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2016 DIGILAW 751 (KAR)

Ramprasad R. v. State of Karnataka

2016-10-07

ARAVIND KUMAR, JAYANT PATEL

body2016
ORDER : Jayant Patel, J. Rule. Mr.Vijayakumar A. Patil, learned Additional Government Advocate is appearing for Respondents No.1 and 2 and Mr. M.S. Bhagwat, learned counsel appearing for the Caveator/Respondent No.3 have received notice of Rule. 2. With the consent of the learned counsel appearing on both sides, the petition is finally heard. 3. The short crux of the case appears to be that the petitioner was working as Senior Sub-Registrar at Srirangapatna, pursuant to the transfer order dated 07.10.2014. Thereafter, on 10.06.2016, the Government issued the order transferring about 17 Senior Sub-Registrars at different places wherein the Respondent No.3 was posted at Indiranagar viz., Smt. B. G. Kamala. On 15.06.2016, Smt. B.G. Kamala challenged the said transfer order for she being transferred as Senior Sub-Registrar from Indiranagar to other place and the Tribunal in the Application No. 5314/2016 passed the interim order staying the said transfer order. Resultantly, the petitioner continued as Sub-Registrar, Nelamangala. Thereafter on June, 20th 2016, the Government cancelled the earlier transfer order dated 10.06.2016 and the further order was also issued in this regard vide communication dated 23.06.2016. There-after, when the Application No. 5314/2016 was again considered by the Tribunal, factum of cancellation of the transfer order appears to have been not brought to the notice of the Tribunal and the Tribunal vide order dated 26.08.2016 directed Smt. B. G. Kamala, the; applicant therein to continue up to 31.08.2016 and further observed that the Respondent No.3 herein may report for duty on 31.08.2016 and may take charge from the applicant, i.e., Smt. B. G. Kamala. It appears that thereafter the Government passed another order dated 24.09.2016 whereby the petitioner is posted as Sub-Registrar, Indiaranagar whereas Respondent No.3 is posted as Sub-Registrar, Mulabagilu. The Respondent No.3 challenged the said order by preferring the application before the Tribunal in Application No.9199/2016 and the Tribunal allowed the said application by the impugned order dated 27.09.2016 whereby the Respondent No.3 is directed to get himself relieved from the post of Sub-Registrar, Indiranagar, Bengaluru and go back to his earlier place or seek an alternative posting, Further, the Authorities are directed to continue the Applicant in the present place as Sub-Registrar, Indiranagar, until further orders. Under the circumstances, the present petition. 4. Under the circumstances, the present petition. 4. We have heard Mr.Subramanya Jois, learned Senior Counsel is appearing for the petitioner and Mr.Vijayakumar A.Patil, learned Additional Government Advocate is appearing for Respondent Nos.1 and 2 and Mr. M.S. Bhagwat, learned counsel is appearing for the Caveator/Respondent No.3. 5. As such, it is an interim order and therefore, this Court needs to find out whether it is an exceptional case where this Court should interfere, otherwise, in normal circumstances, this Court may not interfere under Article 227 of the Constitution of India against the interim order. In our view, there are basic infirmities in the orders passed by the Tribunal inasmuch as the factum of cancellation of the first order dated 10.06.2016 is neither brought to the notice of the Tribunal nor the Respondent No.3 herein when pressed the matter before the Tribunal on 26.08.2016 leading the Tribunal to pass the order for permitting him to take charge on 31.08.2016, had brought to the notice of the Tribunal nor the same in any case is considered by the Tribunal when the impugned order is passed. The only ground mentioned by the Tribunal is that on 31.08.2016, within a span of one month, Respondent No.3 is posted at Mulabagilu by transfer. The applicant did mention in the application before the Tribunal at Para 3(A2) that the order dated 10.06.2016 was already cancelled but the said aspect is also not considered by the Tribunal. 6. Learned Advocate appearing for the petitioner as well the Respondent No.3 have made statement at the Bar that the factum was brought to the notice of the Tribunal. Be that as it may. If the first transfer order dated 10.06.2016 was cancelled, resultantly, there was no transfer, and hence the earlier observations on the basis of which the order was passed by the Tribunal would no more survive or in any case, it cannot be said that the Respondent No.3 is transferred within a span of one month. We find it appropriate to further observe that since the matter is at large pending before the Tribunal, even if it is considered as pre-mature transfer, the fact remains that the approval of the Hon'ble Chief Minister is obtained. We find it appropriate to further observe that since the matter is at large pending before the Tribunal, even if it is considered as pre-mature transfer, the fact remains that the approval of the Hon'ble Chief Minister is obtained. Under the circumstances, we find that the case falls in the exceptional category and therefore, it needs to interfere in exercise of power under Article 227 of the Constitution of India, more particularly, when the basis of the order was no more in existence since the first transfer order itself was cancelled by the Government subsequently. 7. In view of the aforesaid observation and discussion, the impugned order passed by the Tribunal is set aside. Resultantly, the transfer order dated 24.09.2016 shall remain operative. It has been stated that the charge is already taken over by Respondent No.3 and therefore, we find it appropriate to further direct that by virtue of the present order, the petitioner will be entitled to continue as Sub-Registrar, Indiranagar, Bengaluru whereas the Respondent No.3 shall be required to work as Sub-Registrar, Mulabagilu. Of course, the aforesaid direction shall be in force unless any other transfer order is passed by the competent Authority in accordance with law in case of the petitioner or Respondent No.3. 8. It is also observed that the reasons recorded by this Court are only for the purpose of considering the legality of this case and will not prejudice the rights of the parties at the time of final hearing of the matter before the Tribunal. Petition shall stand allowed to the aforesaid extent, considering the facts and circumstances. Rule made absolute accordingly. No order as to costs.