Karnataka High Court
Smt Kavya K Kora vs The State Of Karnataka on 5 July, 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MRS. JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO.22325 OF 2023 (S-KSAT)
BETWEEN:
SMT. KAVYA K. KORA
W/O PRADEEP KUMAR C.
AGED ABOUT 33 YEARS
WAS WORKING AS SUB-REGISTRAR
OFFICE OF THE SUB-REGISTRAR
B.T.M. LAYOUT
BENGALURU-560 029
... PETITIONER
(BY SHRI. PRITHVEESH M.K., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY
DEPARTMENT OF REVENUE
M.S. BUILDING
BENGALURU- 560 001
2. INSPECTOR GENERAL OF REGISTRATION
AND COMMISSIONER OF STAMPS
8TH FLOOR, KANDAYA BHAVAN
K.G. ROAD, BENGALURU-560 009
3. SRI. BHASKAR S. CHOUR
S/O LATE SIDDARAMAPPA CHOUR
AGED MAJOR
PRESENTLY WORKING AS SUB-REGISTRAR
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OFFICE OF THE SUB-REGISTRAR
B.T.M. LAYOUT
BENGALURU-560 029
....RESPONDENTS
(BY SHRI. B. RAVINDRANATH, AGA FOR R1 & R2;
SHRI. B.O. ANIL KUMAR, ADVOCATE FOR C/R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR
RECORDS FROM THE RESPONDENTS AND THE HON'BLE
TRIBUNAL PERTAINING TO THE IMPUGNED ORDER DATED
22/09/2023 (ANNEXURE-A) AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 27.06.2024 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, ANU SIVARAMAN J.,
PRONOUNCED THE FOLLOWING:
ORDER
The substantial prayers in this writ petition are as follows:-
"(a) CALL for records from the respondents and the Hon'ble Tribunal pertaining to the impugned order dated 22.09.2023 (Annexure - A);
(b) SET ASIDE the impugned Order dated 22.09.2023 passed by the Hon'ble Karnataka State Administrative Tribunal at Bengaluru in Application No.3583/2023 (Annexure - A) AND CONSEQUENTLY DISMISS the said application No.3583/2023 filed by the Respondent No.3 herein before the Hon'ble Tribunal (Annexure- F), in the interest of justice and equity."
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2. The question raised in this writ petition is with regard to the legality of the orders of transfer issued by the first respondent on 30.06.2023 and 06.07.2023, respectively. The third respondent herein was the applicant before the Tribunal. The application was filed challenging Annexure-A5 order dated 30.06.2023, by which the petitioner herein, who was the third respondent before the Tribunal was posted as Sub-Registrar, BTM Layout, Bengaluru as well as Annexure-A6, order dated 06.07.2023, by which, the applicant, the third respondent was posted as Sub-Registrar, Holenarasipura, Hassan District.
3. It is contended by the learned counsel appearing for the petitioner that the petitioner was appointed as Sub- Registrar by direct recruitment on 15.06.2019. She was posted as Additional District Registrar in the Mysore Urban Development Authority on 04.01.2021. By the order impugned by the Tribunal dated 30.06.2023, she was transferred and posted to the place of the third respondent as Sub-Registrar, BTM Layout, Bangalore. It is contended that there were several allegations of financial impropriety
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4 and corruption against the third respondent and on 05.07.2023, the department had passed an order entrusting holding of the inquiry against the third respondent herein to Upa Lokayukta. It is submitted that therefore on 06.07.2023, the third respondent was given a posting as Sub-Registrar, Holenarasipura, Hassan District and required to report for duty immediately. On 07.07.2023, the writ petitioner reported for duty at BTM Layout, Bengaluru and was permitted to join duty. On 07.07.2023, the third respondent had addressed a letter to the Revenue Minister, Government of Karnataka seeking a posting at Hesaraghatta, Bengaluru instead of posting given to him at Holenarasipura, Hassan.
4. It is submitted that without disclosing any of these facts, the application was moved before the Tribunal on 07.08.2023. On 22.09.2023, the Tribunal passed an order impugned herein finding that the transfer of third respondent was a premature transfer, without assigning reasons and without obtaining the prior sanction of the Chief Minister. It is submitted that the only aspect which was
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5 taken note of was that the third respondent had been posted as Sub-Registrar, BTM Layout and had reported for duty only on 28.05.2020 and that the tenure prescribed for a Group 'C' post is 4 years. It was further erroneously held by the Tribunal that since the orders of transfer does not provide any reasons and is not approved by the Chief Minister, the same would not be sustainable.
5. The learned counsel appearing for the petitioner contends that the third respondent had been working at Bangalore itself from the year 2012 onwards. It is submitted that several departmental inquiries had been initiated against the third respondent. It is submitted that there were allegations specifically with regard to financial irregularities committed by him while he was working as Sub-Registrar at the BTM Layout. It is submitted that this fact was not brought to the notice of the Tribunal by the 3rd respondent and it was only on account of suppression of the said material fact that the Tribunal quashed the order of transfer dated 30.06.2023. It is submitted that the State's specific contention that the transfer of the petitioner herein
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6 to BTM Layout was a part of general transfer which was carried out within the time provided for general transfer by the guidelines and that no permission whatsoever was required for the same, was not considered by the Tribunal.
6. The learned counsel appearing for the petitioner relies on the following decisions:-
• Sri. N. Venkatesh v. The State of Karnataka & Others, Order dated 12.12.2023 passed in WP No.23998/2023, Paras 12-14;
• Sri. N. Krishnappa v. The State of Karnataka & Others, Order dated 14.12.2023 passed in WP No.7922/2023, Paras 13-14;
• Sri. K.M. Prasahanth Kumar v. The State of Karnataka & Others, Order dated 20.12.2023 passed in WP No.21643/2023, Para 17;
• Sri. S.R. Harish v. The State of Karnataka & Another, Order dated 20.01.2024 passed in WP No.18062/2023, Paras 17 & 19;
• Gujarat Electricity Board & Another v. Atmaram Sungomal Poshani, reported in (1989) 2 SCC 602, Paras 4 & 6;
• S.K. Nausad Rahaman & Others v. Union of India & Others, reported in (2022) 12 SCC 1, Paras 49 & 51;
• K. Jayaram & Others v. Bangalore Development Authority & Others, reported in (2022) 12 SCC 815, Paras 14 & 15;
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• Mohinder Singh Gill & Another v. The Chief Election Commissioner, New Delhi & Others, reported in (1978) 1 SCC 405;
• Sri. R.S. Pyatigoudar v. The State of Karnataka & Others, Order dated 24.07.2019 passed in WP No.202031/2019 (S-KAT);
• Dr Nagorao Shivaji Chavan v. Dr Sunil Purushottam Bhamre & Others reported in (2019) 13 SCC 788, Paras 6, 8, 9 & 10;
• Sri. B. Ravi v. The State of Karnataka & Others, Order dated 17.11.2015 passed in WP No.44085/2015, Paras 11 & 13;
• Sri. N.S. Chidananda v. The State of Karnataka & Others, Order dated 05.03.2020 passed in WP No.1991/2020, Paras 9 & 10;
• M.S.N. Babu v. Sri. N.S. Chidananda & Others, Order dated 04.12.2020 passed in Review Petition No.113/2020, Para 6;
• Sri. Narahari K.R. v. Karnataka Electricity Supply Company Limited & Others, Order dated 23.04.2021 passed in WP No.6356/2021, Para 11;
• Sri. B.V. Umesh v. The Commissioner of Excise & Others, Order dated 13.09.2017 passed in WP No.38142/2017, Paras 5 & 6;
• Smt. Aruna Kumari v. The State of Karnataka & Others, Order dated 20.07.2021 passed in WP No.13025/2021, Paras 3 & 4; and
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• Smt. R. Prabhavathi v. The State of Karnataka & Others, Order dated 28.11.2013 passed in WP No.44373/2013, Paras 8 to 10.
7. The learned counsel appearing for the third respondent submits that the pendency of the criminal cases or departmental inquiries against the third respondent was not a matter which was pleaded before the Tribunal by any of the parties. It is submitted that it was not on account of such disciplinary proceedings or criminal cases that the third respondent was transferred out from Bengaluru and no such reason was available or stated by the respondents. It is submitted that it is only at the stage of this writ petition that such contentions are being raised for the first time by the petitioner and that the Tribunal had no occasion to consider any such contentions.
8. The learned Government Advocate appearing for the officials respondents submits that third respondent is a person, who was working since 2012 in Bangalore itself. It is stated that it is the specific case of the State Government that the transfer order dated 30.06.2023 was an order of
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9 general transfer and that there was no issue of premature transfer at all. It is further submitted that in a case of transfer on public interest or administrative exigencies no permission is required and such transfer was liable to be permitted on the ground of public interest.
9. We have considered the contentions advanced on all sides. It is specifically contended by the learned counsel appearing for the petitioner that there were admittedly disciplinary proceedings and criminal proceedings pending against the third respondent. It is submitted that it was specifically with regard to financial irregularities committed by the third respondent while he was holding the post of Sub-Registrar, BTM Layout that a disciplinary proceeding was initiated against him on 05.07.2023. It is further submitted that the petitioner was a person who had suffered serious medical ailments and the Government is enabled to grant favourable posting orders in case of necessity in such cases. It is further contended that the petitioner had sought a posting in Bangalore on account of the fact that her husband is working in Bangalore and on the ground of
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10 serious medical ailments which was considered by the Government which is totally permissible in terms of the transfer guidelines as well. It is further contended by the learned counsel for the petitioner that in a case covered by clause 6 of the transfer guidelines, the operation of clause 9 thereof stands specifically excluded and there would be no illegality in the transfer.
10. Having considered the contentions advanced, we notice that the fact that there are several disciplinary proceedings and a criminal case pending against the third respondent is not disputed by the third respondent. The fact that a disciplinary inquiry has been entrusted to Upa Lokayukta by the Government as against the third respondent on 05.07.2023 is also not specifically denied. It is the contention that it is in respect of financial irregularities committed while the third respondent was working in BTM Layout that the said inquiry has been directed to be conducted is also not denied. The contention that the third respondent had been working since 2012 in Bengaluru itself and that he had approached the Revenue Minister seeking
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11 an accommodation in any of the posts in Bengaluru is also not in dispute.
11. In the above factual situation, we find that the State was justified in exercising its power to transfer out a person who was facing disciplinary proceedings in respect of financial irregularities committed while he was in service as Sub-Registrar in the BTM Layout. The same cannot be said to be an illegal exercise of power.
12. Clause 6 of the transfer guidelines dated 07.06.2013, reads as follows:-
"6. Responsibility of Competent Authority: The Competent Authority, while effecting transfers/deputations or giving postings may further ensure that.-
(a) The Government servant against whom there are serious charges and against whom departmental proceedings/criminal proceedings are initiated or pending or prosecution is being contemplated, shall not be posted to sensitive/executive posts and should be posted to non-executive posts where they cannot interfere with the investigations against them.
Further, a Government servant against whom a departmental enquiry/criminal case is pending
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should not be deputed to a post on his request."
13. This Court in R.S. Pyatigoudar v. The State of Karnataka & Others, by order dated 24.07.2019 in W.P.No.202031/2019 (S-KSAT) has held as follows:-
"6. xxxxx The question is whether the reasons have to be adverted to in the order of transfer itself or even on plain looking to the circumstances, the Court can infer that the reasons are available for the transfer. If apparently reasons are available, the Court should not interfere in such transfers."
14. Further, in Sri. S.R. Harish v. The State of Karnataka & Another, by order dated 20.01.2024 in W.P.No.18062/2023 (S-KSAT), a co-equal bench of this Court held as under:-
"19. It is not in serious dispute that there are serious allegations against petitioner herein for which by order dated 08.06.2023 suspension order was issued by the Government. When there are serious allegations against him of misappropriating Rs.3.6 crores as mentioned in order of the Tribunal in application No.2272/2023 dated 02.11.2023, 1st respondent should not have transferred him to such an Executive place. However, ignoring its own
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guidelines dated 07.06.2013, he has been transferred vide Annexure-A2.
20. The learned senior counsel for petitioner has relied on the case of BPL limited and others Vs. R. Sudhakar and others [(2004) 7 SCC 219]. The principle of law laid down in the said judgment is not applicable to the facts of the present case. According to the submission of learned Senior counsel, since the order of suspension is stayed it has no effect on the transfer order. It is pertinent note that, during the pendency of this case, the Tribunal has dismissed the application No.2272/2023 dated 02.11.2023. Therefore, the said order of stay was automatically ceases to operate after disposal of the said application."
15. In the instant case, we notice that it was a specific case of the official respondents before the Tribunal that the first of the orders impugned i.e., Annexure-A5 produced before the Tribunal was an order of general transfer and that the same did not require any specific reasons to be stated or approval to be obtained from the Chief Minister. It appears that six persons were transferred by the said order. It is also contended that the transfer of the writ petitioner was permissible under the guidelines
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14 since the transfer was on medical grounds as well as to join spouse at Bengaluru. Further, it is contended that the said order of transfer has been fully given effect to before the application was moved by the third respondent. The third respondent, who was facing disciplinary inquiries, had been moved out by Annexure-A6 order. He apparently had approached the concerned Minister for favourable posting orders. The fact that the third respondent has been working continuously in Bengaluru since 2012 and that there are disciplinary proceedings pending against him specifically with regard to his conduct while working as Sub-Registrar, BTM Layout, Bengaluru, are not under dispute.
16. In the above circumstances, we are of the opinion that the finding of the Tribunal that the orders of transfer were bad in law since they did not contain reasons for prematurely transferring the third respondent out is unjustifiable. In a case like the instant one, where the third respondent had been working as Sub-Registrar since 2012 in different offices within the city of Bengaluru itself and where he has obviously been moved out on account of the
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15 disciplinary proceedings pending against him, we are of the opinion that this was a fit case where the Tribunal ought to have declined jurisdiction. Further, the necessity for recording of the reasons for a premature order as provided in clause-9 cannot apply in a case of this nature. We are of the opinion that had the true facts of the matter been brought to the notice of the Tribunal, the outcome of the application would have been totally different.
17. We are in total agreement with the judgments of the co-equal benches of this Court in that regard. We are therefore of the opinion that the order of the Tribunal insofar as it set aside the orders of transfer of the third respondent was completely unjustified.
18. Accordingly, we pass the following:
ORDER
(i) The writ petition is allowed.
(ii) The order of the Tribunal in Application No.3583 of 2023 dated 22.09.2023 shall stand set aside.
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(iii) The Application No.3583 of 2023 is dismissed.
Pending I.A.No.3/2023 for vacating stay is hereby dismissed.
Sd/-
JUDGE Sd/-
JUDGE cp*