IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE R. DEVDAS WRIT PETITION No. 44488 OF 2018 (S-TR) Between:
B.S.Jagadeesh S/o Sikhavappa, Aged about 54 years, Working as Executive Engineer (Electrical), Operation & Maintenance Division, Karnataka Power Transmission Corporation Limited, BESCOM, Chitradurga.
... Petitioner (By Sri. M. Nagaprasanna, Senior Counsel) And:
1. Karnataka Power Transmission Corporation Limited (KPTCL), Head Office, Cauvery Bhavan, K.G.Road, Bengaluru – 560 002. Represented by its Managing Director.
2. Director (Administration and Human Resources), Karnataka Power Transmission Corporation Limited, Head Office, Cauvery Bhavan, K.G.Road, Bengaluru – 560 002.
3. B.Mallikarjunaswamy S/o B.Bheemappa, Aged about 47 years, Working as Executive Engineer, O & M Division, Ballari.
... Respondents (By Sri. B. B. Bajentri, Advocate for R3;
Sri. Ajith Anand Shetty, Advocate for R1 & R2) This Writ Petition is filed under Article 226 of the Constitution of India praying to quash official memorandum dated 26.09.2018 vide Annexure-H issued by respondent No.1 insofar as it concerns the petitioner and respondent No.3 by issue of the writ in the nature of certiorari and grant all consequential benefits.
This petition coming on for orders this day, the court made the following:
ORDER R. DEVDAS. J., (ORAL):
The petitioner herein who was working as Executive Engineer, Operation and Maintenance Division, Ballari was transferred on issuance of Official Memorandum dated 06.09.2018 to Operation and Maintenance Division, Chitradurga.
2. On 07.09.2018 the respondent-BESCOM issued an order directing the petitioner to go and report for duty at Ballari in terms of the Official Memorandum dated 06.09.2018. The petitioner was relieved from Ballari on 20.09.2018 and reported for duty at Chitradurga on 22.09.2018. Barely four days after he reported for duty at Chitradurga, by Official Memorandum dated 26.09.2018, the respondents have again transferred the petitioner back to Ballari and third respondent who was earlier at Chitradurga was retransferred by the very same Official Memorandum back to Chitrdurga.
3. Learned Senior Counsel Sri. M. Nagaprasanna appearing for the petitioner submits that on the face of it, it is clear that the impugned order is in violation of the guidelines in the form of Government Order No. DPAR 22 STR 2013 Bengaluru, dated: 07.06.2013. Learned Senior Counsel submits that in a case of premature transfer, the respondents are required to follow para-9 (a)(i) and (viii) of the Government Order dated 07.06.2013. The learned Senior Counsel submits that since there is non-compliance of the requirements under para-9 of the guidelines the impugned order requires to be quashed and set aside.
4. Per contra the learned counsel for the respondent –Karnataka Power Transmission Corporation Ltd., (KPTCL) would submit that as required under para-9 of the guidelines the respondents have indeed obtained the consent of Hon’ble Chief Minister. Learned counsel has placed a letter dated 07.09.2018 written by Hon’ble Minister for Labour, who is also the District In-charge Minister, addressed to Hon’ble Chief Minister. In the said letter dated 07.09.2018, the District Incharge Minister brings to the notice of Hon’ble Chief Minister that Sri. B. Mallikarjunaswamy, third respondent herein has been discharging his duties efficiently at Chitradurga and therefore, requests the Hon’ble Chief Minister to continue the services of third respondent herein at Chitradurga by recalling the order of transfer. Learned counsel for the respondents would point out that Hon’ble Chief Minister has written by hand that “the Managing Director, KPTCL-may continue” and affixed his signature.
5. Learned Senior Counsel representing the petitioner brings to the notice of this Court, a decision of the Division Bench in W.P. No. 45916/2018 in the case of Rajashekar M. Vs. State of Karnataka and others which was decided on 13.11.2018. It is pointed out from the said decision that the Division Bench went into the question “Whether the Chief Minister has absolute discretion under Government Order No. No. DPAR 22 STR 2013 Bengaluru, dated: 07.06.2013 giving prior approval for premature/delayed transfers referred to in para-9 thereof?” The Division Bench having gone through the provisions and while placing reliance on Full Bench decision of this Court in Chandru H.N. Vs. State of Karnataka reported in ILR 2011 KAR 1585 and Gangadhariah S.N. Vs. The State of Karnataka reported in ILR 2015 KAR 1955 has held that para-9 (a)(i) to (viii) requires the competent authority to record reasons stating that as to how the case would fall under any of the circumstances stated in para 9(a)(i) to (viii) of the Government Order, to warrant premature/delayed transfer of Government servant and the said reasons have to be placed before the Chief Minister to obtain his prior approval as mandated in para-9(b) of the Government Order.
6. After perusal of the reasons, if the Chief Minister is satisfied that the case would fall under any of the circumstances stated in para -9(a)(i) to (viii) of the Government Order, only then the Chief Minister may give his prior approval for premature/delayed transfer of the Government servant. It was further held that the prior approval if given by the Chief Minister for transfers, not falling under any of the circumstances stated in para-9(a)(i) to (viii) of the Government Order, it will be invalid in law and any premature/delayed transfer made pursuant thereto will be illegal and hence it is liable to be set aside.
7. Having gone through the letter dated 07.09.2018 written by the District In-charge Minister to the Hon’ble Chief Minister and the contents therein and the manner in which endorsement has been made by the Hon’ble Chief Minister, this Court is of the opinion that there is no compliance of para-9(a)(i) to (viii) as observed by the Hon’ble Division Bench in the case of Rajashekar M. (Supra).
8. In that view of the matter the petition requires to be allowed and is accordingly allowed. The impugned order dated 26.09.2018 at Annexure –H is hereby quashed and set aside.
9. The respondents are directed to pass necessary orders in view of the quashment of the impugned order dated 26.09.2018, as expeditiously as possible and at any rate within a period of four weeks from the date of receipt of certified copy of this order.
SD/- JUDGE BVK