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2020 DIGILAW 1516 (KAR)

P. v. Poornima VS State Of Karnataka

2020-07-29

B.V.NAGARATHNA, RAVI V.HOSMANI

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JUDGMENT Ravi V. Hosmani, J. - Though this matter was listed for hearing on I.A. No.1/2020 for vacating interim order dated 07.02.2020 granted by this Court, with the consent of learned counsel for the respective parties, the matter is heard finally and disposed of by this order. 2. This Writ Petition assails the order dated 20.01.2020 passed by the Karnataka State Administrative Tribunal (hereinafter referred to as 'KSAT', for the sake of convenience) in Application No.5689/2019. By the said order, KSAT has allowed the Application and set aside notification No. dated 11.09.2019 insofar as the Applicant and respondent no.2 therein. 3. Heard learned Senior Counsel Sri. A.S. Ponnanna, for the petitioner, learned counsel Sri. D.R. Ravishankar, for respondent no.3 through Video Conference; and also Sri. T.L. Kiran Kumar, learned AGA, who appeared in person for respondent nos.1 and 2. 4. Sri R. Anil Kumar was the applicant in Application No.5689/2019 before the KSAT. Smt. P.V. Poornima was arrayed as respondent no.2. In the said Application, Sri R. Anil Kumar (respondent no.3 herein) had challenged Notification bearing No. dated 11.09.2019 issued by respondent no.1 canceling the earlier transfer Notification dated 06.09.2019 in respect of Smt. P.V. Poornima and posting Sri R. Anil Kumar, as SLAO-II, KIADB (BMICP), Bengaluru. 5. The facts briefly stated are that, the applicant - Sri R Anil Kumar, was working as the SLAO, Yettinahole Project, Doddaballapura. On 29.06.2019, he was transferred to the post of SLAO-II, KIADB. He replaced Smt. P.V. Poornima, who was working in the said post, since 2017. He took charge on 04.07.2019. Within two weeks, i.e. under a Notification dated 15.07.2019, they were reverted back. The order dated 15.07.2019 was challenged by Sri R. Anil Kumar in Application No.4271/2019. During its pendency, an order dated 19.08.2019 was passed by the Government, modifying the Notification dated 15.07.2019 and Sri R. Anil Kumar came to be transferred to the post of SLAO-II, KIADB. Taking note of the order dated 19.08.2019, Application No.4271/2019 was disposed of. Immediately thereafter, the impugned order dated 11.09.2019 came to be issued and Smt. P.V. Poornima, who was under transfer as the SLAO, Singataluru, Lift Irrigation Project, Hoovina Hadagali, Ballari, in terms of order dated 06.09.2019 was modified and she was brought back as the SLAO-II, KIADB, Bengaluru. She replaced Sri. R. Anil Kumar in the post, who in turn was transferred to the post of SLAO-II, KIADB (BMICP), Bengaluru. She replaced Sri. R. Anil Kumar in the post, who in turn was transferred to the post of SLAO-II, KIADB (BMICP), Bengaluru. As stated earlier, challenging this order, Application No.5689/2019 was filed before KSAT. 6. Upon service of notice, the State Government did not file statement of objections. However, Smt. P.V. Poornima entered appearance and filed objections. In her objections, it was contended that both Sri. R. Arun Kumar and Smt. P.V. Poornima were officials belonging to the Revenue Department, whose services were lent to the Commerce and Industries Department. The impugned order was only an order of deputation by the Commerce and Industries Department to particular posts and was not a transfer. Therefore, transfer guidelines were not attracted. Alternatively, even if it were considered to be as 'transfer', it had prior approval of the Chief Minister and was not contrary to the Transfer guidelines. Yet another contention was that Sri R. Anil Kumar, was merely shifted within KIADB from one subject i.e., SLAO-II, KIADB to SLAO-II, KIADB (BMICP), which did not involve change of headquarters and therefore, it was not an order of transfer. 7. On consideration of the case, the KSAT held that even a change of office (within KIADB) was a transfer, by referring to the Full Bench decision in S.N. Gangadharaiah Vs. State of Karnataka, (2015) ILR(Kar) 1955 . It further held that the transfer was premature. Regardless of prior approval by the Chief Minister, as the impugned order of transfer did not contain any detailed reasons and hence the premature transfer was unsustainable. It accordingly allowed Application No.5689/2019 and set aside transfer order dated 11.09.2019 insofar as Sri. R. Anil Kumar and Smt. P.V. Poornima are concerned. Assailing this order of the KSAT, Smt. P.V. Poornima has filed this writ petition. 8. On behalf of the petitioner - Smt. P.V. Poornima, the learned Senior counsel, made the following submissions: (i) The KSAT held that the impugned transfer was premature. But KSAT ignored the fact both Sri. R. Anil Kumar and Smt. P.V. Poornima belonged to Revenue Department. Their services were lent to Commerce and Industries Department. Thereafter vide the impugned order, Sri R. Anil Kumar was merely issued with order of deputation to a particular post. Such order of deputation was not a transfer. But KSAT ignored the fact both Sri. R. Anil Kumar and Smt. P.V. Poornima belonged to Revenue Department. Their services were lent to Commerce and Industries Department. Thereafter vide the impugned order, Sri R. Anil Kumar was merely issued with order of deputation to a particular post. Such order of deputation was not a transfer. (ii) It was also urged that the impugned order even if it were to be considered as an order of transfer and was premature, it had the prior approval of the Chief Minister and therefore, could not have been set aside by KSAT. (iii) It was also urged that mere change of subject of Sri R. Anil Kumar, from SLAO-II, KIADB to SLAO-II, KIADB (BMICP), without change of Head Quarter was not a 'transfer' as defined in the Transfer Guidelines. The decision in W.P.No.1383/2019 disposed of on 17.01.2019 (M.J. Varun Kumar Vs. H.T. Natesh& Ors.) was relied upon. 9. On the other hand, the learned Addl. Government Advocate, representing respondents no.1 and 2 sought to justify the impugned order on the ground that the same did not attract application of the transfer guidelines. 10. On behalf of Respondent no.3 - Sri R. Anil Kumar, it was submitted as follows: (i) The very nomenclature of the impugned order itself clarified that it was an order of transfer. (ii) In view of Full Bench decision in S.N. Gangadharaiah's case (supra), change of post even within department would also be 'transfer'. (iii) Even change of subject would be 'transfer' as per Clause 3 (d) of the Transfer Guidelines. (iv) It was further contended that issuance of repeated orders to retain Smt. P.V. Poornima as SLAO-II. KIADB, Bengaluru, indicated that they were issued at her behest and no public interest was involved. Hence transfer was totally malafide. 11. Learned counsel relied upon the following decisions: (i) S.N. Gangadharaiah Vs. State of Karnataka, (2015) ILR(Kar) 1955 (ii) Rajashekar M. Vs. State of Karnataka & Ors., (2019) 1 AIRKarR 489 (iii) Shivakumar Vs. State of Karnataka & Ors., (2019) 1 KarLJ 161 (iv) W.P.No.14197/2019 Manjunath Vs. State of Karnataka & Ors. (v) W.P.No.20991/2019 Kotresh Vs. State of Karnataka & Ors. (vi) B.C. Ravindra Vs. Managing Director & Ors., (2018) 1 AIRKarR 685 12. State of Karnataka & Ors., (2019) 1 AIRKarR 489 (iii) Shivakumar Vs. State of Karnataka & Ors., (2019) 1 KarLJ 161 (iv) W.P.No.14197/2019 Manjunath Vs. State of Karnataka & Ors. (v) W.P.No.20991/2019 Kotresh Vs. State of Karnataka & Ors. (vi) B.C. Ravindra Vs. Managing Director & Ors., (2018) 1 AIRKarR 685 12. In addition, attention of this Court was also sought to be drawn to the fact that the Senior Counsel, who represented respondent No.3 - Sri R. Anil Kumar, in Application No.4971/2019, was now representing Smt. P.V. Poornima. 13. It has been contended in this case, by the Petitioner that an order issued for a mere change of subject within KIADB cannot be termed a 'transfer' nor would an order of deputation/posting in the department to which the services of the official is lent also does not amount to a transfer. The full bench of this Court in S.N. Gangadharaiah's case(supra), in paragraph No.20 has held as follows: "20. ..... (c) Consequently, we hold that posting of a Government servant from one office to another within the same headquarters, to take up the 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 said finding is on the very point. Hence no error is committed by KSAT in relying upon the decision and following the law laid down therein. Hence, the said contention is rejected. 14. From a perusal of the preamble to the impugned order dated 11.09.2019, it is mentioned as a transfer by the Government. It also does not appear to be issued by the borrowing department. Hence the petitioner's contention that the impugned order was only an order of deputation to a particular post by the borrowing department is contrary to facts. The decision of this Court in M.J. Varun Kumar's case(supra), also does not assist the petitioner. The impugned order describes itself as a transfer and there is absolutely no material on record to indicate that it was a mere case of movement from one desk to another. It is also highly unlikely, as posts in question are meant for officers of Karnataka Administrative Services rank and therefore, the transfer being from one office to another within the same Headquarter is highly probable. It is also highly unlikely, as posts in question are meant for officers of Karnataka Administrative Services rank and therefore, the transfer being from one office to another within the same Headquarter is highly probable. Failure of the State to throw light on this aspect also has to be held against the petitioner herein in view of the nomenclature of the impugned order. Hence, for all the above reasons, petitioner's contention is rejected. 15. Further from the tabulation of the transfer Notifications placed on record in this case, it is seen that no less than eleven orders have been issued by the State Government, either transferring or modifying transfer orders or withdrawing transfer orders, within a span of about one year. This is without any doubt a case of premature transfer. Thus, the finding of the KSAT is fully justified and cannot be faulted. 16. As held by Coordinate Bench of this Court in Shivakumar's case (supra), in case of a premature transfer, prior approval of the Chief Minister to the transfer is mandatory. If the same is not granted, the transfer would be void ab initio. Another Coordinate Bench of this Court in Rajashekar's case(supra), has added that unless the impugned transfer fell within any of the circumstances mentioned in para - 9 (a) (i) to (vii) of the Transfer Guidelines dated 07.06.2013, prior approval of the Chief Minister will not save it from being set-aside as contrary to the Guidelines. As no such circumstance has been cited in the impugned transfer order dated 11.09.2019, the KSAT has rightly set it aside. The same does not call for any interference in this case. 17. From the facts of this case, we are unable to hold back from dealing with an important aspect of transfers which has manifested itself in this case. We deem it necessary to tabulate the various transfer orders issued with regard to Smt. P.V Poornima and Sri R. Anil Kumar, the parties herein. Sl. No. Date of Transfer Place of transfer From To 1 10.12.2018 Smt. PV Poornima SLAO-II, KIADB, Bengaluru Dy. Director (Training) Skill Development, Entrepreneurship & Livelihood Department, Bengaluru 2 28.12.2018 Smt. PV Poornima under transfer as per earlier order dated 10.12.2018 modified. Post of SLAO-II, KIADB, Bengaluru which became vacant due to transfer of Sri R. Anil Kumar. 3 16.02.2019 Sri R. Anil Kumar, Dy. Director (Training) Skill Development, Entrepreneurship & Livelihood Department, Bengaluru 2 28.12.2018 Smt. PV Poornima under transfer as per earlier order dated 10.12.2018 modified. Post of SLAO-II, KIADB, Bengaluru which became vacant due to transfer of Sri R. Anil Kumar. 3 16.02.2019 Sri R. Anil Kumar, Dy. Secretary - 3, BDA, Bengaluru Vacant post of SLAO, Yettinahole Project, Doddaballapura. 4 20.02.2019 Smt. PV Poornima SLAO-II, KIADB, Bengaluru Posted as SLAO-I, KIADB, Bengaluru in the vacancy caused due to transfer of Sri B Venkatesh 5 27.02.2019 Smt. PV Poornima under transfer as per earlier order dated 20.02.2018 modified. Services continued in Dept. of Commerce and Industries and posted as SLAO-II, KIADB, (BMRCL), Bengaluru in the vacancy caused due to transfer of Sri Balappa Handigunda. 6 06.03.2019 Smt. PV Poornima under transfer as per earlier order dated 20.02.2018 modified. To vacant post of Dy. Chief Manager, KIUDFC, Bengaluru. 7 29.06.2019 Sri R. Anil Kumar SLAO, Yettinahole Project, Doddaballapura Services of Sri R. Anil Kumar handed over to Commerce and Industries Department for being posted as SLAO-II, KIADB, Bengaluru in the place of Smt. PV Poornima. Smt. PV Poornima SLAO-II, KIADB, Bengaluru Services continued in Dept. of Commerce and Industries and posted as SLAO-II, KIADB (BMICP) in the vacancy due to transfer of Sri Balaram Lamani 8 15.07.2019 Sri R. Anil Kumar SLAO-II, KIADB (BMRCL) Bengaluru Vacant post of SLAO, Yettinahole Project, Doddaballapura. Smt. PV Poornima SLAO-II, KIADB, (BMICP) Bengaluru Services handed over to Commerce and Industries Department for being posted as SLAO-II, (BMRCL) KIADB, Bengaluru in the vacancy due to transfer of Sri R. Anil Kumar. 9 19.08.2019 Sri R. Anil Kumar SLAO-II, KIADB Bengaluru Continued as SLAO-II, KIADB Bengaluru, by modifying the earlier transfer order posting him as SLAO, Yettinahole Project, Doddaballapura. 10 06.09.2019 Smt. PV Poornima under compulsory waiting period Vacant post of SLAO, Singataluru Lift Irrigation Project, Hoovina Hadagali, Ballari 11 11.09.2019 Smt. PV Poornima under transfer as SLAO, Singataluru Lift Irrigation Project, Hoovina Hadagali, Ballari as per order dated 06.09.2019 Services handed over to Dept. of Commerce and Industries for posting as SLAO-II, KIADB, Bengaluru to replace Sri R. Anil Kumar. Sri R. Anil Kumar SLAO-II, KIADB Bengaluru Services continued with Dept of Commerce and Industries for posting as SLAO-II, KIADB (BMICP) Bengaluru Shockingly, transfer orders are issued and modified repeatedly even after unsuccessful challenge before KSAT or even before taking charge at the place of transfer. Sri R. Anil Kumar SLAO-II, KIADB Bengaluru Services continued with Dept of Commerce and Industries for posting as SLAO-II, KIADB (BMICP) Bengaluru Shockingly, transfer orders are issued and modified repeatedly even after unsuccessful challenge before KSAT or even before taking charge at the place of transfer. Yet, it was submitted that it is the petitioner, who has suffered hardship due to repeated transfers and that she was the victim, when it is glaringly on record that, she repeatedly sought to be brought back to a particular post, that too after her completing minimum tenure in it. Such action on the part of the State is indeed contrary to its intention expressed in the transfer Guidelines to keep the transfers to below 6% of the cadre strength in a year and to regulate the same based on definite criteria. It is equally disturbing to notice in this case that the State, which issued the impugned transfer Notifications has done little to defend the same. No statement of objection was filed before the KSAT or before this Court. Though attempt was made to defend the transfer Notifications orally, on the ground that they were issued in public interest, administrative exigencies and efficiency in administration, no material is produced to substantiate the same. We observe that the result of repeated transfer/retransfer of an official in order to accommodate another Officer causes grave hardship upon the transferred officials and their families. Due to unregulated transfers, the accountability of the officials towards effective implementation of state policy is lost, which impacts the public at large. Taking stock of this situation, the Hon'ble Supreme Court in TSR Subramanian and Ors. Vs. Union of India and Ors., (2013) 15 SCC 732 , has observed in paragraph No.35 as under: "35. We notice, at present the civil servants are not having stability of tenure, particularly in the State Governments where transfers and postings are made frequently, at the whims and fancies of the executive head for political and other considerations and not in public interest. The necessity of minimum tenure has been endorsed and implemented by the Union Government. In fact, we notice, almost 13 States have accepted the necessity of a minimum tenure for civil servants. Fixed minimum tenure would not only enable the civil servants to achieve their professional targets, but also help them to function as effective instruments of public policy. The necessity of minimum tenure has been endorsed and implemented by the Union Government. In fact, we notice, almost 13 States have accepted the necessity of a minimum tenure for civil servants. Fixed minimum tenure would not only enable the civil servants to achieve their professional targets, but also help them to function as effective instruments of public policy. Repeated shuffling/transfer of the officers is deleterious to good governance. Minimum assured service tenure ensures efficient service delivery and also increased efficiency. They can also prioritise various social and economic measures intended to implement for the poor and marginalised sections of the society." 18. Under the circumstances, we deem it proper to stipulate the requirement of disclosing specific reasons for issuing orders for modification or cancellation of transfers with a further requirement that the degree of detail/specific reasons would increase with each subsequent modification/cancellation of transfer order, issued prematurely. This would not stifle the power of the executive to transfer officials in exceptional circumstances, but at the same time, the disclosure of reasons would ensure accountability to the public is being served. Such a measure would also act as a check on the transfers being effected on the requests made by officers to particular posts that too repeatedly, as in the instant case. Moreover, the transfer guidelines issued by the State Government to regulate transfers of government servants in the State are statutory in nature and binding on the State Government. They cannot be blatantly flouted to appease any government servant nor can they be ignored while accepting requests from officers/officials to seek postings of their choice. Such action on the part of the State Government not only demoralises the other officers who are consequently displaced prematurely but also generates litigation before the Tribunals/Courts. It needs to be emphasised that no Government Servant should think that he/she can seek postings of his/her choice in blatant violation of the Transfer Guidelines. Such practice has to be deprecated. 19. Before parting with the case, the last of the submissions indeed requires us to deviate from the merits of the case. It was stated at the Bar that the Senior Counsel appearing in this case for the petitioner (Smt. P.V. Poornima), had represented the respondent no.3 (Sri R. Anil Kumar), before the Tribunal. In this regard our attention was drawn to the order sheet of the Tribunal in Application No.4271/2019, which we have perused. It was stated at the Bar that the Senior Counsel appearing in this case for the petitioner (Smt. P.V. Poornima), had represented the respondent no.3 (Sri R. Anil Kumar), before the Tribunal. In this regard our attention was drawn to the order sheet of the Tribunal in Application No.4271/2019, which we have perused. Learned Counsel and particularly Senior Counsel are looked upon as legal professionals with high standards of conduct and etiquette in the society, particularly while discharging their duties as counsel. What is required is to send a strong reminder about the exemplary traditions and high standards of legal practice and standing at the Bar, which the members of the Bar must always bear in mind. This is in order to maintain purity in dispensation of justice towards which, we have all solemnly affirmed. We wish to say no more! For the foregoing reasons, the writ petition is dismissed. No order as to costs.