1 ® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE16H DAY OF SEPTEMBER, 2016 PRESENT THE HON'BLE MR. JUSTICE JAYANT PATEL AND THE HON’BLE MR. JUSTICE S.N.SATYANARAYANA WRIT PETITION NO.48499/2016(S-KAT) BETWEEN: MISS. SEEMA H. D/O H.K.MARISWAMY AGED ABOUT30YEARS WORKING AS ASSISTANT CONSERVATOR OF FORESTS & TECHNICAL ASSISTANT TO DEPUTY CONSERVATOR OF FORESTS CHIKKAMAGALUR SUB-DIVISION CHIKKAMAGALUR-577 101 ... PETITIONER (By SRI.M.S.BHAGWAT, ADV., & SRI K. SATHISH, ADV., ) AND:
2. THE STATE OF KARNATAKA DEPARTMENT OF FOREST, ENVIRONMENT AND ECOLOGY, REPRESENTED BY ITS PRINCIPAL SECRETARY, DR AMBEDKAR VEEDHI, M.S.BUILDING, BANGALORE - 560 001. THE PRINCIPAL CHIEF CONSERVATOR OF FOREST OFFICE OF THE PRINCIPAL CHIEF CONSERVATOR OF FOREST, 3.
4. 2 ARANYA BHAVAN, 18TH CROSS, MALLEShWARAM, BANGALORE - 560 003. THE STATE OF KARNATAKA DEPARTMENT OF RURAL DEVELOPMENT & PANCHAYAT RAJ, REPRESENTED BY ITS PRINCIPAL SECRETARY, DR. AMBEDKAR VEEDHI, M.S.BUILDING, BANGALORE - 560 001. SRI E H SATYANARAYAN S/O NOT KNOWN, MAJOR, WORKING AS ASSISTANT CONSERVATOR OF FORESTS, BRUHAT BANGALORE MAHANAGARA PALIKE, SUB DIVISION - 1, BANGALORE. ... RESPONDENTS (By Sri H.T.NARENDRA PRASAD, AGA FOR R1 TO R3, SRI S.G. PANDIT, ADV., FOR R4) THIS W.P. IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS PERTAINING TO APPLICATION NO.7460/2016; QUASH THE IMPUGNED JUDGEMENT & ORDER
DATED2408.2016 PASSED IN APPLICATION NO.7460/2016 BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL (ANNEX-A) AND CONSEQUENTLY ALLOW THE SAID APPLICATION NO.7460/2016 FILED BY THE PETITIONER BEFORE THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL AS PRAYER FOR. THIS WP COMING ON FOR PRLY. HEARING, THIS DAY, JAYANT PATEL J, MADE THE FOLLOWING:
Mr.H.T.Narendra Prasad, AGA, appears for respondents No.1 to 3 and waives notice of Rule. Mr.S.G.Pandit, learned counsel, appears for respondent No.4 and waives notice of Rule.
2. With the consent of learned advocates appearing for both the sides, the petition is finally heard.
3. The present petition is directed against the order dated 24.08.2016 passed by the Tribunal whereby the Tribunal for the reasons recorded in the order has dismissed the petition.
4. The short facts of the case appears to be that the petitioner-Miss. Seema H. was appointed as Assistant Conservator of Forest during August, 2011. Thereafter, the petitioner was posted as Assistant Conservator of Forest, Hassan on 13.08.2013 and she continued at the said place till 05.05.2014. It appears that, on 19.05.2014, she was posted as Assistant 4 Conservator of Forest, Kolar and she continued till 11.08.2014. There was time gap in between and then on 12.02.2015, the petitioner was posted as Assistant Conservator of Forest, Madikeri and there she worked up to 27.08.2015. Again on 25.08.2015, the petitioner was posted as Assistant Conservator of Forest, Chikkamagalur and she took over the charge as Assistant Conservator of Forest on 27.08.2015. The petitioner filed a complaint against one M.S.Manik, Deputy Conservator of Forests, for sexual harassment and the competent Committee did not give any concluded finding but recommended for transfer of Officers. The petitioner was transferred from the post of Assistant conservator of Forest to the Executive Officer and her services were placed at the disposal of Rural Development and Panchayat Raj but there was no clear posting of the petitioner at a particular place. Under the circumstances, the petitioner approached the Tribunal challenging the said transfer order dated 16.08.2016. The Tribunal found that the transfer order is passed after approval of the Chief Minister and 5 therefore, the Tribunal did not interfere with the transfer order and ultimately the petition was dismissed. Under the circumstances, the present petitioner is before this Court.
5. We have heard Mr.M.S.Bhagwat, learned counsel appearing for the petitioner and Mr.H.T.Narendra Prasad, learned AGA for respondents-1 to 3 and Mr.S.G.Pandit, learned counsel appearing for respondent No.4.
6. There are two serious infirmities in the transfer order. One is that when the petitioner is transferred from the post of Assistant Conservator of Forest, there is no clear posting order at a particular post of the petitioner. Unless the petitioner is lifted from one place and posted at another place, it cannot be said that any vacancy has arisen of the petitioner and such an exercise of the power cannot be appreciated even if one keeps in mind the administrative circumstances for the public interest as the case may be. It is hardly required to be stated that when ‘A’ is posted in place of ‘B’ from one place to another then 6 only there will be a vacancy of ‘A’ and ‘B’ can be posted at the place of ‘A’. If ‘A’ is lifted and his posting is kept in lurch and ‘B’ is posted vice-A such practice cannot be appreciated and deserves to be rather deprecated and the reason being that the officer who is lifted from one place is not certain at which place he has to join the duty and unless he joins the duty at different place, it cannot be said that vacancy in law had arisen at his original place. So long as there is no vacancy at the original place, the question of posting is without any foundation. Hence, the said transfer order can be said to be with the exercise of legal malafide.
7. Apart from the above, one of the important aspect is that the petitioner is a lady officer who made complaint against one Mr.Manik for sexual harassment. It is true that the competent Committee did not give any finding for the action to be taken but instead Mr.Manik being transferred to the other place, the petitioner is picked up for transfer, which can be said to on administrative ground. It can be rather be said that 7 the petitioner was made to file the complaint against her supervisor itself since she was victimized. In our view, taking into consideration the aforesaid two circumstances, it is a case for interference with the transfer order. However, the Tribunal lost sight of the said aspects and did not interfere with the order of the transfer just because of the Chief Minister’s approval. We need to record the approval of the Chief Minister though may be one of the requirement but thereby, if there is any other requirement for the transfer order, the same also needs to be examined. If the Tribunal finds that the transfer order is either by way of victimization or exfacie with legal malafide or otherwise it would be a case for interference. Since the aforesaid aspects were not considered by the Tribunal, we find the impugned order passed by the Tribunal as well as the order for transfer of the petitioner deserves to be interfered with. Once the transfer order of the petitioner is found to be illegal, the necessary consequence posting of the petitioner will have to be restored at the original place 8 i.e., the Assistant Conservator of Forest. It has been stated that when the petitioner and another Officer-respondent No.4 has already taken over the charge. In these circumstances, the said Officer will have to be shifted to another place. We had called upon learned AGA to enquire and report this Court as to whether the post of Assistant Conservator of Forest is vacant where the respondent No.4 can be accommodated.
8. Learned AGA under the instructions of the Under Secretary of the Forest Department, declared before us that the respondent No.4 can be posted as Assistant Conservator of Forest, Kolar or as the Assistant Conservator of Forest, Shivamogga since vacancy are available there. So far as the place at which respondent No.4 was earlier working as Assistant Conservator of Forest, Bruhat Bangalore Mahanagara Palike (for short ‘BBMP’) is concerned, it was stated that he has already completed three years and further, at his place another Officer has already been posted. Hence, 9 he cannot be re-posted as Assistant Conservator of Forest, BBMP.
9. As such, where to post respondent No.4 is a domain of the administration. However, since as a consequence of the interference to the transfer order the situation has been created and it has been declared on behalf of respondents No.1 to 3-State that at two places the posts are vacant, we find that the appropriate orders for posting of respondent No.4 either at Shivamogga or at Kolar, if found appropriate by respondents-State Government may be passed.
10. In view of the aforesaid observations and discussions, the impugned order passed by the Tribunal as well as the transfer order for transferring the petitioner from the post of Assistant Conservator of Forest, Chikkamagaluru, is set aside. It is further observed and directed that by virtue of the present order, the petitioner would be entitled to work as Assistant Conservator of Forest, Chikkamagaluru, where respondent No.4 is presently working. So far as 10 respondent No.4 is concerned, he would be required to be posted as Assistant Conservator of Forest either at Shivamogga or Kolar or any other place as may be ultimately finalized by the State Government. The effect of the present order to be given within a period of two weeks from today.
11. It is made clear that the observations made by this Court in the present judgment are limited to the impugned transfer order. However, the present order shall not operate as a bar to the State Government for any future transfer or posting of the petitioner in accordance with law. Petition is allowed to the extent above.
12. Before parting with, we would find it appropriate to observe that in number of cases it is found by this Court that the transfer order is passed in a manner that one Officer is lifted from one post but it is not clarified about his next posting and he is expected to approach before the concerned Department for appropriate posting and another Officer vice him is 11 already posted. This practice would keep the Officer in lurch about his next posting even he is to be transferred. Such practice is deprecated by the Court in this matter as well as in other matters. A reference may be made to the order passed by this Court in W.P.No.39438/2016 disposed of on 19.08.2016 and W.P.No.43919/2016 disposed of on 23.08.2016. Hence, in order to ensure that appropriate mechanism is worked out, the registry shall forward the copy of the order to the Chief Secretary of the State Government to look into the matter and to take suitable action. Rule made absolute accordingly. No order as to costs. Sd/- JUDGE TL Sd/- JUDGE