Karnataka High Court
Sri A G Havinal S/O Gurupadappa vs Sri V I Chanagond S/O Irappa on 4 January, 2024
Author: S G Pandit
Bench: S G Pandit
-1-
NC: 2024:KHC-D:202-DB
WP No. 107463 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE K V ARAVIND
WRIT PETITION NO. 107463 OF 2023 (S-KAT)
BETWEEN:
SRI. A. G. HAVINAL S/O. GURUPADAPPA,
AGE. 40 YEARS, OCC. ASSISTANT
EXECUTIVE ENGINEER (SUB -DVN-1),
O/O. NATIONAL HIGHWAY QUALITY CONTROL,
SUB -DIVISION, HUBBALLI,
DHARWAD DISTRICT -01.
...PETITIONER
(BY SRI. ANIL KALE, ADVOCATE)
AND:
1. SRI. V.I. CHANAGOND S/O. IRAPPA,
AGE 59 YEARS, OCC. ASSISTANT EXECUTIVE
ENGINEER
NATIONAL HIGHWAY QUALITY CONTROL SUB
DIVISION, HUBBALLI, DHARWAD DISTRICT,
Digitally
signed by
JAGADISH
R/O. BASAVA NILAYA, PRAGATI COLONY,
JAGADISH T R
TR Date:
2024.01.10
14:32:23
HALIYAL ROAD, SAPTHAPUR DHARWAD -01.
+0530
2. STATE OF KARNATAKA,
R/BY ITS PRINCIPAL SECRETARY,
PUBLIC WORKS DEPARTMENT
VIKAS SOUDHA,
BENGALURU-560001.
3. THE CHIEF ENGINEER,
NATIONAL HIGHWAYS, PWD,
ANNEXE BUILDING, K.R. CIRCLE,
BENGALURU-560001.
4. THE SUPERINTENDING ENGINEER,
NATIONAL HIGHWAYS, PWD,
-2-
NC: 2024:KHC-D:202-DB
WP No. 107463 of 2023
ANNEXE BUILDING, K.R. CIRCLE,
BENGALURU-560001.
5. THE CHIEF ENGINEER,
QUALITY ASSURANCE ZONE, PWD,
ANNEXE BUILDING, K.R. CIRCLE,
BENGALURU-560001.
6. THE SUPERINTENDING ENGINEER,
DEPARTMENT OF PUBLIC WORKS,
QUALITY ASSURANCE CIRCLE,
OPP. AKASHA VANI, DHARWAD-580001.
7. THE EXECUTIVE ENGINEER,
DEPARTMENT OF PUBLIC WORKS,
QUALITY ASSURANCE DIVISION,
NEAR K.C.D. CIRCLE, DHARWAD-580008.
8. SRI. UMESH ITAGI S/O RANGAPPA ITAGI,
AGE: 53 YEARS, OCC: ASSISTANT EXECUTIVE
ENGINEER, PUBLIC WORKS DEPARTMENT, QUALITY
ASSURANCE SUB-DIVISION, DHARWAD.
R/O: NO.66, NEAR BANDAMMA TEMPLE,
GANDHI NAGAR, DHARWAD-580001.
...RESPONDENTS
(BY SRI. SHARANABASAVARAJ C, ADVOCATE FOR R1,
SRI. G.K. HIREGOUDAR, GOVT. ADVOCATE FOR R2 TO R7,
NOTICE TO R8 DISPENSED WITH)
THIS WRIT PETITION IS FILED U/A 226 AND 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO, ISSUE A WRIT IN THE
NATURE OF CERTIORARI AND QUASH THE ORDER DATED.
11.12.2023 PASSED BY THE KARNATAKA STATE ADMINISTRATIVE
TRIBUNAL, BELAGAVI IN APPLICATION NO.11066/2023
PRODUCED AT ANNEXURE-A, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY, S G PANDIT J., PASSED THE FOLLOWING:
-3-
NC: 2024:KHC-D:202-DB
WP No. 107463 of 2023
ORDER
The petitioner, respondent No.7 before the Karnataka
State Administrative Tribunal, Belagavi (for short, 'Tribunal') in
Application No.11066/2023, is before this Court questioning the
correctness and legality of the order dated 11.12.2023 setting
aside the transfer order dated 30.09.2023 (Annexure-A1)
insofar as petitioner and respondent No.1 are concerned.
2. Heard the learned counsel Sri.Anil Kale for the
petitioner, learned counsel Sri.Sharanabasavaraj C for
respondent No.1 and learned Government Advocate for
respondents No.2 to 7, perused the writ petition papers.
3. The facts in brief are that, both the petitioner and
respondent No.1 are working as Assistant Executive Engineer,
Division-I, Public Works Department, State of Karnataka. The
petitioner, who was promoted as Assistant Executive Engineer,
Division-I under Rule 32 of Karnataka Civil Services Rules,
1957 (for short, 'KCSR') was posted as Assistant Executive
Engineer, Division-I, in place of respondent No.1, to National
Highway, Quality Control, Sub-Division, Hubballi under
impugned notification dated 30.09.2023. Under the same
NC: 2024:KHC-D:202-DB
notification, respondent No.1 was transferred as Assistant
Executive Engineer, PWD, Quality Assurance, Sub-division,
Dharwad. Questioning the said transfer notification dated
30.09.2023 transferring respondent No.1 from National
Highway, Quality Control, Sub-division, Hubballi to PWD,
Quality Assurance, Dharwad, respondent No.1 approached the
Tribunal in Application No.11066/2023. The Tribunal under
impugned order dated 11.12.2023 set-aside the impugned
transfer notification dated 30.09.2023 and directed the State to
continue respondent No.1, who was the applicant before the
Tribunal, in the post held by him till his superannuation from
service on 30.09.2024. Challenging the same, the petitioner,
who was respondent No.7 before the Tribunal is before this
Court.
4. Sri.Anil Kale, learned counsel for the petitioner
would submit that the Tribunal committed a grave error in
allowing the application by holding that there was no approval
of Chief Minister for transfer of both petitioner and respondent
No.1. Learned counsel referring to the documents produced
along with memo dated 3.1.2024 would submit that the Chief
Minister approved the transfer of the petitioner and respondent
NC: 2024:KHC-D:202-DB
No.1 on 29.09.2023 and thereafter, on 30.09.2023, the
impugned transfer order is issued. Learned counsel would
submit that, in terms of Government Order dated 7.6.2013,
premature transfer of a government servant is permissible on
obtaining prior approval of the Chief Minister. He further
submits that since the transfer of the petitioner and respondent
No.1 has taken place on obtaining approval of the Chief
Minister, the Tribunal could not have allowed the application
filed by respondent No.1. Further, learned counsel for the
petitioner would submit that the transfer of respondent No.1
from National Highway, Quality Control, Sub-Division, Hubballi
to PWD, Quality Assurance, Sub-division, Dharwad is at his
request. He would further submit that respondent No.1 in
pursuance of impugned transfer order, on 3.10.2023 submitted
his duty report to the Chief Engineer, PWD, Quality Assurance,
Bengaluru. Therefore, he submits that when the transfer of
respondent No.1 is at his instance, he could not have
challenged the impugned transfer order. Further, learned
counsel would submit that under Notification dated 29.12.2023,
the petitioner is provided posting as Assistant Executive
Engineer, Karnataka University, Dharwad. Therefore, he
NC: 2024:KHC-D:202-DB
submits that when respondent No.1 is provided posting at
Dharwad itself, respondent No.1 cannot have any grievance
and he could not have invoked clause providing protection to a
government servant, who is going to retire within one year
under Government Order dated 7.6.2013. Thus, he prays for
allowing the writ petition.
5. Per contra, Sri.G.K.Hiregoudar, learned Government
Advocate while supporting the contention of the petitioner
referring to the documents produced by the petitioner along
with memo dated 3.1.2024, would submit that in the interest of
public and due to administrative exigencies, the Chief Minister
approved the transfer of petitioner and respondent No.1. The
reasons stated in the note sheet i.e. "in the interest of public
and due to administrative exigencies" would suffice the
condition of Clause-9 of Government Order dated 7.6.2013.
6. Sri. Sharanabasavaraj C, learned counsel for
respondent No.1 would support the impugned order passed by
the Tribunal and referring to the statement of objections filed
on behalf of respondent No.1 would submit that, transfer of
respondent No.1 is premature. He would submit that under
NC: 2024:KHC-D:202-DB
Notification dated 17.6.2022, respondent No.1 was posted to
the present post i.e., Assistant Executive Engineer, National
Highway, Quality Control, Sub-division, Hubballi and under
impugned notification dated 30.09.2023, respondent No.1 is
disturbed. Learned counsel referring to Government Order
dated 7.6.2013 submits that Group-A Officers are provided
minimum tenure of two years at a place of posting. He would
submit that since respondent No.1 has not completed minimum
tenure of two years, transfer of respondent No.1 is premature.
Further, learned counsel would submit that though Government
Order dated 7.6.2013 permits premature transfer, for such
premature transfer, reasons are to be recorded; however, no
reasons are record for premature transfer of respondent No.1.
7. Nextly, learned counsel for respondent No.1 would
submit that respondent No.1 is going to retire in another nine
months i.e., on 30.09.2024. Inviting attention of this Court to
Clause-9(a)(i), learned counsel would submit that government
servants, who retire within another two years are to be
provided posting of their choice. Therefore, he would submit
that as the respondent No.1 retires within another nine months,
NC: 2024:KHC-D:202-DB
the government ought to have provided posting of his choice.
Thus, he prays for dismissal of the writ petition.
8. Having heard the learned counsel for the parties
and on perusal of the writ petition papers, the only point that
would fall for consideration in this petition is as to whether the
Tribunal is justified in setting aside the impugned transfer order
dated 30.09.2023.
9. Our answer to the above point would be in the
affirmative for the following reasons:
10. Admittedly, both petitioner and respondent No.1
are working as Assistant Executive Engineer, Division-I in the
Public Works Department. The petitioner is holding the post of
Assistant Executive Engineer under Rule 32 of KCSR, whereas
respondent No.1 is a regular substantive holder of post of
Assistant Executive Engineer. It is an admitted fact that under
notification dated 17.06.2022, respondent No.1 was posted to
work as Assistant Executive Engineer, National Highway,
Quality Control, Sub-division, Hubballi. As on the date of
impugned transfer order dated 30.09.2023, respondent No.1
had not completed minimum tenure of two years. The
NC: 2024:KHC-D:202-DB
Government Order dated 7.6.2013, which regulates transfer of
government servants, provides minimum tenure of two years at
a place of posting to Group "A" officers. As the petitioner is
transferred within two years, the same would be premature
transfer.
11. Government Order dated 7.6.2013 permits
premature transfer also. Before making premature transfer,
competent authority is required to record reasons for such
premature transfer and obtain prior approval of the Chief
Minister. This Court had an occasion to consider Clause-9 of
the Government Order dated 7.6.2013 in the case of
Rajashekar M. Vs. State of Karnataka1, wherein a co-
ordinate Bench of this Court has specifically held that 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.
Relevant paragraph-6 of the said judgment reads as under:
6. As could be seen from para 9 of the Government
Order extracted above, premature/delayed transfer of
(2019) 2 Kar.L.J. 352
- 10 -
NC: 2024:KHC-D:202-DB
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.
(Emphasis supplied)
12. Learned counsel for the petitioner has filed a memo
dated 4.1.2024 enclosing a copy of the note sheet along with
covering letter dated 21.12.2023, which is obtained through
RTI, where approval of the Chief Minister is obtained for
transfer of petitioner and respondent No.1. On going through
the note sheet made available, it is seen that the transfer of
petitioner and respondent No.1 is approved by the Chief
Minister, but no reasons are recorded for such premature
transfer of respondent No.1 from National Highway, Quality
Control, Sub-division, Hubballi to PWD, Quality Assurance, Sub-
division, Dharwad. Since no reasons are recorded for
premature transfer as required under Clasue-9 of the
- 11 -
NC: 2024:KHC-D:202-DB
Government Order dated 7.6.2013, the Tribunal is justified in
setting aside the transfer of the petitioner and respondent No.1
under impugned order. Though the Tribunal has recorded a
finding that the impugned transfer order is without obtaining
approval of the Chief Minister, from the records made available
by the petitioner, it is clear that the impugned transfer order is
issued on obtaining approval from the Chief Minister. But the
said approval is without recording any reasons and same is
contrary to Clause-9 of the Government Order dated 7.6.2013.
13. It is also not in dispute that the respondent No.1
retires from service on 30.09.2024 on attaining the age of
superannuation. Respondent No.1 is left with another nine
months of service. Government Order dated 7.6.2013 under
Clause-9(a)(i) empowers the Government to extend or reduce
the minimum period of stay and also to continue the
government servant, who has less than two years of service
for retirement. The Government has not taken note of the
retirement of respondent No.1 in another nine months.
Learned counsel for the petitioner has brought to our notice the
notification dated 29.12.2023 providing posting of respondent
No.1 as Assistant Executive Engineer, Karnataka University,
- 12 -
NC: 2024:KHC-D:202-DB
Dharwad. The said notification itself makes clear that it is
subject to outcome of the present writ petition. Therefore, it
would have no relevance/consequence. Further, there is no
material to appreciate the contention of the petitioner that
transfer of respondent No.1 is at his request. Only because
respondent No.1 submitted duty report in pursuance to transfer
notification, it cannot be said that transfer is at his request.
14. For the reasons recorded above, we do not find any
merit in the writ petition and accordingly, the same is
rejected.
Pending applications, if any, are disposed off as not
surviving for consideration.
Sd/-
JUDGE
Sd/-
JUDGE
JTR
