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Abdul Basheer Vs. State of Karnataka and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtKarnataka High Court
Decided On
Case NumberW.P. No. 7783 of 1984
Judge
Reported inILR1985KAR298
ActsKarnataka Civil Service Rules, 1958 - Rule 20A; Constitution of India - Article 309
AppellantAbdul Basheer
RespondentState of Karnataka and ors.
Appellant AdvocateK.S. Savanur, Adv.
Respondent AdvocateS.V. Narasimhan, HCGP
DispositionPetition dismissed
Excerpt:
.....these memorandums must be read as no more than guidelines and if they interfere with the power of transfers as such, then they are opposed to the provisions of the rules -- .the official memorandums are not executive orders. more so, when the official memorandum itself makes it clear that it is issued only as clarificatory of the doubts felt by some of the subordinate officers of the government. what it lays down is the policy of the government in the matter of transfer of officials and no more. in any event, assuming it to be an executive order, an executive order cannot have the effect of superseding or amending the rule made in exercise of the legislative power of the governor under the proviso to article 309 of the constitution. - karnataka value added tax act, 2003 [k.a...........one on which he strongly relies upon is dated 11-3-1983, a copy of which is at annexure-e.2. these official memorandums have fallen for consideration before this court in a number of other cases earlier. this court has taken the view that these are no more than declarations of policy and governs the relationship between the government at the higher level and the other subordinate officers who have the power to make transfers. it has also been held by this court that these do not confer anystatutory right on the employees to stay for any particular length of time at a particular place of posting in view of the minimum and maximum periods stated in the memorandums. on that score this petition is liable to be rejected.3. however, mr. savanur, learned counsel drew my attention to the.....
Judgment:
ORDER

Chandrakantaraj Urs, J.

1.This Petition is directed against the transfer order dated 18-4-1983 by which the Petitioner has been transferred from Ramnagar to Nagamangala. He is an employee of the*W.P. No77783 of l984 Dated 31at July 1984Department of Industries and Commerce. He holds the post of Assistant Training Instructor at the Artisan Training Centre, Ramanagar. The said order is said to be illegal and therefore not enforceable against him inasmuch as it is opposed to the policy enunciated by the Government in what purports to be the clarification circular issued by the Chief Secretary to the Government .Such clarifications have been issued from time to time, the one on which he strongly relies upon is dated 11-3-1983, a copy of which is at Annexure-E.

2. These Official Memorandums have fallen for consideration before this Court in a number of other cases earlier. This Court has taken the view that these are no more than declarations of policy and governs the relationship between the Government at the higher level and the other subordinate officers who have the power to make transfers. It has also been held by this Court that these do not confer anystatutory right on the employees to stay for any particular length of time at a particular place of posting in view of the minimum and maximum periods stated in the memorandums. On that score this Petition is liable to be rejected.

3. However, Mr. Savanur, Learned Counsel drew my attention to the decision of the Supreme Court in the case of State of Uttar Pradesh vs . Chandramohan : (1978)ILLJ6SC . It has been observed therein that if instructions of the Government in any form do not violate any provision of the Act or of the Rules which fell for consideration before the Supreme Court, then those instructions should be held to be binding on the Government, It was so stated having regard to the rigour of the Rule and the object of the instructions which was to eliminate that rigour.

4. That is not the case here. Transfer from one post to another or one place to another is incidental to the services under the State. Rule 20A of the Karnataka Civil Services1. : (1978)ILLJ6SC Rules makes it abundantly clear. Therefore, these memorandums must be read as no more than guidelines and if they interfere with the power of transfers as such, then they are opposed to the provisions of the Rules.

5. Learned Counsel has further contended that the Official Memorandum has the same force as the Rule because it is an order made by the State Government in exercise of its Executive power under Article 162 of the Constitution.

6. I do not acceded to the proposition that the Official Memorandums are Executive Orders. More so, when the Official Memorandum itself makes it clear that it is issued only as clarificatory of the doubts felt by some of the subordinate officers of the Government . What it lays down is the policy of the Government in the matter of transfer of officials and no more. In any event, assuming it to be an Executive order, an Executive order cannot have the effect of superseding or amending the Rule made in exercise of the Legislative power of the Governor under the proviso to Article 309 of the Constitution.

7. Therefore, the reliance placed upon by the Learned Counsel on the Supreme Court decision has no application to the facts of this case. Therefore, there is no infirmity in the transfer order and the Petition is liable to be rejected and it is so rejected.

8. It must be however noticed that the Petitioner made a representation to the Government and the Government rejected that representation with observation that the Petitioner has stayed at Ramanagar for more then 10 years and therefore his desire to continue in the same place further could not be acceded to for two reasons : One being his length of service at Ramanagar station and the other being that the other incumbent had already reported for duty. I think, the Government was justified in giving those reasons for rejecting his representation,

9. In the result, I do not find any infirmity even in the second order of the Government rejecting the representation of the Petitioner.

10. Petition Dismissed. No costs.


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