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N. MUNIRAJU V/S THE STATE OF KARNATAKA, DEPARTMENT OF URBAN DEVELOPMENT, REP. BY ITS PRINCIPAL SECRETARY & OTHERS, decided on Friday, July 28, 2017.
[ In the High Court of Karnataka, Writ Petition No. 33158 of 2017 (S-TR). ] 28/07/2017
Judge(s) : RAGHVENDRA S. CHAUHAN
Advocate(s) : K. Satish, M.S. Bhagwat. R1, Shwetha Krishnappa, HCGP, R3, K.R. Nithyananda.
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    (Prayer: This Writ Petition is filed under Article 226 of the Constitution of India praying to quash the impugned order dated 20.07.2017 issued by the respondent No.1 in so far as it relates to the petitioner and the respondent No.3 respectively (Annexure-A) and etc.)1. The petitioner has challenged the order dated 20.7.2017 passed by the Under Secretary Urban Development Department whereby the petitioner has been kept as awaiting posting order.2. In a short compass the facts of the case are that on 22.7.1995 the petitioner was initially appointed in a Grama Panchayat. By order dated 22.12.2012 his services were regularized w.e.f. 27.2.2005. By order dated 23.2.2013 he was posted as Bill Collector in a vacant post at the City Municipal Council Chikkaballapur. Thereafter by order dated 11.12.2014 he was promoted to the post of First Division Revenue Inspector and posted at the City Municipal Council Chintamani. On 29.7.2015 the petitioner was transferred from Chinthamani to Hebbagodi. He joined his services in Hebbagodi on 1.9.2015. When things stood thus by order dated 20.7.2017 respondent No.3 has been posted to the post held by the petitioner and the petitioner was kept waiting posting order. Hence the present petition before this Court.3. Mr. Satish K. the learned counsel for the petitioner has raised the following contentions before this Court:-Firstly relying on the case of Miss. Seema H. v. State of Karnataka And Others (Writ Petition No.48499/2016 decided by a learned Division Bench of this Court on 16.09.2016) the learned counsel has contended that an employee cannot be kept awaiting posting order. For such an order tantamounts to mala fide. Since the petitioner in the present case is being kept awaiting posting orders by the impugned order dated 20.7.2017 the order deserves to be interfered with.Secondly relying on the case of K.G. Jagadeesha v. State of Karnataka And Another (Writ Petition No.48988/2016 decided by a learned Division Bench of this Court on 6.10.2016) the learned counsel has pleaded that in the case of premature transfer consent of the Hon’ble Chief Minister is required under Guideline Nos.7(iii) and 9(b) of the Transfer Policy. However in the present case no consent was sought from the Hon’ble Chief Minister prior to passing of the transfer order dated 20.7.2017. Hence the requirement of Guideline No.7(iii) and Guideline No.9(b) of the Transfer Policy have been violated. Thus the transfer order dated 20.7.2017 is an illegal one.4. On the other hand the learned counsel for State has pleaded that the transfer policy is merely a guideline. Thus it is not mandatory in nature but is only directory in nature.Secondly the State has ample power to keep a person awaiting posting order.Thirdly during the pendency of the present petition by the order dated 25.7.2017 the petitioner has been transferred to Srinivasapura. Therefore the petitioner is no longer kept awaiting posting orders.Fourthly petitioner in his petition has never raised the issue with regard to the premature transfer. Even if the said issue has been raised by the learned counsel for the petitioner orally before this Court by the order dated 25.07.2017 the approval of the Hon’ble Chief Minister was sought and given. Therefore even the requirement of Guideline No.7(iii) and Guideline No.9(b) of the Transfer Policy have been fulfilled in the present case.5. In rejoinder the learned counsel for the petitioner has relied on Guideline No.9(b) of the Transfer Policy and pleaded that the said provision clearly prevents and prohibits the Principal Secretaries or the Secretaries of the Government to issue a rectification approval of the Hon’ble Chief Minister. Therefore a subsequent rectification after the passing of the transfer order is prohibited by Guideline No.9(b) of the Transfer Policy. Moreover in the case of Shivaji A Kawale v. The State of Karnataka And Others (in Writ Petition No.200881/2017 also decided by a learned Division Bench of this Court on 06.06.2017) it has been clearly observed that “the rectification by the Hon’ble Chief Minister is not permissible subsequent to the passing of the transfer order. The approval of the Hon’ble Chief Minister has to be prior to the passing of the transfer order and not subsequent thereto”. Thus even if there is an approval of the Hon’ble Chief Minister on 25.07.2017 it is in violation of Guideline No.9(b) of the Transfer Policy.6. Heard the learned counsel for the parties perused the impugned order and considered the case law cited at the Bar.7. Since the petitioner has been posted to Srinivasapura by order dated 25.07.2017 the first contention raised by the learned counsel for the petitioner with regard to keeping the petitioner awaiting posting order need not be considered by this Court. For presently this petitioner does stand posted to a particular post.8. However the issue before this Court is: whether the order dated 20.07.2017 is a legally valid one or not? Whether the said order leads to a premature transfer of the petitioner or not? Whether for such premature transfer order to be passed the Guideline No.7(iii) and Guideline No.9(b) of the Transfer Policy have been followed or not? Whether in violation of such Guidelines the impugned order dated 20.7.2017 can be held to be legal or not?9. Admittedly the petitioner was posted at Hebbagodi by order dated 29.7.2015. Therefore according to the Guidelines the petitioner could not have been transferred for four years from 2015 as he is working against Group-C post. According to the Guidelines a person working in a Group-C cannot be transferred for four years. Admittedly the petitioner has been transferred by the impugned order dated 20.7.2017. Thus clearly it is a case of premature transfer.10. The Guideline No.7(iii) of the Transfer Policy is as under :-“7: the transfers should not be considered beyond the month of June except in the following circumstances by the competent authority:-(i) xxx xxx xxx(ii) xxx xxx xxx(iii) Where the transfer is necessitated in particular cases only due to exceptional circumstances or special reasons restricting the number of such annual transfers to minimum after recording reasons for the same in writing. Such cases shall be submitted to the Chief Minister without fail and transfer shall be made after obtaining prior approval of the Chief Minister.”A bare perusal of Guideline No.7(iii) clearly reveals that it places an embargo on the power of the transfer beyond the month of June. But the said embargo has been partially lifted under three circumstances. The third circumstance prescribed by Guideline No.7(iii) is “where the transfer is necessitated in particular cases only due to exceptional circumstances or special reasons restricting the number of such annual transfer to minimum after recording reasons for the same in writing and such cases shall be submitted to the Chief Minister without fail and transfer shall be made after obtaining the prior approval of the Hon’ble Chief Minister.” Thus according to Guideline No.7(iii) a premature transfer can be made provided firstly under exceptional circumstances or special reasons exist; secondly the reasons have to be stated in writing; thirdly the case has to be placed before the Hon’ble Chief Minister without fail and the approval has to be granted by the Hon’ble Chief Minister prior to the passing of the transfer order. Therefore in case of premature transfer these factors have to be satisfied before a premature transfer can be ordered by the State.11. Guideline No.9 of the Transfer Policy deals with premature/delayed transfer. Guideline No.9(b) of the Transfer Policy is as under:“9: Premature / delayed Transfer –(a) xxx xxx xxx(b) However before effecting any premature transfers and for making any transfer after the transfer period and also for extending the tenure of a Government servant for the reasons stated above prior approval of the Hon’ble Chief Minister must be obtained without fail by the concerned Administrative Department of the Secretariat. The Principal Secretaries / Secretaries to Government should not under any circumstances issue transfer orders and later seek ratification / post facto approval of the Chief Minister.”Even Guideline No.9(b) of the Transfer Policy clearly stipulates that a prior approval of the Hon’ble Chief Minister should be obtained that too without fail. The later part of the Guidelines clearly prohibits the Principal Secretaries or the Secretaries to the Government from first issuing a transfer order and later on seeking a rectification or a post facto approval of the Hon’ble Chief Minister. Thus even a post facto rectification is clearly prohibited by the Guidelines.12. There seems to be certain logic in limiting the power of the State to transfer a person prematurely. The Transfer Policy has been issued in order to control the wide powers of the State in transferring an employee on the one hand and in giving a sense of security to the employee on the other hand. Since the vast power of transfer can be abused by the State it may play havoc with the lives of the people. Thus it was imperative that the wide power should not be an unfettered power but should be cribbed cabined and confined within certain well known parameters. Thus the transfer policy prescribes a procedure to be followed. Needless to say once a procedure is established by law the same must be followed by the State.13. The intention of the Guidelines of the Transfer Policy was also to give a security to the employees that once they are transferred to a particular post and to a particular place they shall not be disturbed for a certain period of time. In case they were required to be disturbed it could not have been done and it cannot be done unless there is a prior approval of the Hon’ble Chief Minister. It is keeping these twin goals in mind that Guideline No.7(iii) and Guideline No.9 of the Transfer Policy have been framed by the Government.14. In the case of Alla Saheb v. The State of Karnataka Department of Urban Development and Others (ILR 2017 KAR 86) the State of Karnataka had pleaded that it has an unfettered power of transferring its employees. However in the said case a the learned Division Bench of this Court has opined that “since the Transfer Policy has been framed in exercise of the executive power of the State confirmed under Article 162 of the Constitution of India the said Transfer Policy has a statutory force”. Similar view was also expressed by this Court in the case of Chandru H.N. v. State of Karnataka And Others (2011 (3) KLJ 562. Therefore undoubtedly a Transfer Policy is made to control the unfettered powers of the State in transferring its employees.15. In the case of K.G. Jagadeesha (supra) the learned Division Bench had an occasion to elaborately discuss the scope and ambit of Clause 7(iii) and Clause 9(b) of the Guidelines of the Transfer Policy. This Court had clearly opined that “unless and until the prior approval of the Hon’ble Chief Minister is received a premature transfer is not permissible under Clause 7(iii).” Taking the aid of Clause 9(b) this Court has also opined that “the combined reading of Clause 7(iii) and Clause 9(b) clearly reveals that the approval by the Hon’ble Chief Minister has to be given prior to the transfer order.”16. Admittedly no approval was granted by the Hon’ble Chief Minister prior to passing of the transfer order dated 20.7.2017. Although the learned counsel for the State has vehemently contended that the said approval was granted by the Hon’ble Chief Minister on 25.7.2017 but the said approval is not granted prior to passing of the impugned order. Thus the requirements of Guideline No.7(iii) and Guideline No.9(b) of the Transfer Policy have not been fulfilled in the present case. Hence the transfer order dated 20.7.2017 is legally unsustainable.For the reasons stated above this Writ Petition is hereby allowed and the transfer order dated 20.7.2017 qua the petitioner is set aside. Consequently the order dated 25.7.2017 whereby the petitioner has been posted to Srinivasapura is also set aside. Therefore the respondents are directed to ensure that the petitioner continues to be posted at Hebbagodi. However the respondents are free to transfer the petitioner provided the said transfer is strictly in accordance with the Guidelines.