The Karnataka High Court allowed a writ petition, filed under Articles 226 and 227 of the Constitution of India, praying to issue a writ, order, or direction, in the nature of certiorari by quashing the transfer order dated 03.07.2023 issued by Respondent no. 2. The Court observed that when there was no vacancy of the post, respondent No.4 could not have been transferred to the said post by respondent No.2.
Brief Facts:
The petitioner, who is working as Junior Engineer in the respondent - Corporation was transferred to the Sub-Division, Sirigeri Cross Station, Shiraguppa, Kalaburagi District as a Junior Engineer with effect from 17.05.2022. Thereafter, the impugned order was passed on 03.07.2023 transferring respondent No.4 to the post of petitioner at Sub-Division, Sirigeri Cross Station, Shiraguppa, Kalaburagi District. Being aggrieved by the said order dated 03.07.2023, the petitioner is before this Court.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that the impugned order of transfer is premature in nature. He also submitted that Respondent No.2 was not justified in transferring Respondent No.4 to the petitioner's place without giving an alternative posting to the petitioner. He submitted that for mala fide reason, the transfer order is passed. Respondent No.4 who was earlier working in the very same place is now brought back to the said place by Respondent No.2.
Contentions of the Respondent:
The Learned Counsel for the Respondent argued in support of the impugned order and submitted that respondent No.4 reported to duty subsequent to the impugned order of transfer and the petitioner has been relieved with effect from 10.07.2023. He submitted that even prior to this Court granting an interim order on 11.07.2023, respondent No.4 reported to duty and therefore, nothing survives in the petition. He argued that there were allegations of misconduct against the petitioner and considering the same, respondent No.4 was transferred to the post of petitioner.
Observations of the Court:
The Court noted that from a reading of the impugned transfer order, it is seen that respondent No.4 was transferred to the post which was then held by the petitioner. However, no posting was assigned to the petitioner.
The Court observed that any transfer order issued without giving a posting to the transfer candidate cannot be sustained. Further, the Court said that once the order of transfer is found to be illegal, the necessary consequences concerning the post will have to be restored to the original place; unless there is a vacancy, there cannot be a transfer to the said post. Hence, the Court concluded that in the present case, the petitioner has not been given any posting and on the other hand, respondent No.4 is transferred to his post. When there was no vacancy of the post, respondent No.4 could not have transferred to the said post by respondent No.2.
The decision of the Court:
The Karnataka High Court, allowing the petition, held that the impugned order of transfer insofar as it relates to transferring respondent No.4 to the post of petitioner requires to be quashed.
Case Title: U. Keshava vs The Managing Director & Ors.
Coram: Hon’ble Justice S. Vishwajith Shetty
Case no.: WRIT PETITION NO. 104143 OF 2023 (S-TR)
Advocate for the Petitioner: Mr. Mrutyunjaya S Hallikeri
Advocate for the Respondents: Mr. B S Kamate
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