Karnataka High Court
Sri.C.S Yathiraj vs State Of Karnataka on 5 October, 2023
Bench: K.Somashekar, Umesh M Adiga
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WP No. 20665 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF OCTOBER, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
WRIT PETITION NO.20665 OF 2023 (S-KSAT)
BETWEEN:
SRI C.S.YATHIRAJ
S/O G.CHANNAGANGAPPA,
AGED ABOUT 59 YEARS,
EXECUTIVE ENGINEER,
PUBLIC WORKS DEPARTMENT,
BENGALURU DIVISION,
K.R.CIRCLE, BENGALURU,
R/AT 3394/B, 6TH MAIN
3RD CROSS, HAMPINAGAR,
RPC LAYOUT, VIJAYANAGAR II STAGE,
Digitally BENGALURU-560 104.
signed by D
HEMA ...PETITIONER
Location:
HIGH (BY SRI S.M.CHANDRASHEKAR, SENIOR COUNSEL FOR
COURT OF
KARNATAKA SRI SUNIL KUMAR B.N., ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS
SECRETARY TO GOVERNMENT,
PUBLIC WORKS DEPARTMENT,
VIKASA SOUDHA,
BENGALURU-560 001.
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WP No. 20665 of 2023
2. SRI R.CHANDRASHEKAR
EXECUTIVE ENGINEER,
PUBLIC WORKS DEPARTMENT,
VIKASA SOUDHA,
BENGALURU-560 001.
...RESPONDENTS
(BY SRI MOHAMMED JAFFAR SHAH, AGA FOR R1;
SRI M.S.BHAGWAT, SENIOR COUNSEL FOR
SRI B.O.ANIL KUMAR, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF CONSTITUTION OF INDIA PRAYING TO ISSUE
WRIT OF CERTIORARI TO SET ASIDE/QUASH THE ORDER
DATED 06/09/2023 PASSED BY THE HON'BLE KARNATAKA
ADMINISTRATIVE TRIBUNAL IN APPLICATION NO.3080/2023,
VIDE ANNEXURE-A AND POST THE APPELLATE TO HIS EARLIER
PLACE i.e., PUBLIC WORK DEPARTMENT, BENGALURU
DIVISION, K.R.CIRCLE, BENGALURU, TO COMPLETE HIS
SERVICE.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, K.SOMASHEKAR J., MADE THE
FOLLOWING:
ORDER
This writ petition is filed challenging the order dated
06.09.2023 passed by the Karnataka Administrative
Tribunal in Application No.3080 of 2023 (Annexure-A) and
seeking to post the Applicant/Petitioner herein to his
earlier place, i.e., Public Works Department, Bengaluru
Division, K.R.Circle, Bengaluru, to complete the service.
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2. Heard Shri.S.M.Chandrashekar, learned Senior
Counsel appearing on behalf of Shri.Sunil Kumar.B.N.,
learned counsel who is on record for the petitioner, so
also, Shri.Mohammed Jaffar Shah, learned Counsel
appearing for Respondent No.1 and Shri.M.S.Bhagwat,
learned Senior Counsel appearing on behalf of
Shri.B.O.Anil Kumar, learned counsel who is on record for
Caveator/Respondent No.2.
3. The case of the petitioner is that he is working
in Department of Public Works and presently working as
Executive Engineer. The age of the petitioner is about 59
years, and he is at the verge of retirement stage. He is
due to retire on attaining the age of superannuation on
30.11.2023. It is the contention of the petitioner that
when there is only three months is remaining to complete
the service of the petitioner, at this stage, the 1st
Respondent has passed the impugned order dated
03.07.2023 by transferring the 2nd Respondent in the
place of the petitioner and in turn, the petitioner is
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prematurely transferred to Karnataka Road Development
Corporation Limited (KRDCL). It is the further contention
of the petitioner that transferring the 2nd respondent in the
place of the petitioner by order dated 18.10.2021 is
premature, contrary to the Transfer Guidelines dated
07.06.2013 and further, the petitioner is in the cadre of
Executive Engineer which is Group 'A' post and the tenure
prescribed under the Transfer Guideline is two years but
the said fact was not considered. Aggrieved by the order
dated 03.07.2023 passed by the 1st respondent
transferring the 2nd respondent in the place of the
petitioner, the applicant/petitioner herein approached the
Karnataka State Administrative Tribunal, Bengaluru in
Application No.3080 of 2023.
4. The Respondent No.1 has not filed any
objection in Application No.3080 of 2023 before the
Tribunal. The Respondent No.2 filed his Reply Statement
before the Tribunal by placing reliance on a judgment
reported in (2020)3 SCC 404 (Union of India and another
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Vs. Deepak K Niranjannath Pandit) wherein the Apex
Court has held that the Government servant cannot claim
a posting as of right to a place of his choice.
5. After hearing both sides, the Tribunal, by its
order dated 06.09.2023 dismissed the application of the
applicant, wherein it has indicated that Government
servant cannot claim a posting as of right to a place of his
choice. Since the order passed by the 1st respondent is in
public interest and during the general transfers and also
posting of the applicant is in Bengaluru itself.
6. The learned Senior Counsel for the petitioner
has placed reliance on the judgment rendered by the Full
Bench of this Court in the case of (Sri S.N.Gangadharaiah,
Vs. The State of Karnataka and another) dated
13.04.2015 in Writ Petition No.58375 of 2013 (S-KAT)
wherein it has held that:
"a) The Rules relating to transfer contained
in the KCSRs and the definition of the term
'transfer' contained in Rule 8(4) of KCSR have no
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application for regulating transfer of Government
servants as provided in the Government Order
dated 07.06.2013.
b) Decision of the Division Bench of this
Court in the case of K.Ramachandra Vs. State of
Karnataka and others rendered in W.P.No.56164 of
2013 disposed of on 05.12.2013 does not lay down
correct law, nor does it consider the decision of the
Full Bench in the case of H.N.Chandru Vs. State of
Karnataka and others - 2011 (3) KLJ 562 which
was not brought to the notice of the Division Bench.
c) Consequently, we hold that posting of a
Government servant from one office to an other
within the same headquarters, to take up duties of
a new post would tantamount to transfer within the
meaning of Clause 3 (d) of the Government Order
dated 07.06.2013.
In view of the above decision, the learned Senior
Counsel seeks for interference of this Court by urging
various grounds.
7. On the contrary, learned Senior Counsel
appearing for Respondent No.2 submits that even the
Tribunal in its order has observed that admittedly, the
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order dated 03.07.2023 is passed during the General
Transfer period, in General Transfer the consideration of
minimum period available that can be reduced as the
General Transfer period will be for a short period, during
that period, the Government has to transfer the officials
for administrative reasons. Moreover, the applicant is
posted to KRDCL, which is a part of Public Works
Department, which is in Bengaluru itself and contended
that posting the applicant in KRDCL will not affect any of
his service condition and trouble the settlement of retrial
benefits and there is no illegality in the order passed by
the Tribunal and hence, it does not call for interference by
this Court.
8. However, the learned AGA appearing for
Respondent No.1 supported the order passed by the
Tribunal and also supported the contentions of the 2nd
Respondent. He further submitted that the 1st Respondent
is ready to hand over charge.
9. The said submission is placed on record.
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10. In view of the submissions made by the learned
Counsels appearing on both sides, it is relevant to refer to
the Government Order No.DPAR 22 STR, Bengaluru dated
07.06.2013 wherein Guideline No.9 reads as under:
"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 concerned Government
servant transferred prematurely if the competent
authority feels that he or she is not suitable for
discharging the duties at the present place and the
reasons are recorded to this effect in writing:-
(1) The employee due for transfer after completion
of tenure at a place or posting or post has less
than two years of service for retirement:
(2) The employee possesses special technical
qualifications or experience for the particular job
for which a suitable replacement is not
immediately available
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(3) The employees working on a project or Flagship
programmes of Government of India which are
in the crucial stage of implementation and his
withdrawal will seriously jeopardize timely
completion of such projects:
(4) Where both the spouses are Government
servants and if one of the spouses is
transferred. then the other spouse may also be
transferred to the same place or nearby place
depending upon the availability of vacancy even
if one of them has not completed the minimum
period of stay.
(5) Where a female Government servant is a widow
/spinster/unmarried divorcee, she may be
transferred and in case she is appointed for the
first time, may be posted to a place of her
choice subject to availability of vacancy:
(6) Where a Government servant is an office-bearer
of the Karnataka State Government Employees
Association only, such Government servant shall
not be transferred until the completion of the
term for which he has been elected. In case no
elections are held within three months of the
completion of the said term, he may be
transferred. In case he is reelected, he may be
continued in the same place until the completion
of the second term only.
(7) Where a Government servant is physically
handicapped/challenged or disabled subject to
certification by the Medical Board;
(8) Where a Government servant or his/her spouse
or children are suffering from serious of terminal
ailments, depending upon the availability of the
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(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 sta ted 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."
11. Keeping in view the contentious contentions of
the learned Senior Counsel for the petitioner and so also
the counter arguments advanced by the learned Senior
Counsel for the respondents, we find that there is
substance in the contention of the learned Senior Counsel
for the petitioners as regards the Transfer Guidelines
issued by the Government of Karnataka dated 07.06.2023.
In view of the above and also keeping in view Article
226(1) of the Constitution of India, we proceed to pass the
following:
ORDER
i) The Writ Petition is hereby allowed.
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ii) The order of transfer issued by the Competent
Authority/Respondent No.1 vide Notification bearing
No.Lo.E.95 Se.A.Su.2023 (6) dated 03.07.2023 at
Annexure-A3 is hereby set aside only to the extent,
for the petitioner who is attaining superannuation on
30.11.2023.
iii) Further, it is clarified that the petitioner
shall be working in the same Unit, in the same
posting as Executive Engineer, Public Works
Department.
iv) However, the Competent Authority is
directed to permit Respondent No.2, namely,
Shri.R.Chandrashekar, Executive Engineer to take
over charge in respect of the posting dated
03.07.2023.
Sd/-
JUDGE
Sd/-
JUDGE
DH
