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2015 DIGILAW 981 (KAR)

P. Lakshmidevi v. State of Karnataka

2015-08-24

R.S.CHAUHAN

body2015
ORDER : Raghavendra S. Chauhan, J. The petitioner-Smt. P. Lakshmidevi has challenged the legality of the transfer order dated 18-8-2015, whereby, she has been transferred from the post of Assistant Executive Engineer, District Urban Development Cell, Office of the Deputy Commissioner, Bangalore Rural District to the City Municipal Council, Chikkaballapur. 2. Although this case has a bit of checkered history, but suffice it to say that the petitioner was transferred to her present place of posting in Bangalore Urban District on the post of Assistant Executive Engineer by order dated 1-7-2013. Ever since then, she has been working on the said post. However, by order dated 18-8-2015, she has been transferred as mentioned above. Hence, this petition before this Court. 3. Mr. Nagarajappa, learned Counsel for petitioner has canvassed the following submissions before this Court: Firstly, according to the Government Policy, the minimum period of stay at a place is three years. Since the petitioner has been transferred to the present place of posting on 1-7-2013, she cannot be transferred out of Bangalore Urban District till 1-7-2016. Therefore, the impugned transfer order is a premature one. Secondly, that the petitioner's husband, Mr. Radhakrishna, is working as an Assistant Professor in Maharani's Science College for Women at Bangalore. According to the transfer guidelines, an endeavour has to be made that both the spouses should stay in the same place. However, in case the petitioner is transferred to Chikkaballapur, the family would be disturbed unnecessarily. Thirdly, that the petitioner has a small child, Kumari Aditi who is in the preparatory school. Relying on the case of Director of School Education v. O. Karuppa Thevan and Another, 1994 Supp. (2) SCC 666 : 1994 SCC (L and S) 1180, the learned Counsel has pleaded that a transfer should not be made in the middle of the academic year as it is likely to disturb the education of the child. Lastly, that the transfer has been made during the operation of the 'Model Code of Conduct' which came into operation due to the Bruhath Bengaluru Mahanagara Palike election scheduled to be held on 22-8-2015. Therefore, according to the learned Counsel, the transfer order deserves to be set aside. 4. Heard the learned Counsel and perused the impugned transfer order. 5. Lastly, that the transfer has been made during the operation of the 'Model Code of Conduct' which came into operation due to the Bruhath Bengaluru Mahanagara Palike election scheduled to be held on 22-8-2015. Therefore, according to the learned Counsel, the transfer order deserves to be set aside. 4. Heard the learned Counsel and perused the impugned transfer order. 5. In the case of R. Suresh v. State of Karnataka and Others (W.P. No. 24622 of 2015, dated 22-6-2015) this Court held that transfer policy is not mandatory in nature but is merely directory in nature. Therefore, the respondent would be justified in transferring the employee either on an administrative exigency or in the interest of public. Hence, the transfer policy does not curtail the power of the employer to transfer his employee even the employee does not complete his minimum tenure of three years at the place of posting. A bare perusal of the transfer order clearly reveals that it has been made in the interest of public. Therefore, the first contention made by the learned Counsel that the transfer order is premature is clearly unacceptable. 6. Although, an endeavour is generally made to ensure that the spouses do stay at the same place, but, this part of the transfer policy is merely a guideline. It does not bind the respondent. Moreover, such a guideline does not and cannot prevent the respondent from transferring the petitioner in the interest of public. To read this mere guideline is binding the respondents from making a transfer would be to deprive the respondents of their power to transfer an employee on an administrative exigency. Therefore, the second ground urged by the learned Counsel for respondent is without any merit. 7. Considering the fact that the petitioner's daughter is only in the preparatory school, shifting of the daughter Kum. Adhithi, would not adversely affect her educational records to the extent that it would jeopardise her education. 8. Although, an endeavour ought to be made that transfers are not made in the middle of the academic year, but, even this is merely a guideline and it is not a mandatory provision of law. Therefore, even the third argument raised by the learned Counsel is unacceptable. 9. 8. Although, an endeavour ought to be made that transfers are not made in the middle of the academic year, but, even this is merely a guideline and it is not a mandatory provision of law. Therefore, even the third argument raised by the learned Counsel is unacceptable. 9. Even if the Code of Conduct was operational when the transfer order is passed, it would not make a transfer order as invalid, provided, the transfer is being done in the interest of public. According to the transfer order, the transfer was, indeed, made in the interest of public. Therefore, even if the Code of Conduct were effective, the Government has to be left with the discretion to transfer a person if his/her services were required at another place in the interest of the public. After all, the Code of Conduct does not bring the entire Government machinery to a grinding hault. Since it is in the interest of public, that an Assistant Executive Engineer should discharge his duties, the impugned transfer order cannot be faulted with. For the reasons stated above, this Court does not find any merit in the present petition. It is hereby dismissed.