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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.13168/2020 (S - RES)
BETWEEN
SRI H.M.RAVI KUMAR
S/O LATE MUDLIGIRAIAH,
AGED 44 YEARS,
PRESENTLY WORKING AS
JUNIOR ENGINEER,
JIGANI KIADB SECTION
JIGANI, BENGALURU - 560 105
R/AT NO.1863, 2ND CROSS,
24TH MAIN, NISARGA LAYOUT,
HARAPANAHALLI JIGANI,
BENGALURU - 560 105.
... PETITIONER
(BY SRI CHANDRASHEKAR L., ADVOCATE (PHYSICAL HEARING))
AND
1. SUPERINTENDENT ENGINEER
BENGALURU ELECTRICITY
SUPPLY COMPANY LIMITED
(COMMERCIAL WORKS
AND SUPPLY CIRCLE)
BENGALURU SOUTH CIRCLE,
NO.14/3, 3RD FLOOR,
ARVIND BHAVAN, CFC BUILDING,
NRUPATUNGA ROAD,
BENGALURU - 01.
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2. SRI KIRAN R.,
S/O NOT KNOWN TO THIS PETITIONER,
AGED ABOUT 35 YEARS,
WORKING AT
SURYANAGARA SECTION,
CHANDRAPUR SUB-DIVISION,
ANEKAL TALUK,
BENGALURU - 560 099.
... RESPONDENTS
(BY SRI H.SHANTHI BHUSHAN, ADVOCATE FOR R1 (VIDEO
CONFERENCING);
SRI THYAGARAJA S., ADVOCATE FOR R2 (VIDEO
CONFERENCING))
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 5.11.2020 PASSED BY THE R-1 (COMMUNICATED
TO THE PETITIONER ON 12.11.2020) PRODUCED AT ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner in this writ petition has called in question the order of transfer dated 05.11.2020, passed by the first respondent - Bengaluru Electricity Supply Company Limited, transferring the petitioner from Chandapura to Jigani as Junior Engineer.
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2. Heard Sri Chandrashekar L., learned counsel for petitioner, Sri H. Shanthi Bhushan, learned counsel for first respondent, Sri Thyagaraja S., learned counsel for second respondent and perused the material on record.
3. Transfer of employees in the first respondent is governed by the Transfer Guidelines of the Government notified through its government Order dated 07.06.2013, since it is adopted mutatis mutandis to regulate the transfer of its employees. In terms of the Government Order, the minimum tenure of an employee in Group 'C' is four years. The petitioner is in the cadre of Junior Engineer which is a Group 'C' post and is entitled to continue in a place of posting for a minimum tenure of four years.
4. The petitioner was transferred as Junior Engineer to Chandapura Sub-division, Suryanagar Section, Bengaluru, on 20.03.2018. When the petitioner was working at Chandapura, he was again transferred on 19.10.2020, to Jigani. Pursuant 4 to the said order of transfer, the petitioner assumed charge of the post of Junior Engineer at Jigani on the same day i.e., on 19.10.2020. Barely after 15 days of the assumption of the charge of the petitioner, he was again transferred back to his original place - Chandapura, wherein he had reported to duties only on 19.10.2020. It is this order that is called in question by the petitioner.
5. Learned counsel for the petitioner submits that he had requested the said place of posting in the light of the fact that he has visually disabled daughter who studies in Christ Academy at Jigani and travelling from Chandapura to Jigani was causing immense hardship to the visually disabled daughter who has visually disability to the tune of 75% and would also contend that he had assumed charge of the post on 19.10.2020 and had an entitlement to continue for a period of 4 years in terms of the guidelines.
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6. Learned counsel for the first respondent submits that the subsequent order of transfer dated 05.11.2020, had to be issued in the light of the fact that both the petitioner and the second respondent had not completed their minimum tenure in their respective places. He would submit that considering this fact, the petitioner and the second respondent were posted back to their respective places.
7. In terms of Clause 8 of the Government Guidelines dated 07.06.2016, the minimum tenure of a Group 'C' Officer is 4 years at a post. The petitioner assumed charge of the post pursuant to the order of transfer dated 19.10.2020. In terms of the operative guidelines, petitioner being a Group 'C' employee is entitled to continue in the post except in terms of Clause 9 of the guidelines upto 4 years from the date of assumption of the charge. The impugned order of transfer which is issued barely after 15 days of the petitioner assuming charge is contrary to the operative guidelines. 6
8. The said guidelines have been held to have a statutory force by the judgment rendered by a Full Bench of this Court in the case of S.N.GANGADHARAIAH VS. STATE OF KARNATAKA reported in ILR 2015 KAR 1955, which affirms the earlier Full Bench decision in the case of H.N.CHANDRU VS. STATE OF KARNATAKA reported in 2011 (3) KLJ 562, wherein, this Court has held that transfer from one place to another even within the same head quarters to be a transfer in terms of the guidelines. Several learned Division Benches of this Court have held that premature transfer of a government servant, if it is not in compliance with Clause 9(1) of the Guidelines would be vitiated. This is the law laid down by the learned Division Bench of this Court in the case of RAJASHEKAR M. Vs. STATE OF KARNATAKA reported in 2019 (1) AIR Kant R 489, which read as follows:
"1. Whether the Chief Minister has absolute discretion under Government Order No.DPAR22 STR 2013, Bangalore, dated 07.06.2013 to give prior approval for 7 premature/delayed transfers referred to in para 9 thereof ? This is the question that require sto be answered in this petition and it is answered in the negative. Under para 9(b)of the aforesaid Government Order, the Chief Minister, on perusal of the reasons recorded by the Competent Authority, may give his prior approval for premature/delayed transfer of a Government servant, only if he is satisfied that the case would fall under any of the circumstances stated in para 9(a)(i) to
(viii) of the Government Order."
The aforesaid issue has been answered at paragraph Nos.6 and 7, following the judgment of the Full Bench in the case of GANGADHARIAH S.N. (supra), which reads as follows:
"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 8 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 reason shave 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 9 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. "In terms of the law laid down by the learned Division Bench, a premature transfer will have to be in compliance of clause 9 of the guidelines which mandates recording the reasons by the competent authority and the Hon'ble Chief Minister approving the same. Both 10 these acts should mandatorily precede the order of transfer. Both these circumstances are not complied with by the State Government in the instant case. Thus, the order dated 20.9.2019 was contrary to guidelines and the Tribunal ought to have interfered with the order of transfer." In terms of the law laid down in the afore-extracted judgment of the learned Division Bench of this Court, the transfer of the petitioner from Jigani back to Chandapura is contrary to the guidelines that govern the transfer in the first respondent - KPTCL and is thus, unsustainable.
9. It is also to be noticed that the petitioner had himself sought transfer to Jigani in the light of the fact that his daughter who is 75% disabled had secured admission at Christ Academy, Jigani and travelling from Chandapura to Jigani would have caused immense hardship to the disabled daughter of the petitioner. Therefore, the impugned order of 11 transfer is not only contrary to the operative guidelines but also results in extreme hardship to the petitioner.
10. Learned counsel for second respondent submits that the petitioner had voluntarily handed charge and assumed the charge of the post at Chandapura on 05.11.2020 and the petitioner has filed the writ petition only on 13.11.2020 and is estopped from challenging the order of transfer.
11. This submission is unacceptable as admittedly the petitioner had not completed his minimum tenure under the guidelines. Accepting the order of transfer as an obedient Board employee cannot be an impediment for the petitioner to raise a challenge to the order of transfer. Therefore, the following :
ORDER a. The writ petition is allowed.
b. The impugned order dated 05.11.2020, passed by the first respondent is quashed.12
c. Consequentially, the petitioner be permitted to continue as Junior Engineer at Jigani, where he was posted to as per the transfer order dated 19.10.2020.
d. The first respondent to accommodate the second respondent to any place of his choice nearby.
Sd/-
JUDGE nvj CT:MJ