Karnataka High Court

Sri H M Ravi Kumar vs Superintendent Engineer on 4 January, 2021

Author: M.Nagaprasanna

                              1



       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.
                              2




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.

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

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.

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.

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

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

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

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

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

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.

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.