IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 23RD DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL No.1195 OF 2018 (S-TR) BETWEEN:
NAGARAJ C NAIK SON OF CHANDRA NAIK AGED ABOUT 42 YEARS, WORKING AS ASSISTANT EXECUTIVE ENGINEER, 400 KV STATION, KPTCL GUTTUR HARIHARA TALUK DAVANGERE DISTRICT-577 601. (NOW UNDER ORDER OF TRANSFER) ...APPELLANT (BY SRI. RANGANATHA S JOIS, ADVOCATE) AND:
1. BASAVARAJ P SON OF PUTTAPPA AGED ABOUT 42 YEARS, WORKING AS ASSISTANT EXECUTIVE ENGINEER (ELEC.) WORKS SUB DIVISION, BESCOM, HARIHARA DAVANGERE DISTRICT-577 601.
2. THE DIRECTOR, (ADMINISTRATION & HUMAN RESOURCES), KPTCL, CORPORATE OFFICE, KAVERI BHAWAN, BENGALURU-560009.
3. THE EXECUTIVE ENGINEER (ELE.) WORKS DIVISION, BESCOM, VIDYARTHI BHAVAN CIRCLE, HADADI ROAD, DAVANGERE DISTRICT-577 002.
...RESPONDENTS (BY SRI. YOGESH V KOTEMATH,ADVOCATE FOR RESPONDENT No.1, SRI. AJITH ANAND SHETTY, ADVOCATE FOR RESPONDENT No.2, RESPONDENT No.3 IS SERVED) THIS WRIT APPEAL FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 21/2/2018 MADE IN WRIT PETITION 55640/2017 [S-TR] PASSED BY THE LEARNED SINGLE JUDGE OF THIS HON'BLE COURT AND ALLOW THIS APPEAL AND DISMISS THE WRIT PETITION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the impugned order dated 21.02.2018 passed by the learned Single Judge in W.P.No.55640 of 2017, by which the petition was allowed, respondent No.3 is in appeal.
2. The petitioner filed writ petition under Articles 226 and 227 of the Constitution of India praying to quash the order bearing No.KaVPraNiNi/B58/71521/2017-18/Bhaga-I dated 06.12.2017 passed by the 1st respondent insofar as the petitioner and 3rd respondent are concerned. By the impugned order, the petitioner was transferred from Harihar to Guttur and 3rd respondent was transferred to Guttur from Harihar in place of the petitioner. Both the petitioner and respondent No.3 are working in respondent- BESCOM as Assistant Executive Engineers. On 23.09.2016 the petitioner was transferred from Harihar to Guttur and the petitioner was working as Assistant Executive Engineer KPTCL, Guttur. By order dated 15.11.2017, the petitioner was transferred to Works Sub-Division BESCOM, Harihar in place of 3rd respondent and 3rd respondent was transferred to Guttur in place of the petitioner. It is stated that the petitioner was relieved of his duties at Guttur on the afternoon of 18.11.2017. Thereafter, the petitioner states that he made a representation on 20.11.2017 to the 1st respondent seeking an order of posting in pursuance of the transfer order dated 15.11.2017. On 01.12.2017 the petitioner was issued with the posting order posting him to work as Assistant Executive Engineer (Ele.) Works Sub- Division, BESCOM, Harihar. In pursuance of the posting order, the petitioner took charge from the 3rd respondent on 04.12.2017. The petitioner avers that immediately after 2 days from the date of taking charge, the 1st respondent issued order dated 06.12.2017 posting the 3rd respondent in place of the petitioner and the petitioner was transferred to work in place of the 3rd respondent. Aggrieved by the said order, the petitioner filed instant writ petition on the ground that the transfer order dated 06.12.2017 is contrary to transfer guidelines dated 07.06.2013 and KPTCL notification dated 09.10.2017.
3. The 3rd respondent contended that the transfer dated 06.12.2017 is a legally valid order passed in public interest. It is stated by the 3rd respondent that the petitioner is a disabled person and taking into consideration that the post of Assistant Executive Engineer at Harihar involves frequent travels, the 3rd respondent was retained at Harihar. The learned Single Judge after hearing both sides and on consideration of the contentions raised by both the parties allowed the writ petition setting aside the order dated 06.12.2017 insofar as the petitioner and 3rd respondent are concerned. The 3rd respondent aggrieved by the same is in appeal.
4. Heard the learned counsel for the appellant and learned counsels for the respondents. Perused the appeal papers.
5. Learned counsel for the appellant would submit that the order of the learned Single Judge is wholly erroneous, in that the learned Single Judge failed to consider the ground that the post at Harihar requires traveling frequently and the appellant being disabled person would not be in a position to travel had retained the 3rd respondent at Harihar in public interest. It is stated that the 2nd respondent has corrected the earlier premature transfer order and there is no justification to interfere with the impugned order passed in public interest. Further he contends that the transfer place i.e., Guttur is only 8 kilometers from Harihar and there is no reason for the petitioner to refuse the transfer to Guttur. It is further contended that the transfer is an incidence of service and cannot be interfered lightly.
6. Per contra, learned counsel for the respondents would support the order passed by the learned Single Judge and submit that since the transfer of petitioner is effected within 2 days from the date of taking charge at Harihar, the learned Single Judge rightly allowed the writ petition. Further it is stated that at this length of time, it may not be proper for this Court to interfere with the transfer order.
7. On going through the detailed order passed by the learned Single Judge and on perusal of the appeal papers, We are of the view that the order of the learned Single Judge is neither perverse nor erroneous so as to warrant interference. The petitioner has not made out any ground to interfere with the order of the learned Single Judge for the following reasons.
8. The petitioner and respondent No.3 are working as Assistant Executive Engineers in the respondent-BESCOM. The order of transfer and posting of the petitioner and 3rd respondent was under challenge. Transfer is an incidence of service and it is not a condition of service. Order of transfer is to be effected in the interest of public service. The petitioner was working at Guttur since September 2016. It is also not in dispute that the petitioner is a physically challenged person. By order dated 15.11.2017, after completion of more than 2 years at Guttur, the petitioner was transferred to Works Sub-Division, Harihar in the place of petitioner. Reposting order in pursuance of the transfer order dated 15.11.2017 was issued on 01.12.2017. Thereafter the petitioner took charge from respondent No.3 on 04.12.2017, which is clear from Annexure-E/Certificate of Transfer of Charge, wherein both the petitioner and 3rd respondent have signed. Within 2 days thereafter on 06.12.2017 the respondent–BESCOM issued an order, transferring the petitioner again to Guttur and respondent No.3 to Harihar. Preamble to the order dated 06.12.2017 would indicate that the transfers effected under order dated 15.11.2017 have been modified in the interest of the corporation and on request. In the case of continuing 3rd respondent, we see no public interest involved as contended by the respondents. The transfer guidelines issued in Government Order dated 07.06.2013 has been adopted by the respondent-KPTCL, which prescribes minimum stay of 2 years for Group – A and B posts in a place of posting. The petitioner and respondent No.3 hold Group-B posts and they have 2 years minimum stay at a place of posting. The Government Order would also permit premature transfer, but before effecting premature transfer reasons are to be recorded and approval of the Board/Chief Minister would be necessary. No such approval is obtained while issuing impugned order dated 06.12.2017 insofar as the transfer of petitioner and respondent No.3 is concerned. The contention that the petitioner is a physically challenged person and he would not be in a position to carry out the work of his post at Harihar cannot be accepted for the reason that earlier also the petitioner was working in the same Sub Division and he has carried on the functions of the post. Moreover, there is no material to indicate that the petitioner would not be in a position to carry out the functions of the post of Assistant Executive Engineer due to his physical disability. The learned Single Judge has rightly come to the conclusion that the transfer of the petitioner is premature one and would affect the petitioner adversely. We find no reason to interfere with the order of the learned Single Judge. There is no merit in the writ appeal. Accordingly, writ appeal is dismissed.
I.A.No.1 of 2018 for Stay do not survive for consideration. Hence, the application is rejected.
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JUDGE JUDGE mpk/-* CT:bms