Karnataka High Court
Umesh S/O Rama Naik vs The State Of Karnataka on 20 December, 2023
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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WP No. 107364 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
WRIT PETITION NO. 107364 OF 2023 (S-KAT)
BETWEEN:
UMESH S/O. RAMA NAIK,
AGE: 35 YEARS,
OCC.: RANGE FOREST OFFICER
SANDUR NORTH RANGE, SANDURU,
DIST. BALLARY.
(NOW UNDER ORDER OF TRANSFER TO
FOREST MOBILE SQUAD, BELLARY)
R/O. LAKSHMI NIVAS, L.B.COLONY
SANDURU TOWN, SANDURU,
Digitally
signed by TQ. SANDURU,
SHIVAKUMAR
SHIVAKUMAR HIREMATH DIST. BALLARY - 583119.
HIREMATH Date:
2023.12.21
14:54:28
+0530 ...PETITIONER
(BY SRI. PRAMOD N.KATHAVI, SR. COUNSEL FOR
SRI. SHIVARAJ P.MUDHOL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
R/BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF FOREST,
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WP No. 107364 of 2023
ENVIRONMENT AND ECOLOGY,
M.S.BUILDING, BENGALURU - 560001.
2. THE PRINCIPAL CHIEF CONSERVATOR OF FOREST
ARANYA BHAVAN, 18TH CROSS,
MALLESHWARAM, BENGALURU - 560003.
3. SRI. SYED DADA KHALANDAR,
AGE: MAJOR, OCC. RANGE FOREST OFFICER
FOREST MOBILE SQUAD,
BALLARY - 583101.
(NOW UNDER ORDER OF TRANSFER TO
SANDURU NORTH RANGE, SANDURU)
DIST. BELLARY - 583101.
...RESPONDENTS
(BY SRI. G.K.HIREGOUDAR, GOVT. ADV. FOR R1 AND R2;
SRI. J.M.ANILKUMAR, ADV. FOR C/R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
WRIT IN THE NATURE OF CERTIORARI TO QUASH THE
IMPUGNED ORDER DATED 27/11/2023 APPLICATION NO.10834
OF 2023 PASSED BY THE KARNATAKA ADMINISTRATIVE
TRIBUNAL AT BELAGAVI VIDE ANNEXURE-J AND TO ALLOW
THE APPLICATION FILED BY THE PETITIONER BY ALLOWING
THIS WRIT PETITION IN THE INTEREST OF JUSTICE.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, S.SUNIL DUTT YADAV, J., MADE THE
FOLLOWING:
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WP No. 107364 of 2023
ORDER
The present petition has been filed calling in question
correctness of the order dated 27.11.2023 passed in
Application No.10834/2023 at Annexure-J by the
Karnataka Administrative Tribunal, Belagavi (hereinafter
referred to as the 'Tribunal') whereby the Tribunal has
rejected the plea of the petitioner challenging the order of
transfer at Annexure-A8 by virtue of which the petitioner
was transferred from the post of Range Forest Officer
(RFO), Sanduru North to Forest Mobile Squad, Bellary as
RFO.
2. The learned Senior Counsel appearing for the
petitioner would submit that as the post of RFO is a
Group-B post, the security of tenure is two years, his
earlier posting was on 18.03.2022 at Annexure-A1 and the
order of transfer at Annexure-A8 is on 24.08.2023 which is
within the period of tenure that is protected in terms of
the transfer guidelines and accordingly, the transfer was a
premature transfer. It is submitted that there has to be
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strict adherence to the transfer guidelines and in terms of
Rule 9 of the Transfer Guidelines, it is not sufficient if
approval is obtained by the Chief Minister but that reasons
have to be assigned by the competent authority in terms
of the judgment of the Division Bench of this Court in the
case of RAJASHEKAR M. VS. THE STATE OF KARNATAKA
AND OTHERS1. It is further pointed out that the Tribunal
has not adverted to such aspect. It is submitted that the
Tribunal has dealt with the proceedings relating to his
reversion to the cadre of Deputy Range Forest Officer and
only on such ground has denied to interfere with the order
of transfer and remanded the matter back for fresh
consideration.
3. Learned counsel for respondent No.3
Sri.J.M.Anilkumar, on the other hand would submit that
the petitioner has not come with clean hands even in the
absence of any interim order as regards Annexure-A8, he
has not reported for duty and respondent No.3 has already
2019 (2) KLJ 352
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reported for duty in terms of Annexure-A8 and that once
approval has been granted by the Chief Minister, any
further enquiry need not be entered into. It is also
submitted that the distance between the place to which
the petitioner has been posted is only about 35 kilometers
from the place of previous posting and accordingly, if in
administrative exigency action is taken by the employer,
same ought not to be interfered by this Court. Reliance is
also placed on the orders passed in Writ Petition
No.20074/2018 in the case of BASAVARAJAPPA MALI
PATIL VS. STATE OF KARNATAKA AND OTHERS; Writ
Petition No.11110/2020 in the case of RAVI B.R. VS.
STATE OF KARNATAKA AND OTHERS; and Writ Petition
No.11934/2022 in the case of R.D.RAMADAS VS. STATE
OF KARNATAKA AND OTHERS. It is submitted that the
power to transfer being an incidence of service, ought not
to be interfered with lightly in the absence of any
malafides.
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4. Learned Government Advocate appearing for
the State has placed records relating to the transfer
process and submits that once approval has been made by
the Chief Minister being a Constitutional Authority, the
Court ought not to interfere lightly considering that the
employer has to be given adequate freedom for taking
decisions that may arise in case of administrative exigency
and public interest.
5. Heard both the sides. It must be noticed that
the petitioner who is working as RFO, Sanduru North was
posted on 18.03.2022 as RFO, Sanduru. Admittedly, the
post that he holds is a Group-B post and the security of
tenure in terms of transfer guidelines is two years and
accordingly, he was entitled to continue in the same post
till 18.03.2024. By virtue of Annexure-A8 he was
transferred to the place of respondent No.3 within the said
period of 2 years. The legal position relating to premature
transfers as contained in the transfer guidelines is that,
approval of the Chief Minister to be obtained. That apart,
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in terms of the judgment of the Division Bench of this
Court in the case of RAJASHEKAR M (supra), reasons are
to be assigned by the Competent Authority wherein
relevant observation is found at paragraph Nos.6 and 7
which are extracted herein below:
"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 reasons
have 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
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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."
6. Perused the records produced by the State. The
reasons of the Competent Authority are not found. No
doubt approval has been granted by the Chief Minister but
that by itself may not be sufficient compliance of the
transfer guidelines. Taking note of the observations made
in paragraph Nos.6 and 7 of Rajshekar's case, in the
absence of reasons by the Competent Authority as
required by the transfer guidelines, the impugned order at
Annexure-A8 requires to be interfered with.
7. Insofar as the contentions raised by the learned
counsel for respondent No.3 by relying on the judgments
referred to above, it must be noticed that no doubt the
State as an employer has power to effect transfers as may
be required in exercise of its powers in case of
administrative exigency and public interest. However, it
must be noticed that after the judgment of this Court in
the case of MR. CHANDRU H.N Vs. THE STATE OF
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KARNATAKA AND OTHERS , the transfer guidelines have
now been transformed to guidelines having statutory
force. If that were to be so, the transfer guidelines ought
to be interpreted strictly and it cannot be held that there is
power in the State apart from such transfer guidelines.
Further, it is noticed that even as per the transfer
guidelines, the reasons must emanate from the Competent
Authority which is absent in the present case. Accordingly,
the impugned order of transfer at Annexure-A8 requires to
be interfered with.
8. Insofar as the observations made by the
Tribunal in the order impunged in the present proceedings,
it is to be noticed that the Administrative Tribunal has not
adverted to this aspect of Competent Authority not having
assigned reasons in the order of transfer. The
Administrative Tribunal has only taken note of the order
by virtue of which the petitioner has been reverted to the
post of Deputy Range Forest Officer and accordingly has
ILR 2011 KAR 1585
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held that since he was no longer RFO, he would continue
to hold the said post. However, it is pointed out that the
said order of reversion of the petitioner was stayed by
virtue of interim order passed in Writ Petition
No.25452/2023. In light of the same, the Tribunal appears
to have not taken note of such order of stay and
accordingly, the order of the Tribunal requires to be set
aside on this ground as well as not considering the
substantive arguments relating to non-assignment of
reasons for passing of the order at Annexure-A8. Taking
note of the remaining tenure of the petitioner being till
18.03.2024, it would be appropriate to mould the relief by
not setting aside the order of transfer but keeping it in
abeyance till 18.03.2024. It is clarified that on the expiry
of the period as on 18.03.2024, the impugned order of
transfer at Annexure-A8 would come into force. Till then
consequently the petitioner and respondent No.3 have to
be restored in their earlier place of posting.
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9. Though learned Government Advocate would
submit that the State has residual power to transfer apart
from the grounds mentioned in the guidelines insofar as its
employees are concerned, however, we reject such
contention while noticing that it is a prerogative of the
State to amend guidelines if the State were to be of the
view that the guidelines do not take note of the residual
power of the State to transfer employees as contended by
the learned Government Advocate. Further, once
guidelines have statutory force unless guidelines are
amended, there is no scope to construe an existence of
residual power.
10. Accordingly, the writ petition is disposed off.
Sd/-
JUDGE
Sd/-
JUDGE
RH
