Karnataka High Court
Sri. N. Krishnappa vs The State Of Karnataka on 14 December, 2023
Author: K.Somashekar
Bench: K.Somashekar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
WRIT PETITION NO.7922 OF 2023(S-KSAT)
BETWEEN
SRI. N. KRISHNAPPA,
S/O SRI. KAMAIAH,
AGED ABOUT 56 YEARS,
PRESENTLY WORKING AS
EXECUTIVE OFFICER,
SRI GHATI SUBRAMANYA SWAMY TEMPLE,
GHATI, DODDABALLAPURA TALUK.
PERMANENTLY RESIDING AT :
WARD NO.22, MADANAHALLI,
B.H. ROAD,
OPP. SHANKAR HONDA SHOW ROOM,
GOWRIBIDANUR TOWN.
...PETITIONER
(BY SRI. NARASIMHARAJU, ADVOCATE)
AND
1. THE STATE OF KARNATAKA,
REPRESENTED BY THE PRINICIPAL SECRETARY,
DEPARTMENT OF REVENUE,
M.S. BUILDING, DR. AMBEDKAR VEEDHI,
BENGALURU-560 001.
2. THE COMMISSIONER,
FOR HINDU RELIGIOUS & CHARITABLE ENDOWMENT,
MINTO ANJANEYA BHAVAN,
ALURU VENKATARAO ROAD,
CHAMARAJPET,
BENGALURU-56 018.
2
3. SRI. D. NAGARAJU,
S/O SRI. DODDA VENKATAPPA,
AGED ABOUT 59 YEARS,
WORKING AS EXECUTIVE OFFICER,
SRI SIDDALINGESHWARA SWAMY TEMPLE,
YADIYUR, KUNIGAL TALUK,
TUMAKURU DISTRICT.
...RESPONDENTS
(BY SRI. PRADEEP C.S, AAG FOR R1 & R2 ALONG WITH
SRI. V. SHIVAREDDY, AGA
SRI. B.S. SACHIN, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO
a) ISSUE WRIT OF CERTIORARI BY QUASHING THE ORDER PASSED
BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL IN
APPLICATION No.437/2023 DATED 01-04-2023 AS PER ANNEXURE-
A AND CONSEQUENTLY DISMISS THE APPLICATION FILED BY THE
3RD RESPONDENT IN APPLICATION No.437/2023 BEFORE THE
HONBLE KSAT.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 11.12.2023, COMING ON FOR PRONOUNCEMENT
THIS DAY, RAJESH RAI.K, J., MADE THE FOLLOWING:
ORDER
This writ petition emanates from the order dated 01.04.2023, passed by the Karnataka State Administrative Tribunal (for short 'Tribunal') in A.No.437/2023, wherein the Tribunal has allowed the application filed by the respondent No.3/applicant and consequently, quashed the impugned Transfer Notification bearing No.KamE 04 MuSeVi 2023 dated 30.01.2023 issued by 1st and 2nd respondent herein. Aggrieved by the same, respondent No.3 before the Tribunal has approached this Court.
2. Facts-in-brief that are relevant for consideration of the case on hand are as follows -
3Respondent No.3 who is a Group 'A' Officer, working as Executive Officer in Ghati Sri Subramanya Swamy Temple was transferred to the place of the petitioner who was working as Executive Officer at Sri. Siddalingeshwara Swamy Temple, Yediyur, Kunigal Taluk, Tumkur District vide Transfer Notification dated 30.01.2023 and the same came to be challenged by respondent No.3. The Tribunal, after hearing the rival contentions, was pleased to quash the impugned Transfer Notification as against the petitioner and directed the respondent No.3/applicant to report to the place-in-question where he was transferred. Aggrieved, the petitioner who is respondent No.3 before the Tribunal is knocking the doors of this Court invoking supervisory jurisdiction under Article 227 of the Constitution of India.
3. Learned counsel for the petitioner contends that, his mother is aged about 94 years and suffering from age related ailments. He further submits that the petitioner is handicapped to buy medication that are required to treat his mother in the place where he was earlier posted and it is in this background, he had submitted a request letter, addressing the Chief Minister on 23.01.2023, to post him back to said place-in- question. He would also further contend that the 2nd son of the petitioner is also studying in 10th Standard in Leaders 4 International School at Gowribidanuru, as on the date of passing the impugned order.
4. Learned counsel for the petitioner further contends that the Chief Minister has approved the impugned Transfer Notification, only after careful consideration of the request made by the petitioner. The approval accorded by the Chief Minister is in accordance with Rule 7(iii) and Rule 9(a)(viii) of the Transfer Guidelines of 07.06.2023 which empowers the Chief Minister to exercise his discretion to accord transfers citing exceptional circumstances or special reasons in the case of spouse or children of Government servant are suffering from serious illness or ailments. When this being the scenario, the learned counsel for the petitioner submits that Tribunal, without appreciating the above discussed facts and intervening circumstances has proceeded to pass the impugned order which is contrary to the law laid down by the Co-ordinate Bench of this Court in R.D.Ramdas Vs State of Karnataka in W.P.No. 11934/2022 decided on 25.08.2022.
5. Learned counsel further contended that, if conduct of the officers who are locking their horns for the post-in-question are to be concerned, persuades this Court to the copy of FIR at Annexure-R14 to the statement of objection filed before the Tribunal and submits that there is an FIR that has been 5 registered against respondent No.3 before Basavanagudi Police Station for offences committed under Section 468,471 and 420 of IPC, wherein, respondent No.3 has been arrayed as 3rd Accused. Hence, on this ground he contends that, posting the respondent No.3 to an executive post when a FIR has been registered against him is in contravention of Rule 7 (v) of the Transfer Guidelines dated 07.06.2023.
6. Learned counsel for the petitioner also further submits that Tribunal has failed to look into the fact that, there is no hardship caused to the respondent No.3 by implementing the current impugned Transfer Notification as the place to which respondent No.3 is transferred is only 50 Km away from the residence of the respondent No.3 and on these grounds he prays for allowing the writ petition.
7. Per contra, learned counsel for the respondent No.3 contends that initially, while he was working as Group 'A' junior scale officer, he was posted to the place-in-question vide order dated 28.12.2021 on his own pay scale as Executive Officer, transferring the petitioner herein who had held the post of Executive Officer in the said place-in-question. Further, respondent No.3 was promoted vide order dated 05.05.2022 from Junior Scale to Senior scale and was continued in the said place-in-question and it is in this background, the impugned 6 Transfer Notification was passed by the respondent-State effecting the vice versa transfer, without specifying any reasons as mandated under Rue 9 of the Transfer Guidelines supra.
8. Learned counsel for the respondent No.3 further contends that the petitioner has held the post-in-question for two consecutive terms i.e., firstly on 14.07.2014 to 27.07.2014 and later again he was posted to the same place vide order dated 12.12.2018 and he has served in the said place for a considerable period of 6 years as Executive Officer including his second tenure i.e, 12.12.2018 to 31.12.2021. Though he had completed six years of service in the said place, he was reluctant to give the charge to the respondent No.3 and it is only after interference from the Deputy Commissioner, Bengaluru Rural District, pursuant to letter addressed by the respondent No.3 herein, the charge was handed over to the respondent No.3. It is in this background, the learned counsel submits that the petitioner has not approached this Court with the clean hands. As petitioner, during his first term in the said place-in-question, had committed misconduct in remittance of amount to the Temple accounts and subsequently, in order to cover up the earlier misdeeds, he, by using his political influences got issued the transfer order posting him back to the 7 said place-in-question in his second term. He further persuades this Court to Annexure-A8 to the application filed before the Tribunal and submits that, even during the second tenure there were several complaints of misconducts reported as against the petitioner pursuant to which respondent No.2-Commissioner has initiated the Departmental proceedings on the basis of complaint received from the public and internal enquiry report submitted by the Officials of the respondent-Department wherein, it was found that the petitioner was involved in the malpractices to a greater extent. Further, learned counsel submits that, it is in this background, Commissioner, Bengaluru rural District has proceeded to pass an order of suspension as against the petitioner on 17.03.2022.
9. Learned counsel for the respondent No.3 further submits that the respondent No.3 was posted to the said place- in-question vide order dated 28.12.2021 and as per Transfer Guidelines supra, every Group 'A' Officer is entitled to hold the post for a minimum period of two years, but respondent-state by passing this impugned order has prematurely disturbed the respondent No.3 from the place-in-question and he further submits that said impugned order is also passed without prior- approval of the Chief Minister and also without assigning any reasons as contemplated under Rule 7 (iii) and Rule 9 of the 8 Transfer Guidelines, 2013, thereby is contrary to the law laid down by the Co-ordinate Bench of this Court in All Saheb vs State of Karnataka & Ors reported in 2017 ILR KAR 86 ; Sri. Nagaraju Vs State of Karnataka & Ors reported in 2017 (6) Kar LJ 560 and M. Rajashekhar Vs State of Karnataka reported in 2018 SCC OnLine Kar 3777.
10. Further learned counsel for the respondent No.3 submits that the impugned order is untenable under the eyes of law for yet another reason that, Rule 9 (a)(i) of the Transfer Guidelines, 2013 perpends upon the fact that, if a Government servant is due for retirement within two years, then he shall not be transferred, but after giving specific reason as to his transfer from the place where he is working though, he has completed his tenure in the place where he was working. He submits that, the impugned order is passed in absentia of the reasons as to why such a transfer is effected even though the respondent No.3 has not completed his minimum tenure and also is at the fag end of his tenure more specifically, respondent No.3 is having only 1 year 4 months tenure left as on the date of filing the application before the Tribunal and nearly 4 months tenure left as of December, 2023. Hence, on this ground, he submits that the impugned Transfer Notification is passed against the law laid down by the Co-ordinate Bench 9 of this Court in C. Vasudeva Vs State of Karnataka reported in ILR 2015 KAR 4513.
11. Learned AAG appearing on behalf of the respondent- State concedes to the facts discussed in paragraph 7 of the impugned order and contends that the impugned Transfer Notification was passed subsequent to the note forwarded by the Chief Minister to Principal Secretary before bringing it to the notice of both the Chief Minister and also concerned Minister regarding the misconducts committed by the petitioner in the place-in-question(in present case Chief Minister also holds the power vested to the Endowment Minister) and in further he submits that, pursuant to the order of the Tribunal, Commissioner, Bengaluru Rural District, has forwarded a communication to the respondent No.2-Commissioner, Endowment Department to take action against the petitioner for the misconduct committed, by allowing respondent No.3 to take charge in the said place to examine the record and to report to the Competent Authority, vide letter dated 27.09.2023.
12. Heard learned counsel Sri.Narasimharaju for the petitioner, Sri. B.S. Sachin learned counsel for respondent No.3 and Sri.Pradeep C.S. Learned AAG for Sri. V. Shivareddy 10 learned AGA for respondent-State and perused the pleadings and records made available to his Court.
13. This writ petition takes exception to the order passed by the Tribunal in allowing the application in favour of the respondent No.3/applicant and thereby quashing the impugned Transfer Notification on the ground of it being premature and without according cogent reasons for effecting the same. The primary contention addressed by the petitioner in support of the impugned Transfer Notification is that, the Tribunal erred in considering the fact that the impugned Transfer Notification was passed after taking into consideration the age related ailments of the petitioner's mother, which was brought to the notice of Chief Minister by way of request letter dated 23.01.2023. The Chief Minister after perusal of the same, has passed the impugned Transfer Notification which is in accordance with law as per Rule 9(a)(viii) of the Transfer Guidelines, 2013. In address to this contention, on perusal of records, we see that, the petitioner was initially posted to the said place-in-question in the year 2014 and he has worked in the said period for more than six years and in both the tenure that the petitioner has worked in the said place-in-question, we find that there are allegations of misconduct as against the petitioner for misappropriation of funds and also mal- 11 administration by the petitioner while exercising his power as Executive Officer in the place-in-question. This is very evident from the request for suspension made by the Commissioner, Bengaluru Rural District, vide communication dated 17.03.2022, viz, Annexure-A8 to the application and this being the scenarios that is depicted from the records, it ruminates our mind that, if the request made by the petitioner was genuine, then he would have posted to any other place. But, there seems no reason as to posting him again in the same place where he has committed the mischief and also a communication has been addressed to keep the petitioner under suspension for the committed mischief. Moreover, the place to which the petitioner is posted is an Executive post and Transfer Guidelines, 2013 specifically bars State Government to post the petitioner to the place where he has committed the mischief and also created a rider to not to post the petitioner to an Executive post pending enquiry of the said alleged misconduct.
14. Further, though the records are not placed before us today, but we find water in the submission made by learned AAG as to the findings recorded by the Tribunal after examining the records made available before it. We are unable to appreciate the conduct of the respondent No.1 to pass the 12 impugned Transfer Notification on merely a note received from the Chief Minister. It is duty casted upon the respondent No.1 to verify the records and obtain the details of services rendered by the Official and to detail the concerned Minister and also the Chief Minister as to the impending circumstances that may arise effecting such transfer and obtain prior-approval of the Chief Minister subsequent to it. But, we find no action in this regard taken by the respondent No.1 but for passing the impugned order. This Court already in number of cases has clearly laid down the law that no employee should be expressly or impliedly allowed to work in the same place for a considerable period for more than the tenure which is prescribed under law, as if the same is allowed, then it is a scenario where the employee will develop vested interest in a particular place and post thereby hampering in the smooth functioning and integrity of the Department. (See - M.S.Purushottam reddy vs State of Karnataka in W.P.No. 20158/2015 decided on 01.06.2015 ; C.Madhu Vs Stat of Karnataka & Ors decided on 25.11.2015 ; Sri. G.B. Shivakumar Vs State of Karnataka & Ors in W.P.No. 22499/2022 decided on 16.11.2022 and Sri. N.Venkatesh Vs State of Karnataka & Ors in W.P.No.23998 OF 2023 decided on 12.12.2023). This being the settled norm, we are in serious disregard to the action of the respondent-State to 13 post the petitioner back to the same place and also to the same post he is said to be committed misconduct and the action regarding the legality of the same is still pending for consideration.
15. Moreover, on perusal, we also find water in the submission made by the learned counsel for the respondent No.3 that the respondent No.3 is about to retire within 4 months as of December, 2023 and we find neither any specific or co-gent reason nor extra-ordinary circumstances prevailing against the respondent No.3 mentioned in the impugned Transfer Notification as mandated under the law laid down by the Co-ordinate Bench of this Court in C. Vasudeva's case stated supra.
16. In view of the discussion made herein above, we find no merit in the case put forth by the petitioner and we are in congruent agreement with the order passed by the Tribunal. Accordingly the following -
ORDER i. Writ petition is dismissed.
ii. Order passed by the Karnataka State Administrative Tribunal dated 01.04.2023 in A.No.437/223 is upheld. Consequently, impugned Transfer Notification bearing 14 No.KamE 04 MuSeVi 2023 dated 30.01.2023 issued by the 1st and 2nd respondent is quashed and respondent No.3 is permitted to report to duty as Executive Officer of Sri. Ghati Subramanya Swamy Temple, Doddaballapura Taluk, Bengaluru Rural District, if not reported.
As stated supra, we find glaring error committed by the respondent-State in passing this impugned order, though the practice of such kind is abhorred by this Court time and again, we see that respondent-State authorities are very much reluctant to abide by the orders passed by this Court. In the present case, firstly, the impugned Transfer Notification came to be passed at the instance of merely a note forwarded by the Chief Minister and without placing file before the Chief Minister for prior approval. Secondly, by way of effecting the impugned transfer order, the Under Secretary who has acted on the instruction of Principal Secretary has posted the petitioner back to the same place where he has earlier worked for more than six years. Thirdly, the transfer of the petitioner to the place-in- question is effected, though there are reports and also request for suspension by the Commissioner, Bengaluru Rural District for malpractices and misconduct committed by the petitioner in the same place. Fourthly, he has been 15 posted to an Executive post dehors the Transfer Guidelines, 2013. Fifthly, no cogent reasons are forthcoming to effect the premature transfer of the respondent No.3. Moreover, it is undisputed position that respondent No.3 is about to complete his tenure in another 4 to 5 months. It is on these aspects, we are unable to appreciate the conduct of the respondent-State Authorities in passing the impugned order. Hence, we are constrained to caution the respondent-State Authorities that, if the Authorities continue to disregard the orders passed by this Court, then this Court shall initiate necessary action as against such personnel and the implications of the same shall be viewed seriously.
It is further directed that, the Registry shall furnish a copy of this order to leaned Advocate General to bring the same to the notice of State Authorities.
Sd/-
JUDGE Sd/-
JUDGE HKV