IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY 2019 BEFORE THE HON’BLE MR.JUSTICE P.B.BAJANTHRI WRIT PETITION NO.52095 OF 2018 (S-TR) BETWEEN:
SRI B V JAYARAMAIAH S/O B V VARADEGOWDA AGED ABOUT 55 YEARS WORKING AS DEPOT MANAGER HANUR WHOLESALE POINT KARNATAKA FOOD AND CIVIL SUPPLIES CORPORATION LIMITED CHAMARAJANAGAR DISTRICT-571 439.
(BY SRI.M S BHAGWAT, ADVOCATE) AND:
1. KARNATAKA FOOD AND CIVIL SUPPLIES CORPORATION LIMITED ... PETITIONER REPRESENTED BY ITS MANAGING DIRECTOR NO.16/1, MILLERS TANK BED AREA BANGALORE 560 052.
2. THE GENERAL MANAGER KARNATAKA FOOD AND CIVIL SUPPLIES CORPORATION LIMITED NO.16/1, MILLERS TANK BED AREA BANGALORE 560 052.
3. SRI. B S BALALINGEGOWDA MAJOR FATHER’S NAME NOT KNOWN TO THE PETITIONER WORKING AS JUNIOR ASSISTANT WORKING AS DEPOT MANAGER SANTHEMARAHALLI WHOLESALE POINT KARNATAKA FOOD AND CIVIL SUPPLIES CORPORATION LIMITED CHAMARAJNAGAR DISTRICT CHAMARAJNAGAR-571 115.
... RESPONDENTS (BY SRI.GOPAL V BILALMANE, ADVOCATE FOR R1 SRI.JEEVAN KUMAR B.S., ADVOCATE FOR R3 R2 – SERVED BUT UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS PERTAINING TO IMPUGNED ORDER DTD:14.11.2018 ISSUED BY THE R-2 [ANNEXURE-C] AND QUASH THE IMPUGNED ORDER OF TRANSFER DTD:14.11.2018 ISSUED BY THE R-2 [ANNEXURE-C] IN SO FAR AS IT RELATES TO THE PETITIONER AND THE R-3 ARE CONCERNED AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner has assailed the order dated 14.11.2018 passed by the 2nd respondent.
2. The petitioner while working as a Class-IV employee in the 1st respondent-Corporation, promoted to the post of Junior Assistant. Later, he was posted as Depot Manager, Hanur Wholesale Point. Thereafter, by the impugned order dated 14.11.2018, petitioner was transferred to Santhemaranahalli in place of respondent No.3. Respondent No.3 has been transferred in place of the petitioner.
3. Learned counsel for the petitioner submitted that Annexure-C - Transfer Order is in violation of sub- clause (a) of Clause 2 of Transfer Guidelines dated 29.05.2014 to the extent that General Manager has no power to effect transfer and power is vested with the Managing Director. Further contended that Hon’ble Chief Minister has no jurisdiction to approve the transfer order. In support thereof, he relied on the reported judgment of this Court in the case of SRI.B.T.MOHAN KRISHNA VS. BRUHUTH BANGALORE MAHANAGAR PALIKE, REP., BY ITS COMMISSIONER AND OTHERS reported in ILR 2014 KAR 1214 wherein at Para 7, it has been held as under:-
“7. It is rightly stated by the Learned Counsel appearing for the BBMP that under Section 69 of the Karnataka Municipal Corporations Act, 1976 ('the Act' for short), it is only the Commissioner or his delegatee who has power to give internal postings to the employees and Officers of the BBMP. In my opinion, under the Act, neither the Chief Minister nor any Minister has any power to interfere with the statutory power of the Commissioner under Section 69 of the Act to make internal transfers of the employees or Officers of the Municipal Corporation. However, the State Government has power under Section 91-A of the Act to transfer any officer or servant of a Municipal Corporation to another Corporation or a local Authority. It is a settled position in law that an authority empowered to exercise a power cannot abdicate its functions by acting at the dictates of another authority, howsoever high it may be. Postings or transfers within the BBMP could be made only by the Competent Authority i.e., the Commissioner or his delegatee who has to apply his mind and to make the order. He cannot abdicate his statutory power at the dictation of another, who is not conferred with the power to dictate. The Commissioner would be failing in his statutory duty, if he acts at the dictation of any Minister including the Chief Minister in the matter of internal transfers within the BBMP.”
4. Per contra, learned counsel for respondents resisted the petitioner’s contentions. It was submitted that with reference to Annexure-R1 relating to delegation of powers to General Manager on various issues including transfer, Annexure-R1 has an assent of the Board resolution. It consists of not only transfer, but also various other issues including pay fixation of the employees up to Office Manager has been empowered to General Manager. Learned counsel for respondents vehemently contended that while issuing transfer guidelines of the employees which is in pursuant to the Government order dated 20.05.2014 provides for approval of Hon’ble Chief Minister in the event of premature transfer. Thus, the impugned order is an assent of the Hon’ble Chief Minister and it is in accordance with the procedure prescribed by the respondent-Corporation.
5. The contesting respondent pointed out from Annexure-R1 that General Manager has power to effect transfer and in respect of other contention, he is adopting the arguments of the Corporation.
6. Heard the learned counsel for parties.
7. Core issues in the present petition are:
i) Whether Annexure-C could be effected by the General Manager or not?
ii) Whether Hon’ble Chief Minister’s approval is required for effecting premature transfer or not?
8. In respect of competency, Annexure-D stipulates that before effecting transfer, approval of the Managing Director and Chairman of the Corporation is required. It is to be noted that Transfer Guidelines dated 29.05.2014 is issued by the Managing Director, whereas Annexure-R1 even though it was issued by the Managing Director, it has an assent of the Board. Annexure-R1 not only covers issues relating to transfer, it also empowers the General Manager to various service conditions of the employees upto Office Manager. Therefore, the contention of the petitioner that General Manager is not competent is hereby rejected.
9. Further Para 6 of the order dated 22.02.2019 passed in W.P.No.52109/2018 is hereby distinguished since the learned Judge has not taken note under what circumstances Annexure-D and Annexure-R1 have been introduced. Annexure-R1 has an overriding effect over Annexure-D in respect of transfer issue is concerned and it has an assent of the Board.
10. The Hon’ble Chief Minister approving the transfer order is without authority of law on two counts. That in an identical matter, this Court has taken a decision B.T.MOHAN KRISHNA’s case stated supra (Annexure-E). That apart, the respondent-Corporation have not established what was the relationship of the Corporation and Hon’ble Chief Minister under the regulations so as to point out the power of the Hon’ble Chief Minister in respect of a Junior Assistant transfer in the Corporation. Therefore, approval of the Hon’ble Chief Minister is without authority of law.
11. The learned counsel for respondents- Corporation merely relied on reference made in the Transfer Guidelines to the Government orders dated 07.06.2013 and 20.05.2014. It is to be noted that even Corporation has adopted some government orders in respect of transfer of employees. At the same time, certain authorities are required to be taken into consideration. In the Government Orders, it is in respect of government employees. The transfer of employees in the government department is required to be routed through heads of the department, Secretary, Hon’ble Minister/Hon’ble Chief Minister. Merely respondent- corporation have adopted the government order they should have appropriately mentioned in the Transfer Guidelines dated 29.05.2014 and subsequent orders if any.
In view of these facts and circumstances, Corporation has not made out any case that Hon’ble Chief Minister’s approval is in accordance with law. Therefore extraneous material has been taken into consideration for effecting the transfer of petitioner and contesting respondent and others. In other words, the respondent-Corporation have mechanically accepted the recommendation made by the Hon’ble Chief Minister, which is not in accordance with any provision of the respondent-Corporation.
12. In view of these facts and circumstances, petitioner has made out a case that order of transfer issued at Annexure-C dated 14.11.2018 is for an extraneous consideration. At the behest of the Hon’ble Chief Minister, it has been effected, which is not in accordance with corporation’s regulation.
13. In view of the aforesaid reasons, Annexure-C insofar as petitioner and respondent No.3 are concerned is set aside.
Writ Petition stands allowed. Corporation is at liberty to pass afresh transfer order if it is warranted.
Sd/- JUDGE Prs*