Karnataka High Court
Dr Patil Shashi D/O Channabasanagouda ... vs The State Of Karnataka on 15 December, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 104846 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 15TH DAY OF DECEMBER, 2022
PRESENT
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
R
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
WRIT PETITION NO. 104846 OF 2022 (S-KAT)
BETWEEN:
DR. PATIL SHASHI
D/O CHANNABASANAGOUDA PATIL
AGE. 50 YEARS,
OCC. DISTRICT HEALTH AND FAMILY WELFARE
OFFICER, DHARWAD,
R/O. PLOT NO. 140,
1ST CROSS, SRINAGAR,
UTB DHARWAD 580003
TQ. AND DIST. DHARWAD
...PETITIONER
(BY SRI. A S PATIL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF HEALTH AND FAMILY WELFARE
VISHAL SERVICES, VIKASA SOUDHA,
NINGAPPA
PATTIHAL BENGALURU 560001.
Digitally signed
by VISHAL
NINGAPPA
2. THE COMMISSIONER DEPARTMENT OPF HEALTH AND
PATTIHAL
Date: 2022.12.15 FAMILY WELFARE SERVICES
17:15:51 +0530
ANAND RAO CIRCLE,
BENGALURU 560001.
3. THE CHIEF ADMINISTRATIVE OFFICER
DEPARTMENT OF HEALTH AND FAMILY WELFARE
SERVICES, ANAND RAO CIRCLE,
BENGALURU 560001.
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WP No. 104846 of 2022
4. DR. BASANAGOUDA
S/O CHANDRUGOUDA KARIGOUDAR
AGE. 51 YEARS,
OCC. SENIOR MEDICAL OFFICER,
TALUKA CIVIL HOSPITAL,
NARAGUND 5821,
TQ. NARAGUND, DIST. GADAG
...RESPONDENTS
(BY SRI. G. K. HIREGOUDAR, GA FOR R1 TO R3;
SRI. V. K. SARATHY FOR SRI. GANGADHAR J.M.,
ADVOCATE FOR C/R4)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO, I)
ISSUE WRIT OF CERTIORARI OR ANY OTHER ORDER OR
DIRECTION QUASHING THE IMPUGNED ORDER DATED
04.11.2022 PASSED BY THE HON BLE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL AT BELAGAVI IN APPLICATION
NO.11232/2022 AS PER ANNEXURE-C AND FURTHER TO
DISMISS THE APPLICATION NO.11232/2022 AS PRAYED FOR
BY THE PETITIONER.
THIS PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 06.12.2022, COMING ON FOR
PRONOUNCEENT OF ORDERS THIS DAY, SURAJ
GOVINDARAJ J. MADE THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the following reliefs:
1.1. Issue a writ or certiorari or any order or direction quashing the impugned order dated 04.11.2022 passed by the Hon'ble Karnataka State Administrative Tribunal at Belagavi in Application No.11232/2022 as per Annexure-C and further to dismiss the application No.11232/2022 as prayed for by the petitioner.-3- WP No. 104846 of 2022
1.2. Issue any other appropriate writ or order or direction which deems fit to grant by this Hon'ble Court in the facts and circumstances of the case.
2. Respondent No.4 has filed an application No.11232/2022 before the Karnataka Administrative Tribunal, Bengaluru ('the Tribunal', for short) seeking for the following reliefs:
2.1. Set aside the impugned transfer order, dated 01.10.2022 bearing No.Aa.Ku.Ka 639 H.S.H. 2022 passed by the 1st respondent (Annexure-A2) 2.2. Issue incidental or any other relief/s as this Hon'ble Tribunal deems fit in the facts and circumstances of the case, in aid of the main relief sought for, in the interest of justice and equity.
3. Considering the said application, the Tribunal vide its order dated 04.11.2022 had allowed the application No.11232/2022 and quashed the transfer order dated 01.10.2022 and directed reinstatement of the applicant in the event of the applicant being relieved and to initiate transfer proceedings in accordance with law as per the transfer guidelines dated -4- WP No. 104846 of 2022 07.06.2013. It is being aggrieved by the same that the petitioner is before this Court.
4. The brief facts of the case are;
4.1. The petitioner is a doctor by profession employed with the Health and Family Welfare Department and was being considered to be appointed as Dermatologist in the Government Taluka Hospital, Naragund.
4.2. The petitioner claims to be a holder of MBBS and DVP degrees, who was initially appointed as a Medical Officer on 18.08.1997. She was later on designated as Senior Medical Officer and was appointed as a District Leprosy Control Officer in the office of the District Health and Family Welfare Services, Dharwad. 4.3. Respondent No.1 - State of Karnataka vide notification dated 01.10.2022 directed transfer of the petitioner to the post of District Health -5- WP No. 104846 of 2022 and Family Welfare Officer in place of respondent No.4, who was working in the said post from 13.01.2022.
4.4. The said transfer order was challenged by respondent No.4 in application No.11232/2022. Respondent No.4 had contended that he was initially appointed as Taluk Medical Officer on 08.10.2002 and worked at various places and thereafter was promoted as District Surgeon in the year 2019 and on 13.01.2022, he was promoted as District Health Officer and posted in Dharwad.
4.5. It is contended that respondent No.4 belonged to Group - A cadre, the tenure of the post is for a minimum of two years as prescribed in the transfer guidelines dated 07.06.2013 and since he had not completed the said period, he could not be transferred prematurely. He alleged -6- WP No. 104846 of 2022 that the transfer order had been passed only at the instigation of a political leader. 4.6. In support of the said contentions, the petitioner has relied upon various decisions. The petitioner, who was respondent before the Tribunal had filed her objections. 4.7. The petitioner had supported the transfer and contended that she is a holder of MBBS and DVP degrees. She was appointed as a Medical Officer on 18.08.1997, subsequently designated as Senior Medical Officer and thereafter appointed as District Leprosy Control Officer on 01.12.2014, after counseling she was directed to report as Senior Specialist in Taluka Hospital, Nargund. However before she could report there, vide notification dated 01.10.2022, since the respondent No.4 was being considered for transfer in view of certain complaints against him, on a recommendation made by the local -7- WP No. 104846 of 2022 Member of Parliament, the petitioner was posted in the place of respondent No.4 and in turn respondent No.4 had been posted to work at Taluka Hospital, Nargund. 4.8. The petitioner had further contended that she has reported at Dharwad after obtaining permission of the Chief Executive Officer, Zilla Panchayat and assumed charge which was informed to the State Government on 01.12.2022 itself.
4.9. She sought to support the transfer order by contending that, taking into account the seriousness of the allegations made against respondent No.4, the Hon'ble Chief Minister had taken a decision to transfer respondent No.4 and that the same is in conformity with clause 6(a) of the Government Order dated 07.06.2013 and the said transfer is in the -8- WP No. 104846 of 2022 interest of administrative exigencies and there is no political motive.
4.10. The Tribunal after considering all the pleadings, oral arguments and the documents which had been filed, being of the considered opinion that the transfer of respondent No.4 was premature and contrary to the minimum tenure fixed in the transfer guidelines, by applying the decision of this court in Dr. M. Sumithra Vs. Bengaluru University reported in ILR 2006 KAR 1122, more particularly paragraphs 9 and 10 thereof, came to a conclusion that the transfer is not in the public interest and therefore a colorable exercise of power, the transfer being premature is a clear violation of the transfer guidelines dated 07.06.2013. 4.11. The Tribunal had called for the records and the State had produced the file noting as maintained in the CM's office and the e-office of -9- WP No. 104846 of 2022 the health department which was also taken into consideration. The Tribunal was of the opinion that the file noting did not denote any reasons which could satisfy the requirements of the transfer guidelines and held that, in the absence of such reasons, the transfer is in violation of the guidelines, by relying upon the decision of this Court in Allhasaheb Vs. State and Others reported in ILR 2017 KAR 86 and in the case of Rajashekar Vs. State of Karnataka reported in (2019) (2) KLR 352. 4.12. In answering to the submission made by the petitioner that there was a complaint which has been filed against respondent No.4 which was serious in nature, the Tribunal came to a conclusion that there is no action in terms of disciplinary proceedings which has been initiated against respondent No.4 and in the event of such action being initiated, the
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WP No. 104846 of 2022 Government could have suspended the services of respondent No.4 which has not been done. Merely because a complaint is filed, the transfer made in pursuance thereto cannot be said to be in the public interest or for administrative exigency and it is in that background that the aforesaid order was passed.
5. Sri A. S. Patil learned counsel for the petitioner submitted that;
5.1. The order of the Tribunal is not based on proper appreciation of material evidence on record. The transfer being made subsequent to a complaint dated 13.07.2022 by nearly 100 doctors working in Dharwad District against respondent No.4, District Health Officer, necessitated the transfer of respondent No.4 in the public interest. This aspect has not been taken into consideration by the Tribunal in the impugned order.
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WP No. 104846 of 2022 5.2. There being serious allegations which are made against respondent No.4, the same was taken into consideration by the Hon'ble Chief Minister and it is in pursuance thereof that on 29.07.2022, the Hon'ble Chief Minister directed transfer of respondent No.4.
5.3. Though the transfer may be said to be premature, it is in public interest due to the above serious complaint. The transfer being an incident of service conditions, no one can have grievance against the transfer and the Tribunal ought not to have interfered with the matter of transfer which is a policy issue. 5.4. The Tribunal having come to a conclusion that the transfer was in the nature of punishment, has failed to take into consideration the transfer guidelines.
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WP No. 104846 of 2022 5.5. In support of his contention that the Judicial Review in the transfer matter is limited, he relies upon the following decisions:
5.5.1. Shilpi Bose and others Vs. State of Bihar and Others reported in AIR 1991 SC 532 (Para 4) 5.5.2. State Bank of India Vs. Anjan Sayal reported in AIR 2001 SC 1748 (Para
4).
5.5.3. State of Madhya Pradesh Vs. Kaurav reported in AIR 1995 SC 1056 (Para 5).
5.5.4. N K Singh Vs. Union of India and others reported AIR 1999 SC 423 (Paragraphs 23 and 24).
5.5.5. Mohd. Masood Ahmad Vs. State of UP and Others reported in 2007(8) SCC 150 (Paragraphs 7 and 8).
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WP No. 104846 of 2022 5.6. In support of his contention that an employee does not have a right to challenge a transfer order he relies upon the following decisions:
5.6.1. State of UP Vs. Gobaradhan Lal Reported in AIR 2004 SC 2165 (paragraphs 7 and 8).
5.6.2. Rajendra Singh and Others Vs. State of UP and Others reported in (2009) 15 SCC 178 (paragraphs 8 to
10).
5.7. To support his contention that in a challenge to a transfer mala fides have to be established, he relies upon the following decisions:
5.7.1. Tara Chand Khatri Vs. Municipal Corporation of Delhi & Others reported in AIR 1977 SC 567 (para
27) 5.7.2. E P Royappa Vs. State of Tamil Nadu reported in AIR 1974 SC 555 (para 92)
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5.7.3. M. Shankaranarayanan IAS Vs. State of Karnataka and Others reported in AIR 1993 SC 763 (para
12).
5.7.4. Kiran Gupta Vs. State of UP & Others reported in (2000) 7 SCC 719 (para 27) 5.7.5. Jasvinder Singh & Others Vs. State of Jammu and Kashmir and others reported in (2003) 3 SCC 132 (para
8) 5.8. To support his contention that once the transfer has been given effect to by the person transferred assuming charge it cannot be interfered with by a court of law, he relies upon the following decisions:
5.8.1. Gujarat Electricity Board and others Vs. Atmaram Sungomal Poshmi reported in AIR 1989 SC 1433 (para 4)
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5.8.2. Addisons Paints & Chemicals Ltd., Vs. Workman reported in AIR 2001 SC 436 (para 6)
6. Sri V.K. Sarathy, learned counsel for respondent No.4 would submit that;
6.1. The order passed by the Tribunal is proper and correct inasmuch as the Tribunal has rightly come to a conclusion that the transfer is premature, respondent No.4 being in the post for only 9 months.
6.2. That the Hon'ble Chief Minister has not taken into consideration the alleged complaint and/or allegations made for the purpose of transfer since the order does not refer to it and state that it is because of the complaint that the transfer is made.
6.3. The transfer guidelines have not been followed.
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WP No. 104846 of 2022 6.4. By referring to the note sheet maintained in respect of the transfer, he submits that the file is one which is relating to the transfer/appointment of the petitioner and it is while the petitioner's appointment to a particular place was being finalized that on the basis of the recommendation made by the Member of Parliament, the petitioner was appointed in the place of respondent No.4 by transferring respondent No. 4, the file noting not made in respect of Respondent No.4, the question of consideration for transfer being the complaint does not at all arise.
6.5. That perusal of note No.1 to 13 until 06.09.2022 does not indicate any complaint insofar as respondent No.4 is concerned. It is only for the first time at note recorded on 30.09.2022 at 3:21 p.m. that there is a reference made to the complaint against
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WP No. 104846 of 2022 respondent No.4 and the very next date i.e., on 01.10.2022 the transfer notification was issued. 6.6. Therefore there is unusual hurry in the matter inasmuch as note No.14 was entered on 30.09.2022 and the concurrence thereto happened at note Nos. 15, 16, 17 and 18 within a period of 20 minutes and thereafter in terms of note No.19, the transfer notification was issued followed by information being sent to the concerned at note Nos.20, 21, 22, 23, on the very same day, which was completed at 5:40 p.m. 6.7. Therefore there is unusual hurry shown on 01.10.2022 and as such that transfer is mala fide without completing the requirements of transfer guidelines.
6.8. He relies upon the following decisions in support of his contentions:
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6.8.1. S. N. Gangadharayya Vs. The State of Karnataka and Ors. Reported in ILR 2015 Kar 1955 (paragraphs 18 to
20) 6.8.2. Allahasaheb Vs. The State of Karnataka and Others reported in ILR 2017 KAR 86 (paragraphs 11, 12, 16 and 17) 6.8.3. H. N. Chandru Vs. The State of Karnataka and Ors. Reported in 2011 3 KLJ 562 (paragraphs 9 to 12) 6.8.4. M. Rajeshekar Vs. The State of Karnataka and Ors. Reported in 2019 (2) KLJ 352 (paragraphs 4 to 6) 6.8.5. Shivakumar Vs. The State of Karnataka and Others (W.P.No.20241/2018) (paragraphs 10 to 13) 6.8.6. K. G. Jagadeesha Vs. The State of Karnataka and Others (W.P.No.48988/2016) (paragraphs 21, 22 and 23)
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6.8.7. Prem Singh Vs. The State of Karnataka and Ors.
(W.P.No.212920/2020) 6.8.8. Dr. Alkananda Malagi Vs. The State of Karnataka and Ors.
(W.P.No.101704/2021) 6.8.9. Dr. Basappa Walikar Vs. The State of Karnataka and Ors.
(W.P.No.15345/2012) 6.8.10. Dr. M. Sumitra Vs. The Bangalore University Jnana Bharathi & Anr. Reported in ILR 2006 KAR 1122 (Paragraphs 9 and 10) 6.9. On the basis of the above he submits that the writ petition is liable to be dismissed.
7. Sri. G. K.Hiregoudar, learned counsel for respondents No.1 to 3 submits that;
7.1. The transfer order passed is proper and correct, there being serious allegation made against respondent number 4 by the Karnataka Rajya
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WP No. 104846 of 2022 Vaidhyadhikarigala Sangha, Dharwad Shakhe, Dharwad and more than 100 doctors having signed the said complaint, very serious allegations have been made against respondent No.4, it was required that immediate action was taken and as such the respondent No.4 has been transferred with the approval of the Hon'ble Chief Minister.
7.2. That a committee has also been constituted for the purpose of causing enquiry into the matter. The committee has also called upon respondent No.4 to submit his explanation which is required to be submitted by 13.12.2022 and it is on the basis of the recommendations which were made by the committee thereafter that the Government will decide if disciplinary proceedings are to be taken up against respondent No.4.
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WP No. 104846 of 2022 7.3. Though the Government could have taken action on the basis of the complaint itself, the Government has chosen to conduct a preliminary enquiry before initiating any action. 7.4. The transfer made of respondent No.4 to Naragund is in the public interest and for administrative exigency inasmuch as there is a rift between respondent No.4 and doctors working in Dharwad, which will have an impact on the services being rendered by the Government doctors in Dharwad District. 7.5. That apart, respondent No.4 being the head of the District, if were continued in the same position, is likely to interfere with any enquiry and/or investigation. It is in that background that he has been transferred to Naragund so that he does not interfere in enquiry to be conducted and that the work in Dharwad could progress without any interference by him.
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WP No. 104846 of 2022 7.6. That the complaint having been received on 13.07.2022 and addressed to the Hon'ble Chief Minister, the Hon'ble Chief Minister has considered the seriousness of the allegation and approved the transfer of respondent No.4 on 29.07.2022 itself. It is only the formalities which have to be followed which delayed the matter. It is after the file was placed before the Hon'ble Health Minister, he took the decision that a transfer notification came to be issued. There is absolutely no hurry as alleged. The transfer has happened in the usual course of business.
7.7. In the above background he submits that the writ petition is required to be dismissed.
8. Heard Sri.A. S. Patil, learned counsel for the petitioner, Sri. P. K. Sarathy, learned counsel for respondent No.4 and Sri. G. K. Hiregoudar, learned
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WP No. 104846 of 2022 counsel for respondents No.1, 2 and 3. Perused the papers.
9. From the submissions which have been made, the points that would arise for consideration are:
9.1. Whether an officer of the Government can be transferred prematurely, and if so, in what circumstances?
9.2. Can an Officer of the Government be transferred because certain complaints have been received against him?
9.3. In the present case, whether the order of the Tribunal suffers from any legal inference requiring interference of this Court?
9.4. What order?
10. Answer to point No.1: Whether an officer of the Government can be transferred prematurely, and if so, in what circumstances?
10.1. The transfer guidelines: The guidelines regarding transfer of Government servants has
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WP No. 104846 of 2022 been issued in terms of the Government Order No.DPAR 4 STR, 2001 dated 22.11.2001 and subsequently modified in terms of the Government Order No. DPAR 22 STR 2013, Bangalore dated 07.6.2013.
10.2. The updated Government Order of 2013 refers the reasons for the said guidelines in the preamble by stating that it is expedient to regulate the transfer of Government servants to ensure their continuance in a post for a reasonable period so that they get real exposure to the activities of the department and deliver the results/outcomes as envisaged and for bringing about transparency, accountability in administration with uniform distribution of personnel throughout the State for effective functioning of the Government. 10.3. It is in pursuance thereof that in terms of Clause(2), the transfers are required to be
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WP No. 104846 of 2022 made in the months of May and June every year and no Government servant shall be considered for transfer or deputation except in the circumstances and in the manner specified in the said order.
10.4. A transfer is defined in terms of Sub-clause(d) of Clause(3) to mean the posting of a Government servant from one headquarters to another headquarters or from one office to another within the same headquarters, to take up duties of a new post or in consequence of a change of the headquarters, and it has been clarified that the movement of Government servant within the same office/unit from one post to another one or desk/compilation to another one under the same head office shall not be treated as a transfer.
10.5. In terms of Clause (8), the minimum period of stay at a place has been fixed at 3 years for all
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WP No. 104846 of 2022 group A & B posts, 4 years for Group C posts, and 7 years for Group D posts.
10.6. Clause 9 deals with premature/delayed transfer, which reads as under:
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 for the same in writing. The minimum period of stay at a place is 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 spouses are government servants, and if one of the spouses is transferred, then the other spouse may also be transferred to this same place or 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
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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 servants 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.
viii. Where a government servant or his her spouse or children are suffering from serious or terminal ailments, depending upon his availability of the facility of medical treatment at the required 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.
10.7. The petitioner and respondent No.4 are stated to be holding group 'C' posts and as such it is claimed that the minimum tenure would have to be four years and if a transfer has to be effected prior to the said four years term, it
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would have to comply with Clause(9) extracted hereinabove.
10.8. Sri. Sarathy, learned counsel for Respondent No.4 submitted that, unless the mandate laid in Clause (9) is followed in its entirety, the question of premature transfer would not arise. In the present case, he submits that none of the requirement in Sub-clause (a) of Clause (9) are attracted. At the most, it could be clause
(b) of Clause(9), which could be attracted and for that purpose, prior approval of the Hon'ble Chief Minister would have to be obtained without fail by the concerned Administrative Department of the Secretariat. The Principal Secretary, Secretaries to Government should not under any circumstances issue transfer orders and later seek ratification/post facto approval of the Chief Minister. In the present case, it is clear that the manner in which the
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WP No. 104846 of 2022 permission of the Hon'ble Chief Minister has been obtained is not proper inasmuch as on 29.07.2022, when the Hon'ble Chief Minister approved the transfer, the same was done for administrative reasons, whereas subsequently and even before this Court, the State Government seeks to contend that the transfer was on account of the complaint received against respondent No.4. A premature transfer, if made, would have to be approved by the Chief Minister by giving reasons, without giving reasons in compliance of Clause (b) of Clause (9), without the same being satisfied no transfer can be effective.
10.9. In view of the above, we answer point number No.(i) by holding that the tenure of an Officer as prescribed under Clause (8) of the guidelines regarding the transfer of Government servants contained in the Government Order No.DPAR
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WP No. 104846 of 2022 22 STR 2013, Bangalore dated 07.06.2013 has to be followed and the minimum period of stay as prescribed therein has to be given effect to. If a premature transfer or continuance is required, then the same would have to satisfy the requirements of Sub-clause (a) of Clause (9) of the said guidelines or in the alternative in terms of Sub-clause (b) of Clause(9), prior approval of the Hon'ble Chief Minister has to be obtained, which is required to be accompanied by some basic reasons as to why the transfer is being affected.
11. Answer to Point No.(ii) : Can an Officer of the Government be transferred because certain complaints have been received against him? 11.1. The contention of the petitioner and the Government is that, respondent No.4 is transferred on account of serious complaints being received against him.
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WP No. 104846 of 2022 11.2. In our considered opinion, that would be a dereliction of duty on the part of the Government. If according to the Government serious complaints have been received, it is for the Government to have taken necessary action as regards the said complaint against Respondent No.4 as per the applicable Cadre and Recruitment Rules.
11.3. In the present case, both the Government advocate and the counsel for the petitioner contended that, because of serious allegations respondent No.4 was transferred and in his place the petitioner has been posted. Another contention which has been raised by the learned Government Advocate is that, if an enquiry were to be ordered in the place where respondent No.4 is working, since respondent No.4 is the head of the said office, enquiry
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WP No. 104846 of 2022 cannot be conducted independently and properly.
11.4. Under the transfer guidelines, there is no particular protection which has been provided for transfer of a person because a complaint has been received against him. If a complaint is received, then it is for the concerned authorities to take necessary action as per the applicable rules. The Government cannot transfer a person on the basis of a complaint received without taking action on the said complaint. Inasmuch as if the complaint is frivolous, then the complaint could be rejected and if the complaint is serious, then the Government would have to initiate necessary enquiry and/or disciplinary proceedings in relation thereto. Transfer cannot be used as a via media or a way out.
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WP No. 104846 of 2022 11.5. Mere transfer on account of serious complaints being received, in our considered opinion, would amount to abdication of power on the part of the Government.
11.6. In the present case, the alleged serious complaint was filed as against respondent No.4 on 13/07/2022. The said complaint is stated to be signed by nearly 100 doctors working in Dharwad District. The seriousness of the complaint goes to the extent of the said doctors not willing to work with respondent No.4. If such were the seriousness, then it was for the Government to ascertain the veracity of the complaint made and if some substance is found, to have initiated necessary disciplinary proceeding by issuing show cause notice to respondent No.4 as held by this Court in Dr. M. Sumithra Vs. Bengaluru University reported in ILR 2006 KAR 1122.
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WP No. 104846 of 2022 11.7. Instead of initiating any enquiry and or taking any action on such allegedly serious complaint dated 13.07.2022, the Government slept over the matter and it is only on 01.10.2022 that the transfer notification was issued. The fact that the transfer has been approved on 29.07.2022 and given effect to on 01.10.2022 does not indicate any seriousness or emergency or exigency.
11.8. In the above circumstances, we answer point No.2 by holding that, in the event of any serious complaint being received against a particular Government Officer, transfer is not the remedy available. The concerned authority would be required to hold an enquiry and if the allegations made have any veracity requiring disciplinary action, disciplinary proceedings would have to be initiated and during the interregnum, the delinquent officer could be
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WP No. 104846 of 2022 placed under suspension, if there is an apprehension that the delinquent officer would interfere with the enquiry, as is in the present case.
12. Answer to point No.(iii): In the present case, whether the order of the Tribunal suffers from any legal inference requiring interference of this Court?
12.1. In view of our answer to about two points and the Tribunal having considered all the relevant aspects to come to a conclusion that the transfer could not be affected without initiating disciplinary proceedings, we do not find any infirmity in the order passed by the Tribunal.
13. Answer to Point No.(iv) What order?
In the above background, we pass the following:
ORDER i. The Writ Petition stands dismissed.
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ii. Liberty is however reserved to the Government to initiate such proceedings as may be necessary, if it deems fit, against respondent No.4.
Sd/-
JUDGE Sd/-
JUDGE gab List No.: 1 Sl No.: 2