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2001 DIGILAW 701 (KAR)

R. Krishne Gowda v. State of Karnataka

2001-09-11

D.V.SHYLENDRA KUMAR, M.F.SALDANHA

body2001
ORDER M.F. Saldanha, J.—We have heard the Petitioner's learned Counsel as also the Respondent's learned Counsel and the learned Government Advocate who represents the Respondents 1 and 2. 2. This is a case where an interesting aspect of the law in relation to the concept as to whether or to what extent interference would be permissible in cases of transfer has been canvassed by the Petitioner's learned Counsel. He has relied on two decisions of the Supreme Court reported in AIR 1986 SC 55 & State of Punjab and others Vs. Joginder Singh Dhatt, AIR 1993 SC 2486 in both of which, the well defined principle has been reiterated viz., that interference by Courts in cases of transfers is normally contra-indicated barring exceptional situations where extreme malafides are demonstrated or where manifest injustice has resulted. On this basis, the Petitioner's learned Counsel submitted before us that the Tribunal has acted strangely insofar as the applicant before the Tribunal who is the third Respondent before us had pointed out that he had been transferred from Nagamangala to Hassan on 9.7.2000 pursuant to the general transfers. His submission was that he was transferred in place of the Petitioner before us and that the present Petitioner did not join his duties at Nagamangala in the post vacate by the third Respondent. On the contrary, according to him, the present Petitioner used influence at high levels and managed to secure an order for his re-posting at Hassan, as a necessary consequence of which, the third Respondent was asked to go back to Nagamangala to his original position. It is this action that was questioned and the Tribunal in a rather strongly worded order has deprecated the action because it has been pointed out that political influence was used by the present Petitioner to secure his retransfer as a result of which, the third Respondent was required to go back to his original position at Nagamangala. It is not out of place to mention that the third Respondent who was the applicant before the Tribunal has pleaded that the action is malafide, that it is unjust and illegal and he has further pointed out that he is seriously affected because, he had moved to Hassan and admitted his children in School, shifted his residence etc., and that he is therefore put to great injustice and hardship as a result of the action. We refer to this because apart from the aspect of propriety, the third Respondent had submitted that he was legitimately entitled to a relief from the Tribunal. The Tribunal accordingly interfered and directed that the orders of repatriation should not be given effect to during the current academic year. As a necessary consequence, the Petitioner before us would have to continue at Nagamangala in his transferred post and it is essentially this order that is challenged before us. 3. Mr. Subbarao, learned Counsel who represents the Petitioner vehemently submitted that this Court, the Supreme Court and almost every High Court in this country have consistently held that in the absence of very grave and exceptional situations, no interference is warranted in orders of transfer and that on this ground alone, the order of the Tribunal which has obviously interfered in the transfer orders of the Petitioner and the third Respondent is required to be quashed. We need to mention here that the learned Counsel who represents the third Respondent submitted that it has been pointed out very clearly in the reply filed before the Tribunal that the Petitioner had approached a certain MLA by the name of Sri Shivanna and that it was on his recommendation that the papers were put up to the Chief Minister of the State who in turn has directed that the Petitioner should be retransferred to Hassan. His submission is that such political interference is uncalled for, malafide and not in the public interest moreso, on the facts of the present case. The learned Government Advocate submitted that as far as the law is concerned, it is the discretion of the Court whether to interfere or not and it was his submission that the Tribunal on the present set of facts has correctly interfered with the order and that consequently, the order in question is liable to be maintained. 4. At this stage, we need to point out that there is an entirely different aspect to the whole controversy which cannot be overlooked. Mr. Subbarao, learned Counsel who represents the Petitioner pointed out to us that the initial transfer order whereunder the Petitioner was first transferred from Hassan to Nagamangala states that this has been done at his request. 4. At this stage, we need to point out that there is an entirely different aspect to the whole controversy which cannot be overlooked. Mr. Subbarao, learned Counsel who represents the Petitioner pointed out to us that the initial transfer order whereunder the Petitioner was first transferred from Hassan to Nagamangala states that this has been done at his request. His submission is that not only had the Petitioner never requested for transfer, but furthermore that when he reported that this was a mistake that the government has only taken corrective action to restore the status-quo order and that in such a situation, there are absolutely no malafides involved. There is nothing on record before us beyond the Petitioner's averments in the petition to indicate as to whether the initial transfer of the Petitioner was at his request or not. The real issue is not as to whether this was an error or otherwise, or the question as to whether the transfer order in question would in the normal course be sustainable. As regards this, we find from the pleadings that the Petitioner had already put in five years at Hassan and we therefore assume that even in the normal course, he would have been due for transfer and under these circumstances, if at all there is some mention about the request, it could be that a request was conveyed for a particular posting but, even this is purely a question of surmise. The fact that in the given circumstances, the transfer order would have been otherwise justifiable is really the issue and if that transfer order can be upheld on such a ground, then the question of rectification of the error does not come up. Since this ground has been pleaded, we have tested it and we find that there is no material on record to indicate that the Petitioner had pointed out that this was an error that he had reported to the department and that the department retransferred him on this innocuous ground. On the contrary, it is undisputedly established from the record that the Petitioner went to an MLA and then to the Chief Minister and it was through those channels that he was repatriated to Hassan. 5. We have carefully applied our minds to the facts of this case but, more importantly to the law. On the contrary, it is undisputedly established from the record that the Petitioner went to an MLA and then to the Chief Minister and it was through those channels that he was repatriated to Hassan. 5. We have carefully applied our minds to the facts of this case but, more importantly to the law. It is essential, irrespective of what has transpired, for a Court to take a decision that is totally and completely in consonance with legal principles and not to be biased even if something gross has happened. We have taken cognizance of the fact that the issue before us is not a question of transfer but, what the present Petitioner is pleading before this Court is that the Court must interfere in a case of retransfer. Where the retransfer is very clearly established to have been vitiated by and bristles with malafides as in the present case, virtually it is the duty of the Court to set right the injustice that has occurred and the Tribunal has very rightly referred to the aspect of the overwhelming public interest in situations of this type. Any interference with that order would be against the well defined principles of fairness and law but, more importantly would virtually be detrimental to the public interest. It is under these circumstances, that this Court is required to take a conscious decision that interference with the Tribunal's order on the special facts and circumstances of this case which are extremely gross would be totally unjustified. 6. In the result, the writ petition fails and stands dismissed. No order as to costs.