Karnataka High Court
P V Poornima vs State Of Karnataka on 29 July, 2020
Bench: B.V.Nagarathna, Ravi V Hosmani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2020
PRESENT
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
AND
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
WRIT PETITION No. 2661 OF 2020 (S - KSAT)
BETWEEN:
SMT.P.V.POORNIMA
WIFE OF JAYATEERTHA
AGED ABOUT 43 YEARS
WORKING AS SPECIAL LAND
ACQUISITION OFFICER - II
KARNATAKA AREAS INDUSTRIAL
DEVELOPMENT BOARD
BENGALURU - 560 001.
.... PETITIONER
(BY SRI. A.S. PONNANNA, SENIOR COUNSEL
FOR SRI. JAI PRAKASH RAO N., ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS
PRINCIPAL SECRETARY
DEPARTMENT OF PERSONNEL,
ADMINISTRATIVE & REFORMS
VIDHANA SOUDHA
BENGALURU - 560 001.
2
2. STATE OF KARNATAKA
REPRESENTED BY ITS
PRINCIPAL SECRETARY
DEPARTMENT OF COMMERCE & INDUSTRY
VIKASA SOUDHA
BENGALURU- 560 001.
3. SRI ANIL KUMAR R.
S/O RAMANJENEYA
AGED ABOUT 41 YEARS
PRESENTLY WORKINGS AS
SPECIAL LAND ACQUISITION
OFFICER (BMICP)
KARNATAKA AREAS INDUSTRIAL
DEVELOPMENT BOARD (KIADB)
KANIJA BHAVAN, 5TH FLOOR,
RACE COURSE ROAD
BENGALURU- 560 001.
...RESPONDENTS
(BY SRI. D.R. RAVISHANKAR, ADVOCATE
FOR SRI. GOUTHAMDEV C. ULLAL, ADVOCATE FOR R3
SRI. T.L. KIRAN KUMAR, AGA FOR R1 & R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS
AND QUASH THE IMPUGNED ORDER DATED 20.01.2020, PASSED BY
THE HON'BLE TRIBUNAL IN APPLICATION NO. 5689/2019 VIDE ANNX-
A, DIRECT THE RESPONDENT TO CONTINUE THE PETITIONER IN
TERMS OF THE ORDER DATED 11.09.2019 VIDE ANNX-A10 AND THE
NOTIFICATION DATED 12.09.2019 VIDE ANNX-R2 PASSED BY THE R-
1 AND 2 RESPECTIVELY.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 29TH JUNE 2020, THIS DAY, RAVI V.
HOSMANI, J., MADE THE FOLLOWING:
3
ORDER
Though this matter was listed for hearing on I.A. No.1/2020 for vacating interim order dated 07.02.2020 granted by this Court, with the consent of learned counsel for the respective parties, the matter is heard finally and disposed of by this order.
2. This Writ Petition assails the order dated 20.01.2020 passed by the Karnataka State Administrative Tribunal (hereinafter referred to as 'KSAT', for the sake of convenience) in Application No.5689/2019. By the said order, KSAT has allowed the Application and set aside notification No.¹D¸ÀÄE 56 D¸ÉêÀ dated 11.09.2019 insofar as the Applicant and respondent no.2 therein.
3. Heard learned Senior Counsel Sri. A.S. Ponnanna, for the petitioner, learned counsel Sri. D.R. Ravishankar, for respondent no.3 through Video 4 Conference; and also Sri. T.L. Kiran Kumar, learned AGA, who appeared in person for respondent nos.1 and 2.
4. Sri R. Anil Kumar was the applicant in Application No.5689/2019 before the KSAT. Smt. P.V. Poornima was arrayed as respondent no.2. In the said Application, Sri R. Anil Kumar (respondent no.3 herein) had challenged Notification bearing No.¹D¸ÀÄE 56 D¸ÉêÀ dated 11.09.2019 issued by respondent no.1 canceling the earlier transfer Notification dated 06.09.2019 in respect of Smt. P.V. Poornima and posting Sri R. Anil Kumar, as SLAO-II, KIADB (BMICP), Bengaluru.
5. The facts briefly stated are that, the applicant - Sri R Anil Kumar, was working as the SLAO, Yettinahole Project, Doddaballapura. On 29.06.2019, he was transferred to the post of SLAO-II, KIADB. He replaced Smt. P.V. Poornima, who was working in the said post, since 2017. He took charge on 04.07.2019. Within two 5 weeks, i.e. under a Notification dated 15.07.2019, they were reverted back. The order dated 15.07.2019 was challenged by Sri R. Anil Kumar in Application No.4271/2019. During its pendency, an order dated 19.08.2019 was passed by the Government, modifying the Notification dated 15.07.2019 and Sri R. Anil Kumar came to be transferred to the post of SLAO-II, KIADB. Taking note of the order dated 19.08.2019, Application No.4271/2019 was disposed of. Immediately thereafter, the impugned order dated 11.09.2019 came to be issued and Smt. P.V. Poornima, who was under transfer as the SLAO, Singataluru, Lift Irrigation Project, Hoovina Hadagali, Ballari, in terms of order dated 06.09.2019 was modified and she was brought back as the SLAO-II, KIADB, Bengaluru. She replaced Sri. R. Anil Kumar in the post, who in turn was transferred to the post of SLAO-II, KIADB (BMICP), Bengaluru. As stated earlier, challenging this order, Application No.5689/2019 was filed before KSAT. 6
6. Upon service of notice, the State Government did not file statement of objections. However, Smt. P.V. Poornima entered appearance and filed objections. In her objections, it was contended that both Sri. R. Arun Kumar and Smt. P.V. Poornima were officials belonging to the Revenue Department, whose services were lent to the Commerce and Industries Department. The impugned order was only an order of deputation by the Commerce and Industries Department to particular posts and was not a transfer. Therefore, transfer guidelines were not attracted. Alternatively, even if it were considered to be as 'transfer', it had prior approval of the Chief Minister and was not contrary to the Transfer guidelines. Yet another contention was that Sri R. Anil Kumar, was merely shifted within KIADB from one subject i.e., SLAO-II, KIADB to SLAO-II, KIADB (BMICP), which did not involve change of headquarters and therefore, it was not an order of transfer. 7
7. On consideration of the case, the KSAT held that even a change of office (within KIADB) was a transfer, by referring to the Full Bench decision in S.N. Gangadharaiah Vs. State of Karnataka, (ILR 2015 KAR 1955). It further held that the transfer was premature. Regardless of prior approval by the Chief Minister, as the impugned order of transfer did not contain any detailed reasons and hence the premature transfer was unsustainable. It accordingly allowed Application No.5689/2019 and set aside transfer order dated 11.09.2019 insofar as Sri. R. Anil Kumar and Smt. P.V. Poornima are concerned. Assailing this order of the KSAT, Smt. P.V. Poornima has filed this writ petition.
8. On behalf of the petitioner - Smt. P.V. Poornima, the learned Senior counsel, made the following submissions:
(i) The KSAT held that the impugned transfer was premature. But KSAT ignored the fact both 8 Sri. R. Anil Kumar and Smt. P.V. Poornima belonged to Revenue Department. Their services were lent to Commerce and Industries Department. Thereafter vide the impugned order, Sri R. Anil Kumar was merely issued with order of deputation to a particular post. Such order of deputation was not a transfer.
(ii) It was also urged that the impugned order even if it were to be considered as an order of transfer and was premature, it had the prior approval of the Chief Minister and therefore, could not have been set aside by KSAT.
(iii) It was also urged that mere change of subject of Sri R. Anil Kumar, from SLAO-II, KIADB to SLAO-II, KIADB (BMICP), without change of Head Quarter was not a 'transfer' as defined in the Transfer Guidelines. The decision in 9 W.P.No.1383/2019 disposed of on 17.01.2019 (M.J. Varun Kumar Vs. H.T. Natesh& Ors.) was relied upon.
9. On the other hand, the learned Addl.
Government Advocate, representing respondents no.1 and 2 sought to justify the impugned order on the ground that the same did not attract application of the transfer guidelines.
10. On behalf of Respondent no.3 - Sri R. Anil Kumar, it was submitted as follows:
(i) The very nomenclature of the impugned order itself clarified that it was an order of transfer.
(ii) In view of Full Bench decision in S.N. Gangadharaiah's case (supra), change of post even within department would also be 'transfer'.
(iii) Even change of subject would be 'transfer' as per Clause 3 (d) of the Transfer Guidelines. 10
(iv) It was further contended that issuance of repeated orders to retain Smt. P.V. Poornima as SLAO-II. KIADB, Bengaluru, indicated that they were issued at her behest and no public interest was involved. Hence transfer was totally malafide.
11. Learned counsel relied upon the following decisions:
(i) ILR 2015 KAR. 1955 S.N. Gangadharaiah Vs. State of Karnataka
(ii) 2019 (1) AKR 489 Rajashekar M. Vs. State of Karnataka & Ors.
(iii) 2019 (1) Kar LJ 161 Shivakumar Vs. State of Karnataka & Ors.
(iv) W.P.No.14197/2019 Manjunath Vs. State of Karnataka & Ors.
(v) W.P.No.20991/2019 Kotresh Vs. State of Karnataka & Ors.
(vi) 2018 (1) AKR. 685 B.C. Ravindra Vs. Managing Director & Ors. 11
12. In addition, attention of this Court was also sought to be drawn to the fact that the Senior Counsel, who represented respondent No.3 - Sri R. Anil Kumar, in Application No.4971/2019, was now representing Smt. P.V. Poornima.
13. It has been contended in this case, by the Petitioner that an order issued for a mere change of subject within KIADB cannot be termed a 'transfer' nor would an order of deputation/posting in the department to which the services of the official is lent also does not amount to a transfer. The full bench of this Court in S.N. Gangadharaiah's case(supra), in paragraph No.20 has held as follows:
"20. .....
(c) Consequently, we hold that posting of a Government servant from one office to another within the same headquarters, to take up the duties of a new post would tantamount to transfer within the meaning of clause 3 (d) of the Government Order dated 07.06.2013." 12
The said finding is on the very point. Hence no error is committed by KSAT in relying upon the decision and following the law laid down therein. Hence, the said contention is rejected.
14. From a perusal of the preamble to the impugned order dated 11.09.2019, it is mentioned as a transfer by the Government. It also does not appear to be issued by the borrowing department. Hence the petitioner's contention that the impugned order was only an order of deputation to a particular post by the borrowing department is contrary to facts. The decision of this Court in M.J. Varun Kumar's case(supra), also does not assist the petitioner. The impugned order describes itself as a transfer and there is absolutely no material on record to indicate that it was a mere case of movement from one desk to another. It is also highly unlikely, as posts in question are meant for officers of Karnataka Administrative Services 13 rank and therefore, the transfer being from one office to another within the same Headquarter is highly probable. Failure of the State to throw light on this aspect also has to be held against the petitioner herein in view of the nomenclature of the impugned order. Hence, for all the above reasons, petitioner's contention is rejected.
15. Further from the tabulation of the transfer Notifications placed on record in this case, it is seen that no less than eleven orders have been issued by the State Government, either transferring or modifying transfer orders or withdrawing transfer orders, within a span of about one year. This is without any doubt a case of premature transfer. Thus, the finding of the KSAT is fully justified and cannot be faulted.
16. As held by Coordinate Bench of this Court in Shivakumar's case (supra), in case of a premature transfer, prior approval of the Chief Minister to the transfer 14 is mandatory. If the same is not granted, the transfer would be void ab initio. Another Coordinate Bench of this Court in Rajashekar's case(supra), has added that unless the impugned transfer fell within any of the circumstances mentioned in para - 9 (a) (i) to (vii) of the Transfer Guidelines dated 07.06.2013, prior approval of the Chief Minister will not save it from being set-aside as contrary to the Guidelines. As no such circumstance has been cited in the impugned transfer order dated 11.09.2019, the KSAT has rightly set it aside. The same does not call for any interference in this case.
17. From the facts of this case, we are unable to hold back from dealing with an important aspect of transfers which has manifested itself in this case. We deem it necessary to tabulate the various transfer orders issued with regard to Smt. P.V Poornima and Sri R. Anil Kumar, the parties herein.
15
Sl. Date of Place of transfer
No. Transfer
From To
Dy. Director (Training)
Smt. PV Poornima Skill Development,
1 10.12.2018 SLAO-II, KIADB, Entrepreneurship &
Bengaluru Livelihood Department,
Bengaluru
Smt. PV Poornima
Post of SLAO-II, KIADB,
under transfer as
Bengaluru which became
2 28.12.2018 per earlier order
vacant due to transfer of
dated 10.12.2018
Sri R. Anil Kumar.
modified.
Sri R. Anil Kumar, Vacant post of SLAO,
3 16.02.2019 Dy. Secretary - 3, Yettinahole Project,
BDA, Bengaluru Doddaballapura.
Posted as SLAO-I, KIADB,
Smt. PV Poornima
Bengaluru in the vacancy
4 20.02.2019 SLAO-II, KIADB,
caused due to transfer of
Bengaluru
Sri B Venkatesh
Services continued in
Smt. PV Poornima Dept. of Commerce and
under transfer as Industries and posted as
5 27.02.2019 per earlier order SLAO-II, KIADB, (BMRCL),
dated 20.02.2018 Bengaluru in the vacancy
modified. caused due to transfer of
Sri Balappa Handigunda.
Smt. PV Poornima
under transfer as To vacant post of Dy. Chief
6 06.03.2019 per earlier order Manager, KIUDFC,
dated 20.02.2018 Bengaluru.
modified.
16
Services of Sri R. Anil
Kumar handed over to
Sri R. Anil Kumar
Commerce and Industries
SLAO, Yettinahole
Department for being
Project,
posted as SLAO-II, KIADB,
Doddaballapura
Bengaluru in the place of
Smt. PV Poornima.
7 29.06.2019
Services continued in
Dept. of Commerce and
Smt. PV Poornima Industries and posted as
SLAO-II, KIADB, SLAO-II, KIADB (BMICP) in
Bengaluru the vacancy due to
transfer of Sri Balaram
Lamani
Sri R. Anil Kumar Vacant post of SLAO,
SLAO-II, KIADB Yettinahole Project,
(BMRCL) Bengaluru Doddaballapura.
Services handed over to
Commerce and Industries
8 15.07.2019
Department for being
Smt. PV Poornima
posted as SLAO-II,
SLAO-II, KIADB,
(BMRCL) KIADB,
(BMICP) Bengaluru
Bengaluru in the vacancy
due to transfer of Sri R.
Anil Kumar.
Continued as SLAO-II,
KIADB Bengaluru, by
Sri R. Anil Kumar
modifying the earlier
9 19.08.2019 SLAO-II, KIADB
transfer order posting him
Bengaluru
as SLAO, Yettinahole
Project, Doddaballapura.
Vacant post of SLAO,
Smt. PV Poornima
Singataluru Lift Irrigation
10 06.09.2019 under compulsory
Project, Hoovina Hadagali,
waiting period
Ballari
17
Smt. PV Poornima
under transfer as Services handed over to
SLAO, Singataluru Dept. of Commerce and
Lift Irrigation Industries for posting as
Project, Hoovina SLAO-II, KIADB, Bengaluru
Hadagali, Ballari as to replace Sri R. Anil
per order dated Kumar.
11 11.09.2019
06.09.2019
Services continued with
Sri R. Anil Kumar Dept of Commerce and
SLAO-II, KIADB Industries for posting as
Bengaluru SLAO-II, KIADB (BMICP)
Bengaluru
Shockingly, transfer orders are issued and modified repeatedly even after unsuccessful challenge before KSAT or even before taking charge at the place of transfer. Yet, it was submitted that it is the petitioner, who has suffered hardship due to repeated transfers and that she was the victim, when it is glaringly on record that, she repeatedly sought to be brought back to a particular post, that too after her completing minimum tenure in it. Such action on the part of the State is indeed contrary to its intention expressed in the transfer Guidelines to keep the transfers to below 6% of the cadre strength in a year and to regulate 18 the same based on definite criteria. It is equally disturbing to notice in this case that the State, which issued the impugned transfer Notifications has done little to defend the same. No statement of objection was filed before the KSAT or before this Court. Though attempt was made to defend the transfer Notifications orally, on the ground that they were issued in public interest, administrative exigencies and efficiency in administration, no material is produced to substantiate the same. We observe that the result of repeated transfer/retransfer of an official in order to accommodate another Officer causes grave hardship upon the transferred officials and their families. Due to unregulated transfers, the accountability of the officials towards effective implementation of state policy is lost, which impacts the public at large. Taking stock of this situation, the Hon'ble Supreme Court in TSR Subramanian and Ors. Vs. Union of India and Ors. reported in 2013 (15) SCC 732,has observed in paragraph No.35 as under: 19
"35. We notice, at present the civil servants are not having stability of tenure, particularly in the State Governments where transfers and postings are made frequently, at the whims and fancies of the executive head for political and other considerations and not in public interest. The necessity of minimum tenure has been endorsed and implemented by the Union Government. In fact, we notice, almost 13 States have accepted the necessity of a minimum tenure for civil servants. Fixed minimum tenure would not only enable the civil servants to achieve their professional targets, but also help them to function as effective instruments of public policy. Repeated shuffling/transfer of the officers is deleterious to good governance. Minimum assured service tenure ensures efficient service delivery and also increased efficiency. They can also prioritise various social and economic measures intended to implement for the poor and marginalised sections of the society."
18. Under the circumstances, we deem it proper to stipulate the requirement of disclosing specific reasons for 20 issuing orders for modification or cancellation of transfers with a further requirement that the degree of detail/specific reasons would increase with each subsequent modification/cancellation of transfer order, issued prematurely. This would not stifle the power of the executive to transfer officials in exceptional circumstances, but at the same time, the disclosure of reasons would ensure accountability to the public is being served. Such a measure would also act as a check on the transfers being effected on the requests made by officers to particular posts that too repeatedly, as in the instant case. Moreover, the transfer guidelines issued by the State Government to regulate transfers of government servants in the State are statutory in nature and binding on the State Government. They cannot be blatantly flouted to appease any government servant nor can they be ignored while accepting requests from officers/officials to seek postings of their choice. Such action on the part of the State 21 Government not only demoralises the other officers who are consequently displaced prematurely but also generates litigation before the Tribunals/Courts. It needs to be emphasised that no Government Servant should think that he/she can seek postings of his/her choice in blatant violation of the Transfer Guidelines. Such practice has to be deprecated.
19. Before parting with the case, the last of the submissions indeed requires us to deviate from the merits of the case. It was stated at the Bar that the Senior Counsel appearing in this case for the petitioner (Smt. P.V. Poornima), had represented the respondent no.3 (Sri R. Anil Kumar), before the Tribunal. In this regard our attention was drawn to the order sheet of the Tribunal in Application No.4271/2019, which we have perused. Learned Counsel and particularly Senior Counsel are looked upon as legal professionals with high standards of conduct and etiquette in the society, particularly while discharging their 22 duties as counsel. What is required is to send a strong reminder about the exemplary traditions and high standards of legal practice and standing at the Bar, which the members of the Bar must always bear in mind. This is in order to maintain purity in dispensation of justice towards which, we have all solemnly affirmed. We wish to say no more! For the foregoing reasons, the writ petition is dismissed.
No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE Psg*