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.44868 OF 2019 (S-KSAT) BETWEEN:
SMT M.U. KAVITHA, W/O AJAY KUMAR, AGED ABOUT 37 YEARS, WORKING AS INSPECTOR OF EXCISE, COMMISSIONER OF EXCISE OFFICE, BENGALURU. RESIDING AT NO.176, 4TH CROSS, SOMESHWARA PURAM, CAMBRIDGE LAYOUT, ULSOOR, BENGALURU – 560 008.
(BY SMT. SHILPA RANI, ADVOCATE) AND:
1. THE STATE OF KARNATAKA, REPRESENTED BY ITS PRINCIPAL SECRETARY, FINANCE DEPARTMENT (EXCISE), VIDHANA SOUDHA, BENGALURU – 560 001 ...PETITIONER 2. THE COMMISSIONER OF EXCISE IN KARNATAKA, 2ND FLOOR, TTMC BUILDING ‘A’ BLOCK, BMTC COMPLEX, K H ROAD, SHANTHINAGAR, BENGALURU – 560 027.
3. SRI ARUN PRASAD, MAJOR, INSPECTOR OF EXCISE, KORAMANGALA RANGE, BENGALURU – 560 034.
…RESPONDENTS (BY SRI P.S. RAJAGOPAL, SENIOR COUNSEL FOR SRI B.O. ANIL KUMAR, ADVOCATE FOR CAVEAT R3; SMT. SHILPA S. GOGI, HCGP FOR R1 & R2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 25.07.2019 PASSED BY THE HON’BLE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, BENGALURU A COPY OF WHICH IS PRODUCED AT ANNEXURE-F AND CONSEQUENTLY ALLOW THE A.NO.4449/2019 AS PRAYED FOR AND CONSEQUENTLY DIRECT THE RESPONDENTS TO PERMIT THE PETITONER TO WORK AT KORAMANGALA AND THIS WRIT PETITION BE ALLOWED.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON 18.10.2019 AND COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, SACHIN SHANKAR MAGADUM J., MADE THE FOLLOWING:
ORDER The petitioner herein is assailing the correctness and validity of the order dated 25.07.2019 passed in Application No.4449/2019 on the file of the Karnataka State Administrative Tribunal (‘the KSAT’ for short).
2. The facts leading to filing of this petition are as follows:
The applicant joined the service in the Department of Excise as Inspector by direct recruitment. By official memorandum dated 07.12.2016, the petitioner/applicant was transferred from the post of Inspector of Excise, K.R.Puram Range to the post of Inspector of Excise, Koramangala Range. It appears on account of the elections held in the month of May 2018, by Notification dated 17.01.2018, the Election Commission issued various directions. One such direction was that the employees who had their native to be the same place where they are functioning were ordered to be shifted out. The second respondent - Commissioner of Excise by Official Memorandum dated 04.04.2018 effected transfers of Inspectors of Excise without even examining as to whether the Inspectors were in service in their native place or otherwise. In this context, the applicant herein who was working as Inspector, Koramangala Range was transferred and posted to the office of the Deputy Commissioner of Excise, Shivamogga Range-II, Shivamogga District and pursuant to the said transfer order, the petitioner reported to duty at Shivamogga Range–II on 05.04.2018.
3. The applicant challenged the said transfer order in transferring her to Shivamogga by filing an application in O.A.No.2542/2018 on the file of the KSAT and later withdrew the same by filing a memo dated 29.05.2018.
4. The petitioner/applicant, who was temporarily transferred is entitled to be posted back to the original place of posting i.e., Koramangala Range, where she is yet to complete minimum tenure of four years. The second respondent by Official Memorandum dated 17.07.2018 transferred the applicant back to Bengaluru. But, however, posting was not given to the earlier working place and in this background, the applicant gave a representation on 28.09.2018 seeking posting to the place where she was yet to complete her tenure. By order dated 20.07.2019, the applicant is again transferred to Yeshwanthpur Range. Being aggrieved by the premature transfer, the applicant filed O.A.No.4449/2019 before the KSAT.
5. The KSAT issued notice to the respondents.
The respondents on receipt of notice, contested the proceedings before the KSAT. Learned Government Pleader took a stand that the transfer order was issued in the interest of public and administrative exigency with the approval of Hon’ble Chief Minister and hence, prayed for dismissal of the application. Learned counsel appearing for the respondent No.3 produced two documents and contended that the applicant was relieved and third respondent has assumed the charge of the post of applicant on 22.07.2019.
6. The KSAT after hearing both the parties, dismissed the application by holding that since applicant is transferred to Yeshwanthpur Range, Bengaluru, the same would not cause any hardship to the applicant and there were no good grounds to entertain the application. Being aggrieved by the judgment and order of the KSAT, the applicant is before this Court questioning the validity of the order.
7. We have heard learned counsel for the petitioner, learned Senior Counsel for respondent No.3 and learned HCGP for respondent Nos.1 and 2.
8. Learned counsel for the petitioner would vehemently argue and contend that in terms of the operative guidelines for Group-C officers, the minimum tenure stipulated under clause (8) is four years and any transfer to be effected before completion of minimum period of four years is regulated under clause 9(a) of operative guidelines and hence, any premature transfer to be effected has to be followed by reasons to be recorded in writing and the same has to be approved by the Hon’ble Chief Minister. Learned counsel would argue that the order of transfer dated 20.07.2019 is illegal, high ended, unfair and unjust and the same is issued without application of mind. Learned counsel for the petitioner would also rely on the order of the Co-ordinate Bench of this Court rendered in W.P.No.33253/2019, which is produced at Annexure-G to the writ petition.
9. Per contra, learned Senior Counsel appearing for respondent No.3 would vehemently argue and contend that applicant herself has violated the guidelines for transfer and would rely on the guidelines regarding transfer of Government Servants and would contend that the applicant has indulged in bringing political pressure for transfer and in that view of the matter, the applicant is not entitled for any relief from this Court.
10. Having examined the records, we find that the transfer order dated 20.07.2019 passed by the second respondent is in gross violation of the guidelines. As could be seen from the transfer order, it is clearly evident that it is a premature transfer and it is also evident that there is no prior approval by the Hon’ble Chief Minister as required under the guidelines. In that view of the matter, the transfer order being made in violation of the statutory rule and regulation, is illegal.
11. Having examined the material on record, it is evident that the administrative action taken by the respondents is not just and fair. Though learned HCGP would submit that the transfer order has been issued in the interest of public and administrative exigency with the approval of the Hon’ble Chief Minister, the same is not forthcoming in the order. Learned HCGP has failed to demonstrate that the transfer order was on account of exigencies of administration and we are not inclined to accept the contention of learned HCGP that the decision was taken for administrative needs.
12. The contention of learned Senior Counsel appearing for respondent No.3 that the conduct of the applicant indulging in bringing political pressure seeking her transfer is prohibited as per the guidelines regarding transfer of Government Servants and as such, the applicant would not be entitled for any relief from this Hon’ble Court. This contention cannot be accepted for the simple ground that the conduct of the applicant in that regard would have no bearing to the present case on hand. The alleged political pressure would not validate the order of transfer passed by the second respondent which is in contravention of rules and guidelines.
13. The KSAT proceeded to reject the application on equity basis by holding that the transfer of the applicant to Yeshwanthpur Range, Bengaluru, would cause no hardship. We are of the view that this reasoning suffers from infirmities. The KSAT was required to examine the premature transfer in terms of the guidelines and regulations. The KSAT having failed to examine the above said aspects, the impugned judgment passed by the KSAT warrants interference by this Court. It is needless to say that we are in total agreement with the ratio laid down by the Co-ordinate Bench in W.P.No.33253/2019.
14. In the light of the above said discussions, the transfer order dated 20.07.2019 is illegal and in violation of the Rules and Regulations contemplating the Transfer Guidelines regarding transfer of Government Servants.
Accordingly, the writ petition is allowed. The judgment and order of the KSAT dated 25.07.2019 passed in Application No.4449/2019 is set aside and consequently, the impugned transfer order dated 20.07.2019 passed by the second respondent stands quashed.
Sd/- JUDGE Sd/- JUDGE CA