Karnataka High Court
The State Of Karnataka vs Sri. Ravichandra Naik on 30 September, 2020
Bench: B.Veerappa, K.Natarajan
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF SEPTEMBER, 2020
PRESENT
THE HON' BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K.NATARAJAN
WRIT PETITION No.10737/2020 (S-KSAT)
BETWEEN:
1. THE STATE OF KARNATAKA,
REPRESENTED BY
PRINCIPAL SECRETARY TO GOVERNMENT,
DEPARTMENT OF PERSONNEL AND
ADMINISTRATIVE REFORMS,
VIDHANA SOUDHA,
BENGALURU-560001.
2. THE DEPUTY COMMISSIONER,
DAKSHINA KANNADA DISTRICT,
MANGALURU-01
...PETITIONERS
(BY SRI P.B. ACHAPPA, AGA)
AND:
1. SRI. RAVICHANDRA NAIK
WORKING AS ASSISTANT COMMISSIONER,
MANGALURU SUB DIVISION,
MANGALURU, D. K. DISTRICT-575001.
2
2. SRI MADAN MOHAN C,
K. A. S. (JUNIOR SCALE)
PROBATIONARY OFFICER,
ASSISTANT SECRETARY, ZILLA PANCHAYATH,
RAMANAGARA DISTRICT,
RAMANAGARA-562159.
...RESPONDENTS
(BY SRI D.R. RAVISHANKAR, ADVOCATE FOR C/R1)
*****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER DATED 21.01.2020 PASSED BY THE KARNATAKA
STATE ADMINISTRATIVE TRIBUNAL, BENGALURU IN
APPLICATION No.7360/2019 AS PER ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY,
B. VEERAPPA, J, MADE THE FOLLOWING:
ORDER
The State Government filed the present writ petition to set aside the order dated 21.1.2020 passed by the Karnataka Administrative Tribunal ('Tribunal' for short) in Application No.7360 of 2019.
2. The present 1st respondent, who is the applicant before the Tribunal in Application No.7360 of 2019, filed the said application questioning the Transfer Notification 3 dated 11.12.2019 made in No.DPAR 204 SKT 2019 transferring him from the post of the Assistant Commissioner, Mangalore Sub-Division, Mangalore to the vacant post of Joint Managing Director, Mangalore Smart City, Mangalore. The applicant has contended that the said transfer notification is illegal and contrary to the Transfer Guidelines as per the Government Order dated 7.6.2013. He also contended that he was working in the post of Assistant Commissioner, Mangalore Sub-Division, Mangalore only from 17.8.2018 and he has not completed the minimum tenure of two years, as required for transfer of Group-'A' Officers in the transfer guidelines. He further contended that the applicant has been prematurely transferred for the 6th time within a span of two years without giving any cogent reason. He also contended that the applicant is staying with his family and his children have joined school in Mangalore for the said academic year. He further contended that no 4 administrative exigencies are made out for his premature displacement from the said post. Moreover, the order of transfer has been made without the prior approval of the Hon'ble Chief Minister as required for any transfer for administrative reasons. He further contended that a transfer is a malafide when it is made not for professed purpose such as in normal course or in the public interest or administrative interest or in exigency of service, but for other purpose i.e, to accommodate any another person. On these contentions, the applicant sought to allow the application.
3. The Tribunal considering the averments made in the objections filed by the State, has recorded a finding that the minimum period of stay of the applicant at the place, where he is working as Assistant Commissioner, is not yet completed and therefore, it is a premature transfer and there is no prior approval of the Hon'ble Chief Minister, if it is for the administrative reasons. Therefore, the Tribunal 5 allowed the application and the Notification dated 11.12.2019 issued by the State Government in so far as it relates to transfer of the applicant and posting of the present 2nd respondent in place of the applicant, was set aside. Hence, the State filed the present writ petition.
4. The present 2nd respondent has not challenged the impugned order passed by the Tribunal. However, the State filed the present writ petition challenging the impugned order passed by the Tribunal. Though the impugned order passed by the Tribunal as long back as on 21.01.2020, the State Government filed the present writ petition only on 25.9.2020. While filing the writ petition, the State Government has not produced the prior approval of the Hon'ble Chief Minister or the objections filed before the Tribunal, if any or the Transfer Guidelines. issued by the State Government.
6
5. We have heard Sri P.B. Achappa, learned Additional Government Advocate for the petitioner - State as well as Sri D.R. Ravishankar, learned counsel for the Respondent No.1.
6. Learned AGA contended with vehemence that the impugned order passed by the Tribunal setting aside the notification dated 11.12.2019 in so far as it relates to transfer of the applicant and posting of the present 2nd respondent in his place, cannot be sustained. He would further contend that since the applicant was on a transferable post, he has no right to challenge, in case of transfer made under public interest and administrative exigencies. The order of transfer is a part of service conditions of an Officer and the Courts should not interfere ordinarily in such matters, in the exercise of jurisdiction under Articles 226 and 227 of the Constitution of India. 7
7. Learned AGA further contended that the Hon'ble Supreme Court in the case of Union of India -vs- S.L. Abbas reported in (1993)4 SCC 357 held that transfer guidelines do not confer upon the Government employee a legally enforceable right to challenge it under Articles 226 and 227 of the Constitution of India. Therefore, he would contend that the impugned order passed by the Tribunal cannot be sustained and sought to allow the writ petition.
8. Per contra, Sri D.R. Ravishankar, learned counsel for the 1st respondent - applicant sought to justify the impugned order passed by the Tribunal allowing the application by setting aside the transfer notification dated 11.12.2019 and sought to dismiss the writ petition.
9. In view of the aforesaid rival contentions, the only point that would arise for our consideration in the present writ petition is:
8
"Whether the State has made out any case to interfere with the impugned order passed by the Tribunal setting aside the transfer notification dated 11.12.2019, in so far as it relates to transfer of the applicant (present 1st respondent) and posting of the present 2nd respondent in place of the applicant, in the facts and circumstances of the case ?"
10. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully.
11. It is the specific case of the applicant (present 1st respondent) before the Tribunal that he reported for duty on 17.8.2018 as Assistant Commissioner, Mangaluru and as on the date of transfer notification dated 11.12.2019, he has not completed the minimum tenure of two years in the said post, as required for transfer of Group-A Officers in the transfer guidelines. It is his further case that he has been prematurely transferred for the 6th time within a period of 9 two years without giving any cogent reason. It is also his case that he is staying with his family and his children have joined school in Mangalore for the academic year. It is not in dispute that in the transfer notification dated 11.12.2019 passed by the 1st respondent transferring the applicant, it is stated that the transfer is made in public interest and administrative exigencies.
12. It is also not in dispute that when the premature transfer has been made, the prior approval of the Hon'ble Chief Minister is mandatory as per Clause 7(iii) of the transfer guidelines as per the Government Order dated 7.6.2013, which reads as under:
7(iii): Where the transfer is necessitated in particular case, only due to exceptional circumstances or special reason, restricting the number of such annual transfers to minimum after recording reasons for the same in writing. Such cases shall be submitted to the Chief Minister without fail and transfer shall be made after obtaining prior approval of the Chief Minister.10
13. The above guidelines clearly depict that transfer 'shall' be made after obtaining prior approval of the Hon'ble Chief Minister. Admittedly in the present case, no material is placed either before this Court or before the Tribunal that prior approval as contemplated under Clause 7(iii) of the transfer guidelines, is obtained before passing the order of transfer as per Annexure-A3 dated 11.12.2019.
The Tribunal considering the said material, has recorded a finding, which reads as under:
"Perusing the materials, they go to show that even according to the respondent authority (State), the minimum period of stay of the applicant is not yet completed though it may be a two months period as argued by the 3rd respondent. However, it is a premature transfer.
Though the learned Government Pleader for the 1st and 2nd respondents made the submission that there is a prior approval of the Hon'ble Chief Minister, but the learned counsel for the applicant draws the attention of this Tribunal to 11 para-9 of the reply statement filed by the 3rd respondent and in the last two lines of the said para, it is stated that "it is submitted that it is also brought to his notice after the transfer order is issued". This itself clearly goes to show that file was placed before the Hon'ble Chief Minister after the transfer order was passed. So subsequent compliance of the requirement, it will not cure the defect ....."
14. We have no quarrel with regard to the arguments advanced by the learned AGA for the State that the order of transfer is a part of service conditions of the Officer and should not be interfered by this Court, exercising the powers under Articles 226 and 227 of the Constitution of India, where the transfer was made in the public interest and administrative exigencies. But, in the present case, the transfer is made without following the procedure prescribed as contemplated under Clause 7(iii) of the transfer guidelines as per the Government Order dated 7.6.2013. Therefore, it can be said that the transfer was 12 made at the instance of somebody else and not in the public interest and in those circumstances, the transfer was with malafide intention and contrary to the Transfer Guidelines and the same cannot be sustained.
15. At this stage, it is also relevant to refer to the Government Order No.DPAR 22 STR 2013, Bangalore, dated 7.6.2013, which lays down the guidelines for transfer of the Government servants. Paragraph-9 thereof states the circumstances where premature/delayed transfer of Government servants is permitted. It also mandates obtaining of prior approval of the Chief Minister before effecting such transfers. Paragraph-9 of the guidelines reads as under:
"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 13 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:--
(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 spouse may also be transferred to the same place or 14 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;15
(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 the requested place subject to certification by the Medical Board;
b. However, before effecting any premature transfers and for making any transfer after the transfer period, and also for extending the tenure of a Government servant for the reasons stated above, prior approval of the Hon'ble Chief Minister must be obtained without fail by the concerned Administrative Department of the Secretariat. The Principal Secretaries/ Secretaries to Government should not under any circumstances issue transfer orders and later seek ratification/post facto approval of the Chief Minister." (Emphasis supplied)
16. The said Government Order laying down the guidelines for transfer of the Government servants is statutory in nature as held by the two Full Benches of this Court in the case of Chandru H.N. -vs- State of Karnataka reported in ILR 2011 Kar 1585 and 16 Gangadharaiah S.N. -vs- The State of Karnataka reported in ILR 2015 Kar.1955. A Co-ordinate Bench of this Court in the case of Alla Saheb -vs- The State of Karnataka reported in ILR 2017 Kar. 86 by following above two Full Bench decisions, has observed at paragraphs 15, 17 and 24 as under;
"15. The entire exercise undertaken by the two full benches of this Court would make it clear that the directives framed from time to time as guidelines regulating transfers by the State Government are not mere guidelines leaving it to the discretion of the State Government either to follow them or not to follow them. It is not as if the said guidelines do not confer any right in favour of the concerned Government servants. The guidelines having been framed in exercise of the executive power of the State conferred under Article 162 of Constitution of India have been held to have statutory force. The two full benches did not stop there. They have further laid down that the said guidelines were enforceable. Enforceability of the guidelines would mean that whenever the guidelines were violated resulting in the rights of any of the Government 17 servants getting affected then they can be enforced in accordance with law. Therefore, they vest the Government servants with necessary rights to make a grievance against violation of the said rules/guidelines framed. That they are, therefore, not directory so that the competent authority can ignore them and exercise its own discretion to either follow it or not. The full bench has kept in mind the purpose behind the constitution of the Administrative Reform Committee by which State Government intended to regulate the entire issue of transfer of Government servants and address the evil associated with frequent and in-discriminate transfer. Administrative Reform Committee had Issued several recommendatory measures and in pursuance of such recommendatory measures. Government Order dated 07.06.2013 has been issued to regulate the transfers.
17. It has to be stated at this stage that the Government Order laying guidelines for transfer does not confer any absolute right in a Government servant to continue in a place for the prescribed period. It has provided several exceptions and has conferred discretion in the competent authorities to effect transfer even before the expiry of the specified period or to extend the period of stay even after the 18 expiry of the specified period of stay in a particular place. The requirement of the rule in that regard is that reasons have to be recorded and prescribed procedure has to be followed including approval to be obtained from the Chief Minister. The purpose and intent of such provision in the rules is to ensure that arbitrary and whimsical exercise of power is not resorted to and the Government servants are not harassed by repeated transfers and displacements. The object was to regulate the discretion. Fact that convenience of continuing the Government servant in a particular place for a specified period will help in discharging his duties efficiently by having grip over the fact situation in the particular place have been also taken into consideration. A perusal of the Government guidelines contained in the Government order makes it clear that sufficient room has been provided in the guidelines to displace persons whose records were not clean, against whom inquiry was initiated and such other similar grounds. Therefore, no straight jacket formula has been provided under the guidelines laying absolute bar for transfer and enabling the Government servants to hang on to the place where he is posted. It is in this background alone the full bench has pronounced that these guidelines which were issued in exercise of the 19 power under Article 162 of Constitution conferred right to enforce them as they had statutory force.
24. As already observed above, the guidelines issued which are held to have statutory force do not lay down any straight jacket formula or do not place any embargo on the power of the competent authority to effect transfer for the reasons enumerated in the Government order and by following the procedure prescribed. The guidelines only regulate the transfer and do not prohibit the transfer. The guidelines regulate the exercise of discretion and prevent abuse of the discretion by resorting to arbitrary, unfair and indiscriminate exercise of the power of transfer. It is in this context only the full bench has held that these guidelines have statutory force and are enforceable. If it were to be observed in the teeth of the law laid down by the full bench that these guidelines are merely directory and did not clothe affected Government servant to enforce them by seeking legal redressal it would tantamount to upsetting the principle laid down in the decision of the full bench. ......... ......... "
(Emphasis supplied) 20
17. The Government Order stated supra depicts that the premature/delayed transfer of Government servants is permitted in the circumstances stated in paragraphs 9(a)(i) to (viii) of the said Government order 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 in paragraphs 9(a)(i) to (viii) of the Government Order to warrant premature/delayed transfer of a Government servant and the said reasons have to be placed before the Chief Minister to obtain his prior approval as mandated in paragraph 9(b) of the Government Order.
18. Admittedly in the present case, no such material is produced by the State before this Court. Therefore, the transfer of the applicant, in terms of the Transfer Notification dated 11.12.2019, is illegal and rightly set aside by the Tribunal. Our view is also fortified by the dictum of the Hon'ble Supreme Court in the case of (1986)4 21 SCC 131, wherein the Hon'ble Supreme Court at paragraphs 4 and 5 has held as under:
4. The learned Judges observe that these penalties can be imposed on a government servant where disciplinary proceedings are initiated against him under the Rules by the competent authority.
They further observe that Rule 18 of the Rules therefore provides for appeals against orders imposing penalties referred to and specified in Rule 8, and add:
"If an order of transfer does not amount to an order of penalty or 'any other order' falling within Rule 19, such an order does not attract and is not appealable either under Rule 18 or Rule
19."
We agree with the view expressed by the learned Judges that transfer is always understood and construed as an incident of service. The words 'or other conditions of service' in juxtaposition to the preceding words 'denies or varies to his disadvantage his pay, allowances, pension' in Rule 19(1)(a) must be construed ejusdem generis. Any 22 alteration in the conditions of service must result in prejudice to the government servant and some disadvantage touching his pay, allowances, pension, seniority, promotion, leave etc. It is well understood that transfer of a government servant who is appointed to a particular cadre of transferable posts from one place to another is an ordinary incident of service and therefore does not result in any alteration of any of the conditions of service to his disadvantage. That a government servant is liable to be transferred to a similar post in the same cadre is a normal feature and incident of government service and no government servant can claim to remain in a particular place or in a particular post unless, of course, his appointment itself is to a specified, non- transferable post. As the learned Judges rightly observe:
"The norms enunciated by government for the guidance of its officers in the matter of regulating transfers are more in the nature of guidelines to the officers who order transfers in the exigencies of administration than vesting of any immunity from transfer in the government servants."23
5. It is no doubt true that if the power of transfer is abused, the exercise of the power is vitiated. But it is one thing to say that an order of transfer which is not made in public interest but for collateral purposes and with oblique motives is vitiated by abuse of powers, and an altogether different thing to say that such an order per se made in the exigencies of service varies any condition of service, express or implied, to the disadvantage of the concerned government servant. The petitioner who appeared in person placed reliance, as he did in the High Court, on the decision of the Bombay High Court in Seshrao Nagorao Umap v. State of Maharashtra [(1985) 2 LLJ 73 (Bom)] . We do not see how the decision can be of any avail to the question at issue. The learned Judges were dealing with a petition under Article 226 of the Constitution by which a Medical Officer challenged his order of transfer on the ground that it was not only mala fide but was issued in colourable exercise of power and therefore wholly illegal and void. It was contended by the petitioner that he was being transferred contrary to the government policy with a view to accommodate one Dr R.P. Patil because of the political influence he wielded. In allowing the writ petition, the learned Judges observed that it was no 24 doubt true that the government has power to transfer its employees employed in a transferable post but this power has to be exercised bona fide to meet the exigencies of the administration. If the power is exercised mala fide, then obviously the order of transfer is liable to be struck down. They relied on the observations made by this Court in E.P. Royappa v. State of T.N. [(1974) 4 SCC 3 : 1974 SCC (L&S) 165 : AIR 1974 SC 555 : (1974) 2 SCR 348] for the positivistic view that 'equality is antithetic to arbitrariness' and held that the observations equally apply to the policy regarding the transfer of public servants. It was observed:
"It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in the matter. The government is the best judge to decide how to distribute and utilise the services of its employees. However, this power must be exercised honestly, bona fide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or 25 for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such transfers, cannot, but be held as mala fide. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, that is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even administrative actions should be just and fair."
The observation that transfer is also an implied condition of service is just an observation in passing. It certainly cannot be relied upon in support of the contention that an order of transfer ipso facto varies to the disadvantage of a government servant, any of his conditions of service making the impugned order appealable under Rule 19(1)(a) of the Rules.
(emphasis supplied) 26
19. As already stated above, even today before this Court in the present writ petition, the State Government has not produced prior approval of the Hon'ble Chief Minister as mandated under Clause 7(iiii) of the transfer guidelines stated supra. Further, the impugned order came to be passed on 21.1.2020 and the present writ petition filed on 25.9.2020 after discussion and due deliberations and there is a delay of eight months.
20. In view of the above, we answer the point raised in the present writ petition in the negative holding that the State has not made out any case to interfere with the impugned order passed by the Tribunal.
21. For the reasons stated above, we are of the considered view that the reasons assigned and the conclusion arrived at by the Tribunal, are just and proper. The petitioner - State Government has not made out any ground to interfere with the impugned order passed by the 27 Tribunal, in exercise of the powers under Articles 226 and 227 of the Constitution of India.
22. Accordingly, the writ petition is dismissed as devoid of merits.
23. Since the writ petition filed by the State Government is dismissed at the preliminary stage, question of issuing notice to the 2nd respondent does not arise.
Ordered accordingly.
Sd/-
JUDGE Sd/-
JUDGE Gss/-