Karnataka High Court
Smt.Jenifer Lolita.C vs The State Of Karnataka on 12 April, 2022
Bench: G.Narendar, M.G.S. Kamal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF APRIL, 2022
PRESENT
THE HON'BLE MR. JUSTICE G.NARENDAR
AND
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
WRIT PETITION NO.3537/2022 (S-KSAT)
BETWEEN:
SMT. JENIFER LOLITA.C
W/O ASHOK N.C.,
AGED 59 YEARS,
WORKING AS
JOINT DIRECTOR OF
COLLEGIATE EDUCATION
(NOW REPATRIATED)
MANGALORE REGION,
HAMPANAKKATTA,
MANGALORE-575001.
... PETITIONER
(BY SRI NAGARAJAPPA.A, ADV.)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS
PRINCIPAL SECRETARY,
KARNATAKA GOVERNMENT
SECRETARIAT,
IV FLOOR,
MULTISTOREYED BUILDING,
DR.B.R.AMBEDKAR VEEDHI,
BANGALORE-560001.
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2. THE COMMISSIONER FOR
DEPARTMENT OF
COLLEGIATE EDUCATION,
SESHADRI ROAD,
BANGALORE-560001.
3. THE DIRECTOR
DEPARTMENT OF
COLLEGIATE EDUCATION,
SESHADRI ROAD,
BANGALORE-560001.
4. SRI SRIDHERBABU A J
AGED MAJOR,
ASSOCIATED PROFESSOR,
GOVERNMENT FIRST GRADE COLLEGE,
KADUR,
CHIKKAMAGALURU 577548.
... RESPONDENTS
(BY SMT. SHILPA S GOGI, HCGP.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE AN
ORDER OR DIRECTION OR WRIT IN THE NATURE OF WRIT OF
CERTIORARI QUASHING THE ORDER DATED 17/01/2022 IN
NO.DCE/TRN/INC/17/2020 ISSUED BY THE 3RD RESPONDENT
MARKED AT ANNEXURE-A2 AND ALLOW THE APPLICANT TO
CONTINUE AS A JOINT DIRECTOR OF DEPARTMENT OF
COLLEGIATE EDUCATION, MANGALORE, TILL SHE ATTAINS
SUPERANNUATION ON 30/01/2023 ETC.
THIS WRIT PETITION COMING ON FOR 'ORDERS' THIS
DAY, G.NARENDAR J, MADE THE FOLLOWING:
ORDER
Learned High Court Government Pleader accepts notice on behalf of respondent Nos.1 to 3. 3
2. Heard the learned counsel for the petitioner and the learned High Court Government Pleader.
3. The learned counsel for the respondents submits that they have filed an application for vacating stay and that the same is not listed.
4. We have heard the counsels on merits itself as the matter evolves around the applicability of the transfer guidelines to deputation post.
5. The facts in brief are that the petitioner who is the applicant was discharging duties as an Associate Professor in Botany in Bengaluru. While so, by order dated 30.07.2021 she was deputed to the post of the Joint Director, Regional Office, Mangaluru and while she was discharging her duties an order dated 17.01.2022 came to be issued whereby she was asked to hand over charge to the 4th respondent and report to her parental organization. The said order dated 17.01.2022 is impugned. 4
6. The tribunal appreciating the contention of the State that it is a mere deputation/in-charge and no lean is created, proceeded to hold that the plea of the petitioner that it amounts to premature transfer, does not hold water as the earlier order dated 30.07.2021 is not an order of transfer and the same being mere deputation, the transfer guidelines are inapplicable and rejected the plea of the petitioner that the transfer is a premature one. Prima facie the same appears to be contrary to the transfer guidelines dated 07.06.2013 wherein the preamble reads as under:
" For the reasons explained in the preamble and in supersession of the Government Order dated 22.11.2001, read above, Government are pleased to issue revised instructions regulating the transfer/deputation of Government servants as indicated in this Government order. These instructions shall come into effect from the year 2013-14. These guidelines are not applicable to those Government servants who are already governed by separate Acts/Rules framed for the purpose of transfer."5
7. From a reading of the above it is apparent that the guidelines applies not only to transfers, but also to deputations. That apart it is not in dispute that the petitioner is also on the verge of retirement and is superannuating on 23.01.2023. If that be so, the petitioner is also entitled to a place of posting of her choice in view of the impending retirement. For reasons best known the respondents, deemed it fit to depute her to the post at Mangaluru, though they were fully aware that she was rendering services as a Professor in Bengaluru and also about her superannuation in the near future.
8. The learned High Court Government Pleader would vehemently contend that shifting of the petitioner back from Mangaluru to Bengaluru was necessitated on account of the complaints received and also on account of a report following the complaint, whereby the Director has forwarded a report that her very presence is causing disturbances. It is not made clear as to whether the report is pursuant to an enquiry conducted in a manner known to 6 law or if the petitioner was put on notice with regard to the same. Be that as it may, the only ground which is canvassed on the basis of the report is that the presence of the petitioner is leading to disruptions in the management and administration. We have specifically queried the learned High Court Government Pleader as to how the administration is suffering and we have sought for any particular instance of mal-administration. None is placed before the Court. The report does not reveal any particular instance which can be termed as one which is capable of derailing the enquiry.
9. The learned High Court Government Pleader would invite the attention to para 9 of the affidavit filed in support of the application for vacating stay. That portion of the report which is extracted in para 9 is as under:
"¥ÁæzÉòPÀ dAn ¤zÉÃð±ÀPÀgÀ PÀbÉÃjUÉ «±ÉõÁ¢üPÁj/¸ÀªÀÄ£ÀéAiÀiÁ¢üPÁjAiÀiÁVgÀĪÀ qÁ.dAiÀÄPÀgï ¨sÀAqÁj, ¸À¸Àå±Á¸ÀÛç ¸ÀºÀ ¥ÁæzsÁå¥ÀPÀgÀÄ, ¸ÀPÁðj ¥ÀæxÀªÀÄ zÀeÉð PÁ¯ÉÃdÄ, gÀxÀ©Ã¢, ªÀÄAUÀ¼ÀÆgÀÄ ºÁUÀÆ ²æÃ.¹ÖêÀ£ï PÁéqÀæ¸ï, EwºÁ¸À ¸ÀºÀ ¥ÁæzsÁå¥ÀPÀgÀÄ, ¸ÀPÁðj ¥ÀæxÀªÀÄ zÀeÉð PÁ¯ÉÃdÄ, ¥ÀÄvÀÆÛgÀÄ EªÀgÀÄUÀ¼À ¤AiÉÆÃd£ÉAiÀÄ£ÀÄß gÀzÀÄÝ¥Àr¸À§ºÀÄzÁVzÉ.
7qÁ.eɤ¥sÀgï ¯ÉÆðmÁ EªÀjUÉ DqÀ½vÁvÀäPÀªÁV ¸ÀªÀÄ¥ÀðPÀªÁV PÁAiÀÄðUÀ¼À£ÀÄß ¤ªÀð»¸À®Ä ¸ÁzsÀåªÁUÀzÉà EgÀĪÀ »£É߯ÉAiÀÄ°è ºÁUÀÆ ªÉÊAiÀÄQÛPÀ PÁgÀtUÀ½AzÁV PÀbÉÃjAiÀÄ°è C£ÀUÀvÀå UÉÆAzÀ®UÀ¼ÀÄ GAmÁUÀ®Ä PÁgÀtªÁUÀÄwÛgÀĪÀÅzÀjAzÀ ¸ÀzÀjAiÀĪÀgÀ£ÀÄß §zÀ¯Á¬Ä¸À§ºÀÄzÁVzÉ"
10. From a reading of the second paragraph, it is apparent that her subordinate appear to be more influential than the head. It refers to "unnecessary disturbances" and it is recommended that the petitioner be transferred. This would suffice to hold that the order of premature transfer is vitiated by external dictation. The plea of administrative exigency is not available to the respondents in view of the guidelines framed by the State. The order impugned is perse violative of the transfer guidelines which has held to be having the force of law by two Full Bench judgments of this Court in the case of H N Chandru vs. State of Karnataka and in the case of S N Gangadharaiah vs. State of Karnataka. The attempt to dislodge the petitioner appears to be for considerations, other than the administrative necessity and being vitiated with arbitrariness, we do not hesitate to hold that the impugned order is completely 8 devoid of merits. Accordingly, the writ petition is allowed. The impugned order is quashed.
11. We hope that the respondents would appreciate the order in the spirit in which it is made and one other ground due to which we are not inclined to accept the plea of administrative exigency is that the person who was touted to replace the petitioner, that is the 4th respondent is said to be laying down his office as on 30.04.2022. We do not see how the posting of the 4th respondent, who is almost on the verge of retirement would have helped in improving the administration. In fact, this very fact would contradict the contention of the respondents that the repatriation is for administrative purposes. The noting in the report is that her presence is causing disturbance. We are unable to understand since when colleagues and subordinates have been empowered to dictate the person who should supervise them. For all these reasons, the writ petition stands allowed.
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12. Learned High Court Government Pleader is permitted to file her memo of appearance within two weeks.
Sd/-
JUDGE Sd/-
JUDGE ykl CT-HR