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2015 DIGILAW 1144 (KAR)

H. R. Ramesh v. State of Karnataka

2015-09-30

R.S.CHAUHAN

body2015
ORDER : R.S. Chauhan, J. 1. The petitioner, Mr. H.R. Ramesh, is aggrieved by the two transfer orders: firstly, the order dated 6-5-2015 (Annexure-A) whereby Mr. B.A. Krishnegowda, the respondent No. 3, has been posted to Somwarpet on the post of Chief Officer at Town Municipal Council, a post held by the petitioner. By the said order, simultaneously, the petitioner has been kept "awaiting posting order" ('APO', for short). Secondly, the order dated 25-7-2015 (Annexure-Q) whereby the petitioner was subsequently posted as Chief Officer, Town Panchayat, Hannur. 2. The brief of the facts are that the petitioner happens to be a member of the cadre of Senior Health Inspector. Due to retirement of one Mr. M.S. Ranjan, by order dated 8-9-2014, the petitioner was posted on the post of Chief Officer Grade II, Somwarpet. Subsequently, by order dated 6-5-2015, the respondent No. 3, who happens to belong to the cadre of Community Affair Officer, has been posted in the place of the petitioner, and the petitioner was kept as APO. Subsequently, by order dated 25-7-2015, the petitioner who was kept as APO has been posted as Chief Officer, Town Panchayat, Hannur. Hence, this petition before this Court. 3. Mr. Raghavendra G. Gayatri, the learned counsel for the petitioner, has raised the following pleas with regard to first transfer, namely, order dated 6-5-2015:- Firstly, according to the transfer policy of the State once an employee is posted at a place, he would not be disturbed for four to five years. Since the petitioner was posted in 2014, he cannot be transferred in 2015. Such a transfer order is premature one. Secondly, the respondent No. 3 happens to be a Community Affair Officer. According to the Karnataka Municipal Administrative Service Rules, 1970, (for short, "the Rules of 1970") the post of Chief Officers Grade - II is to be filled in 33 1/3% by direct recruitment, and 66 2/3% by absorption. Furthermore, the absorption shall be made from four feeding cadres, namely Managers, Revenue Officers, Senior Health Inspectors belonging to Municipal Service, and Managers in the Office of DMA. According to the learned counsel, the post of Community Affair Officer is not a feeding cadre for absorption on the post of Chief Officer Grade-II. Therefore, the respondent No. 3 is not eligible for being appointed on the post of Chief Officer Grade - II. According to the learned counsel, the post of Community Affair Officer is not a feeding cadre for absorption on the post of Chief Officer Grade-II. Therefore, the respondent No. 3 is not eligible for being appointed on the post of Chief Officer Grade - II. Thirdly, according to Memorandum dated 3-5-2013 issued by the Government, a decision was taken that a Community Affair Officers cannot be appointed as Chief Officers. Fourthly, although on 10-10-2014, the Government took a decision to merge the cadre of employees of Municipal Services with that of KMAS, Chief Officer Grade-II, but even such merger does not include the post of Community Affair Officer. Therefore, the transfer of respondent No. 3 to the post of Chief Officer is absolutely illegal. Lastly, in case, the transfer order dated 6-5-2015 were to be set aside by this Court, the petitioner should be continued on the post from which he was displaced by the order dated 6-5-2015. 4. On the other hand, Mrs. Raffiunnisa, the learned counsel for the State, has pleaded that since the transfer of the respondent No. 3 on the post of Chief Officer is merely temporary in nature, the Government is justified in posting the respondent No. 3 on the said post, even if he does not possess the eligibility requirement for holding the said post. 5. Similarly, Mr. Muralidhar K.B., the learned counsel for the respondent No. 3, has pleaded that firstly, the petitioner's initial transfer order dated 8-9-2014 (Annexure-E) clarifies that his transfer order to the post of Chief Officer is a temporary one. Moreover, he was liable to be transferred anywhere in the State. Therefore, if he was kept as APO, by the impugned order dated 6-5-2015, no illegality has been committed by the State. Secondly, since the respondent No. 3 happens to be Group - 'B' Officer, and since the petitioner happens to be Group - 'C' Officer, the State was justified in transferring the respondent No. 3 on the post of Chief Officer Grade-II, in place of the petitioner. Therefore, the learned counsel for the respondent No. 3 has supported the impugned order dated 6-5-2015. 6. Before recording the contentions with regard to the second transfer order, namely order dated 25-7-2015, let us first deal with the legality of the first transfer order dated 6-5-2015. We shall deal with the transfer order dated 25-7-2015, a little later. 7. Therefore, the learned counsel for the respondent No. 3 has supported the impugned order dated 6-5-2015. 6. Before recording the contentions with regard to the second transfer order, namely order dated 25-7-2015, let us first deal with the legality of the first transfer order dated 6-5-2015. We shall deal with the transfer order dated 25-7-2015, a little later. 7. The first contention raised by the learned counsel for the petitioner that the transfer order is premature and it violates the transfer policy of the State is unsustainable for the following reasons:- Firstly, in the case of R. Suresh v. The State of Karnataka and others (Writ Petition No. 24622 of 2015, dated 22-6-2015), this Court has clearly observed that the transfer policy of the State is not mandatory in nature, but is merely a directory one. Therefore, even if there were a stipulation that an employee would not be transferred ordinarily within three to four years of posting, the said stipulation is merely directory in nature. After all, freedom at the joints has to be given to the Government to transfer its employees keeping in mind the administrative exigencies, and the interest of the people. Since the State is running a large bureaucracy, since it is required to maintain a large administration for the welfare of the people, the State has to be given sufficient freedom to decide where to post an employee considering his capacity and considering the duties. Such discretion cannot be cribbed, cabined and confined by a transfer policy. The transfer policy is merely a guideline which is not absolute in nature, so as to shackle the discretion of the Government. 8. According to Rules of 1970, in case of absorption for the post of Chief Officer Grade-II, there are four feeding cadres as mentioned above. The feeding cadres are Managers, Revenue Officers, Senior Health Inspectors belonging to Municipal Service, and Managers in the Office of DMA. According to the Rules, a person who does not belong to feeding cadres cannot be posted as a Chief Office Grade-II. The Rules do not even permit the posting of a Group-'B' Officer to the post of Chief Officer Grade-II. The Rules clearly strict the cadres from which a person can be posted as a Chief Officer Grade-II. 9. According to the Rules, a person who does not belong to feeding cadres cannot be posted as a Chief Office Grade-II. The Rules do not even permit the posting of a Group-'B' Officer to the post of Chief Officer Grade-II. The Rules clearly strict the cadres from which a person can be posted as a Chief Officer Grade-II. 9. Admittedly, the respondent No. 3 happens to be a Community Affairs Officer who does not belong to any of the four feeding cadres. Therefore, under the Rules of 1970, he could not have been posted on the post of Chief Officer Grade-II. The stand taken by the Government that it could post an ineligible person to the post, as it is a temporary posting, is clearly unacceptable. Even for a temporary appointment, the person has to fulfill the eligibility criteria, unless the person is officiating on the post. 10. Moreover, according to Memorandum dated 3-5-3013, and the decision taken by the Government order, dated 10-10-2014, the Community Affair Officer cannot be posted on the post of Chief Officer Grade-II. Therefore, obviously, the transfer of the respondent No. 3 on the post of Chief Officer Grade-II is in violation of Rules of 1970, the decision taken by Memorandum dated 3-5-2013, and the State Government decision on 10-10-2014. Therefore, the said transfer order is clearly unsustainable. 11. The issue before this court is not just with regard to the legality of the transfer order qua respondent No. 3; the issue is also whether the petitioner could be kept as APO? The second issue is whether the setting aside of the order dated 6-5-2015 by this court, would automatically entitle the petitioner to claim that he should be continued at Somwarpet, the place where he was working prior to passing of the order dated 6-5-2015, or not? 12. The answers to these issues are not difficult to discover. Since the discretion of posting a person is entirely with the Government, even if a wrong person were posted to the post of Chief Officer Grade-II, the Government is still at a liberty to keep an employee as APO. 13. A bare perusal of the order dated 8-9-2014 (Annexure E) clearly reveals that the petitioner was posted on the post of Chief Officer Grade-II on temporary basis. 13. A bare perusal of the order dated 8-9-2014 (Annexure E) clearly reveals that the petitioner was posted on the post of Chief Officer Grade-II on temporary basis. Therefore, he can neither claim a lien on the post, nor a vested right to continue at the place of his posting prior to the order dated 6-5-2015. 14. As far as the second impugned order, namely order dated 25-7-2015 is concerned, the learned counsel for the petitioner has raised the following contentions before this Court:- Firstly, the respondents are bound by the transfer policy made by the State. Since the transfer policy stipulates that an employee shall not be transferred within three to four years of his date of posting, the petitioner could not have been transferred just after completing one year of posting. Therefore, the impugned order is in violation of the transfer policy. Secondly, no reason has been assigned in the impugned order for transferring the petitioner to Hannur. According to the learned counsel, reasons need to be assigned for transferring a person contrary to the transfer policy. Thirdly, the transfer order will cause personal inconvenience to the petitioner as Hannur is at a great distance. Lastly, that in condition No. 3 contained in the transfer order, the respondents claim that the appointment of non-KMAS officer to the post of Chief Officers is not governed by the transfer guidelines. According to the learned counsel, this condition would give an unbridled power to the respondents. Therefore, the said condition deserves to be set aside. Moreover, the impugned order also deserves to be interfered with by this court. 15. On the other hand, Mrs. Raffiunnisa, the learned counsel for the State, has contended that according to the posting order dated 18-8-2014, (Annexure-E), the respondents had made it amply clear to the petitioner that his posting as Chief Officer, Town Panchayat, Somwarpet is a temporary one. The Government is, thus, empowered to send the petitioner to his original post/parental department and to other place at any time. Therefore the impugned order is a valid one. Secondly, there were certain complaints which were received with regard to the conduct of the petitioner. Thus, it was thought prudent to transfer him from Somwarpet to another place. Thirdly, that the petitioner has been transferred on the ground of administrative exigencies and in public interest. Therefore the impugned order is a valid one. Secondly, there were certain complaints which were received with regard to the conduct of the petitioner. Thus, it was thought prudent to transfer him from Somwarpet to another place. Thirdly, that the petitioner has been transferred on the ground of administrative exigencies and in public interest. Thus, valid reasons have been given by the respondents for transferring the petitioner. Lastly, merely because Hannur may be inconvenient to the petitioner, it is not a valid ground for interfering with the transfer order. After all, the respondents have to consider the public interest, and the administrative requirements; the State cannot be denied the power of transfer on the ground that transfer is personally inconvenient to an employee. Therefore, the learned counsel for the State has supported the impugned order dated 25-7-2015. 16. Heard the learned counsel for the parties, perused the impugned order dated 25-7-2015. 17. As observed hereinbefore, the transfer policy is merely directory in nature; it cannot tie the hands and feet of the respondents with regard to transferring of its employees. Moreover, since the petitioner's transfer order dated 18-8-2014 had clearly stated that his posting to the post of Chief Officer/Grade-II, is temporary one; it had already stated that he is likely to be transferred to any other place in the State. The petitioner cannot be aggrieved by his transfer to Hannur. Secondly, the transfer order itself reveals that the transfer is being made on the ground of "administrative exigencies" and "in public interest". Therefore, valid reasons have been given by the respondents for transferring the petitioner to Hannur. Since transfer order is an administrative order, it need not give elaborate reasons for transferring an employee. Generally, a transfer order does not violate the civil right of a person, as transfer is an incident of service. Thus, there is no requirement in Law that the transfer order must contain detailed reasons. It is sufficient, if the mind of the transferring authority is reflected in the transfer order. 18. Merely, because the transfer order of the petitioner contains a condition which states that "non-KMAS Officer's appointment is not subject to the transfer policy", the mentioning of such condition would not make the transfer order an illegal one. 19. It is sufficient, if the mind of the transferring authority is reflected in the transfer order. 18. Merely, because the transfer order of the petitioner contains a condition which states that "non-KMAS Officer's appointment is not subject to the transfer policy", the mentioning of such condition would not make the transfer order an illegal one. 19. Even, if Hannur is a far of place, even if it causes personal inconvenience to the petitioner, it is not a valid ground for interfering with the transfer order. For in a conflict of the petitioner's interest, and interest of the people at large, the former has to give way to the latter. Therefore, the transfer order cannot be set aside inter alia, on the ground that the transfer has caused personal inconvenience to the petitioner. 20. For the reasons stated above, this court set aside the first transfer order dated 6-5-2015, qua the posting of respondent No. 3 to the post of Chief Officer/Grade-II. But, this court does not find any illegality in the transfer order dated 25-7-2015. Therefore, the same is confirmed by this Court. 21. In the result, the writ petition is partly-allowed. No orders as to costs.