IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF AUGUST, 2019 :PRESENT:
THE HON’BLE MR. JUSTICE L.NARAYANA SWAMY AND THE HON’BLE MR. JUSTICE R.DEVDAS WRIT PETITION NO.33253 OF 2019 (S-KSAT) BETWEEN SRI. RAMESH. S.
S/O R. SHIAVARAMAIAH, AGED ABOUT 49 YEARS, WORKING AS INSPECTOR OF EXCISE, ASHOK NAGAR RANGE BENGALURU URBAN DISTRICT (EAST) R/A NO.13, 5TH CROSS, AGRAHARADASARAHALLI, BENGALURU - 79.
... PETITIONER AND (BY SRI P.S.RAJAGOPAL, SENIOR COUNSEL FOR SRI B.O.ANIL KUMAR, ADVOCATE) 1. THE STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY, FINANCE DEPARTMENT, VIDHANA SOUDHA BENGALURU - 560 001.
2. THE COMMISSIONER OF EXCISE 2ND FLOOR, TTMC A BLOCK, BMTC BUILDING, SHANTINAGAR BENGALURU - 560 027.
3. THE DEPUTY COMMISSIONER OF EXCISE, BENGALURU URBAN DISTRICT (EAST) INDIRANAGARA BENGALURU - 560 002 4. SRI. G. CHANDRASHEAKAR EXCISE INSPECTOR SUBHASH NAGAR RANGE BENGALURU URBAN DISTRICT (WEST) BENGALURU - 560 021.
... RESPONDENTS (BY SRI G NAGARAJULU NAIDU, ADVOCATE FOR C/R4 SMT M S PRATHIMA, AGA FOR R1 TO R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD:25.7.2019 PASSED IN APPLICATION NO.4454/2019 BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, [ANNEXURE-A] AND TO ALLOW THE APPLICATION NOS.4454/2019 FILED BY THE PETITIONER AS PRAYED FOR IN THE SAID APPLICATION AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, NARAYANA SWAMY J, MADE THE FOLLOWING:
ORDER The petitioner approached the Tribunal challenging the order of transfer dated 20.07.2019 and dismissal of the same is subject matter of this petition.
2. The ground taken by the petitioner is that the reasons assigned by the Tribunal that the petitioner is working since 2012 in one range or the other, is not a reason for rejection of the prayer. The ground urged before the Tribunal is that the transfer effected in the middle of the year is contrary to the Government Order and also judgment passed by this Court in the case of Sri S.N.Gangadharaiah, K.A.S., /vs./ The State of Karnataka, rep. by its Principal Secretary, Department of Personnel and Administrative Reforms (Service-II) and another, reported in ILR 2015 KAR 1955, where it has been held that transfers of Government servants cannot run contrary to the Government order. Therefore, the Tribunal ought to have interfered. Merely because transfer can also be made in exercise of powers conferred under the Act, it cannot be construed to mean that executive power conferred under Article 162 of the Constitution cannot be used to make necessary provisions by issuing orders regulating transfer and the respondent while effecting transfer, they should do it strictly in accordance with the statutory guidelines. From the order of transfer, it is very clear on the face of it that it is a pre-mature transfer and despite placing reliance on the judgment of this Court, Tribunal has not considered it in proper perspective. Hence, rejection is improper, same has to be set aside. As per the guidelines the Hon’ble Chief Minister should assign the reasons. In view of the non- compliance, the impugned action of transfer is contrary to the guidelines and hence the same is to be set aside.
3. Learned counsel submits that the reason for dismissing the application has been set out at paragraph 6 of the order stating that the applicant in one or the other capacity working in the Bangalore since 2012, hence question of transfer being pre-mature does not arise. Thus supports the impugned order.
4. Learned Government Advocate placed records before this Court and on instructions from the Official, who is present before the Court, submits that the record does not disclose the reason. However the Government Advocate supports the transfer order and also order passed by the Tribunal.
5. We have heard the learned counsel for the parties and perused the materials placed on record.
6. The ‘Transfer’ as defined in the KCSR disclose, movement of a Government servant from one headquarters to other or same place, the respondent shall follow the guidelines. The undisputed fact is that the petitioner has been transferred pre-maturely within a period of four years, since as per the guidelines the minimum tenure for transfer of Group-C employees from one place to another place is four years and in case Government has to transfer in public interest, then the Hon’ble Chief Minister will have to assign reasons. The question arose before this Court as to whether the guidelines has a statutory nature or not. In this regard, he placed reliance on the judgment of this Court reported in ILR 2015 KAR 1955.
7. The learned counsel placed reliance on the other judgment in the case of Rajashekar.M /vs./ State of Karnataka and others, reported in 2019 (1) AKR 489. After extracting the guidelines, it has been held that the transfer order must be preceded by the reasons. Without there being any reason, transfer is contrary to the guidelines and also judgment of this Court. For convenient purpose, the guidelines extracted in Rajashekar’s case is extracted herein, which reads as under:
"9.Premature / delayed transfer a. Generally there should be no premature transfers. The tenure of posting of a Government servant may be extended or reduced by the Competent Authority in the following cases after recording the reasons for the same in writing. The minimum period of stay at a place as prescribed in para 8 can be reduced and the concerned Government servant transferred prematurely if the competent authority feels that he or she is not suitable for discharging the duties at the present place and the reasons are recorded to this effect in writing:-
(i) The employee due for transfer after completion of tenure at a place or posting or post has less than two years of service for retirement;
(ii) The employee possesses special technical qualifications or experience for the particular job for which a suitable replacement is not immediately available;
(iii) The employees working on a project or Flagship programmes of Government of India which are in the crucial stage of implementation and his withdrawal will seriously jeopardize timely completion of such projects;
(iv) Where both the spouses are Government servants and if one of the spouses is transferred, then the other spouse may also be transferred to the same place or nearby place depending upon the availability of vacancy even if one of them has not completed the minimum period of stay;
(v) Where a female Government servant is a widow / spinster / unmarried divorcee, she may be transferred and in case she is appointed for the first time, may be posted to a place of her choice subject to availability of vacancy;
(vi) Where a Government servant is an office- bearer of the Karnataka State Government Employees Association only, such Government servant shall not be transferred until the completion of the term for which he has been elected. In case no elections are held within three months of the completion of the said term, he may be transferred. In case he is reelected, he may be continued in the same place until the completion of the second term only;
(vii) Where a Government servant is physically handicapped / challenged or disabled subject to certification by the Medical Board;
(viii) Where a Government servant or his / her spouse or children are suffering from serious or terminal ailments, depending upon the availability of the facility of medical treatment at the requested place subject to certification by the Medical Board;
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.”
The reasons assigned in paragraphs No.6 and 7 of judgment in Rajashekar’s case reads as under:
6. As could be seen from para 9 of the Government Order extracted above, premature/delayed transfer of Government servants is permitted in the circumstances stated in para 9(a)(i) to (viii) with the prior approval of the Chief Minister. It requires the competent authority to record reasons stating as to how the case would fall under any of the circumstances stated in para 9(a)(i) to (viii) of the Government Order to warrant premature/delayed transfer of a Government servant and the said reasons have to be placed before the Chief Minister to obtain his prior approval as mandated in para 9(b) of the Government Order. After perusal of the reasons, if the Chief Minister is satisfied that the case would fall under any of the circumstances stated in para 9(a)(i) to (viii) of the Government Order, only then the Chief Minister may give his prior approval for premature/delayed transfer of the Government servant. If prior approval is given by the Chief Minister for transfers not falling under any of the circumstances stated in para 9(a)(i) to (viii) of the Government Order, it will be invalid in law and any premature/delayed transfer made pursuant thereto will be illegal and hence is liable to be set aside.
7. Learned Additional Government Advocate appearing for State of Karnataka fairly submitted that prior approval of the Chief Minister was not preceded by recording of any reasons by the Competent Authority to show that the premature transfer of the petitioner and respondent No.4 would fall under any of the circumstances stated in para 9(a)(i) to (viii) of the Government Order. Hence, we find no error in the order of the Tribunal in setting aside the order of transfer as it was contrary to para 9 of the Government Order laying down guidelines for transfer of Government servants.”
8. From the above judgment, it is very clear that the Hon’ble Chief Minister has to assign the reasons while effecting transfer in the middle of the year or within the time stipulated from the records which are placed before this Court, it is found that no reason is assigned for transfer and hence transfer is contrary to the guidelines and it is passed without application of mind.
9. Under these circumstances, we hold that the Tribunal has failed to look into the judgment of this Court. Accordingly, the order passed by the Tribunal is required to be set aside and also the order of transfer.
10. With these observations, the petition stands allowed. Impugned orders are hereby quashed. However liberty is reserved to the Government, if it all transfer is to be made, to assign reasons and effect transfer as set out in the guidelines.
SD/- JUDGE SD/- JUDGE KLY/