Aishwaraya Gobbur D/O Dattatraya ... vs The State Of Karnataka And Ors
2023 Latest Caselaw 694 Kant

                              1


          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 11TH DAY OF JANUARY 2023

                         PRESENT

THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR

                            AND

THE HON'BLE MR.JUSTICE T.G.SHIVASHANKARE GOWDA

       WRIT PETITION No.202665/2022 (S-KAT)

Between:

Kum. Aishwarya Gobbur
D/o Dattatraya Gobur
Age:29 years, Occ: Range Forest Officer
Territorial Range, Basavakalyan
R/o: Forest Quarters, Basavakalyan
District: Bidar-585 327
                                            ...Petitioner

(By Sri Ameet Kumar Deshpande, Senior Counsel for
 Sri Krupa Sagar Patil, Advocate)

And:

1.     The State of Karnataka
       Rep. by Secretary
       Forest, Ecology and Environment
       Department, M.S. Building
       Bangalore- 01

2.     The Principal Chief Conservator of
       Forests & Chief of Forest Force
       Aranya Bhavan, 18th cross
                                2


      Malleshwaram, Bangalore-560 003

3.    Sri Syed Murtuza Khadri
      S/o Ameena Vathar
      Working as Range Forest Officer
      R/o Forest Quarters, Basavakalyan
      Dist: Bidar-585 327
                                                 ...Respondents

(By Sri Mallikarjun C. Basareddy, GA for R1 & R2;
 Sri Babu H. Metagudda, Advocate C/R3)

       This Writ Petition is filed under Article 226 and 227
of the Constitution of India, praying to allow this Writ
petition and issue a writ of certiorari or any other
appropriate writ or order or direction to set aside the order
passed by the Karnataka State Administrative Tribunal
Kalaburagi Bench, in A.No.20748/2022 date 11.10.2022
produce at Annexure-C and consequently dismiss the
Application No.20748/2022.

     This petition coming on for orders, this               day,
Sreenivas Harish Kumar J., made the following:

                          ORDER

By order dated 20.08.2022, the petitioner was

transferred as Range Forest Officer, Social Forestry,

Basavakalyan i.e., to the place of the third

respondent. Aggrieved by this transfer order, the

third respondent approached the Karnataka State

Administrative Tribunal, Kalaburagi (hereinafter

referred to as the 'Tribunal' for brevity), by filing an

application numbered as 20748/2022. Before the

Tribunal, the third respondent pleaded that he had

been transferred to Basavakalyan on 04.11.2020 and

he reported to his duty at that place on 09.12.2020.

But on 17.12.2020 itself, the Government passed an

order withdrawing the transfer order dated

04.11.2020 and therefore challenging the order dated

17.12.2020, he filed Application No.20873/2020

before the Tribunal. The Tribunal allowed the said

application and directed that the third respondent

should be continued at Basavakalyan till he would

complete his tenure. Giving this background, the third

respondent pleaded that the transfer order dated

20.08.2022 was bad in the sense that he could not

have been disturbed till he completed his tenure of

two years at Basavakalyan.

2. Before the Tribunal, the petitioner

contended that her transfer to Basavakalyan to the

place of the third respondent was not bad in law

because there were a lot of complaints against the

third respondent. In the background of those

complaints, the third respondent was transferred and

to this transfer, the Hon'ble Chief Minister had given

approval.

3. The Tribunal came to a conclusion that in

Application No.20873/2020 there was a direction that

the third respondent should be allowed to complete

his tenure at Basavakalyan and he could not have

been transferred violating that direction. With regard

to the complaints against the third respondent, the

Tribunal observed that if there were complaints, the

third respondent could have been subjected to

disciplinary proceeding. With these findings, the

Tribunal allowed the application made by the third

respondent and set aside the transfer order dated

20.08.2022.

4. We have heard Sri Ameet Kumar

Deshpande, learned Senior Counsel appearing for the

petitioner's counsel, Sri Babu H. Metagudda, learned

counsel for the third respondent and the learned

Government Advocate appearing for respondent nos.1

and 2.

5. It was the argument of Sri Ameet Kumar

Deshpande that the Tribunal has erred in quashing the

transfer order dated 20.08.2022 based on the order in

Application No.20873/2020. He referred to the

footnote of transfer order dated 20.08.2022 which is

at Annexure-A5 and submitted that the transfer order

was subjected to the decision of the Tribunal or a

Court and therefore it was his argument that having

regard to the order passed in Application

No.20873/2020 the Tribunal could have postponed the

implementation of the order dated 20.08.2022. He

submitted that just because the third respondent had

not completed his two years tenure, it cannot be said

that the Government cannot effect transfers in the

middle. The Chief Minister approved the transfer and

thereafter the transfer order dated 20.08.2022 was

issued. In support of his argument, he placed reliance

on the order passed by the co-ordinate benches of this

court in W.P.No.11434/2019 disposed of on

20.03.2019 (Sri K.P. Nanjesha vs. The State of

Karnataka and others) and W.P.No.59340/2013

disposed of on 02.01.2014 (Sri Vikram L.B. vs. The

State of Karnataka and others). Therefore, it was his

argument that this Court can now clarify as to the

date when the transfer order would come into effect.

6. Sri Babu H. Metagudda, learned counsel for

the third respondent argued that the order in

Application No.20873/2020 is very clear in the sense

that the third respondent should not be disturbed till

he would complete his tenure of two years. It was a

premature transfer filled with malafides. He also

refers to the transfer order dated 20.08.2022 to argue

that the said transfer order would not come into effect

because of specific direction of the Tribunal in

Application No.20873/2020. In support of his

argument, he places reliance on the judgment of the

co-ordinate bench of this Court in

W.P.No.48499/2016 disposed of on 16.09.2016

(Miss Seema H. vs. The State of Karnataka and

others). His another point of argument was that the

petitioner has now been transferred from

Basavakalyan to Gokak and therefore this writ petition

has become infructuous.

7. We have considered the arguments and

perused the records.

8. No doubt the transfer order dated

20.08.2022 was issued before the third respondent

completed his tenure of two years at Basavakalyan.

We are not concerned with the reasons for the said

transfer. However, we need to say that as has been

held by this Court it is not a rule that a Government

servant should not be transferred before he completes

the tenure at a particular place. For administrative

reasons the Government can always effect transfers.

But the reasons for premature transfer must be

forthcoming.

9. In the case on hand, the position is that

the third respondent approached the Tribunal by filing

Application No.20873/2020. The Tribunal directed the

respondents therein that the third respondent should

be continued at the Territorial Range, Basavakalyan

till he would complete his tenure. This order was not

challenged by the Government and therefore the

direction given by the Tribunal required to be obeyed.

Subsequently, when the transfer order was issued on

20.08.2022 posting the petitioner to Basavakalyan to

the place of the third respondent, a clear note was

made that the transfer order would not come into

effect in case there was a direction by the Court or the

Tribunal. Annexure-R1 was a letter addressed by the

Additional Chief Secretary of the Forest Department to

the Principal Conservator of Forest stating that though

Miss Aishwarya Gobbur had been transferred to

Basavakalyan, the said order should not be

implemented if any order of the Court or the Tribunal

was in force.

10. In the interregnum, it appears that the

petitioner took over charge at Basavakalyan and when

the Tribunal passed the impugned order, she handed

over the charge to the third respondent and

afterwards she was not shown any place. Now if we

peruse the impugned order it becomes clear the

Tribunal allowed the third respondent's application and

passed the impugned order having regard to the fact

that in Application No.20873/2020 there was a clear

direction that the third respondent should be allowed

to complete his tenure at Basavakalyan.

11. In this context, we may say that the

Tribunal instead of setting aside the transfer order

dated 20.08.2022, could have made it clear that the

transfer order would not come into effect till the third

respondent would complete his tenure. Or in other

words, the implementation of the transfer order could

have been postponed. In this context, we may refer

to two decided cases referred by Sri Ameet Kumar

Deshpande. In the case of Sri K.P. Nanjesh, it is

clearly held that in the interest of administration and

exigencies, an officer can always be transferred

prematurely and if the facts and circumstances

warranted, the implementation of the transfer order

could be postponed. Likewise, in the case of Sri

Vikram L.B., the same view has been taken. In the

case on hand also the Tribunal could have observed

that the order dated 20.08.2022 would come into

effect after the third respondent would complete his

tenure at Basavakalyan. In fact, in the transfer order

dated 20.08.2022 itself it is made clear that the

transfer order cannot be implemented if there is any

order or stay order passed by the Court or Tribunal.

It appears that the Tribunal has lost sight of the

footnote found in the order dated 20.08.2022.

12. Sri Babu H. Metagudda has referred to the

judgment of the co-ordinate bench of this court in the

case of Miss Seema. The dictum laid down in this

judgment is that whenever transfer order is effected,

no officer should be left without showing him a place.

The reason for citing this decision is that when the

petitioner was transferred to Basavakalyan, the third

respondent was not shown any place. But we can

give necessary directions to give a posting to the third

respondent.

13. With regard to other point of argument

of Sri Babu H. Metagudda that the petitioner has now

been transferred to Gokak, we may state that this

transfer order may not have any bearing on this writ

petition because all that we have examined in this writ

petition is about the implementation of the order

dated 20.08.2022. It is left to the Government to take

a decision based on our judgment.

14. Therefore, from the above discussion, we

dispose of the writ petition with the following

observations:

     (i)     The impugned order is modified.

     (ii)    The transfer order dated 20.08.2022

comes into effect only after the third

respondent completes his tenure at

Basavakalyan.

(iii) After the transfer order comes into

effect, the third respondent should be

immediately shown a place other

than leave reserve.

Sd/-

JUDGE

Sd/-

JUDGE

swk