Karnataka High Court
Smt Saraswathi D V vs The State Of Karnataka on 18 August, 2022
Bench: S.Sunil Dutt Yadav
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
WRIT PETITION No.13200/2022 (S-RES)
BETWEEN:
SMT. SARASWATHI D.V.,
AGED ABOUT 51 YEARS
W/O SRI K. NAGARAJ,
OFFICE MANAGER
TOWN MUNICIPAL COUNCIL,
DEVANAHALLI
BENGALURU RURAL DISTRICT - 562 110.
... PETITIONER
(BY SRI M. KRISHNAPPA, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY TO GOVT.
URBAN DEVELOPMENT DEPARTMENT
VIKASA SOUDHA, DR. AMBEDKAR VEEDHI
BENGALURU - 560 001.
2. THE DIRECTOR OF MUNICIPAL ADMINISTRATION
IX FLOOR, VISVESWARAIAH TOWER
DR. AMBEDKAR VEEDHI
BENGALURU - 560 001.
3. SMT. SABHA SHIREEN
HUSBAND'S NAME NOT KNOWN TO PETITIONER
AGED ABOUT 30 YEARS
NOW NEWLY POSTED AS OFFICE MANAGER
TOWN MUNICIPAL COUNCIL
DEVANAHALLI
BENGALURU RURAL DISTRICT - 562 110.
... RESPONDENTS
(BY SMT. K. SHOBHA, HCGP FOR R1 AND R2;
SRI N. ANANDA, ADVOCATE FOR R3)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER BEARING NO.NANAEE 230 TME 2022 (2) (E-
OFFICE) DATED 27.06.2022 IN SO FAR AS IT RELATES TO PETITIONER
AT SL. NO.15 ISSUED BY THE R-1 VIDE ANNEXURE-A AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT, MADE THE FOLLOWING:
ORDER
Petitioner was posted as Office Manager in the office of
the Town Municipal Council, Devanahalli, Bangalore, as per
the order dated 08.02.2022 at Annexure-B. Petitioner
submits that she is an officer of Group 'C' and the security
of tenure under the transfer guideline is 4 years. It is
submitted that within the said period of 4 years, in the
place of petitioner, respondent No.3 has been posted as per
the order at Annexure-A dated 27.06.2022 and no order of
posting at any other post has been made as regards the
petitioner nor is there any order of transfer as regards the
petitioner.
2. Learned counsel for respondent No.3 would
submit that there were certain allegations against the
petitioner and the petitioner was suspended on 17.11.2021.
It is further submitted that respondent No.3 has been
working at the place shown at Annexure-A for the past 1½
months and at this length of time, no interference in the
transfer order ought to be made.
3. Heard both sides.
4. It is not in dispute that the petitioner's posting as
Office Manager was on 08.02.2022. The security of tenure
to Group 'C' employee being 4 years, posting of respondent
No.3 in the place of petitioner even has the effect of
displacing the petitioner, the same would amount to
premature transfer. It must be noted that admittedly, there
is no order transferring the petitioner from her post. There
is only the order at Annexure-A placing the 3rd respondent
in the place of petitioner. Admittedly, there is no
consequential posting order for the petitioner as well.
5. Learned HCGP upon instructions submits that the
approval of the Chief Minister as per the transfer guidelines
has not been obtained. It is further submitted that the order
being a general transfer, ought not to be interfered with.
6. The said submission cannot be accepted in light
of the law laid down by the Division Bench of this Court in
the case of K.G.Jagadeesha v. State of Karnataka and
Another - 2016 SCC Online Kar 8993, wherein this Court
has held that even as regards general transfer, the
procedure in the transfer guidelines requires to be followed.
7. It is also to be noticed that the question of
displacing the petitioner does not arise, if no order of
transfer is made as regards the petitioner. Mere posting of
respondent No.3 in the place of petitioner without any order
of transfer of the petitioner and granting posting order to
the petitioner would be an act suffering from legal malafide
and time and again, it has been reiterated that the order
whereby an employee is sought to be displaced without
providing posting order is illegal.
8. In the latest judgment of the Division Bench in
the case of Mahiboob Sab v. State of Karnataka and
another in W.P.No.16363/2021 disposed off on
31.05.2022, the aspect of transfer order without an order
of posting has been frowned upon and held to be illegal.
The mere continuance of respondent No.3 for a period of
1½ months, when the mater is pending before this Court,
will not confer any vested right. Clearly, the action of
respondent - State, despite the law being settled regarding
transferring of employee in the place of another employee
without necessary posting order is illegal, requires to be set
aside.
9. Admittedly, it is noticed that approval of the
Chief Minister as per the transfer guidelines for premature
transfer has not been obtained. Accordingly, the impugned
order of transfer is set aside and the parties are restored to
the same posting as it was prior to the impugned order.
10. In light of the discussions made above, writ
petition is allowed.
Sd/-
JUDGE
VP
