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2019 DIGILAW 2039 (KAR)

B. R. Harish KAS (Junior Scale) v. State of Karnataka

2019-09-23

L.NARAYANA SWAMY, R.DEVDAS

body2019
ORDER : 1. The third respondent herein approached the Karnataka State Administrative Tribunal (hereinafter referred to as the Tribunal' for short) in Application No.5079/2019 challenging the order dated 19.08.2019 and seeking to set aside the order permitting the third respondent to continue in the same post. The said Application was allowed on 13.09.2019 directing the third respondent therein i.e., the petitioner herein to handover charge of the post to the applicant immediately, failing which the applicant-third respondent herein was permitted to assume charge of the said post, and further, respondent No.3 before the Tribunal-petitioner herein was directed to report before respondent No.1 and to seek order of postings. Vide transfer order dated 15.09.2018 the third respondent was transferred to Doddaballapur and the third respondent again was transferred to Dharwad by order dated 06.09.2019. The Original Application No.5580/2019 along with O.A.No.5079/2019 came to be allowed. The order dated 13.09.2019 passed by the Tribunal in O.A.Nos.5079/2019 and 5580/2019 reads as under: "Operative portion of the final order (i) Application No.5079/2019 is allowed and the impugned order bearing No....../2019, dated 19.08.2019 at Annexure A3 on the file of Respondent No.1, in so far as it relates to posting of Respondent No.3 to the post of the applicant, is quashed. Respondent No.3 is directed to handover charge of the post of the applicant immediately, failing which applicant is permitted to assume charge of the said post. Further, Respondent No.3 is directed to report before Respondent No.1 and seek posting order. Consequently A.No.5580/2019 is allowed and the impugned order bearing No....../2019, dated 06.09.2019 at Annexure A4 on the file of Respondent No.1, in so far as it relates to posting of the applicant as Special Land Acquisition Officer, KIADB, Dharwad, is quashed." It is this order of the Tribunal which is challenged before this Court. 2. It is pertinent to note that it is only the operative portion of the final order dated 13.09.2019 passed by the Tribunal has been made available, in O.A.No.5079/2019 and 5580/2019. Hence the petitioner has produced only operative portion which was made available. 3. Sri A.S.Ponnanna, learned Senior Counsel for the petitioner submits that the Tribunal has hurriedly proceeded to pass the said order. In the Application filed by the third respondent, initially notice was issued on 26.08.2019 and interim order was not granted. Hence the petitioner has produced only operative portion which was made available. 3. Sri A.S.Ponnanna, learned Senior Counsel for the petitioner submits that the Tribunal has hurriedly proceeded to pass the said order. In the Application filed by the third respondent, initially notice was issued on 26.08.2019 and interim order was not granted. The respondents were directed to file statement of objections and in compliance, the petitioner had filed statement of objections and the respondent-Government neither filed statement of objections nor produced the records. The matter was further adjourned to 03.09.2019. Thereafter on 13.09.2019 the impugned order has been passed. 4. It is the submission of the learned Senior Counsel that while passing the impugned order, statement of objections filed by this petitioner had not been considered and no discussions have been made. Further, the respondent-Government has not filed statement of objections and no records are secured. Hence there was no occasion for the Tribunal to examine the matter with reference to the grounds taken in the statement of objections. On this ground, learned Senior Counsel for the petitioner submits that though the order was dictated in the open Court only the operative portion of the final order or the order sheet of the said Application has been made available and hence the order passed by the Tribunal is not in detail and it is a cryptic order. 5. The Tribunal while passing the order ought to have discussed with reference to the grounds urged in the Application and the contentions raised in the statement of objections filed by the contesting respondents. But in the instant case, no such references have been made nor any discussion has been made. Secondly, learned Senior Counsel submitted that if at all the petitioner or the applicant was entitled for relief, the Tribunal could have set aside the impugned order and allowed the Application, but no positive direction could have been issued directing the petitioner herein to hand over the charge immediately to the applicant-third respondent herein. It is submitted that the Tribunal has acted both as a judicial body and as also an executing authority which is impermissible. There should have been an opportunity provided to the petitioner to have his say in the matter. Hence, learned Senior Counsel prayed that the writ petition be allowed and consequently, the order passed by the Tribunal be set aside. 6. There should have been an opportunity provided to the petitioner to have his say in the matter. Hence, learned Senior Counsel prayed that the writ petition be allowed and consequently, the order passed by the Tribunal be set aside. 6. On the other hand, the learned Counsel for the third respondent supports the impugned order and it is his submission that a detailed order was dictated in the open Court and the same was available, but the petitioner produced only an operative portion of the order sheet. Hence this petition is liable to be dismissed for non-production of the full text of the order. Secondly, as per the guidelines which are applicable to Group 'A' and 'B' Officers, the respondent could not have been prematurely transferred. Even otherwise, if premature transfer was to be effected, prior approval of the Hon'ble Chief Minister had to be obtained. No such material was placed before the Tribunal and under these circumstances, the Tribunal rightly set aside the impugned order of transfer and no infirmity could be found. 7. On earlier occasion, when the notice was issued on preliminary hearing, learned AGA was directed to secure records and in the first session he had submitted that he will produce the same by 2.30 p.m. Even at 2.30 p.m., the learned AGA sought time by pleading that he could not secure the records. However, the learned AGA seeks to support the impugned order passed by the State Government. 8. We have heard learned Counsels for both the parties. 9. It is a well settled principle of law that normally transfer is an incidence of service. It is for the appointing authority to transfer its officials as and when exigencies arise and it is not open for the employees to challenge the transfer order except on the available grounds. However, in view of several orders passed by the High Court and the Hon'ble Supreme Court, there was a direction issued to the State Government to fix some norms in the form of guidelines and in compliance, some guidelines have been issued. As per the guidelines issued by the Government for various categories of Officers i.e., Group 'A' and 'B' Officers, minimum tenure in particular place is two years. As per the guidelines issued by the Government for various categories of Officers i.e., Group 'A' and 'B' Officers, minimum tenure in particular place is two years. However, the guidelines would also provide that if transfer needs to be effected during the middle of the academic year or prematurely, then as per the guidelines which are approved by a Full Bench decision of this Court and have attained statutory character, the Hon'ble Chief Minister may approve the same by giving reasons. The petitioner is the contesting respondent before the Tribunal. As stated in the statement of objections the Hon'ble Chief Minister has approved the transfer. The third respondent has served in the same place between 25.09.2013 to 25.11.2015 i.e., for two years. It is submitted by the learned Senior Counsel that this ground has not been considered by the Tribunal. It is further submitted that the Tribunal should have obtained records from the Government to verify whether prior approval of the Hon'ble Chief Minister was obtained. In the instant case, neither statement of objections were filed by the Government nor records were placed before the Tribunal. That means to say there was nothing before the Tribunal to decide whether the impugned order or transfer is justifiable or liable to be set aside. 10. The Administrative Tribunal is a creature of a statute. Under Section 15 of the Karnataka Administrative Tribunals Act, the Tribunal has powers of all the Courts except the Supreme Court. However, the Tribunal is required to pass orders by meeting the requirements under the Constitution and the statute which governs the functioning of the Tribunal. We have rarely come across orders like the one passed by the Tribunal, where order in the form of operative portion of the final order was released, without providing the reasons. Normally, while dealing with a transfer order, Courts or Tribunals are not dealing with constitutional issues or dealing with validity of statutory provisions. It is answering few grounds which are urged, based on the submissions of the contesting parties. It is normally expected that the Tribunal should make available the entire text of the order. However, as noticed earlier, in the present case, the Tribunal has made available only the order sheet containing the operative portion. The entire text should be made available by the Tribunal since the parties have a right to challenge the orders passed by the Tribunal. However, as noticed earlier, in the present case, the Tribunal has made available only the order sheet containing the operative portion. The entire text should be made available by the Tribunal since the parties have a right to challenge the orders passed by the Tribunal. Another reason is that the party who has succeeded in obtaining such an order from the Tribunal may file contempt petitions, seeking implementation and the aggrieved party will be gravely prejudiced in not being able to formidably challenge such orders passed by the Tribunal, in the absence of full text. Without giving opportunity, the Tribunal has directed the petitioner-third respondent to hand over charge of the post to applicant immediately, failing which, the applicant was permitted to assume charge of the said post. Such positive directions, without sufficient material on record, cannot be countenanced. 11. Under these circumstances, we hold that the impugned order dated 13.09.2019 in Application No.5079/2019 is liable to be set aside. Accordingly, the order dated 13.09.2019 passed by the Karnataka State Administrative Tribunal, is set aside and we remit Application No. 5079/2019 to the Karnataka State Administrative Tribunal with a request to reconsider the case of the respective parties after obtaining statement of objections and also the records from the Government and pass orders in accordance with law. 12. With the aforesaid observations, this writ petition is allowed. The matter stands remanded to the Tribunal. The parties are directed to appear before the Tribunal on 3rd October 2019, without awaiting further notice. The Tribunal is requested to list the matter for hearing on 3rd October 2019.