IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF DECEMBER, 2019 PRESENT THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO.51782 OF 2019 (S-KSAT) BETWEEN:
M.S.N.BABU S/O SANNADODDAIAH AGED ABOUT 43 YEARS CURRENTLY NO POSTING NO.1235/1, KR EXTENSION TIPTUR, TUMKUR DISTRICT-572202 (BY SRI ASHOK HARANAHALLI, SR.COUNSEL FOR SRI D.R.RAVISHANKAR, ADVOCATE) ...PETITIONER AND:
1. THE STATE OF KARNATAKA DEPARTMENT OF PERSONNEL & ADMINISTRATIVE REFORMS (SERVICES-II) VIDHANA SOUDHA DR.B.R.AMBEDKAR VEEDHI BANGALORE-560001 REPT. BY ITS SECRETARY TO GOVERNMENT 2. THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT OF KARNATAKA DEPARTMENT OF URBAN DEVELOPMENT VIKASA SOUDHA DR.B.R.AMBEDKAR VEEDHI BANGALORE-560001 3. BANGALORE DEVELOPMENT AUTHORITY REPT. BY THE COMMISSIONER T.CHOWDAIAH ROAD KUMARA PARK WEST BANGALORE-560020 4. N.S.CHIDANANDA S/O THOPE GOWDA AGED ABOUT 44 YEARS WORKING AS DEPUTY SECRETARY-I BANGALORE DEVELOPMENT AUTHORITY T.CHOWDAIAH ROAD KUMARA PARK WEST BANGALORE-560020 R/AT HOUSE NO.73, BDA COLONY 5TH CROSS, R.M.V. EXTENSION BANGALORE (BY SRI P.S.RAJAGOPAL, SR.COUNSEL FOR …RESPONDENTS SRI K.V.LAKSHMANACHAR, ADVOCATE FOR C/R-4; SRI R.SUBRAMANYA, AAG A/W SRI VENKATESHA DODDERI, AGA FOR R1 & R2) THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 02.12.2019 IN APPLICATION NO.6937/2019 VIDE ANNX-C WHEREBY THE TRIBUNAL HAS POSTPONED THE CONSIDERATION OF THE INTERIM PRAYER MERELY ON THE GROUND THAT R-4 HAS TAKEN CHARGE.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, SATYANARAYANA J., MADE THE FOLLOWING:
ORDER Petitioner/applicant in application No.6937/2019 on the file of Karnataka State Administrative Tribunal, Bengaluru (‘the Tribunal’ for short) has come up in this petition impugning the order dated 02.12.2019 (Annexure-C) passed by the Tribunal in the said application and for such other orders as this Court deems fit.
2. Brief facts leading to this writ petition are as under:
Petitioner herein is an Officer of KAS Junior Scale. It is stated that he was earlier working as Deputy General Manager, Karnataka Urban Infrastructure Development and Finance Corporation. Thereafter, he was transferred to the post of Deputy Secretary-1, Bangalore Development Authority (third respondent herein) by order dated 19.08.2019. His grievance is that even before he could complete three months in the said post, the fourth respondent herein was transferred to his place by order dated 25.11.2019 without showing any posting to the petitioner herein. Thereafter, by order dated 27.11.2019, he is shown the posting as Secretary, Karnataka Slum Development Board which is said to be vacant post.
3. In this background, he has approached the Tribunal challenging his order of transfer dated 27.11.2019 on the ground that it is premature in nature and though his transfer is said to be in the interest of public and administration, however, no reasons are assigned to substantiate alleged public interest or administrative exigencies as observed. According to petitioner, his transfer is at the instance of fourth respondent. It is stated that the fourth respondent was earlier holding the post of Deputy Secretary-1, BDA; that he was shifted (not transferred) from the place of Deputy Secretary-1 to Assistant Commissioner (Enforcement), BDA, by order dated 16.02.2019. The said order was challenged by him before the Tribunal in application no.985/2019 contending that his shifting from the post of Deputy Secretary-1 to Assistant Commissioner (Enforcement Cell), BDA is premature transfer. It is seen that the Tribunal in its order dated 25.07.2019 has refused to accept the same as transfer. The Tribunal has held that, shifting a person in the same office from one post to another post does not amount to transfer. Therefore, it cannot be considered as transfer. Hence, the application for quashing of the order dated 16.02.2019 in shifting him to the post of Assistant Commissioner (Enforcement Cell) is rejected, by order dated 25.07.2019.
4. It is further grievance of the petitioner that in spite of the said order being passed by the Tribunal, the first respondent has reinstated the fourth respondent to the very same place. According to the petitioner, though the order dated 25.11.2019 would state that it was made in public interest and for administrative exigencies, in fact, it is at the instance of Hon’ble Chief Minister, this order is passed. There is no such public interest of administrative exigency is involved; and there is no application of mind on the part of Hon’ble Chief Minister while considering his transfer from said place by order dated 25.11.2019. He would state that subsequently, by order dated 27.11.2019, he is posted as Secretary, Karnataka Slum Development Board. It is in this background, he approached the Tribunal by filing an application in OA No.6937/2019. Wherein, his prayer for interim order is not considered by the Tribunal on the ground that the fourth respondent has already taken charge in the new post, which was held by the petitioner herein.
5. Now, the moot point that is required to be considered is as to whether this Court should decide the matter on merits or whether the same should be sent back to the Tribunal since the application filed by the petitioner is pending consideration.
6. After hearing Sri Ashok Haranahalli, learned Senior Counsel for the petitioner, Sri P.S.Rajagopal, learned Senior Counsel appearing for the contesting fourth respondent and Sri R.Subramanya, learned Additional Advocate General, this Court would pass the following order:
7. Admittedly, the petitioner herein was an employee of Karnataka Urban Infrastructure Development and Finance Corporation prior to 19.08.2019. He was transferred to the post of Deputy Secretary-1, BDA by order dated 19.08.2019, which post as on that day was held by one Mr.Harish. It is seen that the petitioner has worked for nearly three months in the said office. The fourth respondent, who was holding the post of Deputy Secretary-1, BDA, earlier to Mr.Harish was posted to said place, was shifted to the post of Assistant Commissioner (Enforcement Cell), by order dated 16.02.2019. The said order of shifting him from the post of Deputy Secretary-1 to Assistant Commissioner (Enforcement Cell), BDA and posting Mr.Harish to his place was challenged by him in Application No.985/2019 as stated supra. The said application is rejected by the Tribunal holding that it is not a transfer. Therefore, it is clear that shifting of the fourth respondent from the post of Deputy Secretary-1 to Assistant Commissioner (Enforcement Cell), BDA is not transfer since it is only shifting from one place to another. The said finding has reached finality, since 4th respondent did not challenge the said finding of the Tribunal.
8. However, it is seen that when it comes to the petitioner, even before he could complete two years of service in BDA, he is unnecessarily disturbed by the first respondent, which act does not stand to reason. Therefore, the said order is rightly challenged by the petitioner by filing an application before the Tribunal which is required to be decided by the Tribunal on merits. While doing so, the Tribunal ought to have considered his prayer for interim relief since within three months of posting to the said place, he has been transferred. Since the Tribunal has not refused the prayer of the petitioner for interim order, this Court would not make any observation in that behalf. Hence, it would suffice to observe that the application filed by the petitioner shall be disposed of at the earliest. While doing so, it is open for the Tribunal to consider the prayer of the petitioner for interim order also.
9. With the aforesaid observation, this writ petition is disposed of by directing the Tribunal to consider and dispose of the application filed by the petitioner at the earliest and not later than 31st December 2019.
Sd/- JUDGE Sd/- JUDGE hkh.