Karnataka High Court
H. R. Puttaraju vs The State Of Karnataka on 25 July, 2024
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
-1-
NC: 2024:KHC:29307
WP No. 19154 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 19154 OF 2024 (S-TR)
BETWEEN:
H. R. PUTTARAJU
AGED ABOUT 54 YEARS,
S/O. H. S. RAMEGOWDA,
PRESENTLY WORKING AS
ENVIRONMENTAL OFFICER,
REGIONAL OFFICE, KSPCB,
SARJAPURA, NISARGA BHAVAN,
3RD FLOOR, THIMMAIAH RAOD,
SANEGORAVANAHALLI,
BENGALURU-560 079.
ALSO AT
NO. HASIRU NILAYA,
NEAR ADICHUNCHANAGIRI,
Digitally signed HIGH SCHOOL,
by VINAYAKA B V
Location: HIGH GOWRIKOPPLU,
COURT OF
KARNATAKA
DHARWAD HASSAN, KARNATAKA-573 201.
BENCH
DHARWAD
Date: 2024.07.29
16:35:15 +0530 ...PETITIONER
(BY SRI.D.R. RAVISHANKAR, SENIOR ADVOCATE FOR
SMT. SIRI RAJASHEKAR.,ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF FOREST,
ENVIRONMENTAL AND ECOLOGY,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
-2-
NC: 2024:KHC:29307
WP No. 19154 of 2024
GOVERNMENT SECRETARIAT,
4TH FLOOR, GATE NO. 2,
M.S. BUILDING,
DR. B. R. AMBEDKAR VEEDHI,
BANGALORE-560 001.
2. THE KARNATAKA STATE POLLUTION
CONTROL BOARD
REP. BY ITS MEMBER SECRETARY,
PARISARA BHAVAN,
1ST TO 5TH FLOOR,
NO. 49, CHURCH STREET,
BENGALURU-560 001.
3. SRI. SHUDAKAR
AGE NOT KNOWN,
ENVIRONMENTAL OFFICER,
KSPCB, PARISARA BHAVAN,
NO. 49, CHURCH STREET,
BENGALURU-560 001.
...RESPONDENTS
(BY SRI.PRITHVEESH M.K., ADVOCATE FOR C/R3;
SRI. PRINCE ISAC, AGA FOR R1;
SRI. MAHESH CHOWDRY, ADVOCATE FOR R2)
THIS WP IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO-QUASH
ANNEXURE-C THE ORDER DATED 15.07.2024, VIDE
NO. AAPAJEE/292/EPC/2024(2) ISSUED BY THE R-1
AND ALSO QUASH THE MOVEMENT ORDER DATED
15.07.2024 ISSUED BY THE R-2 VIDE ANNEXURE-D
VIDE NO. MAANIMA/50/AADAA/2024/688, DATED
15.07.2024 IN SO FOR AS PETITIONER CONCERN.
-3-
NC: 2024:KHC:29307
WP No. 19154 of 2024
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
CORAM: HON'BLE MR JUSTICE B M SHYAM PRASAD
ORAL ORDER
(PER: HON'BLE MR JUSTICE B M SHYAM PRASAD)
The petitioner is aggrieved by the first
respondent's Order dated 15.07.2024 [Annexure-C]
and the consequential Movement Order of even date
[Annexure-D] issued by the second respondent. The
petitioner, who was working with the second
respondent's Regional Office, is replaced by the third
respondent, and this respondent was working with
the second respondent at its Head Office only from
the month of February 2024.
2. The rival submissions are within a
narrow compass. Sri D.R. Ravishankar, the learned
Senior Counsel for the petitioner, submits that
indeed the Guidelines for Transfer of Government
Servants dated 25.06.2024 [for short, the Transfer
NC: 2024:KHC:29307
Guidelines 2024]1 are issued cancelling the earlier
Guidelines for Transfer of Government Servants dated
07.06.2013 [Transfer Guidelines 2013] and making
a distinction between transfer and deployment,
defining deployment as posting of a Government
Servant from one office to another office within the
same headquarters in an urban area, but it is
without in any manner undermining the minimum
tenure that is contemplated for each post, and that
the petitioner is displaced within this minimum
tenure2 without assigning any reason.
3. Sri D.R. Ravishankar, while
emphasizing that Clause-6 of the Transfer Guidelines
2024 contemplates minimum tenure both for
deployment and transfer, canvasses that as in the
1 Similar English translations of these Guidelines are
furnished to the Court by both the petitioner and the third
respondent.
2 The petitioner is posted to the Regional Office on
06.03.2023, and is displaced as aforesaid by the
impugned order dated 15.07.2024
NC: 2024:KHC:29307
case of a transfer so in the case of deployment,
decisions must be taken in the interest of public
service and in a transparent manner. In this regard,
the learned Senior Counsel relies on Clause [3] of the
Transfer Guidelines 2024, and he contends that
hence there is violation of the Transfer Guidelines
2024.
4. Sri Prithveesh M K, the learned
counsel for the third respondent, disputes that the
petitioner is transferred contending that the
petitioner is only deployed, and he submits that this
Court must not interfere because, definitely for
deployment, reasons are not required to be assigned.
The learned counsel, relying upon the decision of the
Apex Court in Pubi Lombi vs State of Arunachal
Pradesh and Others3, submits that if the Courts do
not interfere with transfer orders in the absence of
pleadings regarding mala fides, there cannot be
3 2024 SCC Online SC 279
NC: 2024:KHC:29307
interference when there is only deployment, and he
also submits that the petitioner has not pleaded any
malice or mala fides as against the impugned order.
5. Further, Sri Prithveesh M K
underscores that when many transfers are made
under a common order, reasons are not assigned
specifically for each transfer, and this would be so
even in the case of deployment. Lastly, Sri Prithveesh
M K [relying upon a Division Bench judgment of this
Court in W.P. No.2491/20224] submits that a
Division Bench of this Court, in the context of
Transfer Guidelines 2013, has observed that the
guidelines which are foreseen as harness against the
vested interest and vindictive transfers are in effect
used as a yoke and there will be no interference
unless hardship is pleaded, and that this proposition
must be applied with more rigor when there is only
displacement as against a transfer.
4 This writ petition is decided on 23.02.2022
NC: 2024:KHC:29307
6. Ms. Rishika Vaishnav, the learned
Counsel on behalf of Sri Mahesh Chowdary who was
extended an opportunity on the previous occasion to
secure instructions on the reasons for the petitioner's
impugned displacement, submits that the petitioner
cannot have a grievance with the impugned order
contending reasons are not assigned because the
Transfer Guidelines 2024 do away with assigning
reasons completely. The learned counsel is not able
to place on record reasons, ostensibly because
reasons are not assigned and therefore unable to
justify the third respondent replacing the petitioner.
7. In rejoinder, Sri D.R Ravishankar
reiterates that Clause [3] of the Transfer Guidelines
2024 applies both to transfers and deployment, and
the learned Senior Counsel, while proposing to argue
that there is a transfer and not deployment, points
out that if a Government servant is to be transferred,
either before or after the minimum period, it should
NC: 2024:KHC:29307
be only for any of the reason mentioned in Clause
7(1) of these Guidelines.
8. This Court, must at the very outset,
observe that there cannot be any quarrel about the
propositions canvassed by Sri Prithveesh M K as
regards mala fides and hardship before this Court,
but the questions for consideration in the light of the
rival positions are.
[a] Whether the terms of the Transfer
Guidelines 2024 could be enforced
if there is a violation of the terms
thereof, and
[b] whether the second respondent in
replacing the petitioner with the
third respondent vide the
impugned order dated 15.07.2024
[Annexure-C] has acted in breach
of these Guidelines.
9. Insofar as the enforceability of the
Transfer Guidelines 2024, this Court must refer to
NC: 2024:KHC:29307
the decision of a Full Bench of this Court in H.N.
Chandru vs State of Karnataka5, wherein it held
as follows while opining that though the provisions of
the Karnataka Civil Services Act, 1978 provide for
regulation of recruitment and the conditions of
service and the provisions of Karnataka Civil Service
Rules 1958 define transfer rules, but they do not
provide for regulation of transfers.
12. In view of the decision of the Hon'ble
Supreme Court and admitted facts that
there is no rules providing for regulating
the transfer and providing guidelines
therein. The executive order issued in
exercise of power under Article 162 of the
Constitution of India will have statutory
force and can be enforced, as the extent of
executive power of the State to make laws
is subject to the provisions of the
Constitution and the executive power of
the State shall extend to the matters in
respect to which legislature has power to
make laws."
The underlining is by this Court
5 2011 [3] KLJ 562
- 10 -
NC: 2024:KHC:29307
The Transfer Guidelines 2024, as is stated in the
preamble, are notified superseding the Transfer
Guidelines dated 07.06.2013 and revising the
guidelines as contained in these later guidelines.
Therefore, these later Guidelines are in exercise of
powers under Article 162 of the Constitution of India,
and therefore, the terms of these later Guidelines are
irrefutably enforceable.
10. The Transfer Guidelines 2013 [in
Clause 9] specifically stipulated that generally 'there
should be no premature transfers' while providing for
reducing or extending the minimum period under
certain circumstances subject to conditions. The
Transfer Guidelines 20246, while imposing
restrictions [in Clause No. 4] on transfers and fixing
responsibilities for the Competent Authorities and
Government Servants who are transferred, stipulate
6 Similar English translations of these Guidelines are
furnished to the Court by both the petitioner and the third
respondent.
- 11 -
NC: 2024:KHC:29307
that transfers should not be made beyond the period
of General Transfers except under specified
circumstances [in Clause No. 5]; and further, on
Premature Transfers and Delayed Transfers, the
Transfer Guidelines 2024 [Clause 7] stipulate that
the 'Minimum period' may be reduced or extended
under certain specific circumstances.
11. The provisions of Clause No. 9 in the
Transfer Guidelines 2013 and Clause 7 in the
Transfer Guidelines 2024 [excluding the
circumstances under which Minimum Period can be
either extended or reduced] read as under:
Clause [9] of Transfer Clause [7] of Transfer
Guidelines 2013 Guidelines 2024
9 7. Premature /
Premature/delaye Delayed Transfers:
d Transfer
(1) The Minimum period of
a. Generally, there should service which a
be no premature Government servants
transfers. The tenure of may render at a place
posting of a may be extended or
Government servant reduced in the following
may be extended or circumstances:
reduced by the
Competent Authority in (a).
the following cases
(b).
after recording the
reasons for the same in
- 12 -
NC: 2024:KHC:29307
writing. The minimum (c).
period of stay at a
place as prescribed in (d).
para 8 can be reduced
(e)
and the concerned
Government servant (f)
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)
(ii)
(iii)
(iv)
(v)
(vi)
vii)
(viii)
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
- 13 -
NC: 2024:KHC:29307
Principal Secretaries/
Secretaries to
Government should not
under any
circumstances issue
transfer orders and
later seek ratification/
post facto approval of
the Chief Minister.
This Court on reading these provisions must opine
that there is a definite change as regards the reasons
to be recorded and the prior permission to be taken if
there is to be a premature transfer/ extension or
reduction of 'Minimum Period'. Therefore, the efficacy
of the exposition by a Division Bench of this Court in
Sri Rajashekar M. vs. The State of Karnataka7, in
7 The Division Bench's order in this regard is on 13.11.2018
and reported in AIR ONLINE 2019 KAR 2515. The Division
Bench has held as follows:
As could be seen from para 9 of the Government Order
extracted above, premature/delayed transfer of 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
- 14 -
NC: 2024:KHC:29307
view of the provisions of Clause 9 of Transfer
Guidelines 2013, may not be anymore. However, the
respondents contend that, because of the change as
aforesaid and the distinction between transfer and
deployment, reasons definitely need not be assigned
when there is deployment and as such there is no
breach of the Transfer Guidelines 2024.
12. The expressions 'transfer' and
'deployment' are defined thus in the Transfer
Guidelines 2024 thus:
Transfer: Transfer means posting of a
Government Servant from a post
to take up duties of another post
from one headquarters to
another headquarters or in a
case where the office of a
department/ field
department/commissionerate/
prior approval for premature/delayed transfer of the
Government servant. If prior approval is given by the Chief
Minister for transfers not falling under any of the
circumstances stated in para 9(a)(i) to (viii) of the Government
Order, it will be invalid in law and any premature/delayed
transfer made pursuant thereto will be illegal and hence is
liable to be set aside
- 15 -
NC: 2024:KHC:29307
directorate, other office in an
existing headquarters is
changed and the office shifted to
another headquarters.
Deployment: Deployment means posting of a
government servant from one
office to another office within the
same headquarters in an urban
area
Explanation: The cases of
deployment shall not be
considered as those of transfer.
This also includes deployment of
Government servants belonging
to the Karnataka Government
Secretariat Service from one
department of the Secretariat to
another department
13. This Court must observe that the
Transfer Guidelines 2024 despite the distinction
between transfer and deployment, stipulate two tests
for both transfer [either premature or general] and
- 16 -
NC: 2024:KHC:29307
deployment, and this will be because of Clause - 3
thereof which reads as under
Clause 3. Process of transfers: Transfers/
Deployment shall be made by
the competent authority subject
to the conditions stipulated in
this order, mainly, in the interest
of public service in a transparent
manner.
The two tests are [a] that it must be mainly in the
interest of public service and [b] that it must be in a
transparent manner.
14. The question of breach of the
Transfer Guidelines 2024 in the third respondent
replacing the petitioner must be examined in the light
of these provisions without entering in to the debate
on when there is transfer or deployment [and this
may have to be examined in appropriate cases] as the
essential ground is that reasons are not assigned to
replace the petitioner from the Regional Office with
the third respondent, who was posted in the Head
- 17 -
NC: 2024:KHC:29307
Office in the month of February 2024, because this is
only a deployment.
15. The Transfer Guidelines 2024,
because it is enforceable as was the earlier Transfer
Guidelines 2013, are amenable to judicial review. As
such, even when there is deployment [as against a
transfer], because of the provisions of Clause 3 of the
Transfer Guidelines 2024, the merits of the relevant
order must be examined to consider whether the
tests contemplated under Clause 3 thereof viz., [a]
that it must be mainly in the interest of public service
and [b] that it must be in a transparent manner, are
satisfied. If the third respondent, even when
opportunity is extended, is unable to justify the
decision to replace the petitioner in the Regional
Office, this Court cannot discern interest in public
service or transparency to opine that a just and
reasonable decision is taken. In which event, this
Court must opine that the enforceability is
undermined, and the concomitant purpose is
- 18 -
NC: 2024:KHC:29307
rendered a mirage. Hence, there is breach of the
Transfer Guidelines 2024 in issuing the impugned
order dated 15.07.2024 insofar as the petitioner and
the third respondent and there must be interference,
and as such, the following
ORDER
[A] The petition is allowed quashing the first
respondent's impugned order dated
15.07.2024 [Annexure -C] and the
consequential Movement Order of even date
insofar as the petitioner and the third
respondent.
[B] It is needless to observe that the first
respondent will be at liberty to take such
decision as would be justified in the interest
of public service and in a transparent
manner.
Sd/-
JUDGE
NV
