Karnataka High Court
Pundalik vs The Karnataka Power Transmission ... on 15 February, 2024
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WP No. 202987 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO.202987 OF 2023 (S-TR)
BETWEEN:
PUNDALIK S/O LINGAPPA GOKHALE
AGE: 47 YEARS, OCC: AEE (ELE)
O AND M SUB DIVISION GESCOM,
BIDAR-585328.
...PETITIONER
(BY SRI. VILAS KUMAR SR. COUNSEL FOR
SRI. NITESH PADIYAL, ADVOCATE)
AND:
1. THE KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED
THROUGH ITS MANAGING DIRECTOR
Digitally signed KAVERI BHAVAN, BENGALURU-560009.
by KHAJAAMEEN
L MALAGHAN
Location: High 2. THE DIRECTOR
Court of
Karnataka (ADM. AND H. R.) KPTCL,
KAVERI BHAVAN, BENGALURU=560009.
3. SINDHE MAHENDRA KUMAR
AGE: 45 YEARS, OCC: ASST. EXECUTIVE ENGINEER,
NODAL OFFICER, 110KV SUB STATION,
KPTCL, BHALK- 585328
DIST. BIDAR.
...RESPONDENTS
(BY SRI. ARUNKUMAR AMARGUNDAPPA ADV. FOR R1;
SRI. MAHESH PATIL, ADV. FOR C/R3(IN CP 31975/23))
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WP No. 202987 of 2023
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
I) ISSUE A WRIT OF CERTIORARI FOR QUASHING THE
IMPUGNED ORDER OF PREMATURE TRANSFER OF PETITIONER
PASSED BY RESPONDENT NO.2 VIDE ORDER NO.PÀ«¥À椤/G¥ÀæªÀå
(¹)ªÀå/(¹1) (¹)(©58)26/2023 DATED 31-10-2023 WHICH IS AT
ANNEXURE-A, IN SO FAR AS THE PETITIONER IS CONCERNED,
IN THE INTEREST OF JUSTICE. II) ORDER FOR ANY OTHER
RELIEF TO WHICH THE PETITIONER IS FOUND TO BE ENTITLED
TO.
THIS PETITION, COMING ON FOR DISPOSAL, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The writ petitioner is before this Court seeking the
following reliefs:
i) Issue a writ of certiorari for quashing the
impugned order of premature transfer of
petitioner passed by respondent No.2 vide
order No.PÀ«¥À¤
æ ¤/G¥Àª
æ Àå/ (¹)/ªÉÊ/(¹1) (¹(©58)
26/2023 dated 31.10.2023 which is at
Annexure-A, in so far as the petitioner is
concerned, in the interest of justice.
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ii) Order for any other relief to which the
petitioner is found to be entitled to.
2. It is the case of the writ petitioner that the
petitioner was earlier working at Bhalki and thereafter he
has been transferred to the O & M Sub Division, GESCOM,
Bidar as Assistant Executive Engineer on 03.7.2023, the
respondents without any reasons has transferred the
petitioner by order impugned dated 31.10.2023 within a
matter of three months contrary to the transfer guidelines.
Earlier the unofficial respondent herein had got mutual
transfer by another employee by order dated 15.10.2022
and continued at Bidar. When the petitioner herein was
earlier posted in the place of respondent No.3, on the
ground that it is a premature transfer he has come before
this Court by filing W.P.No.201876/2023. This Court has
dismissed the said writ petition by order dated
24.08.2023. The unofficial respondent herein has carried
this matter in Appeal by filing W.A.No.200133/2023 and
same came to be dismissed by order dated 03.10.2023
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confirming the orders of the learned Single Judge.
Thereafter, the respondents have transferred the unofficial
respondent to the place were the petitioner is working and
the petitioner is transferred to R.T. Sub Division, GESCOM
Bidar in the vacant place. It is submitted that aggrieved
thereby the writ petitioner is before this Court.
3. The learned Senior counsel appearing for the
writ petitioner submits that the transfer of the petitioner
within three months is a premature transfer and contrary
to the guidelines and also judgment of the Division Bench
of this Court in Rajashekar's case which is affirmed by the
Division Bench in a subsequent case of Shankrappa
Vanikyal in W.P.No.209633/2023. In the said order the
registry was directed to forward a certified copy of the
order to the office of the Chief Secretary for
communicating to all the Heads of Departments of the
Government of Karnataka for due compliance with the
procedure that is to be followed to secure prior approval of
the Hoin'ble Chief Minister in the case of premature or
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delayed transfers. The learned Senior counsel submits that
the respondent which he could not achieve legally. He
could achieve the same by approaching the respondents
and was successful in transferring the petitioner. It is
submitted that in spite of the orders passed by this Court
and the guidelines issued by the Division bench, the
respondents have passed this order, which is contrary to
law and to their own guidelines. It is submitted that in
Rajashekar's case, the Court has observed that the
Hon'ble Chief Minister after perusal of the reasons stated
by the authority, if satisfied that the case comes under
one of the circumstances as enumerated under the
guidelines. Only then the Chief Minister has to give his
prior approval for premature / delayed transfer of a
Government Servant. It is the contention of the Senior
counsel that in this case without any reason he has been
transferred and they have failed to obtained permission of
the Hon'ble Chief Minister.
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4. Learned counsel appearing for the respondent
Nos.1 and 2 has placed before this Court the approval of
the Chief Minister and he submits that basing on the
recommendation of the minister, the proposal was placed
before the Chief Minister and then the Chief Minister has
approved the same. It is submitted that strictly in
accordance with the transfer guidelines they have issued
the transfer orders and there is no arbitrariness in the
procedure adopted by the respondents. He submits that
for the purpose of administration, the Minister has
recommended for the transfer and considering the same
the Chief Minister has accorded permission which is in
strict compliance of the transfer guidelines.
5. Learned counsel appearing for the unofficial
respondent submits that in the earlier round of litigation
the unofficial respondents transfer is also premature
transfer. However, he was unsuccessful before this Court.
He submits that even otherwise the distance between the
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place where the petitioner was earlier working and to the
place now he is transferred is within the city of Bidar, so it
will not make any difference for the petitioner. In that
regard he had relied on a order passed by a Division bench
of this Court in W.P.No.11934/2022 dated
25.08.2022, wherein in the said case the prior permission
of the Chief Minister was obtained and the Court has
observed that the place were he was working and the
transfer place and within a very short distance of Mysore
City, which has a well developed network of Transport
facility, Hospital, residential accommodation etc. Further
the Court has observed that the transfer guidelines are
prepared only to prevent the arbitrary exercise of power
and in that case the Courts finds that there is no such
arbitration in the transfer process. Relying on the said
judgment, the learned counsel submits that even the place
were he was working and the transferred place are in the
city and the judgment he relied on applied to the facts of
the case. He submits that the division bench has observed
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that no reasons are required to be given b the Chief
Minister and he submits that in this case there is no much
distance between the two stations, the petitioner ought
not to have approached this Court as no prejudice is
caused to him and the writ petition is liable to be
dismissed.
6. In this case, the petitioner was posted to the
present station on 03.07.2023 was again transferred to
the other station by transfer order dated 31.10.2023
which is impugned in this writ petition. He was transferred
from the place within three months which is a premature
transfer. The Government has issued the guidelines dated
22.11.2001 and some amendments were brought to that
guidelines on 07.05.2013. In that clause-9 deals with
premature and delayed transfer as per the same there
shall be no premature transfer 81 days transfer and they
have given certain exceptions. At this juncture it is
appropriate to extract clause 9 of the transfer guidelines.
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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:-
(i) 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;
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(ii) The employee possesses special technical
qualifications or experience for the particular job
for which a suitable replacement is not
immediately available;
(iii) 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;
(iv) 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;
(v) 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;
(vi) 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
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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.
(vii) Where a Government servant is physically
handicapped / challenged or disabled subject to
certification by the Medical Board;
(viii) Where a Government servant or his / her
spouse or children are suffering from serious or
terminal ailments, depending upon the
availability of the facility of medical treatment at
the requested place subject to certification by
the Medical Board;
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
stated 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
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circumstances issue transfer orders and later
seek ratification / post facto approval of the
Chief Minister.
7. Whenever, they have to effect the premature /
delayed transfers prior approval of the Hon'ble Chief
Minister must be obtained without fail by the concerned
department. 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. Relying on the said
guidelines learned Senior counsel submits that they have
to obtain prior permission of the Chief Minister as this case
is a premature transfer and while taking approval for the
Chief Minister, the valid reasons should be put forth and
looking at the said reasons. The Chief Minister may gave
his approval. In this regard a Division Bench of this Court
in Rajashekar's case had specifically observed that when
the file is placed before the Chief Minister the valid
reasons should be mentioned. Coming to the facts of this
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case, learned counsel for the respondent Nos.1 and 2 has
placed before this Court a note file by way of memo,
wherein the Chief Minister has given his approval on
18.10.2023. The note file shows that the two ministers
have recommended for the transfer of the petitioner. The
whole purpose of framing the transfer guidelines is to
prevent the abuse and arbitrariness in transferring the
employees. When the respondents themselves have
issued the transfer guidelines they should adhere to the
same. The Chief Minister will grant the approval basing on
the note file placed before him looking to the reasons
which necessitated the transfer. Unfortunately in this case,
no such reasons are stated except stating that the two
Ministers have recommended for transfer. Reason for
transfer is just recommendation of two Ministers on the
face of it. It is arbitrary exercise of power vested with the
respondents. The respondents cannot resort to this kind of
action. When the unofficial respondent who could not be
successful before the Court in writ petition as well as in
writ appeal, he could achieve the same with the
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indulgence of two ministers. The transfers are done
without any rule. The State being a modal employer shall
behave in exemplary manner and shall take care of the
interest of employee. Unfortunately in this case, the
petitioner has come to the station about three months
back and he has been transferred in clear violation of
transfer guidelines and the judgment of this Court in
Rajashekar's case and particularly in Shankrappa
Vanikyal's case this Court directed to the registry to send
the copy of the judgment to the Chief Secretary. It
appears that in spite of the repeated orders passed by this
Court, still the respondents are not understanding that
they have to follow the procedure and the guidelines
issued by them. It appears that according to the
respondents the guidelines do not bind them.
Unfortunately they have to act within the four corner of
law. This is high time that the respondents shall adhere to
the guidelines and the Chief Secretary shall make an
endavour and shall take all steps that whenever any
transfer are made and whenever they are invoking clause-
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9 of the said transfer guidelines. It is not just the
approval of the Chief Minister but what is necessary is that
before placing the file for approval the file should contain
some reasons which are germane for the transfer.
8. In the light of the above discussion, this Court
is of the view that the transfer order dated 31.10.2023 is
contrary to the transfer guidelines and the judgment of
this Court and accordingly the same is set aside as for as
the writ petitioner and respondent No.3 is concerned.
9. Accordingly, the writ petition is allowed.
* The Registrar Judicial is directed to send the copy
of this order to the Chief Secretary.
Sd/-
JUDGE
SMP
