1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE06H DAY OF OCTOBER, 2016 PRESENT THE HON’BLE MR.JUSTICE JAYANT PATEL AND THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NO.48988/2016 (S-KAT) BETWEEN: K.G.JAGADEESHA S/O LATE R. GANGALAKKAIAH AGED ABOUT51YEARS WORKING AS EXECUTIVE ENGINEER, PMGSY DIVISION CHITRADURGA & R/AT NO.16686/66 6TH CROSS, B.L.GOWDA LAYOUT CHITRADURGA-577 536. (BY SRI NAGA PRASANNA M, ADVOCATE) AND:
1. STATE OF KARNATAKA BY ITS PRINCIPAL SECRETARY TO GOVERNMENT PUBLIC WORKS, PORTS … PETITIONER2AND INLAND WATER TRANSPORT DEPARTMENT M.S. BUILDING, DR. AMBEDKAR VEEDHI BENGALURU-560 001.
2. (BY SRI H.T. NARENDRA PRASAD, AGA FOR R-1; SRI H.C. SHIVARAMU, ADVOCATE FOR R-2) G.S.KUMAR S/O K. SANNAIAH AGED ABOUT57YEARS WORKING AS EXECUTIVE ENGINEER, PWD CHITRADURGA DIVISION PRESENTLY UNDER TRANSFER TO RURAL DEVELOPMENT AND PANCHAYAT RAJ DEPARTMENT CHITRADURGA-577 536. … RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE226OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED178.2016 PASSED BY THE TRIBUNAL IN APPLICATION NO.7423/2016 VIDE ANNEXURE-A TO THE W.P. AND GRANT ALL CONSEQUENTIAL BENEFITS. THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, JAYANT PATEL J., PASSED THE FOLLOWING:
With the consent of learned Advocates appearing for the both the parties, the petition is taken up for final hearing and finally heard.
2. The present petition is directed against the order dated 17.08.2016 passed by the Tribunal whereby the Tribunal for the reasons recorded in the order has allowed the application and has set aside the transfer order and has further issued consequential direction.
3. The short facts of the case appears to be that the petitioner as well as respondent No.2 are employees of respondent No.1 in the Department of Public Works. On 20.06.2015 the respondent No.2 was transferred as Executive Engineer, PWD, Chitradurga, in place of one Mr.C.Thimmappa. Said Sri. C.Thimmappa challenged the transfer order before the Tribunal in application 4 No.5751/2015 and the Tribunal ultimately dismissed the application on 28.07.2015, since the memo of withdrawal was filed. On 30.06.2016 respondent No.2 is transferred to Rural Development & Panchayat Raj Department, Chitradurga and the petitioner is transferred to Public Works Department, Chitradurga Division, in place of respondent No.2 by the impugned transfer order. As per petitioner on 09.08.2016 the petitioner assumed the charge.
4. On 11.08.2016 the respondent No.2 preferred an application before the Tribunal being No.7423/2016 challenging the transfer order. The Tribunal ultimately vide impugned order dated 17.08.2016 allowed the application and issued direction as preferred to hereinabove. Under the circumstances, the present petition before this Court. 5 5. We have heard Mr. M.Naga Prasanna, learned counsel appearing for the petitioner and Mr.H.T.Narendra Prasad, learned AGA appearing for respondent No.1 and Mr. H.C.Shivaramu, learned counsel appearing for respondent No.2.
6. It is undisputed position that the transfer order is a premature transfer, inasmuch as, earlier respondent No.2 was transferred on 20.06.2015 and he reported for duty on 11.08.2015 pursuant to the said transfer order. Thereafter, before completion of minimum period of two years, by the impugned transfer order dated 09.08.2016 he has been transferred to the other Department. Hence, the position of transferring the petitioner prior to the completion of minimum period of two years is undisputed. The tribunal did find that it is a premature transfer and the minimum period of two years is not maintained and no reasons were also 6 assigned for disturbing the applicant at the present place and based on the same, the impugned transfer order has been set aside by the Tribunal.
7. However, the learned counsel appearing for the petitioner contended that as per the Government Notification dated 13.04.2016 in case of general transfer, there is no requirement to get the approval of the Hon’ble Chief Minister and he submitted that it is only in respect of the transfer other than general transfer and as per the transfer policy, the approval of the Chief Minister is required. He further submitted that when any Officer is to be transferred in general transfer, then if the minimum period is not maintained as per Clause 8 of the Transfer Policy, it is within the power of the authority to transfer any employee to any other place. He further submitted that the Tribunal ought not to have set aside the transfer order, which is 7 on the mere ground that it was premature. He further submitted that respondent No.2 since he is placed at the same station but from one office to another, Tribunal ought not have interfered with the transfer order on the ground of hardship.
8. Whereas, Mr. H.T.Narendra Prasad, learned AGA appearing for respondent No.1 submitted that it is true that for premature transfer other than the general transfer approval of the Chief Minister is required. He also submitted that as per government order dated 14.06.2013 the said aspect is clarified in paragraph 9 (b) of the transfer policy and therefore, one cannot say that the transfer order is bad in law if the approval of the Chief Minister is not obtained. He further submitted that on the administrative ground the transfer is effected and therefore, Tribunal ought not to have interfered with the order passed by the authority for 8 transferring respondent No.2 to a different place by the impugned transfer order.
9. Whereas, Mr. H.C.Shivaramu, learned counsel appearing for respondent No.2 has supported the order passed by the Tribunal and he contended that the Tribunal has rightly exercised the power and this Court may not interfere with the same.
10. In order to appreciate the contention, we may be required to consider certain clauses of the Government Transfer Policy itself governing Government employee. As per transfer policy which has come into effect from 07.06.2013 copy thereof is produced at Annexure-C, it provides for periodical transfer and it also provides for general transfer in the month of May & June of every year. However, as per Clause 4 under the 9 head of ‘Process of Transfer’ vide sub-clause (a) it has been mentioned as under: “a. Transfer / deputation shall be made by the Competent Authority subject to the conditions indicated in this order, ………...” 11. Further as per Clause 7(iii) it has been provided as the transfer should not be considered beyond the month of June, except in the following circumstances by the competent authority: or special “(iii) Where the transfer is necessitated in particular cases, only due to exceptional circumstances reasons, restricting the number of such annual transfers to minimum after recording reasons for the same in writing. Such cases shall be submitted to the Chief Minister without fail and transfer shall be made after obtaining prior approval of the Chief Minister.” 12. The aforesaid clause would disclose that if the transfer is made during the period beyond the month of June and the transfer is necessitated on 10 account of exceptional circumstances, the proposal is to be forwarded to the Chief Minister without fail and the transfer is to be made after obtaining prior approval of the Chief Minister.
13. Clause 8 of the transfer policy provides that no Government Servant shall be ordinarily transferred / deputed unless he has completed his tenure of posting in a place as indicated in the Table, we are concerned with the Group ‘A’ post in the instant case. At the time of introduction of the transfer policy it was three years and now it has been stated to be of two years.
14. Clause 9 of transfer policy provides for premature / delayed transfer. Said Clause 9 is comprising of two parts; one is sub-clause (a), which provides for the recording of reasons by the departmental authority concerned for transferring the 11 Officer prior to the completion of minimum period of stay at one place as prescribed in clause 8. Whereas Clause (b) of Clause 9 reads as under: before effecting “b. However, 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 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.” Department of (Emphasis supplied) 15. The aforesaid clause would disclose that even in case of transfer prior to the completion of minimum period specified in the policy vide Clause 8, prior approval of the Chief Minister is required for effecting such transfer. 12 16. It is in light of the aforesaid policy of transfer, we may further examine as to whether the so called clarification made by order dated 14.06.2013 copy thereof produced by the petitioner with the additional memo can stand and what is its effect thereof.
17. We may record that the said Government order dated 14.06.2013, the translation of which has been provided reads as under: “KARNATAKA GOVERNMENT SECRETARIAT Dept. of Personnel & Administrative Reforms Govt. Order No.DPAR22STR2013 Bangalore dated 14.06.2013 In Govt. Order No.DPAR22STR2013dated 7/6/2013, guidelines have been issued for regulating transfer/ deputation of Government servants. It is hereby ordered to clarify that paragraph 13 9(b) of the said order is not applicable to the general transfer made during the general transfer period. By order and in the name of the Governor of Karnataka, (DEVARAJU) Deputy Secretary to Govt., Dept. of Personnel & Administrative Reforms (Service Rules)” 18. The aforesaid order dated 14.06.2013 provides that paragraph 9 (b) requiring the approval of the Chief Minister will not be applicable in case of the general transfer.
19. At the first blush, one may find that in case of general transfer the approval of the Chief Minister if not insisted or if not required, the same would be for the better administration, but upon further scrutiny it appears that if such a clarification is countenanced or is allowed to stand, the resultant effect is that it would 14 frustrate the basic policy of the transfer of minimum period for the respective Government Servant at one place. Further, there cannot be any second opinion on the aspect that though Government or the competent authority has power to transfer the Government Servant, such power needs to be regulated. One of the mode for regulation of power in the absence of any statutory provision can be, by way of the policy of the Government itself. Therefore, if the transfer is to be effected it has to meet with the test of the policy of the transfer including the exceptional circumstances on account of administration exigencies.
20. In our view, even in respect of general transfer since Clause 4 of the transfer, which has been referred to hereinabove provides for all transfer and deputation subject to the conditions indicated in the order, it would mean that Clause 8, which is for 15 completion of minimum number of years at one place, would apply to all transfer/deputation. Further, reproduction of earlier Clause 7(iii) takes care of the exceptional circumstances of transfer on account of special reasons, but it does provide for the submission of the proposal and prior approval of the Chief Minister, in the same way as in case of premature transfer as referred to in Clause 9(b) for the prior approval of the Chief Minister.
21. If the language of sub-clause (b) of Clause 9 is considered, it provides that; ‘however, before effecting any premature transfer and for making any transfer after the transfer period, and also for extending tenure of a Government servant, prior approval of the Hon’ble Chief Minister is required’. So it takes into consideration three contingencies; (i) any premature transfer; (ii) any transfer after the transfer period and (iii) for extension 16 of tenure of Government Servant. It is true that in the second clause there is reference to the transfer after transfer period, but in the first requirement of premature transfer would mean the transfer prior to the completion of minimum tenure provided in the transfer policy. Therefore, when sub-clause (b) applies to all premature transfer, and the principal object of transfer policy is to regulate the power of transfer by providing minimum period of working as a Government Servant at a particular place, such minimum period needs to be observed irrespective of the fact that whether it is a general transfer or a transfer other than the general transfer. Another aspect is that in sub-clause (b) the language used is: “Any premature transfer and for making transfer after the transfer period and also for extending the tenure of a Government Servant”, 17 meaning thereby the requirement for approval is in respect of all the three contingencies and each contingency is independent in a matter of transfer. Once it has been provided by the express provision of sub-clause (b) of Clause 9 and 7(iii), no clarification whatsoever, was required. In any event, the power for clarification can be exercised for the purpose of any doubt or ambiguity, but such power under the head of clarification cannot be exercised for nullification of the policy itself or even for nullification of the requirement for obtaining prior approval in case of premature transfer.
22. Hence, even if it is considered for the sake of examination that there is any power with the Government to clarify the transfer policy, exercise of power in the present case by the Government order dated 14.06.2013 is resulting into nullifying the 18 principal policy of a transfer dated 07.06.2013, which itself is clear. As such said Government order dated 14.06.2013 cannot come at the rescue of the petitioner for maintaining the transfer order.
23. It is admitted position that in the instant case prior approval of the Chief Minister is not obtained. Further, as per reasons recorded by us hereinabove, the Government order dated 14.06.2013 cannot be read to dilute the principal policy of the Government dated 07.06.2013 for regulating the power of transfer of a Government employee.
24. Apart from the above, the Tribunal has further recorded that there is no justifiable ground demonstrated.
25. In view of the above, we find that the ultimate decision taken by the Tribunal for quashing 19 the transfer order would not call for any interference. However, we do find that Tribunal has further issued direction to respondent No.1 to continue the applicant at the present place until he completes the minimum tenure of two years, which is exceeding the power and such direction would also result in nullifying the power available with the Government to transfer respondent No.2 in the event of any exceptional circumstances arises for transfer, of course such power as per the transfer policy is to be exercised after obtaining approval of the Hon’ble Chief Minister. Therefore, the direction given at paragraph 7 (iii) by the Tribunal cannot stand in the eye of law. Hence, same deserves to be quashed and set aside.
26. Suffice it to observe that if any contingency arises in accordance with law and the policy so permits, respondent No.1 may exercise the power for transfer of 20 any employee including the applicant as per the transfer policy.
27. In view of the aforesaid observation and discussion, the petition is partly allowed to the aforesaid extent. Rule made absolute accordingly. No order as to costs. SD/- JUDGE SD/- JUDGE DR