on behalf of respondent No.3 contends that writ petition is liable to be dismissed on the ground of suppressio veri and suggestio falsi, for following reasons:
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(a) That petitioner has wrongly mentioned in the cause title of the writ petition that he is presently working as Assistant Commissioner, Doddaballapur Sub-Division, Doddaballapur, which is incorrect and a false statement as he has already reported for duty on 29.05.2020 as Joint Director, Administration, Education Department, Bengaluru pursuant to order passed by the Tribunal. He further contends that State Government through DPAR by an order dated 14.05.2020 placed the services of the petitioner at the disposal of the Office of the Commissioner Health and Family Welfare, Anand Rao Circle, Bengalure and pursuant to which petitioner accepted the same and has been working as such. Therefore, the petitioner is estopped from challenging the order of transfer. Hence, it is contended that on this count alone writ petition is liable to be dismissed.
(b) Learned Senior counsel has further contended that respondent - State Government passed an order dated 18.06.2020, whereunder it came 13 to be held that any Officer who is deputed to COVID-19 duties shall not be disturbed / transferred without permission of the Chief Minister, in view of the fact that Chief Minister is the Chairman of the State Disaster Management Committee and that it is the policy of the State Government which would prevail over any other law in view of Section 72 of the Disaster Management Act, 2005. He has further contended that respondent No.3 has been assigned Airport duty as Incident Commander apart from work of the Assistant Commissioner, Doddaballapur Sub-Division, Doddaballapur and is working along with President of Bangalore District Disaster Management Committee.
(c) The learned Senior counsel further contends that petitioner is also posted as Incident Manager to the office of Commissioner, Health and Family Welfare on COVID-19 duty vide order dated 14.05.2020 and he claims that it is a uniform policy, and as such, there is no requirement of interference by this Court and it 14 would affect the policy of the State Government under the Disaster Management Act, 2005 as per the Government Order dated 18.06.2020. It is also contended by the learned Senior counsel that respondent No.3 has been posted in the place of petitioner for administrative reasons and in public interest and moreover only one and a half month is left over for the petitioner to complete the stipulated period of two years and as such, no infirmity can be found in the impugned order.
(d) It is further contended by the learned Senior counsel that tenure posting for two years is controlled by the word 'ordinarily', which means that not extra ordinary or 'normal' as held by the Hon'ble Apex Court. He further contends that Clause 8 of the Transfer Guidelines dated 07.06.2013, neither creates vested right in a Government servant nor it operates as a bar on the right of the Government to transfer before the completion of the tenure of two years.
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(e) The learned Senior counsel has further vehemently contends that petitioner has challenged the order of the Tribunal on the sole ground that there is no prior approval of the Chief Minister and therefore, transfer made is premature in nature. Therefore, scope of this writ petition is narrowed down to be examined whether prior approval of the Chief Minister had been obtained while transferring the petitioner to the post of respondent No.3 and posting respondent No.3 to the post of petitioner.
(f) The learned Senior counsel further contends that catena of Judgments of the Hon'ble Supreme Court has laid down that transfer policy of the Government and consideration for transfer during the subsisting tenure period of two years by assigning reasons with regard to administrative exigencies and Government policy and in public interest is in conformity with the transfer guidelines and is valid in law.
(g) The learned Senior counsel has also relied upon following Judgments in support of his case. 16 (1) DR.NAGORAO SHIVAJI CHAVAN vs SUNIL PURUSHOTTAM BHAMRE reported in (2019) 13 SCC 788;
(2) CHANDRA KUMAR vs UNION OF INDIA reported in (1997) 3 SCC 261;
(3) GAS CO. (PROPRIETARY) LTD vs STATE OF W.B reported in AIR 1962 SC 1044;
(4) VARADHA RAO vs STATE OF KARNATAKA reported in (1986) 4 SCC 131;
(5) RAJENDRA SINGH vs STATE OF UP
reported in (2009) 15 SCC 178;
(6) MADRAS vs R.PERACHI reported in
(2011) 12 SCC 137;
(7) UNION OF INDIA vs S.L.ABBAS, reported in (1993) 4 SCC 357;
(8) N.K.SINGH vs. UNION OF INDIA reported in 1994(6) SCC 98;
(9) STATE OF MP vs S.S.KOURAV reported in 1994 (3) SCC 270;
(10) STATE OF U.P. vs SIYA RAM reported in (2004) 7 SCC 405;
(11) NATIONAL HYDROELECTRIC POWER
CORPORATION LIMITED vs SHRI
BHAGWAN reported in (2001) 8 SCC 574' (12) AIRPORTS AUTHORITY OR INDIA vs RAJEEV RATAN PANDEY reported in 2009(8) SCC 337;
(13) RANGANATH vs M.K.JAGADISH in the case of W.P. NO.36896 OF THIS COURT;
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(14) GOVT. OF A.P. vs G.VENKATA RATNAM reported in (2008) 9 SCC 345;
(15) E.P. ROYAPPA vs STATE OF T.N. reported in (1974) 4 SCC 3;
(16) SHILPA BOSE (MRS) vs STATE OF BIHAR reported in 1991 SUPP (2) SCC 659;
(17) UNION OF INDIA vs DEEPAK NIRANJAN NATH PANDIT reported in (2020) 3 SCC 404. In view of aforesaid submissions he seeks for dismissal of the writ petition.
7. Mr. Dhyan Chinnappa, learned Additional Advocate General, appearing on behalf of the respondent - State would contend as follows:
(a) That the writ petition is not maintainable in view of the fact that respondent No.3 has been transferred to the place of the petitioner and the petitioner has been transferred to the place of respondent No.3, which is vice-versa, and both have assumed charge of their Office respectively. Transfer has been done effected by following the applicable transfer guidelines and orders are issued due to the administrative 18 exigencies and in the public interest with prior approval of the Chief Minister in accordance with law.
(b) He further contends that order of transfer of petitioner is, no doubt, a general transfer, but same is in compliance of Clause 8 of Transfer Guidelines.
(c) He contends that in the present case on hand approval of the Chief Minister has been obtained while passing the order of transfer of the petitioner to the place of respondent No.3 and respondent No.3 to the place of the petitioner.
(d) The learned Addl. Advocate General along with his statement of objections has produced a copy of the approval of the Chief Minister of Karnataka for transferring the petitioner and respondent No.3 as Annexure-R1.
(e) He would further contend that petitioner does not have any inherent right to challenge the order of transfer as the Transfer Guidelines is only directive in nature and not mandatory. 19
(f) He further contends that it is the prerogative of the State to transfer its employees at any time in the public interest and administrative exigencies. According to him, respondent No.3 was transferred to the post to work in the place of petitioner as he was found more suitable to work and there is no enforceable right which is vested in favour of an employee to challenge the order of transfer as it is incidence of service.
(g) He further contends that Courts should not normally interfere in the matter of transfer, as it is a matter of Government policy and administrative exigencies and in the public interest.
(h) Further he contends the respondent No.3 is presently on COVID-19 duty and as such altering his position at this juncture may not be in the best interest of the State. Further, it is not the case of the petitioner that respondent No.3 is not suitable or unfit for the post nor has he alleged any malafides against respondent No.3.20
(i) The learned AGA has relied on the following citations:
(1) STATE OF UP vs GOBARDHAN LAL; (2) RAJENDRA SINGH AND OTHERS vs THE STATE OF UP;
(3) UNION OF INDIA vs S.L.ABBAS, reported in AIR 1993 SE 2444;
(4) AIRPORT AUTHORITY OF INDIA vs STATE reported in (2010)1 SCC (L&S) 1084;
(5) V.GANAPATHI vs STATE, W.P. NO.
8264/2007 OF THIS COURT;
On the basis of the aforesaid submissions the learned Addl. Advocate General has sought for dismissal of the writ petition on the sole ground that petitioner has filed the instant writ petition to vent out his ego against respondent No.3 rather than claiming any inherent right against the violation of his right.
8. Having heard the arguments advanced by learned Advocates appearing for parties and on perusal of case papers, we are of the considered view that following point would arise for our consideration:
"Whether the order of transfer passed by the respondent-State is premature?" 21
9. The Government of Karnataka has framed a comprehensive guidelines for transfer of Government servants under Government Order No. DPAR 4 STR 2013 dated 07.06.2013, which was in supersession of Government Order dated 22.11.2001. Under the Government Order dated 07.06.2013, revised instructions regulating the transfer / deputation of the Government servants as indicated therein came to be issued and it has come into effect from the year 2013-
14. Clause(2) of Guidelines reads that 'General Transfer' shall be made in the months of May and June every year and no Government servant shall be considered for transfer / deputation except in the circumstance and in the manner specified in the said Guidelines. Clause (8) of the Guidelines further makes it clear that 'Minimum period of stay at a place is 2 years' and 'no Government servant shall ordinarily be transferred / deputed if he has not completed his tenure of posting at his/her place of posting'. In the present case, undisputedly, petitioner and 3rd respondent are holding Group 'A' post, which posting is for a period of two years. It is further stated that the minimum period of stay for a particular post may be revised from time to time by an order by 22 the Administrative Departments of the Secretariat, with the prior approval of the Chief Minister, in respect of certain types of sensitive cadres in the departments coming under their administrative control, depending upon the nature of duties assigned to the post.
10. Clause 9 of the Guidelines provides for 'Premature / delayed transfer' and it reads as under:
'Generally there should be no premature transfer. 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-8 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."
11. Further, Clause 9(b) of the Guidelines provides for premature transfer. It reads:
'However, before effecting any premature transfers and for making any transfer after the transfer period, and also for extending 23 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 circumstance issue transfer orders and later seek ratification / post facto approval of the Chief Minister."
12. Petitioner is governed by the aforesaid Guidelines and there is no dispute in this regard. However, it is his grievance that the spirit of the Guidelines has not been followed by 2nd respondent while transferring him to the place of respondent No.3 and vice-versa. According to petitioner, it is a premature transfer namely, before completion of minimum period of two years, he has been transferred and is in violation of the guidelines.
13. On careful perusal of Guidelines regarding transfer of Government servants dated 07.06.2013, it is imperative for us to see what is the general transfer and whether during the period of general transfer any transfer could be made in exception to the same. 24
14. As noted earlier general transfers are made by the competent authority in the month of May and June every year and there is stipulation under the guidelines that prescribed minimum period of two years for the category of Group A and B Posts, is to be adhered to and there should not be any premature transfer within a period of two years. What is important to be noted here is, Clause 8 of the Guidelines, prescribes that 'no Government servant shall ordinarily be transferred / deputed if he has not completed his tenure of posting in a place.' Therefore, reading of this provision denotes that ordinarily no Government servant shall be transferred / deputed if he has not completed his tenure of posting in a place. In the case on hand within a period of two years petitioner was prematurely transferred and he had still four months 10 days for completion of the two (2) years term as petitioner had assumed the post on 20.09.2018 and was transferred on 11.05.2020. Hence, it is contended by petitioner that he has been transferred prematurely and it is in violation of Clause 8 of the Transfer Guidelines 2013. 25
15. Clause 9(b) of the guidelines indicate that prior approval of Chief Minister is to be obtained before premature transfer could be made. Therefore, there is no hard and fast rule that there cannot be a premature transfer.
16. Petitioner has been contending that transfer has been made during general transfer period, which could come within the provisions of clause 9(a) and the respondent No.2 has not obtained the prior approval of the Chief Minister and thereby it is in violation of transfer guidelines dated 07.06.2013.
17. There is no dispute to the fact that petitioner and the respondent No.3 are in the cadre of KAS Junior Scale Officers. The only grievance of the petitioner is that since he was posted as Assistant Commissioner, Doddaballapur Sub-Division, Doddaballapur on 20.09.2018 and he had not completed his minimum period of two years and as such within said period he could not have been transferred to the post of Joint Director (Admn.), Department of Public Instructions, Bengaluru or respondent No.3 could not have been transferred to the post of Assistant 26 Commissioner, Doddaballapur Sub-Division, Doddaballapur, where he was working.
18. Under the revised Official Memorandum dated 08.04.2020, the petitioner has been designated as Member of Containment Committee of COVID-19; Member of Quarantine Infrastructure Team; and, Member of Consumable Management (Procurement) Committee. By Official Memorandum dated 17.04.2020 petitioner is also placed incharge of prevention of COVID-19 and was designated as Sub-Division Incident Commander which was subsequently modified as per Memorandum dated 25.04.2020 as Member Consumable Management and Committee to Oversee the availability of Drugs and Essential Medical Equipment for Corona Control. Whereas the respondent No.3 has been assigned Airport duty as Incident Commander apart from his regular duty as Assistant Commissioner along with President of Bangalore District Disaster Management Committee. Hence, it is contended, petitioner could not have been displaced from the post he was holding.
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19. The word 'Ordinarily' has been interpreted and explained by the Constitution Bench Judgment of the Hon'ble Supreme Court in the case of KAILASH CHANDRA vs UNION OF INDIA reported in AIR 1961 SC 1346, at para-8 of the said Judgment it is held as follows:
"This intention is made even more clear and beyond, doubt by the use of the word "ordinarily". "Ordinarily" means "in the large majority of cases but not invariably". This itself emphasises the fact that the appropriate authority is not bound to retain the servant after he attains the age of 55 even if he continues: to be efficient. The intention of the second clause 1 therefore clearly is that while under the first clause the appropriate authority has the right to retire the' servant who falls within clause (a) as soon as he attains the age of 55, it will, at that stage, consider whether or not to retain him further. This option to retain for the further Period of five years can only be exercised if the servant continues to be efficient; but in deciding whether or not to exercise this option the authority has to consider circumstances other than the question of efficiency also; in the absence of 28 special circumstances he "should" retain the servant; but, what are special circumstances is loft entirely to the authority's decision. Thus, after the age of 55 is reached by the servant the authority has to exercise' its discretion whether or not to retain the servant; and there is no right in the servant to be retained, even if, he continues to be efficient."
20. Further, the Hon'ble Apex Court held in in the case of E.P.ROYAPPA vs STATE OF TAMIL NADU AND ANOTHER reported in (1974) 4 SCC 3, at para-88 that:
"Secondly, with the vast multitudinous activities in which a modern State is engaged, there are bound to be some posts which require for adequate discharge of their functions, high degree of intellect and specialised experience. It is always a difficult problem for the Government to find suitable officers for such specialised posts. There are not ordinarily many officers who answer the requirements of such specialised posts and the choice with the Government is very limited ' and this choice becomes all the more difficult,- because some of these posts, though important and having onerous responsibilities, do not carry wide executive powers and officers may not, therefore, 29 generally be willing to be transferred to those posts. The Government has in the circumstances to make the best possible choice it can, keeping in view the larger interests of the administration. When, in exercise of this ,choice, the Government transfers an officer from one post to another, the officer may feel unhappy because the new posts does not give him the same amplitude of powers which he had while holding the old post. But that does not make the transfer arbitrary. So long as the transfer is made on account of the exigencies of administration and is not from a higher post to a lower post with discriminatory preference ,of a, junior for the higher post, it would be valid and not open to attack under Arts. 14 and 16."
21. In the above referred Judgment Hon'ble Supreme Court has clearly held that word 'Ordinary', which is used in Clause 8 of the Guidelines indicates that same is directive in nature and not mandatory. Therefore, Clause 8 of the Guidelines, where it says that no Government servant shall 'ordinarily' be transferred / deputed if he has not completed his tenure of posting in a place, does not mean that a Government servant - 30 petitioner herein cannot be transferred during the tenure of his post at that specified place.
22. The Hon'ble Supreme Court in the case of DR. NAGORAO SHIVAJI CHAVAN vs DR. SUNIL PURUSHOTTAM BHAMRE AND OTHERS reported in (2019) 13 SCC 788, has held at Para-12, as under:
"Notwithstanding the provisions contained in Section 3 which uses the expression that "ordinarily the tenure is three years", in our opinion in exceptional circumstances in a given case, or in the case of administrative exigencies, transfer is permissible, and no absolute bar on transfer is created by virtue of the provisions contained in section 3 read with section 4. In the facts and circumstances of the case and also considering the past record of respondent No.1 of not joining the place where he was transferred for five years, no interference with the order of transfer is called for."
Hence, contention of the petitioner that he could not have been transferred before completion of period of two (2) years cannot be accepted and it stands rejected.
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23. The next point to delved upon relates to the contention raised by the learned counsel for petitioner which is to the effect that while passing impugned order of transfer there is no permission obtained by the Chief Minister as contemplated under Clause 9(b) of the Guidelines. The respondent - State in its statement of objections has stated that necessary permission as required under Clause 9(b) of the Guidelines has been obtained from Chief Minister and after fulfilling the requirement the transfer order came to be passed. The learned Additional Advocate General appearing on behalf of the respondent - State draws our attention to Annexure-R-1 enclosed along with the statement of objections. Perusal of the same indicate that there has been prior approval accorded by the Chief Minister for transfer of petitioner to the place of respondent No.3 and respondent No.3 to the place of petitioner. Therefore, contention of the learned counsel for petitioner that no prior approval of Chief Minister was obtained, does not hold much water. Further it is stated by the learned Additional Advocate General that transfer order was issued in view of the administrative 32 exigencies and in public interest. Hence, the requisite reasons have been assigned for transfer of the petitioner to the post of Respondent No-3.
24. The learned counsel for respondent No.3 has relied on several Judgments of the Hon'ble Apex Court and this Court to substantiate his arguments. He further contends that there should be no interference by this Courts in the matter of transfer of Government servants, which would be the prerogative of the Government considering Government polices and administrative exigencies. In this regard he has relied upon the decision of the Hon'ble Supreme Court in the case of UINION OF INDIA AND ANOTHER vs DEEPAK NIRANJAN NATH PANDIT reported in (2020) 3 SCC 404, whereunder it came to be held:
"(4) However, we are categorically of the view that the impugned order of the High Court interfering with the order of transfer was in excess of jurisdiction and an improper exercise of judicial power. We are constrained to observe that the impugned order has been passed in breach of the settled principles and precedents which 33 have consistently been enunciated and followed by this Court. The manner in which judicial power has been exercised by the High Court to stall a lawful order of transfer is disquieting. We express our disapproval.
(5) Mr Manan Kumar Mishra, learned
Senior Counsel urged that during the
course of an earlier hearing, the Union government expressed its readiness to post the respondent at three alternative places instead of Bhubaneswhar and hence the order of transfer may be modified. We decline to allow this jurisdiction to be utilized in terrorem to compel the Union government to post the respondent to a place which he may be prefer. There is no lawful reason for the respondent to cling on to a posting at Mumbai. He cannot claim a posting as of right to a place of his choice."
25. Hon'ble Apex Court in the case of MOHD. MASOOD AHMAD vs STATE OF UP AND ANOTHER reported in (2007) 8 SCC 150, has held scope of judicial review in the matter of transfer is limited. It is further held:
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"5. In State of Punjab vs. Joginder Singh Dhatt AIR 1993 SC 2486 this Court observed (vide paragraph 3 of the said AIR) :
"We have heard learned counsel for the parties.
This Court has time and again expressed its disapproval of the Courts below interfering with the order of transfer of public servant from one place to another. It is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting. Ordinarily the Courts have no jurisdiction to interfere with the order of transfer. The High Court grossly erred in quashing the order of transfer of the respondent from Hoshiarpur to Sangrur. The High Court was not justified in extending its jurisdiction under Article 226 of the Constitution of India in a matter where, on the face of it, no injustice was caused"
6. In Abani Kanta Ray vs. State of Orissa 1995 (Supp.) 4 SCC 169; (1996 Lab IC 982), this Court observed (vide paragraph
10):
"It is settled law that a transfer which is an incident of service is not to be interfered with by the Courts unless it is shown to be 35 clearly arbitrary or vitiated by mala fides or infraction of any professed norm or principle governing the transfer. (See N.K. Singh vs. Union of India)"
7. The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Rao vs. Union of India (1993) 1 SCC 148; (AIR 1939 SC 1236), National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan (2001) 8 SCC 574; (AIR 2001 SC 3309), State Bank of India vs. Anjan Sanyal (2001) 5 SCC 508; (AIR 2001 SC 1748). Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh vs. State of U.P. (1997) 3 ESC 1668; (1998) All LJ 70) and Onkarnath Tiwari vs. The Chief Engineer, Minor Irrigation Department, U.P. Lucknow (1997) 3 ESC 1866; (1998 All LJ
245), has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a Court of law in exercise of its discretionary jurisdiction under Article 226 unless the Court finds that either the order is mala fide or that the service rules prohibit such transfer, or that the authorities who issued 36 the orders, were not competent to pass the orders."
26. Hon'ble Supreme Court in the case of AIRPORTS AUTHORITY OF INDIA vs RAJEEV RATAN PANDEY AND OTHERS reported in (2009) 8 SCC 337, has held that unless malafides are alleged and proved by the person making such allegation, order of transfer would not be interfered with. It has also been held:
"In the case of State of U.P. v. Gobardhan Lal1, while dealing with a matter of transfer, this Court observed that allegations of mala- fides must inspire confidence of the Court and ought not to be entertained on the mere asking of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference would ordinarily be made with an order of transfer. That the burden of proving mala-fides is on a person leveling such allegations and the burden is heavy, admits of no legal ambiguity. Mere assertion or bald statement is not enough to discharge the heavy burden that the law imposes upon the person leveling allegations of mala-fides; it must be supported by requisite materials." 37
27. It is clearly evident from the records on hand and in particular Annexure-R1 appended to the statement of objections of the respondent - State that order of transfer has been effected with prior approval of the Chief Minister. Thus, prior approval as contemplated under Clause 9(b) of the Guidelines dated 07.06.2013 has been obtained and as such it cannot be again said by the petitioner that impugned order of transfer is in violation of transfer guidelines.
28. Petitioner has not made out any good ground of malafide exercise of power either by the respondent - State or by the Chief Minister. When the State Government has produced Annexure-R1 and there being no dispute to said fact by the petitioner, the order of transfer having been made for administrative exigencies and in the public interest, contention of the petitioner that said order of transfer is made without assigning any reason, does not hold water. We do not agree with such proposition as no judicial review would be available for the petitioner when there is compliance of Clause 9(b) of the Transfer Guidelines dated 07.06.2013.
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29. In the present case on hand, the only ground urged by the learned Senior counsel appearing for the petitioner is that prior approval of the Chief Minister was not obtained while issuing the transfer orders, whereas Annexure-R1 is contrary to said contention. Hence, we do not find any good ground to interfere with the order of transfer.
30. Further, it is necessary to note that no Government servant can cling to a particular post or place under the pretext of violation of his right. It is the prerogative of Government to transfer its employee from one place to another, if it is necessary in the public interest and for efficiency of public administration. Further, no right is vested with any employee to seek a transfer to the place of his or her choice. The flexibility has to be left to the executive to take a decision in the matter of transfer, not withstanding this it is the right of the employee to challenge the same if there is any violation of the Transfer Guidelines and there being any malafide attributable to such transfer. In the case on hand, petitioner has alleged only one ground which pertains to prior approval having not been obtained 39 from the Chief Minister while issuing the order of transfer, which in our view would not sustain for consideration in view of Annexure-R1 filed by the respondent - State, disclosing prior approval having been accorded by the Chief Minister to the impugned transfer.
31. It is also to be noted from the statement of objections filed by the respondent No.3 that petitioner has already reported for duty on 29.05.2020 as Joint Director (Admn.), Department of Public Instructions, Bengaluru, pursuant to the order passed by the Tribunal, which is seen in Annexure-R1 produced along with the statement of objections of respondent No.3. It is also stated that petitioner has assumed the charge as Joint Director and presently he is working in COVID-19 duty in the office of the Health and Family Welfare Department, Anandarao Circle, Bangalore. The respondent No.3 after taking the charge as Assistant Commissioner, Doddaballapur Sub-Division, Doddaballapur, in addition has been assigned Airport Duty as Incident Commandar and has been discharging his duties accordingly.
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32. Therefore, we are of the view that transfer order passed by the respondent - State is well within the bounds of transfer guidelines and in compliance with the requirement of Clause 9(b) of the Transfer Guidelines dated 07.06.2013. Tribunal has considered all these aspects while passing the impugned Judgment and has rightly dismissed the application filed by the petitioner. We do not find any good reason to interfere with the order passed by the Tribunal and no other good ground having been made out by the petitioner to entertain this writ petition, we dismiss the writ petition with no order as to costs.
Sd/-
JUDGE Sd/-
JUDGE VK