IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JULY 2017 BEFORE THE HON’BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN Writ Petition No.33195/2017 (S-TR) Between :
K. G. Amarnatha S/o. T. Govindappa, Aged about 48 years, Chief Officer, Town Municipal council, Vijayapura, Devanahalli, Bangalore Rural District. …Petitioner (By Sri Vijayakumar, Advocate) And :
1. The State of Karnataka Represented by its Principal Secretary, Urban Development Department, Vikas Soudha, Bangalore-560001.
2. The Director Department of Municipal Administration, V.V. Tower, 9th Floor, Dr. B. R. Ambedkar Veedhi, Bangalore-560001.
3. The Deputy Commissioner Bangalore District, Bangalore-560001.
4. A. H. Nagaraj Revenue Officer, City Municipality, Hebbagodi-560099. …Respondents (By Smt. Shwetha Krishnappa, HCGP for R-1 to R-3; Sri S. G. Pandit, Advocate for C/R-4) This Writ Petition is filed under Article 226 of the Constitution of India praying to call for the records to issue of the impugned notification dated 20.07.2017 and 21.07.2017 of respondent Nos.1 and 3 vide Annexure-F and G respectively and after perusal set aside the same in so far as it relates to the petitioner and respondent No.4 are concerned and direct the respondent to continue the services of the petitioner at the present place till he complete his tenure in terms of the Government order dated 07.06.2013 vide Annexure-C and etc.
This Writ Petition coming on for preliminary hearing this day, the Court made the following :
ORDER The petitioner, Mr. K. G. Amarnatha, has challenged the transfer order dated 20.7.2017, whereby the respondent No.4, Mr. A. H. Nagaraj, has been posted against the post held by the petitioner, and the petitioner has been kept “awaiting posting order”.
2. Briefly the facts of the case are that on 28.11.2006, the petitioner was appointed as Junior Health Inspector. Subsequently, on 30.4.2012, he was promoted as Health Inspector. Since there is a dearth of KMS Officers, even the Health Inspectors, who are equal to the Chief Officers, were posted to work as Chief Officer, Town Municipalities. Therefore, the petitioner was posted as Chief Officer, Grade-II, Town Municipality, Pavagada. By order dated 20.6.2016, the petitioner was transferred, and posted to Town Municipality, Vijayapura, as a Chief Officer. He took over the charge of the said post on 27.7.2016. However, by the order dated 20.7.2017, while respondent No.4 has been posted to the post held by the petitioner, the petitioner has been kept “awaiting posting order”. Hence, the present petition before this Court.
3. Mr. Vijayakumar, the learned counsel for the petitioner, has raised the following contentions before this Court :-
Firstly, relying on the case of Miss. Seema H., v. State of Karnataka And Others (Writ Petition No.48499/2016, decided by a learned Division Bench of this Court on 16.9.2016), the learned counsel has pleaded that to keep an employee awaiting posting order is a mala fide action. Therefore, the order dated 20.7.2017 deserves to be interfered with.
Secondly, and most importantly, according to the Transfer Policy dated 7.6.2013, a policy that also applies to the deputationists, the petitioner could not be transferred within a period of four years as he is a Group-C employee. However, the petitioner is being transferred prematurely just after completing one year and one month.
Thirdly, in order to transfer an employee prematurely, the transfer order must fulfill the requirements of Guideline No.7(iii), and Guideline No.9(b) of the Transfer Policy. Despite the fact that Guideline No.7(iii) of the Transfer Policy requires that special reasons or exceptional reasons should be stated in writing, and the prior approval of the Hon’ble Chief Minister should be sought prior to passing of the pre-mature transfer order, the same has not been done in the present case. Similar is a requirement of Guideline No.9(b) of the Transfer Policy. Therefore, the transfer order passed by the respondent is in violation of the transfer policy. It is legally unsustainable.
4. On the other hand, the learned counsel for the State has strenuously contended that by order dated 25.7.2017, the petitioner has been posted as a Senior Health Inspector in the City Municipal Council, Kolar. Therefore, the petitioner can no longer claim that he is being kept “awaiting posting order”.
Secondly, in the order dated 20.6.2016, whereby the petitioner was posted to Vijayapura, certain conditions were spelt out under which the petitioner was transferred. According to condition No.1, the transfer was provisional, and an administrative decision. The Government would have the power to re-transfer the person to his original post, or to transfer the person to other places. According to condition No.3, the general transfer guidelines will not be applicable, and especially the provision to serve in the specified place for maximum service period. Therefore, according to the learned counsel, the petitioner cannot take the benefit of the Transfer Policy framed by the Government as he is clearly out of purview of the Transfer Policy. Hence, the transfer order dated 20.7.2017 is absolutely a legal one.
5. In rejoinder, the learned counsel for the petitioner has pleaded that the Transfer Policy does not make a distinction between “a regular transfer”, and a “transfer of a deputationist”. In fact, the Transfer Policy applies to all the employees working under the Government. Therefore, the Transfer Policy per force covers cases of even the deputationists. Moreover, since the Transfer Policy has statutory force as held by this Court, the learned counsel pleads that condition No.1 and condition No.3 stated in the transfer order dated 20.6.2016, are Henry VIII Clause, which could not be imposed upon the petitioner. Therefore, the learned counsel for the State is unjustified in claiming that the petitioner is out of the purview of the transfer policy. Hence, the benefit of the transfer policy, and the protection given therein, should be extended to the petitioner even presently.
6. Heard the learned counsel for the parties, and perused the impugned order.
7. Since the petitioner has been posted to City Municipal Council, Kolar, the first contention raised by the learned counsel for the petitioner with regard to keeping the petitioner “awaiting posting order” no longer survives. Hence, no opinion needs to be expressed on the first contention.
8. However, the issue before this Court is firstly, whether condition No.1 and Condition No.3 contained in his earlier transfer order dated 20.6.2016, can be imposed upon the petitioner or not? Secondly, whether the petitioner can plead the protection of the Transfer Policy or not? Thirdly, whether the transfer order dated 20.7.2017 is in accordance with the Transfer Policy or not?
9. A bare perusal of the Transfer Policy dated 7.6.2013 clearly reveals that Guideline No.3(b) defines the word “Deputation”. The word “Deputation” is defined as “transfer of a Government servant from a post in one department to an equivalent post in another department and includes deputation to en-cadre posts/ex-cadre posts/local bodies/ co-operative societies/foreign service posts, as the case may be, as per the provisions of Karnataka Civil Services (General Recruitment) Rules, 1977 / Karnataka Civil Service Rules/Cadre and Recruitment Rules applicable as the case may be to the posts to which the Government servants are to be deputed.”
10. The preamble of the Transfer Policy clearly states that specific instructions are being issued every year for transfer of government servants, and since there is a need to regulate the transfer of government servants in order 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, the Guidelines are being framed by the Government. Guideline No.2 also states that “no government servant shall be considered for transfer/deputation, except in the circumstance as in the manner specified in this order” (emphasis added). Hence, the Guidelines also cover an employee who may be sent even on a deputation to another department.
11. In the case of Alla Saheb v. The State of Karnataka, Department of Urban Development And Others (ILR 2017 KAR 86), this Court has already held that the Guidelines are statutory in nature. Moreover, this Court has also opined that the Guidelines have been framed under the Executive power under Article 162 of the Constitution of India. In the case of Chandru H. N., v. State of Karnataka And Others (2011 (3) KLJ 562, this Court had also opined that the very object of Guideline is to control the unfettered power of the Government, and to give security of tenure to the employees for the period specified in the Guidelines.
12. Once the Guidelines have been framed, and applied to the deputationists, the State Government cannot be permitted to impose a condition which would be contrary to the Guidelines. For, once a procedure has been established by the law, the State Government is bound to scrupulously follow that procedure; it cannot be permitted to deviate from the said procedure. Therefore, condition No.1 and Condition No.3, contained in the petitioner’s former transfer order dated 20.6.2016, cannot be enforced against the petitioner.
13. In catena of cases, the Hon’ble Supreme Court has dealt with a situation where an unreasonable condition was imposed by a strong party on the weaker party, and the weaker party had no option, but to accept the condition. However, the Apex Court was of the opinion that such unreasonable conditions tantamount to “Henry VIIII Clause; such arbitrary, unreasonable, and unjust conditions cannot be enforced by Court of law. Since condition No.1, and Condition No.3, are apparently contrary to the Transfer Policy, the condition No.1 and the Condition No.3, cannot be enforced upon the petitioner. Therefore, the contention raised by the learned counsel for the State that since the petitioner has been taken out of the protection provided by the Transfer Policy, he cannot claim the benefit of the Transfer Policy, this contention is clearly unacceptable.
14. Admittedly, the petitioner was transferred to Vijayapura by the transfer order dated 20.6.2016. Undoubtedly, the petitioner is holding a Group-C post. Therefore, according to the Transfer Policy, he cannot be disturbed from the place of posting for four years. Admittedly, the petitioner is being transferred just after the lapse of one year and one month. Therefore, his transfer is premature.
15. Although a premature transfer can be made, however, Guideline No.7(iii), and Guideline No.9(b) of the Transfer Policy prescribe the procedure to be followed in case of a premature transfer.
Guideline No.7 (iii) of the Transfer Policy is as under :
7 : the transfers should not be considered beyond the month of June, except in the following circumstances by the competent authority:-
(iii) Where the transfer is necessitated in particular cases, only due to exceptional circumstances or special reasons 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.
Guideline No.9(b) of the Transfer Policy is as under :
9 : Premature / delayed Transfer – (a) xxx xxx xxx (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.
16. There is no evidence to show that any special or exceptional circumstances have been shown or recorded for the petitioner’s premature transfer. Therefore, the first two requirements of Guideline No.7(iii) of the Transfer Policy not have been complied with. Moreover, the State has not produced any evidence to show that before passing the transfer order dated 20.7.2017, a prior approval was taken from the Hon’ble Chief Minister. In the case of K. G. Jagadeesha v. State of Karnataka And Another (Writ Petition No.48988/2016, decided by a learned Division Bench of this Court on 6.10.2016), the learned Division Bench has also opined that the requirement of seeking prior approval by the Hon’ble Chief Minister is sine qua non condition to a premature transfer. However, the said essential pre-requisite condition has not been met in the present case. Thus, clearly the transfer order dated 20.7.2017 is per se illegal.
For the reasons stated above, this Writ Petition is, hereby, allowed. The transfer order dated 20.7.2017 qua the petitioner, is set aside. Consequently, the order dated 25.7.2017, whereby the petitioner has been posted to City Municipal Council, Kolar, is also set aside. Therefore, the respondents are directed to ensure that the petitioner continues to be posted at Vijayapura. However, the respondents are free to transfer the petitioner, provided the said transfer is strictly in accordance with the Guidelines.
Sd/- JUDGE *bk/-