Karnataka High Court

Sri S M Shiva Kumar vs The State Of Karnataka on 7 August, 2024

                                             -1-
                                                       WP No. 20732 of 2024
                                                   C/W WP No. 20740 of 2024



                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                        DATED THIS THE 07TH DAY OF AUGUST, 2024
                                         PRESENT
                        THE HON'BLE MRS JUSTICE ANU SIVARAMAN
                                            AND
                          THE HON'BLE MR JUSTICE G BASAVARAJA
                        WRIT PETITION NO. 20732 OF 2024 (S-KSAT)
                                            c/w
                        WRIT PETITION NO. 20740 OF 2024 (S-KSAT)


                   IN W.P.NO. 20732/2024

                   BETWEEN:

                   SRI S. M. SHIVA KUMAR,
                   S/O LATE S M MAYANNA
                   AGED ABOUT 49 YEARS
                   PRESENTLY WORKING AS
                   A SPEICAL LAND ACQUISTION OFFICER 2
                   KARNATAKA INDUSTRIAL AREA
                   DEVELOPMENT BOARD (KIADB)
                   NO 43/3, 1ST FLOOR
Digitally signed   MAHARSHI ARAVIND BHAVANA,
by NANDINI D
Location: High
                   DR. AMBEDKAR VEEDHI,
Court of           SAMPANGIRAMA NAGAR,
Karnataka          BENGALURU - 560009

                   RESIDING AT NO.20, ELITE APARTMENT,
                   1ST 'D' CROSS, ANNAYYAPPA LAYOUT,
                   80 FEET ROAD, GEDDALAHALLI,
                   BENGALURU - 560094
                                                               ...PETITIONER
                   (BY SRI. R.SUBRAMANYA, ADV. A/W
                    SRI. NARASIMHARAJU, ADV.)
                          -2-
                                   WP No. 20732 of 2024
                               C/W WP No. 20740 of 2024



AND:

THE STATE OF KARNATAKA
REPRESENTED BY PRINCIPAL SECRETARY
DEPARTMENT OF PERSONNEL AND
ADMINISTRATIVE REFORMS (SERVICES-2)
VIDHANA SOUDHA, BENGALURU-560001.
                                          ...RESPONDENT
(BY SRI. V.G.BHANUPRAKASH, AAG A/W
 SRI. NAVEEN CHANDRASHEKAR, AGA FOR RESPONDENT)


     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
WRIT OF CERTIORARI BY QUASHING THE IMPUGNED ORDER
PASSED BY THE KARNATAKA STATE ADMINISTRATIVE
TRIBUNAL IN APPLICATION NO.3144/2024 DATED 31/07/2024
AS PER ANNEXURE-A AND CONSEQUENTLY QUASH THE
IMPUGNED    ORDER   OF   TRANSFER   PASSED    BY   THE
RESPONDENT DATED 09/07/2024 BEARING NO.C AA SU E 150
A SE VA 2024 BY ALLOWING THE APPLICATION NO.3144/2024
AS PER ANNEXURE-A9 IN THE APPLICATION IN SO FAR AS THE
PETITIONER IS CONCERNED.



IN W.P.NO. 20740/2024

BETWEEN:

SRI S. M. SHIVA KUMAR,
S/O LATE S M MAYANNA
AGED ABOUT 49 YEARS
PRESENTLY WORKING AS
A SPEICAL LAND ACQUISTION OFFICER 2
KARNATAKA INDUSTRIAL AREA
DEVELOPMENT BOARD (KIADB)
NO 43/3, 1ST FLOOR
MAHARSHI ARAVIND BHAVANA,
DR. AMBEDKAR VEEDHI,
SAMPANGIRAMA NAGAR,
BENGALURU - 560009
                            -3-
                                     WP No. 20732 of 2024
                                 C/W WP No. 20740 of 2024



RESIDING AT NO.20, ELITE APARTMENT,
1ST 'D' CROSS, ANNAYYAPPA LAYOUT,
80 FEET ROAD, GEDDALAHALLI,
BENGALURU - 560094
                                             ...PETITIONER
(BY SRI. VIVEK S.REDDY, SENIOR COUNSEL A/W
 SRI. NARASIMHARAJU, ADV.)


AND:

1.   THE STATE OF KARNATAKA
     REPRESENTED BY PRINCIPAL SECRETARY
     DEPARTMENT OF PERSONNEL AND
     ADMINISTRATIVE REFORMS (SERVICES-2)
     VIDHANA SOUDHA, BENGALURU-560001.

2.   SRI H. N. SHIVEGOWDA,
     WORKING AS SPECIAL LAND ACQUISITION OFFICER
     NATIONAL HIGHWAY AUTHORITY OF
     INDIA (NHAI), MYSURU - 570001.
                                        ...RESPONDENTS
(BY SRI. V.G.BHANUPRAKASH, AAG A/W
 SRI. NAVEEN CHANDRASHEKAR, AGA FOR R-1,
 SRI. C.M.NAGABHUSHAN, SENIOR COUNSEL A/W
 SRI. BASAVARAJU PATEL G.K., ADV. FOR C/R-2.)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
A WRIT OF CERTIORARI BY QUASHING THE IMPUGNED ORDER
PASSED BY THE KSAT IN A.No-3116/2024 DATED 31.07.2024
AS PER ANNEXURE-A AND CONSEQUENTLY QUASH THE
IMPUGNED ORDER OF TRANSFER PASSED BY THE 1ST
RESPONDENT DATED 04.07.2024 BEARING No.C AA SU E 140
A SE VA 2024 BY ALLOWING THE APPLICATION No-3116/2024
AS PER ANNEXURE-A5 IN SO FAR AS THE 2ND RESPONDENT IS
CONCERNED AS PER ANNEXURE-A5 IN THE APPLICATION.

    THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 02.08.2024 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, BASAVARAJA J.,
PRONOUNCED THE FOLLOWING:
                                -4-
                                          WP No. 20732 of 2024
                                      C/W WP No. 20740 of 2024



CORAM:     HON'BLE MRS JUSTICE ANU SIVARAMAN
           and
           HON'BLE MR JUSTICE G BASAVARAJA

                     CAV JUDGMENT

(PER: HON'BLE MR JUSTICE G BASAVARAJA)

1. Since the issues involved in these petitions are one

and the same and both the petitions are arising out of the

common order dated 31st July, 2024 passed in Applications

No.3144 of 2024 and 3116 of 2024 passed by the Karnataka

State Administrative Tribunal, Bengaluru, (for brevity,

hereinafter referred to as the "Tribunal), both these petitions

are clubbed and are disposed of by this common order.

2. These writ petitions arise from the common order

dated 31st July 2024, passed by the Tribunal, whereby the

applications filed by the petitioner seeking the quashing of the

order dated 4th July 2024, posting the respondent No. 2, and

the order dated 9th July 2024, providing posting to the

petitioner, were dismissed by the Tribunal.

3. The material on record discloses that the petitioner

was in the cadre of KAS Junior Scale and was posted to work as

Special Land Acquisition Officer-II to Karnataka Industrial Areas

Development Board by order dated 22nd November 2022 and

reported on 22nd November 2022 itself. While the petitioner

was discharging his duties in the said post, the order dated 28th

June 2024 was issued, promoting the petitioner to the KAS

Senior Scale and continuing him in the said post and place,

upgrading the post of Special Land Acquisition Officer. Pursuant

to the said posting, the petitioner continued as Special Land

Acquisition Officer-II in Karnataka Industrial Areas

Development Board. The Government of Karnataka issued a

notification for the acquisition of 5,000 acres of land for the

extension of Industrial Area Development in and around

Chikkaballapura and Bengaluru Districts on various dates, and

the scheme of notification is under process and not yet

completed. It is contended that the petitioner has not at all

completed the minimum tenure in the present place, and as per

the Transfer Guidelines, the tenure of a Group 'A' Officer in one

place is two years, and in contravention of the said Transfer

Guidelines, without assigning or recording reasons, the

petitioner was prematurely disturbed by way of an order of

transfer dated 4th July 2024, and one Sri H.N. Shivegowda was

posted in the place of the petitioner. Accordingly, as per Rule

4(1) of the Transfer Guidelines dated 25th June 2024, the

petitioner has challenged the order of transfer before the

Tribunal in Application No.3116 of 2024. The Tribunal,

considering the grievance of the petitioner, has rightly passed

the interim order of status quo on 8th July 2024. Surprisingly,

contrary to the order passed by the Tribunal, the respondent-

authority erroneously passed one more order of transfer in the

form of a Notification dated 9th July 2024 and transferred the

petitioner as Deputy Commissioner (Assets), Bruhat Bengaluru

Mahanagara Palike, Bengaluru in contravention of the orders

passed by this Court. Having been surprised to see the order of

transfer dated 9th July 2024, the petitioner, rightly on the

ground of premature transfer and also under Rule 4(1) of the

Transfer Guidelines dated 25th June 2024, challenged the said

order of transfer before the Tribunal in Application No.3114 of

2024, which applications came to be dismissed by the Tribunal.

Aggrieved by the same, the petitioner is before this Court in

these writ petitions.

4. Heard Sri Vivek Subba Reddy, learned Senior Counsel,

along with Sri Narasimharaju and Sri R. Subramanya, learned

counsel for the petitioner; Sri C.M. Nagabhushan, learned

Senior Counsel, along with Sri Basavaraju Patel for caveator

respondent No.2; and Sri V.G. Bhanuprakash, learned

Additional Advocate General, along with Sri Naveen

Chandrashaker, learned Additional Government Advocates for

official respondents.

5. Sri Vivek Subba Reddy, learned Senior Counsel for the

petitioner, reiterated various contentions from the writ petitions

and referred to the material on record, arguing that the

impugned transfer order and the posting of respondent No.2,

H.N. Shivegowda, who was working as Special Land Acquisition

Officer at the National Highway Authority of India, Mysuru, are

illegal and should be set aside. He contended that the transfer

order is premature and violates the Transfer Guidelines dated

25th June 2024, which stipulate a minimum tenure of two years

for a Group 'A' Officer. The transfer order, which did not assign

a new posting to the petitioner, violates the Transfer

Guidelines, which have statutory force as per the Full Bench

decision in H.N. CHANDRU v. STATE OF KARNATAKA AND

OTHERS reported in ILR 2011 KAR 1585 (FB). These guidelines

are binding on the State Government and are meant to protect

employees, requiring adherence to Rule 6(1) for any premature

transfer. Despite these issues, the Tribunal dismissed the

applications.

6. The learned Senior Counsel argued that the impugned

order lacked the mandatory prior approval of the Hon'ble Chief

Minister, as required by the Division Bench rulings in ALLA

SAHEB v. STATE OF KARNATAKA AND OTHERS reported in ILR

2017 KAR 86, and N. MUNIRAJU v. STATE OF KARNATAKA AND

OTHERS in Writ Petition No. 33158 of 2017. Additionally, no

reasons were given for the premature displacement of the

petitioner. In DR. T.S. MURALIDHAR v. STATE OF KARNATAKA

AND OTHERS rendered in Writ Petition No.105251 of 2023, the

Court held that any posting given during the pendency of an

application before the Tribunal is void ab initio. Despite the

Tribunal's interim order on 8th July 2024, a posting was given

on 9th July 2024, contrary to the Division Bench's judgment.

The Tribunal erroneously found that the posting complied with

the Transfer Guidelines, despite contrary evidence.The

Karnataka State Administrative Tribunal passed an order on

31st July 2024 in Applications No.3269 and 2914 of 2024 in the

case of SMT. SHOBITHA R. V. STATE OF KARNATAKA, where it

quashed the premature transfer order dated 4th July 2024 and

the impugned notification dated 9th July 2024. However, in the

current case, the Tribunal ignored the decisions of this Court.

The Senior Counsel also submitted a memo with a copy of the

First Information Report for Crime No. 89 of 2020, registered

by Sheshadripuram Police against Respondent No. 2 for

offenses under Sections 406, 409, 420, 467, 470, 471, 472,

473, 474, 475, and 476 of the Indian Penal Code. The Counsel

argued that transfers should only be made by competent

authorities if there is a prima facie complaint against a

government servant. In this case, despite the pending charges

against Respondent No.2, the transfer order was issued, which

is contrary to Sub-Rule (5) of Rule 4 of the Transfer Guidelines

dated 25th June 2024. On these grounds, he sought the

allowance of the writ petitions, also citing the Division Bench

judgment in K.G. JAGADEESHA v. STATE OF KARNATAKA AND

ANOTHER (W.P. No. 48988 of 2016, decided on 6th October

2016).

7. Conversely, the learned Counsel for respondent No.2,

along with the learned Additional Advocate General and the

learned Additional Government Advocate, defended the

impugned order passed by the Tribunal. They further submitted

that there are no grounds to interfere with the impugned order

and, therefore, requested the dismissal of the writ petitions.

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8. In response to the submission of learned Senior

Counsel for the petitioner regarding the filing of the First

Information Report against respondent No. 2, H.N.

Shivegowda, for the offenses punishable under Sections 406,

409, 420, 467, 470, 471, 472, 473, 474, 475, and 476 of the

Indian Penal Code, the said H.N. Shivegowda approached this

Court in Criminal Petition No. 6061 of 2022, challenging the

proceedings in CC No.5017 of 2021, and the same came to be

allowed by this Court by order dated 28th September 2022,

whereby the proceedings initiated for prosecution came to be

quashed on the grounds that the same was without sanction.

The copy of the order passed in Criminal Petition No.6061 of

2022 is also produced. Learned counsel for the caveator

respondent No. 2 also placed reliance on the Division Bench

judgment of this Court in the case of SRI C. MADHU v. STATE

OF KARNATAKA AND OTHERS rendered in Writ Petition

No.51992 of 2015, decided on 25th November 2015, and in the

case of Sri M.S. Purushothama Reddy v. State of Karnataka and

Others, rendered in Writ Petition No.20158 of 2015, decided on

1st June 2015.

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9. We have given our anxious consideration to the rival

submissions advanced by the learned counsel for the parties

and perused the material on record. In our considered opinion,

the impugned transfer order dated 4th July 2024, posting

respondent No.2 in Application No.3116 of 2024, and

thereafter, the Transfer Order dated 9th July 2024, providing

posting to him and the impugned order passed by the Tribunal

in Applications No.3114 and 3116 of 2024, is erroneous, illegal,

and contrary to law and material on record and the same

deserve to be quashed, for the following reasons:

a. The question/issue of whether the transfer guidelines

issued by the State Government vide Government Order

DPAR 33 STR 2024 dated 25th June 2024 have statutory

force and are mandatory is no longer res integra in light

of the judgments of the Full Bench of this Court in the

case of H.N. CHANDRU (supra) and in the case of S.N.

GANGADHARAIAH v. STATE OF KARNATAKA, reported in

ILR 2015 KAR 1955 (FB), wherein it is clearly held that

the Government Orders have statutory force, are

mandatory, and are binding upon the State Government

and its officials. Clause 6 of the Transfer Guidelines

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dated 25th June 2024 prohibits/bars any premature

transfer for a period of less than two years to all Group

'A' posts, subject to the conditions prescribed in the said

guidelines. In the instant case, it is an undisputed fact

that the petitioner was an Officer of KAS Junior Scale

and was posted to work as Special Land Acquisition

Officer-II, Karnataka Industrial Areas Development

Board, Bangalore, on 22nd November 2022, and he

reported to duty on the same day. While the petitioner

was discharging his duties in the said post, an order

dated 28th June 2024 was issued, promoting him to the

cadre of KAS Senior Scale, and he was continued to

work in the post of Special Land Acquisition Officer-II,

Karnataka Industrial Areas Development Board, by

upgrading the post. Before completion of two years, on

4th July 2024, H.N. Shivegowda was posted to the post

of Special Land Acquisition Officer-II, Karnataka

Industrial Areas Development Board, Bengaluru. It is an

undisputed fact that the petitioner obtained a status quo

order from the Tribunal as per the order dated 8th July

2024. After passing the said status quo order dated 8th

July 2024, the concerned authority issued Notification

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No.SiAaSuE 150 AaSeVa 2024 dated 9th July 2024, and

by virtue of the said Notification, the petitioner was

posted as Deputy Commissioner (Assets), Bruhat

Bengaluru Mahanagara Palike. The order of transfer

dated 4th July 2024, without giving a posting to the

petitioner and directing respondent No.2-H.N.

Shivegowda, to report to the post of Special Land

Acquisition Officer-II, Karnataka Industrial Areas

Development Board, Bengaluru, which post was being

occupied by the petitioner is well within the period of

two years prescribed, which is clearly a premature

transfer, and is issued without providing any posting to

the petitioner and is thus contrary to the Transfer

Guidelines dated 25th June 2024, and the same is

vitiated and deserves to be set aside.

b. It is an admitted fact that the petitioner has obtained

the order of status-quo from the Tribunal on 08th July,

2024 and after passing the status-quo order, the

concerned authority has passed the order on 09th July,

2024 by showing the place to the petitioner, which is

also a clear violation of the Transfer Guidelines as well

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as the interim order passed by the Tribunal, and the

same is also not sustainable under law;

c. Further, a perusal of the order of the Tribunal dated 4th

July 2024 does not indicate that in the transfer of the

petitioner, without giving any posting to him, the

concerned authority has shown the name of Sri H.N.

Shivegowda, a KAS Senior Scale Officer, as Special Land

Acquisition Officer-II, National Highway Authority of

India, Mysuru, to the post of Special Land Acquisition

Officer-II, Karnataka Industrial Areas Development

Board, Bengaluru, which post was held by the

petitioner. Therefore, it is crystal clear that without

giving any posting to the petitioner in view of the

Notification dated 4th July 2024, Sri H.N. Shivegowda

was transferred to the post of Special Land Acquisition

Officer-II, Karnataka Industrial Areas Development

Board, Bengaluru, where the petitioner was working,

which is contrary to Rule 100 of the Karnataka Financial

Code, 1958, and also the Transfer Guidelines dated 25th

June 2024 issued by the Government of Karnataka.

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d. A perusal of the transfer order dated 4th July 2024 will

also indicate that, except for directing respondent No. 2

to be transferred and posted to the petitioner's post, no

posting has been provided to the petitioner. In view of

the Division Bench judgment of this Court in the case of

MISS SEEMA H v. STATE OF KARNATAKA AND OTHERS,

rendered in Writ Petition No.48499 of 2016 decided on

16th September 2016, which is followed in the case of

KANTEPPA v. STATE OF KARNATAKA, rendered in Writ

Petition No.204826 of 2019, decided on 29th May 2020

(DB), any transfer order should not only direct the

transfer of the government official but also show or

provide him with a posting, failing which such a transfer

order would be rendered illegal. In the instant case, the

impugned order of transfer merely displacing and

transferring the petitioner simpliciter by directing him to

report to the post of Special Land Acquisition Officer-II,

Karnataka Industrial Areas Development Board,

Bengaluru, without showing or providing posting to the

petitioner, suffers from serious and glaring infirmity and

illegality, which is sufficient to vitiate the impugned

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transfer order, and the same is liable to be quashed on

this ground also.

e. Furthermore, as regards the First Information Report

filed against the respondent No.2 is concerned, the

subject matter of the case on hand is not as to the

offences registered against the respondent No.2, and

hence we need not give any opinion in this regard.

10. It is pertinent to mention here the cardinal rule

established in numerous cases by the Hon'ble Supreme Court

and this Court: "Expressio unius est exclusio alterius."

meaning, if the law requires something to be done in a

particular manner, then it must be done in that manner, and if

it is not done in that manner, then it would have no existence

in the eye of the law.

11. On a careful examination of the entire material on

record, we are of the considered opinion that the orders

impugned passed by the concerned authority are contrary to

the Transfer Guidelines dated 25th June, 2024 and also the

decisions of this Court also of the Hon'ble Apex Court. The

Tribunal has not properly appreciated the material on record

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and facts and also the decisions of the Co-ordinate Bench of

this Court.

12. For the foregoing reasons and discussions, we proceed

to pass the following:

ORDER

i. Writ Petitions are allowed;

ii. Impugned order dated 31st July, 2024 passed in

Applications No.3144 of 2024 and 3116 of 2024

passed by the Karnataka State Administrative

Tribunal, Bengaluru is set aside;

iii. Consequently Orders bearing No.SiAaSuE 140

AaSeVa 2024 dated 04th July, 2024 and

Notification bearing No.SiAaSuE 150 AaSeVa

2024 dated 09th July, 2024, also stand quashed.

iv. Petitioner shall continue to work as Special Land

Acquisition Officer-II, Karnataka Industrial Areas

Development Board, Bengaluru.