Karnataka High Court
Sri D.Naveen vs State Of Karnataka on 10 November, 2021
Author: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2021 R
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.8952/2021 (S - TR)
C/W
WRIT PETITION No.5399/2021 (S - TR)
IN WRIT PETITION No.8952/2021
BETWEEN:
SRI D.NAVEEN
S/O SRI DEVENDRAPPA A.G.,
AGED ABOUT 35 YEARS,
ASSISTANT ENGINEER (ELE),
PIN 15941, BESCOM,
VARTHUR (O AND M )UNIT,
E-43, SUB-DIVISION, WHITEFIELD,
BENGALURU - 560 066.
... PETITIONER
(BY SRI D.R.RAVISHANKAR, ADVOCATE (VIDEO
CONFERENCING))
AND:
1. STATE OF KARNATAKA
DEPT. OF ENERGY,
VIKASA SOUTHA,
BENGALURU - 560 001.
REPRESENTED BY ITS
2
UNDER SECRETARY.
2. THE KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED
KAVERI BHAVAN / K.G.ROAD,
BENGALURU - 560 009.
REPRESENTED BY ITS
MANAGING DIRECTOR.
3. THE GENERAL MANAGER (STAFF)
KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED,
KAVERI BHAVAN / K.G.ROAD,
BENGALURU - 560 009.
4. THE BENGALURU ELECTRICITY
SUPPLY COMPANY
K R CIRCLE,
BENGALURU - 560 009.
REPRESENTED BY ITS
MANAGING DIRECTOR.
5. THE GENERAL MANAGER (A AND HRD)
BESCOM, K.R. CIRCLE,
BENGALURU - 560 009.
6. THE EXECUTIVE ENGINEER (ELE)
WHITEFIELD DIVISION, BESCOM,
WHITEFIELD, BENGALURU - 560 066.
7. THE ASSISTANT EXECUTIVE ENGINEER (ELE)
E-4, SUB DIVISION, BESCOM,
WHITEFIELD, BENGALURU 560 066.
8. SRI S.MAHADEV
S/O. SHIVALINGAIAH,
ASSISTANT ENGINEER (ELE),
PIN 15941, BESCOM,
VARTHUR (O AND M) UNIT,
E-4, SUB DIVISION,
3
BESCOM, WHITEFIELD,
BENGALURUL 560 066.
... RESPONDENTS
(BY SMT.M.C.NAGASHREE, AGA FOR R1 (PHYSICAL
HEARING)
SRI B.C.SEETHARAM RAO, ADVOCATE FOR
SRI ANUP SEETHARAM, ADVOCATE FOR R8 (VIDEO
CONFERENCING)
MS.RAKSHITHA D.J., ADVOCATE FOR R2 TO R7
(PHYSICAL HEARING))
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
ANNEXURE-J THE ORDER OF RETENTION OF THE 8TH
RESPONDENT DATED 12.3.2021 ISSUED BY THE 4TH
RESPONDENT AND ALSO THE ANNEXURE-K TRANSFER OF
THE PETITIONER VIDE TRANSFER ORDERS DATED
5.4.2021 ISSUED BY THE 2ND RESPONDENT AND ETC.,
IN WRIT PETITION No.5399/2021
BETWEEN:
SRI NAVEEN D.,
S/O SRI DEVENDRAPPA A.G.,
AGED ABOUT 35 YEARS,
ASSISTANT ENGINEER (ELE),
PIN 15941, BESCOM,
VARTHUR (O AND M) UNIT,
E-4, SUB DIVISION,
WHITEFIELD, BENGALURU - 560 066.
AND:
NO. 314/16, SAI MEADOW'S ROAD,
GOKULAM LAYOUT, SAI COLONY,
BELLATHUR, KADUGODI,
4
BENGALURU - 560 067.
... PETITIONER
(BY SRI D.R.RAVISHANKAR, ADVOCATE (VIDEO
CONFERENCING))
AND:
1. STATE OF KARNATAKA
DEPT. OF ENERGY,
VIKASA SOUDHA,
BENGALURU 560 001,
REPRESENTED BY ITS
UNDER SECRETARY.
2. KARNATAKA POWER TRANSMISSION
CORPORATION LTD.,
KAVERI BHAVAN,
K.G. ROAD, BENGALURU - 560 009,
REPTD. BY ITS MANAGING DIRECTOR.
3. THE GENERAL MANAGER (STAFF)
KARNATAKA POWR TRANSMISSION
CORPORATION LTD.,
KAVERI BHAVAN,
K.G.ROAD,
BENGALURU - 560 009.
4. BANGALORE ELECTRICITY
SUPPLY COMPANY LTD.,
COMPANY OFFICE, K.R.CIRCLE,
BENGALURU - 560 009,
REPTD. BY ITS MANAGING DIRECTOR.
5. THE GENERAL MANAGER (A AND HRD)
BANGALORE ELECTRICITY
SUPPLY COMPANY LTD.,
COMPANY OFFICE,
K.R.CIRCLE,
BENGALURU - 560 009.
5
6. THE EXECUTIVE ENGINGEER (ELE)
WHITEFIELD DIVISION, BESCOM,
WHITEFIELD, BENGALURU - 560 066.
7. THE ASSISTANT EXECUTIVE ENGINEER (ELE)
E-4, SUB DIVISION, BESCOM,
WHITEFIELD, BENGALURU - 560 066.
8. SRI MAHADEV S.,
S/O SHIVALINGAIAH,
ASSISTANT ENGINEER (ELE),
PIN 15941, BESCOM,
VARTHUR (O AND M) UNIT,
E-4, SUB DIVISION,
WHITEFIELD, BENGALURU - 560 066.
... RESPONDENTS
(BY SMT.M.C.NAGASHREE, AGA FOR R1 (PHYSICAL
HEARING)
MS.RAKSHITHA D.J., ADVOCATE FOR R2 TO R7
(PHYSICAL HEARING)
SRI B.C.SEETHARAM RAO, ADVOCATE FOR
SRI ANUP SEETHARAM, ADVOCATE FOR R8 (VIDEO
CONFERENCING))
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS /FILE PERTAINING TO THE TRANSFER ORDERS
DATE 10.03.2021 AND DATED 12.03.2021 FROM THE
RESPONDENTS 2 TO 5 AS ANNEXURES-P AND R; SET ASIDE
THE COMMUNICATION/ORDER BEARING NO. DATED
10.03.2021 (ANNEXURE-P) OF THE 3RD RESPONDENT AND
COMMUNICATION/ ORDER BEARING NO. DATED 12.3.2021
(ANNEXURE-R) ISSUED BY 5TH RESPONDENT AS ILLEGAL,
ARBITRARY AND VIOLATIVE OF ARTICLE 14 OF THE
CONSTITUTION AND ETC.,
6
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING :-
ORDER
The petitioner, who is common in both these writ
petitions, calls in question certain orders of transfer
dated 10.03.2021, 12.03.2021 and 05.04.2021, on the
ground that the said orders are contrary to law. In
furtherance of this contention, he seeks the following
prayers.
2. In writ petition No.5399/2021, the following
prayer is sought:
"a. Call for records/file pertaining to
the transfer orders dt:10.03.2021 and
dt:12.03.2021 from the respondents:2 to 5
produced as Annexures - P & R.
b. Set aside the communication /
order bearing No. KPTCL / B59 /11755/Part-
1/2020- 21 dt 10.03.2021 (Annexure - P) of
the 3rd respondent and communication/order
bearing No . BESCOM / BC31 / 114 / 2020 -
21 / 867 dated 12.3.2021 (Annexure- R)
issued by 5th respondent as illegal, arbitrary
and violative of Article 14 of the Constitution.
c. Declare the action of the 3rd and 4th
respondent in following the practice of issuance
of relieving and reposting orders, pro- forma of
the same are produced at Annexure-S bearing
No: BESCOM / BC31 / 114 / 2020-21/584
dt:11.12.2020, Annexure-S1 bearing No.:
BESCOM / BC31 / 114 / 2020-21 / 594
dt:15.12.2020, Annexure-S2 bearing No.:
BESCOM / BC31 / 114 / 2020-21 / 639
dt:24.12.2020, and Annexure- S3 bearing No.:
BESCOM / BC31 / 114/ 2020 - 21 683
dt:11.01.2021, as illegal and void;"
During the pendency of the said writ petition, the
petitioner files another writ petition - the companion, in
writ petition No.8952/2021 seeking the following prayer:
"a) ISSUE A WRIT in the nature of
Certiorari to quash Annexure- J the order of
retention of the 8th respondent dated 12.3.2021
issued by the 4th Respondent and also the
Annexure-K transfer of the petitioner vide
transfer orders dated 5.4.2021 issued by the
2nd respondent.
b) ISSUE A writ of mandamus to the
official respondents to give effect to the transfer
order dated 6.3.2021 vide Annexure-G passed
by the 4th respondent;
c) PASS such other orders as may be
deemed fit and proper by this Hon'ble Court
considering the facts and circumstances of the
case to meet the ends of justice."
3. Sans details, the skeletal material facts germane
are as follows:
The petitioner was appointed as a Junior Engineer
in the year 2006 and was later promoted as Assistant
Engineer with effect from 13.01.2017 and is presently
working in the cadre of Assistant Engineer (Electrical).
The petitioner on 13-01-2017, was transferred to the
Office of the Assistant Engineer (Electrical), Kadugodi (O
& M), BESCOM E-4 Sub-Division, Whitefield and
continued to discharge his duties at Kadugodi (O & M).
4. Things standing thus, on 02-12-2020, the KPTCL
prepared a list of Officers who are to be transferred after
seeking prior approval of the Hon'ble Chief Minister. In
terms of the said list, the Karnataka Power Transmission
Corporation Limited (hereinafter referred to as 'the
KPTCL' for short) issued an order of transfer on
09.12.2020, transferring the petitioner to the place of the
eighth respondent, Varthur (O & M), BESCOM, E- 4 Sub-
Division. The order of transfer moves the petitioner, who
was working at Kadugodi (O & M), to Varthur (O & M),
BESCOM.
5. By another order of the same date, one Sri T.K.
Gangaraju was posted to the place of the petitioner i.e.,
Kadugodi (O & M), BESCOM, E- 4 Sub-Division. In terms
of the transfer order dated 09.12.2020, the 5th
respondent - Bengaluru Electricity Supply Company
Limited (hereinafter referred to as 'the BESCOM' for
short) issued an order relieving Sri T.K.Gangaraju and
directing him to report to duty at the place of the
petitioner and the petitioner, accordingly handed over
charge to Sri T.K.Gangaraju, in terms of the order of
transfer dated 09.12.2020. The charge was handed over
on 14.12.2020.
6. The petitioner in furtherance of this order of
transfer issued by KPTCL, was not issued any further
order by BESCOM directing him to report to duties at
Varthur (O and M), where the eighth respondent was
functioning. At that juncture, the petitioner knocks the
doors of this Court in writ petition No.1650/2021,
seeking the following prayer:
"a. Declare the action of the 3rd and
4th respondent in following the practice of
issuance of relieving and reporting order,
pro-forma of the same are produced at
Annexure-K bearing No. BESCOM / BC31 /
114/2020-21/584 dated 11.12.2020,
Annexure -K1 bearing No. BESCOM / BC31 /
114 / 2020 - 21 / 594 dated 15.12.2020,
Annexure-K2 bearing No. BESCOM / BC31 /
114 / 2020 - 21/639 dated 24.12.2020 and
/ 111 / 2020 - 21 / 683 dated 11.01. 2021
as illegal and void;
b. Direct the 1st respondent to give
direction to the 3rd respondent to give effect
to the transfer order bearing
No.KPTCL/B59/11749/Division/2020 -21
dated 09.12.2020 (Annexure-C)
immediately in pursuance to the Circular
bearing No. KPTCL / B5A / SA3/5474/97-
98/2 dated 05.01.2021 (Annexure-G);
c. Pass such other order/s
deemed just and proper in the facts and
circumstances of the case in the interest of
justice and equity."
The writ petition was not entertained as it was a
petition for issuance of a direction for issuance of a
movement order. This Court disposed the writ petition by
observing as follows:
"2. The transfer of the petitioner is
made by an order dated 09.12.2020. Pursuant
to which, the petitioner claims to have been
relieved from his post, where he was working
and is awaiting a movement order from the
BESCOM to report to duty at the transfer place
and sought for a direction to respondent No.3-
BESCOM to give him posting such, directions
by issuance of a writ in the nature of
mandamus is seldom granted, as no right of
the petitioner is taken away by any of the
order that is passed. A prayer for a direction at
the hands of this Court to the KPTCL or
BESCOM to permit them to join cannot be
entertained. The other grievance of the
petitioner with regard to non-payment of salary
for the last two months if that be so, he is at
liberty to represent to the respondents, and it is
needless to observe that respondents would
consider and pay the salary that is due to the
petitioner.
Writ petition stands disposed of."
After disposal of the aforesaid writ petition, another
order was issued directing the eighth respondent to
continue in the same place - Varthur (O & M) and
directed the petitioner to report to the Head Office
awaiting further orders. He was not shown any posting.
The petitioner called this action of the KPTCL in question,
in writ petition No.5399/2021. On issuance of notice by
this Court, another Official Memorandum dated
05.04.2021, is issued by the respondents posting the
petitioner to Rajanakunte. The Official Memorandum
dated 05.04.2021 is called in question in writ petition
No.8952/2021. Both these writ petitions concern the
same parties, but raise a challenge two different orders,
one retaining the eighth respondent by order dated
12.03.2021 and the other, posting the petitioner to
Rajanakunte, dated 05.04.2021. The issues and facts are
intertwined, petitions are therefore, considered together.
7. Heard Sri D.R.Ravishankar, learned counsel
appearing for the petitioner, Smt. M.C.Nagashree, learned
Additional Government Advocate appearing for the first
respondent, Ms. Rakshitha D.J., learned counsel
appearing for second to seventh respondents, Sri
B.C.Seetharam Rao, learned counsel appearing for the
eighth respondent.
8. Sri D.R.Ravishankar, learned counsel appearing
for the petitioner would urge the following contentions.
i. The Hon'ble Chief Minister had approved the
transfer of the petitioner on 02.12.2020, whereby,
the petitioner was transferred from Kadugodi to
Varthur (O and M) and it is only then, an order
dated 09.12.2020 was issued transferring the
petitioner to the place of the eighth respondent.
ii. The BESCOM deliberately did not issue any posting
order directing the petitioner to report to duties at
Varthur (O & M) only with an intention to
accommodate the eighth respondent.
iii. The BESCOM has no power in law to disobey the
order of transfer made by the KPTCL.
iv. The necessity of BESCOM to issue separate orders
of transfer after KPTCL issuing a transfer order
has resulted in the efforts of certain officers to
continue to work in their place by bringing in
political influence. It is for this reason, though the
petitioner was transferred on 09.12.2020 upto
05.04.2021, no reposting orders were issued as
was required.
v. Once the transfers with the prior approval of the
Hon'ble Chief Minister is effected, the BESCOM
could not have adopted a different course.
vi. There are no rules forthcoming for the BESCOM to
issue posting orders after KPTCL issues orders of
transfer which bears the prior approval of the
Hon'ble Chief Minister.
vii. On 06.03.2021, the BESCOM issued reposting
order in favour of the petitioner immediately
thereafter issued another order on 10.03.2021,
canceling the said order of transfer and directing
the petitioner to report to Head Office and on
12.03.2021, the eighth respondent was continued
at Varthur (O & M). What had happened in the
interregnum was political influence bought by the
eighth respondent.
vii. The subsequent orders of transfer, retention, and
modification of transfer are not approved by the
Hon'ble Chief Minister.
viii. The impugned orders are violative of the
guidelines and vitiated by political interference.
9. On the other hand, Smt.Rakshitha D.J., learned
counsel appearing for the 2nd to 7th respondents - KPTCL
would urge the following contentions:
i. Transfer being an incidence of service, the petitioner
cannot claim that he should occupy a particular
place.
ii. The action of the continuance of the eighth
respondent and transfer of the petitioner are
approved by the Hon'ble the Chief Minister
though it is a post facto approval.
iii. The allegation of political interference in the
impugned transfer by the petitioner is imaginary
as the Member of the Legislative Assembly is
entitled to seek a particular Officer to perform the
duties of his Office in his constituency.
iv. The petitioner did not take charge of the post at
Varthur (O & M) for him to contend that it is in
violation of the operative guidelines.
v. The petitioner has suppressed the pendency of the
earlier writ petition while preferring the second
writ petition and on that ground, the writ petitions
should be dismissed.
10. Learned counsel appearing for the 8th
respondent has made a solitary submission that transfer
is an incidence of service and neither the petitioner nor
the eighth respondent has any right over the post. It is
the choice of the KPTCL and KPTCL has chosen to
continue the 8th respondent in the post he was
functioning at Varthur (O & M). Therefore, writ petitions
be dismissed.
11. I have given my anxious consideration to the
submissions made by the learned counsel appearing for
the respective parties and have perused the material on
record.
12. In furtherance of the respective submissions
made by the learned counsel appearing for the parties,
perusal of the material on record and the original records,
in my considered view, the illegalities that would vitiate the
orders of transfer impugned, in the cases at hand, are
three fold; I deem it appropriate to unfold them one by one.
FIRST FOLD:
13. The transfer being an incidence of service is by
now rendered a cliché but such transfers are regulated by
statutes, circulars, guidelines, which bind both the
employer and the employee. The guidelines dated
07.06.2013, is the one that is presently holding the field,
regulating transfers of the officers and employees of the
State Government. The KPTCL has adopted the same
mutatis mutandis by its order dated 22.06.2013.
Therefore, the case at hand will have to be considered on
the touch stone of the guidelines dated 07.06.2013, as
adopted by the KPTCL on 22.06.2013. The said guidelines,
therefore are the ones that regulate the transfer of the
personnel in the KPTCL as well.
The facts:
14. The petitioner who was working at Kadugodi (O &
M), BESCOM E-4, Sub-Division, Whitefield, was
transferred in place of the eighth respondent - Mahadev S.,
who was working as Assistant Engineer (elec.) at Varthur
(O & M), BESCOM and by another order of the same date,
one Sri T.K. Gangaraju was posted to the place of the
petitioner. The petitioner got himself relieved and
permitted reporting of Sri T.K. Gangaraju to his place and
sought orders from the hands of the BESCOM to report to
Varthur (O & M), BESCOM, in terms of the order of
transfer.
15. The KPTCL has a strange procedure of
transferring its personnel. The KPTCL issues an order of
transfer of employees to any of the ESCOMs' and the
ESCOMs' would issue further posting order, in tune what
is passed by the KPTCL. The passage of the order by the
KPTCL transferring the personnel to other ESCOMs' will be
given effect to, only after the respective ESCOMs' issue
such further orders. It is submitted that, this sometimes
takes a week, a fortnight a month or two, on a case to case
basis. It is during this period, all these litigations are
generally generated.
16. The case at hand is one such case, where the
petitioner though is transferred by an order of the KPTCL,
the BESCOM refuses to issue consequential posting order.
This drives the petitioner to this Court in writ petition
No.1650/2021. This petition was disposed on 02.02.2021,
with the observation (supra). The order of transfer was
passed on 09.12.2020, even after the disposal of the writ
petition, the BESCOM did not issue the posting orders.
The eighth respondent in the present petition was the fifth
respondent in writ petition No.1650/2021, disposed on
02.02.2021. Three months pass by and no order is passed
by the BESCOM issuing posting orders to the petitioner in
tune with the order of transfer dated 09.12.2020. After
three months, the order that is passed is on 12.03.2021,
retaining the eighth respondent at Varthur (O & M),
BESCOM and directing the petitioner to report to Head
Office, without showing any place of posting.
17. Therefore, for three months no order is passed
and the order that is passed after three months, is what
runs completely counter to the earlier order of transfer.
The beneficiary of such retention is the eighth respondent.
The only inference that can be drawn is that, at the behest
of the eighth respondent, the BESCOM did not issue
posting orders in favour of the petitioner. The petitioner is
directed to report to Head Office and the eighth respondent
is directed to continue in the same place, where he had
completed more than two years of minimum tenure as
stipulated in the guidelines. Therefore, the original records
pertaining to the subject transfer were summoned. The
records make glaring revelations, therefore, the note sheet
maintained is extracted for the purpose of ready reference.
The note sheet:
18. The note sheet reads as follows:
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2/6/2021
(emphasis added)
What is latent becomes patent on a perusal of the
note sheet of the KPTCL as extracted hereinabove. Two
glaring factors emerge in the note sheet. One, the order of
transfer dated 09.12.2020, was with the prior approval of
the Hon'ble Chief Minister. Other, the order continuing
the 8th respondent at Varthur (O & M) Sub-division, is
without the prior approval of the Hon'ble Chief Minister, as
the records reveal that a post facto approval is sought from
the hands of the Hon'ble Chief Minister. In the light of the
aforesaid facts, it is necessary to notice the relevant
clauses of the guidelines dated 07.06.2013. Clause 8 of
the guidelines depict minimum tenure of all groups of
officers. Groups 'A' and 'B' to be two years, Group 'C' is
four years and Group 'D' is seven years. Clause 9 of the
guidelines deals with premature or delayed transfer.
Clause 9 of the guidelines reads as follows:
"9. Premature/delayed Transfer
a. Generally there should be no premature
transfers. The tenure of posting of a Government
servant may be extended or reduced by the
Competent Authority in the following cases after
recording the reasons for the same in writing. The
minimum period of stay at a place as prescribed
in para 8 can be reduced and the servant
transferred concerned Government prematurely if
the competent authority feels that he or she is not
suitable for discharging the duties at the present
place and the reasons recorded to this effect in
writing:-
xxxxx
b. However, before effecting any premature
transfers and for making any transfer after the
transfer period, and also for extending the
tenure of a Government servant for the
reasons stated above, prior approval of the
Hon'ble Chief Minister must be obtained
without fail by the concerned Administrative
Department of the Secretariat. The Principal
Secretaries/Secretaries to Government
should not under any circumstances issue
transfer orders and later seek
ratification/post facto approval of the Chief
Minister."
(emphasis supplied)
Clause 9 (supra) regulates premature, delayed
transfer and extension of tenure of government servants
and depict two circumstances in which prior approval of
the Hon'ble Chief Minister becomes a pre-condition for
effecting any order of transfer viz., where premature
transfers are to be given effect to which would be where
an officer is transferred prior to his completion of
minimum tenure as obtaining under Clause 8 of the
guidelines and the other circumstance is extending the
tenure of the Government servant for the reasons
indicated, prior approval of the Hon'ble Chief Minister
shall be obtained. It is fortified by the mandate that
Government should not under any circumstance issue a
transfer order and later seek ratification of post-facto
approval of the Hon'ble Chief Minister.
19. The tenor of the guidelines being as aforesaid and
the guidelines being held to have a statutory force by two
Full Bench judgments of this Court in the cases of
H.N.CHANDRU V. STATE OF KARNATAKA AND
OTHERS1 and S.N.GANGADHARAIAH, K.A.S. V. STATE
OF KARNATAKA AND ANOTHER2, the aforesaid clauses
become mandatory.
20. As noted hereinabove, in the case at hand, for
continuing the 8th respondent in the place where the
petitioner was transferred i.e., Varthur (O & M), did not
2011 (3) KLJ 562
ILR 2015 KAR 1955
bear the stamp of prior approval of the Hon'ble Chief
Minister. This fact cannot be in dispute as a perusal of
the original records clearly indicates that during the
pendency of the subject writ petitions, in which the
impugned order of transfer of continuing the 8th
respondent was challenged, the file was placed before the
Hon'ble Chief Minister for a post-facto approval.
Therefore, the act of continuance of the 8th respondent
falls foul of the afore-quoted guidelines, which in
unequivocal terms mandate prior approval to be sought.
Therefore, the first fold of illegality that is unfolded
hereinabove vitiates continuance of the 8th respondent in
the place where the petitioner was posted for want of
prior approval at the hands of the Hon'ble Chief Minister.
SECOND FOLD:-
21. The impugned order dated 05-04-2021, does
not show any place of posting to the petitioner while
continuing the eighth respondent in the place that the
petitioner was posted. It is a separate order of transfer
which continues the eighth respondent and directs the
petitioner to approach the Head Office and await transfer
orders/posting orders. It is, therefore, a clear case where
the petitioner is left high and dry without being shown
any posting. It is apposite to refer to the judgment of the
Division Bench of this Court in the case of SEEMA H. v.
STATE OF KARNATAKA3, wherein it is held as follows:
"7. There are two serious infirmities in
the transfer order. One is that when the
petitioner is transferred from the post of
Assistant Conservator of Forest, there is no
deer posting order at a Particular post of the
petitioner. Unless the petitioner is lifted from
one place and posted at another place, it
cannot be said that any vacancy has arisen of
the petitioner and such an exercise of the
power cannot be appreciated even if one keeps
in mind the administrative circumstances for
the public interest as the case may be. It is
hardly required to be stated that when 'A'
3 (2017) 2 AIR Kant R 59
is posted in place of 'B' from one place to
another then only there will be a vacancy
of 'A' and 'B' can be posted at the place of
'A'. If 'A' is lifted and his posting is kept
in lurch and 'B' is posted vice-A such
practice cannot be appreciated and
deserves to be rather deprecated and the
reason being that the officer who is lifted
from one place is not certain at which
place he has to join the duty and unless
he joins the duty at different place, it
cannot be said that vacancy in law had
arisen at his original place. So long as
there is no vacancy at the original place,
the question of posting is without any
foundation. Hence, the said transfer order
can be said to be with the exercise of legal
malafide.
9. In our view, taking into consideration
the aforesaid two circumstances, it is a case for
interference with the transfer order. However,
the Tribunal lost sight of the said aspects and
did not interfere with the order of the transfer
just because of the Chief Minister's approval.
We need to record the approval of the Chief
Minister though may be one of the requirement
but thereby, if there is any other requirement
for the transfer order, the same also needs to
be examined. If the Tribunal finds that the
transfer order is either by way of victimization
or exfacie with legal malafide or otherwise it
would be a case for interference. Since the
aforesaid aspects were not considered by the
Tribunal, we find the impugned order passed
by the Tribunal as well as the order for transfer
of the petitioner deserves to be interfered with.
10. Once the transfer order of the
petitioner is found to be illegal, the
necessary consequence posting of the
petitioner will have to be restored at the
original place i.e., the Assistant
Conservator of Forest. It has been stated
that when the petitioner and another
Officer-respondent No. 4 has already
taken over the charge. In these
circumstances, the said Officer will have
to be shifted to another place. We had
called upon learned AGA to enquire and
report this Court as to whether the post of
Assistant Conservator of Forest is vacant
where the respondent No. 4 can be
accommodated."
(emphasis supplied)
The said judgment is again reiterated in an identical
circumstance by a Division of this Court in the case of
KANTHEPPA V. STATE OF KARNATAKA4. With the
undisputed fact of the petitioner not being shown any
posting, continuing the eighth respondent by an
independent order and the judgments of the Division
Bench (supra), what would unmistakably emerge is, the
petitioner is moved out, by modification / cancellation of
the earlier order, to accommodate the eighth respondent.
The Division Bench holds that such act of
accommodation, on the face of it, is mala fide. Therefore
the second fold of illegality is the mala fide action of the
respondent/KPTCL in continuing the 8th respondent and
transferring the petitioner without showing any posting,
ILR 2020 KAR 5511
though the petitioner was never permitted to report at the
place of transfer. The second fold as unfolded
hereinabove vitiates the order of transfer of the petitioner
directing him to report to the Head Office.
FINAL FOLD:-
22. The afore-quoted note sheet becomes imperative
to be considered at this juncture. The note sheet also
indicates the entire action of making the petitioner to
move from pillar to post and continue the eighth
respondent is at the behest of a Minister of the
Government of Karnataka. Therefore, this is a case where
the entire proceedings would get vitiated on account of
political interference.
23. The learned counsel appearing for the KPTCL
places reliance upon the judgment of the Apex Court in
the case of MOHD. MASOOD AHMAD v. STATE OF U.P.
AND OTHERS5, to contend that the transfer of a
5 (2007) 8 SCC 150
Government servant on the recommendation of a Member
of the Legislative Assembly does not vitiate the transfer
order. The said judgment of the Apex Court is
distinguishable without much ado. The Apex Court at
paragraph 8 of the said judgment holds as follows:
"8. Learned counsel for the appellant
submitted that the impugned transfer order of
the appellant from Muzaffarnagar to Mawana,
District Meerut was made at the instance of an
MLA. On the other hand, it has been stated in
the counter affidavit filed on behalf of
respondent Nos. 1 & 2 that the appellant has
been transferred due to complaints against
him. In our opinion, even if the allegation of the
appellant is correct that he was transferred on
the recommendation of an MLA, that by itself
would not vitiate the transfer order. After all, it
is the duty of the representatives of the people
in the legislature to express the grievances of
the people and if there is any complaint against
an official the State government is certainly
within its jurisdiction to transfer such an
employee. There can be no hard and fast rule
that every transfer at the instance of an M.P. or
MLA would be vitiated. It all depends on the
facts & circumstances of an individual case. In
the present case, we see no infirmity in the
impugned transfer order."
In terms of the aforesaid observations of the Apex Court
what becomes clear is that transfer was sought by the
MLA on the ground that the incumbent officer had
several complaints against him. The MLA being the
representative of the people was entitled to get the officer
transferred on the allegation. The Apex Court holds that
it was the duty of the representative of the people in the
Legislature to express the grievance of the people and if
there are any complaints against the officer it would
certainly within the jurisdiction of the MLA to get such an
officer transferred. These are not the facts in the case at
hand. Political interference is generated by a Minister
when the petitioner did not even take charge of the post.
The impugned action at the behest of the Minister is only
for showing favourtism to the 8th respondent by directing
that he shall be continued in office and the petitioner be
sent out by modification of the order of transfer.
24. The Apex Court in the case of SARVESH
KUMAR AWASTHI v. U.P. JAL NIGAM AND OTHERS6 -
has held as follows:
"4. In our view, transfer of officers is required
to be effected on the basis of set norms or guidelines.
The power of transferring an officer cannot be
wielded arbitrarily, mala fide or an exercise against
efficient and independent officer or at the instance of
politicians whose work is not done by the officer
concerned. For better administration the officers
concerned must have freedom from fear of being
harassed by repeated transfers or transfers ordered
at the instance of someone who has nothing to do
with the business of administration."
In terms of undisputed glaring facts and the judgment of
the Apex Court supra, the proceedings of transfer
impugned in the case at hand would get vitiated as it is
at the instance of a politician/Hon'ble Minister. In my
view, political interference in transfers and posting of
officers would result in politicization of public office,
(2003) 11 SCC 740
which would result in putting public efficiency and good
administration to peril, the interference of any kind, be it
written or oral. The result of the illegalities is the
continuance of the eighth respondent at Varthur (O & M),
BESCOM, E-4 Sub-Division and transferring the
petitioner to Rajanakunte. Therefore, the final fold of
illegality vitiates the entire proceedings on account of
political interference. Thus, all the illegalities as unfolded
hereinabove would vitiate all subsequent actions of
the KPTCL or the BESCOM as the case would be in the
aftermath of the order of transfer dated 09-12-2020.
25. It is germane at this juncture to notice the
strange procedure that the KPTCL adopts in transferring
its personnel to any of the ESCOMs'. The KPTCL issues a
transfer order transferring officers to offices which come
within the control of ESCOMs'. Later ESCOMs' issue
further orders of transfer directing the officer so
transferred by the KPTCL to report for duty at the place of
posting. Therefore, till respective ESCOMs' issue such
orders directing reporting for duty, the officers who hold
the order of transfer issued by the KPTCL are left in
limbo. It is this interregnum that generates litigation.
The case at hand is a classic one where the period
between the KPTCL issuing the order of transfer on
09-12-2020, till it is modified on 12-03-2021, the
aforesaid illegalities creep in. It is brought to the notice
of this Court by the learned counsel for the KPTCL, that
the KPTCL has issued a circular on 05-01-2021, which
directs that the officers who are transferred by the
KPTCL, the follow up orders are to be issued within one
week. The said circular reads as follows:
"PÀ£ÁðlPÀ «zÀÄåvï ¥Àæ¸ÀgÀt ¤UÀªÀÄ ¤AiÀÄ«ÄvÀ
¤UÀªÀÄzÀ UÀÄgÀÄw£À ¸ÀASÉå(¹.L.J¸ï), AiÀÄÄ40100PÉJPÁEAJ¸ï,5020021
PÀA¥À¤ C¢üPÀÈvÀ PÀbÉÃj, ¤UÀªÀÄ PÁAiÀiÁð®AiÀÄ, PÁªÉÃj ¨sÀªÀ£À, PÉ.f.gÀ¸ÉÛ,
¨ÉAUÀ¼ÀÆgÀÄ - 560 009
¸ÀASÉå:PÀ«¥À椤/©©J/J¸ï.J.r/5474/07-2012, ¢£ÁAPÀ 5 d£ÀªÀj 2021
¸ÀÄvÉÆÛïÉ
«µÀAiÀÄ: ªÀUÁðªÀuÉ DzÉñÀUÀ¼À£ÀÄß C£ÀĵÁÜ£ÀUÉƽ¸ÀĪÀ §UÉÎ.
PÀ£ÁðlPÀ «zÀåvï ¥Àæ¸ÀgÀt ¤UÀªÀÄ ¤AiÀÄ«ÄvÀzÀ ¤UÀªÀÄ
PÁAiÀiÁð®AiÀÄ¢AzÀ C¢üPÁjUÀ¼À£ÀÄß ªÀÄvÀÄÛ £ËPÀgÀgÀ£ÀÄß '¤UÀªÀÄzÀ PÉ®¸ÀUÀ¼À
»vÀzÀȶܬÄAz'À ªÀÄvÀÄÛ "C¢üPÁjUÀ¼ÀÄ ªÀÄvÀÄÛ £ËPÀgÀgÀ PÉÆÃjPÉUÀ¼À" »£À߯ÉAiÀÄ°è
ªÀUÁðvÀ¬Ä¹ DzÉñÀUÀ¼À£ÀÄß eÁjUÉƽ¸ÀÄwÛzÀÄÝ, ªÀUÁð¬Ä¸À®àlÖ C¢üPÁjUÀ¼À£ÀÄß
ªÀÄvÀÄÛ £ËPÀgÀgÀ£ÀÄß ¸ÀA§A¢ü¹zÀ PÀbÉÃjUÀ¼À ªÉÄïÁ¢üPÁjUÀ¼ÀÄ ¤UÀ¢vÀ
CªÀ¢üAiÉƼÀUÉ PÁAiÀÄðªÀÄÄQÛÉUÉƼÉƸÀwÛ®è¢gÀĪÀÅzÀ£ÀÄß ¤UÀªÀĪÀÅ §ºÀ¼À
UÀA©üÃgÀªÁV ¥ÀjUÀt¹zÉ.
DzÀÝjAzÀ, E£ÀÄß ªÀÄÄAzÉ PÀ«¥À椤 ¤UÀªÀÄ PÁAiÀiÁð®AiÀÄ¢AzÀ
eÁjUÉƽ¸ÀĪÀ ªÀUÁðªÀuÉ DzÉñÀUÀ¼ÀAvÉ ªÀUÁðAiÀĸÀ®àlÖ C¢üPÁjUÀ¼À£ÀÄß ªÀÄvÀÄÛ
£ËPÀgÀgÀ£ÀÄß ªÀUÁðªÀuÉ DzÉñÀªÀÅ eÁjUÉÆAqÀ K¼ÀÄ ¢£ÀUÀ¼ÉƼÀUÁV CxÀªÁ
ªÀUÁðªÀuÉ DzÉñÀzÀ°è PÁAiÀÄð ªÀÄÄQÛUÉƼÀî®Ä ¸ÀÆa¹zÀ CªÀ¢üAiÉƼÀUÉ
¸ÀA§A¢ü¹zÀ PÀbÉÃjUÀ¼À ªÉÄïÁ¢üPÁjUÀ¼ÀÄ PÁAiÀÄðªÀÄÄPÀÛUÉƽ¸À®Ä ¸ÀÆa¹zÉ.
ªÀUÁðªÀuÉAiÀÄ°ègÀĪÀ C¢üPÁjUÀ¼À£ÀÄß ªÀÄvÀÄÛ £ËPÀgÀgÀ£ÀÄß
PÁAiÀÄðªÀÄÄQÛUÉƽ¸ÀzÀ ¸ÀA§A¢ü¹zÀ C¢üPÁjUÀ¼À «gÀÄzÀÝ ¸ÀÆPÀÛ ²¸ÀÄÛ PÀæªÄÀ ªÀ£ÀÄß
dgÀÄV¸À¯ÁUÀĪÀÅzÀÄ.
¸À»/-5.1.2021
¤zÉÃð±ÀPÀgÀÄ (DqÀ½vÀ ªÀÄvÀÄÛ ªÀiÁ.¸ÀA)
PÀ«¥À椤."
Therefore, it is a case where suitable directions are to be
issued to the respondents to strictly adhere to the
circular dated 05.01.2021 and not make it to remain only
on paper and whenever KPTCL issues an order of
transfer, without any loss of time BESCOM or any of the
ESCOMs' to which the officers/employees are transferred
shall issue consequential transfer / movement order
strictly in obedience to the circular (supra) and complete
the entire process within one week from the date of
issuance of the order of transfer by the KPTCL, failing
which there would be mushrooming of cases of the kind,
as obtaining in the case at hand being brought before the
Court.
26. For the aforesaid reasons, I pass the following:
ORDER
(i) The Writ Petitions are allowed.
(ii) The impugned Order dated 10-03-2021
(Annexure-P in Writ Petition No.5399 of 2021),
and Order dated 12-03-2021 as also Order
dated 05-04-2021 (Annexure-K in Writ
Petition No.8952 of 2021) stand quashed.
(iii) The petitioner shall be permitted to report at
Varthur (O & M) forthwith by giving effect to
the order of transfer dated 09.12.2020.
(iv) The petitioner shall be entitled to all
consequential benefits that would flow from
quashing of the orders (supra) including the
salary for the entire period, if not paid, as the
petitioner was made to roam from pillar to
post.
(v) The aforesaid direction No.(iii) shall remain
subject to the conditions stipulated in the
guidelines dated 07-06-2013.
Sd/-
JUDGE
nvj/CT:MJ
