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2015 DIGILAW 425 (KAR)

S. N. Gangadharaiah, K. A. S. v. The State of Karnataka

2015-04-13

B.S.PATIL, K.L.MANJUNATH, N.K.PATIL

body2015
Judgment B.S. Patil, J. 1. This matter is referred to the Full Bench to consider the following question: “Whether the Rules relating to ‘transfer’ contained in the KCSR override the Government Order dated 07.06.2013 and whether it is permissible to transfer a Government servant from one office to another office within the same headquarters in exercise of the power conferred in the Government Order dated 07.06.2013?” 2. The writ petition in which the order of reference to the Full Bench has been made, arises out of the order dated 10.12.2013 passed by the Karnataka Administrative Tribunal, Bangalore (for short, ‘the Tribunal’), whereby the Tribunal while allowing the application has set aside the notification dated 24.08.2013 issued by the State Government transferring the petitioner who was working as Special Deputy Commissioner, Bangalore North, Bangalore District and posting him to the place of 2nd respondent- as Additional Deputy Commissioner, Bangalore Urban District. The Tribunal, by order dated 10.12.2013 allowed the application and quashed the notification in so far as it pertained to the posting of 2nd respondent to the place of petitioner. 3. It was contended before the Division Bench by the petitioner that posting of the 2nd respondent to the place of the petitioner could not be termed as ‘transfer’ as there was no change of headquarters. It was urged that the term ‘transfer’ having been defined in Rule 8(49) of the Karnataka Civil Service Rules (for short, ‘KCSR’), meant movement of a Government servant from one headquarters station to another such station. As the transfer in the case on hand did not involve change of headquarters, there was no transfer in the eye of law, and therefore, the Tribunal committed error in not following the provision contained in Rule 8(49) of the KCSR defining the term ‘transfer’. Petitioner relied on a decision of the Division Bench of this Court in the case of K.RAMACHANDRA VS STATE OF KARNATAKA & OTHERS in W.P.No.53164/2013 disposed of on 05.12.2013. 4. Per contra, Counsel for the 2nd respondent urged that the 2nd respondent was transferred by the State Government in exercise of power conferred under the Government Order dated 07.06.2013 which defined the term ‘transfer’. As per the said definition, ‘transfer’ meant posting of a Government servant from one headquarters to another headquarters or from one office to another within the headquarters to take up duties of a new post. As per the said definition, ‘transfer’ meant posting of a Government servant from one headquarters to another headquarters or from one office to another within the headquarters to take up duties of a new post. He placed reliance on the decision of the Full Bench of this Court in the case of CHANDRU.H.N. VS STATE OF KARNATAKA & OTHERS – 2011(3) KLJ 562, wherein dealing with a similar Government Order issued earlier, it has been held that the Government Order had statutory force. 5. In the wake of the contentions urged before the Division Bench on the basis of the decision rendered in K. Ramachandra’s case supra, the Division Bench has, having referred to the provisions contained in the KCSR and the Government Order dated 07.06.2013 regulating transfer of Government servants, has come to the conclusion that definition of the term ‘transfer’ contained in KCSR cannot be read into the Government Order because Rule 8(49) of the KCSR had no overriding effect on the executive order dated 07.06.2013. Division Bench has observed that the decision rendered by another Division Bench in K. Ramachandra’s case required re-consideration. This is how the matter is referred to the Full Bench. 6. We have heard the learned Counsel for the petitioner Mr. Narayan Bhat, learned Advocate General Mr. Ravi Varma Kumar for the State and the learned Senior Counsel Mr. P.S. Rajagopal for the 2nd respondent. 7. It is contended by the learned Advocate General and also by the counsel for the petitioner that as per Section 3 of the Karnataka State Civil Services Act, 1978 (for short, ‘the Act’), which deals with regulation of recruitment and conditions of service, the State Government is empowered to make Rules by issuing notification subject to the provisions of the Act. As per Section 6 of the Act, which enacts a non-abstante clause, the Act and any Rule made or deemed to have been made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law with respect to matters for which provision is made in the Act or for which Rules can be made under the Act. As per Section 6 of the Act, which enacts a non-abstante clause, the Act and any Rule made or deemed to have been made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law with respect to matters for which provision is made in the Act or for which Rules can be made under the Act. It is the contention that as per Section 3(3) of the Act, all rules relating to matters referred to in sub-section (1) and in force on the date of commencement of the Act made by the Governor under the proviso to Article 309 of the Constitution of India, regulating recruitment and conditions of service of persons appointed to the civil service and posts in connection with the affairs of the State shall be deemed to be rules made under sub-section (1) and shall continue in force until they are modified or replaced by rules made under the Act. Therefore, it is the submission of the learned Advocate General that the KCSR which is framed by the Governor of Karnataka in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India are deemed to be rules framed under the Act and hence they shall have effect notwithstanding anything inconsistent contained in any other law with respect to matters for which provision is made under the Act or the Rules. 8. It is his further submission that if at all the State intends to provide for any conditions of service in addition to what has been provided under the KCSR, it can only be by way of framing rules as provided under the Act, particularly by Section 6 and therefore the executive instructions now issued by the Government Order dated 07.06.2013 have no statutory force and cannot be enforced and cannot override the provisions contained in the statutory rules viz., the KCSR. He urges that decision of the Full Bench in Chandru.H.N.’s case requires re-consideration as it does not lay down correct law. 9. He urges that decision of the Full Bench in Chandru.H.N.’s case requires re-consideration as it does not lay down correct law. 9. Learned Senior Counsel Sri P.S. Rajgopal appearing for the 2nd respondent, at the outset, submits that this Bench is not dealing with the correctness of law laid down by the Full Bench in Chandru’s case and it is required to only answer the point referred regarding the overriding effect of Rule 8(49) of KCSR, which defines the term ‘transfer’ over the definition of the term ‘transfer’ as contained in the Government Order dated 07.06.2013. 10. Sri P.S Rajagopal further submits that Rule 8 of KCSR which defines various terms for the purpose of the Rules including the term ‘transfer’, starts with the expression ‘unless the context otherwise requires’, which clearly indicated that if the context were to require otherwise, the definition of the term ‘transfer’ as defined under Rule 8(49) of KCSR could not be automatically pressed into service. In other words, the definition of the term ‘transfer’ in Rule 8(49) of KCSR is not meant for all types of transfers and it is only meant for the purpose for which the word ‘transfer’ has been referred to in KCSR. He refers to Rules 20A, 76, 77 & 78 of KCSR to contend that the definition of the term ‘transfer’ in KCSR is in the context in which the term ‘transfer’ is referred to in these provisions and not for any other purpose. 11. Learned Counsel for both parties have placed reliance on several judgments in support of their respective contentions, which are adverted to and discussed hereunder. 12. Having heard the learned Counsel for the parties and after careful consideration of the entire materials on record, we find that the question whether Rules framed by the State Government relating to transfer of Government servants have got statutory force, has been already decided by the Full Bench of this Court in CHANDRU.H.N. VS STATE OF KARNATAKA & OTHERS – 2011(3) KLJ 562. Though the Full Bench was concerned with the Government Order bearing No. DPAR 4 STR 2001 dated 22.11.2001 relating to transfer of Government servants which had come into force with effect from 22.11.2001, the present Government Order being the successor to the earlier Government Order and having been issued in the same context and circumstances, the law laid down in the judgment of the Full Bench has full application to the effect of the present Government Order as well. In the said case, the stand of the State Government was that the Government Order had been issued in exercise of the executive power under Article 162 of the Constitution of India as no rules could have been framed under the Act, pursuant to the recommendation made by the Administrative Reforms Committee, hence, the said executive order providing guidelines for transfer had statutory force. The Full Bench, referring to the provisions contained under Articles 309 & 162 of the Constitution of India and Section 3 of the Act as also Rule 8(49) of KCSR, has held after referring to the judgment of the Apex Court in the case of DR. KRUSHNA CHANDRA SAHU & OTHERS VS STATE OF ORISSA & OTHERS – (1995) 6 SCC 1 , that in KCSR no rule has been made providing for regulating transfer and laying down guidelines for the same, hence, the executive order issued in exercise of power under Article 162 of the Constitution of India will have statutory force and could be enforced. We respectfully agree with the said view taken by the Full Bench. 13. For better appreciation of the issue involved in this case, it is necessary to have a clear look at the scheme of the KCSR in their entirety, particularly with reference to the context in which the term ‘transfer’ has been defined in these Rules. The term ‘transfer’ is defined in Rule 8(49). The expression ‘transfer’ has been referred to in Rules 20A, 76, 77 and 78. Rule 8(49) defines the term ‘transfer’. ‘Transfer’ means movement of a Government servant from one headquarters station in which he is employed to another such station, either (a) to take up the duties of a new post or (b) in consequence of a change of his headquarters. Rule 8(49) defines the term ‘transfer’. ‘Transfer’ means movement of a Government servant from one headquarters station in which he is employed to another such station, either (a) to take up the duties of a new post or (b) in consequence of a change of his headquarters. Whereas, the Government Order dated 07.06.2013 defines the term ‘transfer’ to mean ‘posting of a Government servant from one headquarters to another headquarters or from one office to another within the same headquarters to take up duties of a new post’. It is necessary to notice that definition of the term ‘transfer’ as used in Rule 8(49) of KCSR is subject to twin qualifications as is evident from the definition clause which opens as under: “In these Rules, unless the context otherwise requires.” It is thus clear that the term ‘transfer’ is defined for the purpose of KCSR with a rider that the said meaning would be applicable unless the context otherwise required. 14. Definition of the term ‘transfer’ for the purpose of KCSR applies to determine the entitlements of the employee for traveling allowance, daily allowance, joining time, halting allowance, journey period, etc. There are no provisions made in the KCSR regulating transfer of Government servants to ensure their continuance in a post for a reasonable period and to provide for transparency, accountability in the administration and also to avoid undue interference by displacing the Government servants from their place without any just cause. Indeed this is the purpose and object behind the Government Order issued regulating transfer of Government servants. 15. In order to make provisions for regulating transfers to enable the Government servant to continue in a post for a reasonable period and to prevent repeated displacement of an official from the place of his work, Government Order dated 07.06.2013 has been issued. It covers an area which has not been dealt with under the KCSR. The Government Order does not lay down anything that is inconsistent with the KCSR. The object and purpose behind the issue of the Government Order is entirely different from the object and purpose of the KCSR, in defining the term ‘transfer’ and in making provisions for paying certain allowances in cases of such transfer. It is a well established principle of interpretation of statutes that a statute is best understood if we know the reasons for it. It is a well established principle of interpretation of statutes that a statute is best understood if we know the reasons for it. The words of a statute take their colour from the reasons for it. No provision in the statute and no word of the statute may be considered in isolation because the words used in a statute cannot be read in isolation as their colour and content are derived from their context. Useful reference can be made in this regard to the decision in the case of UTKAL CONTRACTORS AND JOINERY PRIVATE LIMITED VS. STATE OF ORISSA (1987) 3 SCC 279 (paragraphs 9 & 10). Similarly, when the context in which the term ‘transfer’ has been defined in the KCSR is totally different from the context and the purpose and object for which the term ‘transfer’ has been defined in the Government Order dated 07.06.2013, there would be no justification at all to apply the meaning of the term ‘transfer’ provided in Rule 8(49) for interpreting and understanding the effect of the provisions regulating transfer of the Government servants, in the Government Order dated 07.06.2013. There is also no justification in making an attempt to juxtapose the two definition clauses of the term ‘transfer’ one contained in Rule 8(49) of KCSR and the other contained in the Government Order dated 07.06.2013 to discern inconsistency between them because KCSR defines the term ‘transfer’ for the purpose of the said Rules and the Government Order dated 07.06.2013 defines the said term for the purpose of the Government Order. Therefore, the plain language of the Government Order defining the term ‘transfer’ has to be given effect to. 16. Power to make a Rule regulating transfer of persons appointed to public services falls under Article 309 of the Constitution of India and is also provided for as per Section 3 of the Karnataka Civil Services Act, 1978 which enables framing of Rules in that regard. However, in the absence of any Rule made regulating transfer invoking Section 3 of the Karnataka Civil Services Act, the Government Order issued on 07.06.2013 are traceable to the executive power of the State under Article 162 of the Constitution of India which will extend to matters with respect to which the Legislature of the State has power to make law. It is well established that having regard to the provisions under Articles 309 and 162 of the Constitution of India, executive orders can be passed in the absence of Rules providing for regulations of conditions of service. It is true, an executive instruction could make a provision only with regard to a service matter which is not covered by the Rules and that such executive instructions cannot override any provisions of the Rule framed under Article 309 as held by the Apex Court in PALURU RAMAKRISHNAIAH VS. UNION OF INDIA – AIR 1990 SC 166 . Similarly, even when there is a Rule framed regulating conditions of service, if there is any gap, the executive power of the State to issue an order under Article 162 of the Constitution of India cannot be denied. Useful reference can be made in this regard to the observations made by the Apex Court in paragraph 31 of the decision in the case of DR. KRUSHNA CHANDRA SAHU & OTHERS VS. STATE OF ORISSA & OTHERS – (1995) (6) SCC 1, referred to above. 17. The contention urged by the learned Advocate General by referring to Section 6 of the Act that Rules could have been made regulating transfers only under the provisions of the Act and not by issuing an executive order in view of the language employed in Section 6 of the Act is untenable. Section 6 of the Act reads as under: 6. Act to prevail over other laws:- This Act and any rule made or deemed to have been made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law with respect to matters for which provision is made in this Act or for which rules can be made under this Act: Provided that nothing in this Act shall affect or be deemed to affect the provisions of the Acts specified in the Schedule appended to this Act.” A reading of Section 6 makes it clear that the Act and any Rule made thereunder or deemed to have been made thereunder will have overriding effect over other laws as regards matters for which provision is made in the Act and for which Rules can be made under the Act. Neither the provisions of the Act, nor the KCSR provide anything to regulate transfers of Government servants which would run counter to the Government Order. Neither the provisions of the Act, nor the KCSR provide anything to regulate transfers of Government servants which would run counter to the Government Order. Therefore, there is no question of any inconsistency between the two. Merely because Rules regulating transfer can also be made in exercise of powers conferred under the Act, it cannot be construed to mean that executive power conferred under Article 162 of the Constitution cannot be used to make necessary provisions by issuing orders regulating transfer. In fact, only in respect of matters over which Legislature of the State has power to make laws, the executive power of the State would extend and the executive can resort to such power over such matters, but subject to the provisions made in the Act and the KCSR. Therefore, Section 6 of the Act cannot be understood to mean that provision for regulating conditions of service regarding transfers have to be made only by framing Rules under the Act and not by resorting to power under Article 162 of the Constitution of India. The said contention, therefore, deserves to be rejected as untenable. 18. The Administrative Reform Committee constituted by the State Government went into the entire issue pertaining to transfer of Government servants and the evils associated with the transfers and recommended several measures. It is pursuant to these recommendations, the Government Order dated 07.06.2013 has been issued to regulate transfers. Therefore, as long as, KCSRs do not provide any mechanism to regulate transfers of Government servants, the State Government was competent to frame rules in exercise of executive powers vested in it. Therefore, the Government Order which provides an independent scheme regulating transfer of Government servants which is not covered under the KCSR, is required to be examined independently and the term ‘transfer’ as defined in Rule 8(49) of the KCSR will not restrict or regulate the understanding of the term ‘transfer’ for the purpose of the Government Order. 19. It is also very necessary to notice here that in H.N. Chandru’s case a Full Bench of this Court, while dealing with the effect of the Government Order dated 22.11.2001, which contained somewhat similar regulatory measures regulating transfer of the Government servants, has held that the Government Order relating to transfer of a Government servant had statutory force. 19. It is also very necessary to notice here that in H.N. Chandru’s case a Full Bench of this Court, while dealing with the effect of the Government Order dated 22.11.2001, which contained somewhat similar regulatory measures regulating transfer of the Government servants, has held that the Government Order relating to transfer of a Government servant had statutory force. The present Government Order dated 07.06.2013 contains revised instructions regulating transfer/deputation of Government servants in supersession of the Government Order dated 22.11.2001. Therefore, it has to be held that the present Government Order has also got statutory force because it is issued to supplement the KCSRs as regards matters that are not provided in the KCSRs. 20. In the result and for the foregoing, we answer the question referred for consideration of the Full Bench as under: a) The Rules relating to transfer contained in the KCSRs and the definition of the term ‘transfer’ contained in Rule 8(49) of KCSR have no application for regulating transfer of Government servants as provided in the Government Order dated 07.06.2013. b) Decision of the Division Bench of this Court in the case of K.RAMACHANDRA Vs. STATE OF KARNATAKA & OTHERS rendered in W.P.No.56164/2013 disposed of on 05.12.2013 does not lay down correct law, nor does it consider the decision of the Full Bench in the case of H.N.CHANDRU Vs. STATE OF KARNATAKA & OTHERS – 2011(3) KLJ 562 which was not brought to the notice of the Division Bench. c) Consequently, we hold that posting of a Government servant from one office to another within the same headquarters, to take up duties of a new post would tantamount to transfer within the meaning of Clause 3(d) of the Government Order dated 07.06.2013. The Registry is directed to place the papers of this Writ Petition before the appropriate Division Bench for passing further or final orders.