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2013 DIGILAW 1349 (KAR)

S. B. Mallalli v. State of Karnataka

2013-11-28

K.N.PHANEENDRA, MOHAN M.SHANTANAGOUDAR

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ORDER K.N. Phaneendra, J.—The Writ Petitioner has challenged the order passed by the Karnataka Administrative Tribunal dated 2.9.2013 in Application No. 4886/2013 under which the Karnataka Administrative Tribunal has quashed the transfer order passed by the Government dated 30.7.2013. In turn, it is prayed that the said transfer order dated 30.7.2013 has to be upheld by quashing the order of the Karnataka Administrative Tribunal. THE BRIEF FACTS THAT EMANATE FROM THE RECORDS ARE THAT: The respondent No. 3 herein Sri K. Shivaramegowda was promoted and posted as Deputy Secretary (Development), Zilla Panchayath, Dakshina Kannada on 19.4.2010 and he was reported to duty on 30.4.2010. Thereafter, on the ground that the respondent No. 3 has completed three years of service at Dakshina Kannada, in view of the directions of the Election Commission of India, the respondent No. 3 was transferred as Deputy Secretary (Development) Zilla Panchayath, Belgaum vide Order in Num Gra Aa Pa 151 paBaVa 2013 dated 4.4.2013 (Annexure 3). The respondent No. 3 reported to duty at Belgaum on 8.4.2013. Again, the Government has passed another Order in Num GraAaPa 209 PaBaVa 2013, dated 30.7.2013 (Annexure 5) under which the petitioner herein was posted to the place of 3rd respondent i.e. to Zilla Panchayath, Belgaum, and in the same order 3rd Respondent was posted as Deputy Secretary Zilla Panchayath Uttara Kannaka. The said transfer order dated 30.7.2013 was challenged before the Kamataka Administrative Tribunal on the ground that the said order was premature because of the reason the respondent No. 3 took charge at Belgaum on 8.4.2013 and within span of three months the subsequent order was passed by the Government, therefore, it is premature in nature. The Kamataka Administrative Tribunal after hearing the matter in detail passed the impugned order, under which the transfer order dated 30.7.2013 was quashed as premature one. The said Order of the tribunal is called in question in this Writ Petition. 2. Along with the Writ Petition, the petitioner has filed IA No. 1 under Order XLI Rule 27, read with Section 151 of CPC requesting the court to permit him to produce a document marked at Annexure-C. We have carefully perused the said document. The said Order of the tribunal is called in question in this Writ Petition. 2. Along with the Writ Petition, the petitioner has filed IA No. 1 under Order XLI Rule 27, read with Section 151 of CPC requesting the court to permit him to produce a document marked at Annexure-C. We have carefully perused the said document. Annexure-C is a document dated 26.8.2013 under which the members of Belgaum Zilla Panchayath convened a General Body Meeting of its members and in the agenda, the issue of functioning of respondent No. 3 Sri Shivaramegowda was discussed and held that his work was not satisfactory and because of his attitude towards developmental activity, all the developmental activities are stalled. Therefore, it was unanimously decided that respondent No. 3 has to be transferred. So far as this particular document is concerned, it came into existence after the transfer order dated 30-07-2013. Therefore, it is not necessary for adjudication of the issue before this court. Hence, the said IA No. 1 is rejected. 2A During the pendency of the Writ Petition, on 11.10.2013, the petitioner has also filed another Application under Order VI Rule 17 CPC numbered as IA No. II/2013 under which the petitioner sought to amend the Writ Petition adding one more paragraph as 6A after paragraph 6, under which the petitioner wants to amend the following: 6A. That the impugned order vide Annexure-B is bad in the eyes of law and is in contrary to the law laid down by this Hon'ble Court in W.P. No. 17123-124/2013, 17295-297/2013 and 17298-299/2013 (S-CAT) as the transfer of respondent No. 3 made as per Annexure-A3 to the application dated 4.4.2013, is made on the direction of the Election Commission and hence the same amounts only to a deputation, as per the order passed by this Hon'ble Court and the said deputation comes to end after completion of the election process and at the end of the deputation, the officers are reverted back to their parent organisation. Thus the transfer made on 4.4.2013 in favour of respondent No. 3 is not a regular transfer, hence the regular transfer dated 30.7.2013 vide Annexure-A5 to the application does not amount to premature transfer This Application is contested by the other side stating that this plea was neither taken before the Karnataka Administrative Tribunal nor at the time of filing of the Writ Petition. Therefore, on this ground itself, the Application is liable to be rejected. We have perused the objections. 3. As could be seen from application filed before the KAT and the Order of the Karnataka Administrative Tribunal and the tenor of the Writ Petition filed before this court, throughout it is understood and contested by the respondent No. 3, that the transfer order dated 30.7.2013, was premature one. Therefore, the respondent No. 3, has challenged the said Order before the Karnataka Administrative Tribunal on that ground itself, the Karnataka Administrative Tribunal has quashed the Order dated 30.7.2013. Therefore, if the amendment is allowed, no harm, injustice or in-convenience would be caused to the other side and further, the factual matrix of the case and as well the nature of the Writ Petition and prayer sought will not be changed Therefore, the said Application deserves to be allowed hence, the same is allowed. The Petitioner is permitted to amend the Writ Petition and to file the amended Writ Petition. 4. Now, the crux of the matter remains for consideration is that according to the Writ Petitioner, the Order dated 4.4.2013 is in pursuance of the Election Commission directions and under which the respondent No. 3 was transferred to Belgaum. This transfer cannot be termed as a general transfer order. It should be treated as deputation till the elections are over and after the elections, the transfer order automatically comes to an end and the parties have to revert back to their original places. Therefore, such an order cannot be called as a general transfer order. On the other hand, after the elections are over the Government has passed another Order dated 30.7.2013 that Order is a general transfer order under which the respondent No. 3 has been transferred from Belgaum to Uttara Kannaka, Zilla Panchayath. Therefore, the said Order ought not to have been quashed by the Karnataka Administrative Tribunal. 5. Per contra, the learned counsel for the respondent No. 3 strenuously contended that though the Election Commission has given general instructions to the Government, the Government has passed the transfer order on 4.4.2013 relying upon only the general directions issued by the Election Commission not a specific direction to transfer the concerned official to the places shown in the said Order. Therefore, it can be termed as a general transfer order when once it is said to be a general transfer order, the respondent No. 3 is entitled to continue at Belgaum for a period of three years from 4.4.2013 as per the Transfer policy of the Government of Karnataka. Therefore, the subsequent Order passed by the Government dated 30.7.2013 is premature one and therefore, the Karnataka Administrative Tribunal has rightly quashed the said Order. 6. In view of the above said rival submissions, the sole point that requires to be considered by this court is that: Whether the Order passed by the Government dated 4.4.2013 is a general transfer order or it is only in pursuance of the directions issued by the Election Commission of India, and further whether the subsequent transfer order dated 30-07-2013 is a premature one 7. If this court is of the opinion that transfer order dated 4-4-2013 was only in pursuance of the directions of the Election Commission of India, then such Order cannot be called or termed as general transfer order but it is only a temporary Order and the parties who are transferred by such an Order are deemed to be on deputation to the places they were transferred and immediately after the Elections are over, they deemed to have been reverted back to their original places. In this background, this court has to see the tenor of the Order passed by the Government on 4.4.2013 and as well, Order dated 30.7.2013. 8. Before adverting to these two transfer orders, it is just and necessary to note here the judgment rendered by this court in Writ Petition Nos. 17123-124/2013 and connected matters, in which it has been categorically held that: It is made clear that the Order of transfer which is challenged by the applicants before the Tribunal is in the nature of deputation and deputation comes to an end the moment the results of the elections are announced. Consequently, the deputationists would be reverted back to their original organization (previous post held by them) without any Order from the State Government. 9. The division bench has held that any transfer order passed by the Government in pursuance of the directions of the Election Commission, comes to an end immediately after the elections are over; Even without there being any order by the Government, the parties should revert back to their original place. 9. The division bench has held that any transfer order passed by the Government in pursuance of the directions of the Election Commission, comes to an end immediately after the elections are over; Even without there being any order by the Government, the parties should revert back to their original place. Bearing in mind the above said observation made by this court now, let us consider the transfer order dated 4.4.2013. The preamble of the said transfer order reads thus: Annexure-A3 On meaningful interpretation and understanding of the above order, it is specifically stated in the said Order that the said transfer has been made in pursuance of the directions issued by the Election Commission of India vide letter in Num DPAR 06 Chu Vi Sa (part) 2012, dated 30.3.2013. The phraseology and the wordings used in the said Government Order is crystal clear that only on the basis of the direction issued by the Election Commission of India, the said Order has been passed. 10. Apart from the above, the Government has issued revised instructions regulating the transfers of Government servants for the year 2013 under which all the transfers of the Government officials shall be made in accordance with the said Government Order in No. DPAR 22 STR-2013, dated 7-6-2013. According to this order, Under Rule 8, the minimum period of stay at a place has been fixed to all the Group-A and Group-B posts as three years and same is not at all disputed in this particular case. This Government Order also speaks of Rule No. 2 about Periodical Transfers that General transfers shall be made in the months of May and June every year. No Government servant shall be considered for transfer/deputation except in the circumstances and in the manner specified in the Order. For the year 2013-14, General Transfer shall be made before 30.6.2013. This Order clears our doubt that the general transfers shall be effected between the months of May and June every year. But in the transfer order dated 4.4.2013, it cannot be said to have been passed by the Government in consonance with the Government Order noted above. Therefore, it can be safely said that only because of the directions of the Election Commission, even prior to the months mentioned in the above said Government Order, the transfers have been effected due to elections for Legislative Assembly have been declared. Therefore, it can be safely said that only because of the directions of the Election Commission, even prior to the months mentioned in the above said Government Order, the transfers have been effected due to elections for Legislative Assembly have been declared. Therefore, it can be safely said that the said Government Order dated 4.4.2013 cannot be said to be a general transfer order. If it can be said that it is not a general transfer order, then it is deemed to be an order of deputation, that will be for a limited period as per the decision of this court stated supra. 11. Now coming to the second transfer order dated 30.7.2013, which is at Annexure-A5, the preamble of this Order says like this: Annexure-A5 Under this Order, the petitioner has been transferred to Zilla Panchayath, Belgaum, at item No. 8 and respondent No. 3 transferred to Uttara Kannaka Jilla Panchayath at item No. 14. This Order clearly discloses that it was issued only on the ground of administrative reasons, the transfers have been made. This Order clearly goes to show that immediately after the elections, the Government has passed this Order transferring respondent No. 3 to Zilla Panchayath, Uttara Kannaka and therefore, though this court has held that the transfer order dated 4.4.2013 is not a General transfer order, it goes without saying that the transfer order dated 30.7.2013 is deemed to be a general transfer order so far as respondent No. 3 is concerned. In the above said circumstance, at any stretch of imagination, it cannot be said that the Order dated 30.7.2013 in so far as respondent No 3 is premature one. It is needless to repeat that respondent No. 3 was promoted and transferred, as Deputy Secretary Zilla Panchayath, Dakshina Kannada, on 30.4.2010, his tenure will come to an end as on 30.4.2013 i.e. after completion of three years as per the transfer policy notification of the Government and in view of the above said decision that after the elections are over, the respondent No. 3 deemed to have been reverted to his original place and he deemed to have continued in that place, upto 30.7.2013 after the completion of the deemed deputation. Therefore, after due completion of three years as Deputy Secretary, Zilla Panchayath, Dakshina Kannada, he has been transferred to Uttara Kannaka vide Order dated 30.7.2013. Therefore, after due completion of three years as Deputy Secretary, Zilla Panchayath, Dakshina Kannada, he has been transferred to Uttara Kannaka vide Order dated 30.7.2013. Therefore, no fault can be found in the Order of the Government transferring respondent No. 3 vide order dated 30.7.2013. Therefore, the Karnataka Administrative Tribunal has grossly erred in misinterpreting these two transfer orders. Hence, the same is liable to be quashed. In view of the above said observation, we pass the following: ORDER (1) The Writ Petition is hereby allowed. Consequently, the order of the Karnataka Administrative Tribunal on Application No. 4886/2013 dated 2.9.2013 is hereby quashed. (2) The transfer of respondent No. 3 vide Government Order dated 30.7.2013 in No. GraAaPa 209 PaBaVa 2013 is held to be valid and in accordance with law. The parties shall adhere to the said order. Accordingly, the Writ Petition is disposed off.