1. The petitioner who is working as an Executive Engineer in the Karnataka Power Transmission Corporation Limited (KPTCL) and who was sent on deputation to O&M Division, Bangalore Electricity Supply Company Limited (BESCOM), Chandapura, Bengaluru has challenged the order transferring the petitioner to TA and QC, KPTCL, Bengaluru. In place of the petitioner, the respondent No.5 has been transferred and posted. A further direction has been sought for to direct the respondents to continue the services of the petitioner at the place he was working prior to the impugned order till he completes the tenure as provided for under the Government Order at Annexure-D dated 07.06.2013, which lays down "Guidelines regarding Transfer of Government Servants", hereinafter referred to as 'Transfer Guidelines'.
2. By virtue of the impugned order at Annexure-'G' dated 30.09.2019, the respondent No.3 has transferred respondent No.5 in place of the petitioner while the petitioner himself has been transferred to TA and QC, KPTCL, Kaveri Bhavan, Bengaluru. It is submitted that he was transferred and posted in his present posting as per the order at Annexure-A dated 01.08.2018 and the order transferring him was passed on 30.09.2019. After his tenure of one year 20 days, he has been transferred as per the impugned order, which it is contended is contrary to the assured tenure provided under the Transfer Guidelines which are adopted insofar as the employees of the KPTCL are concerned.
3. It is further submitted that the petitioner is a Group 'A' employee and cannot be transferred for a period of three years as per the Transfer Guidelines. It is also contended that the Transfer Guidelines have statutory force as per the judgment of this Court in the case of Mr. Chandru H.N. v. State of Karnataka and Others reported in ILR 2011 KAR 1585 and accordingly there can be no breach of the said Transfer Guidelines. Though it is pointed out that under Clause- 9(b) of the Transfer Guidelines, there is a provision for deviation from the Transfer Guidelines and though the said order must be preceded by the prior approval of the Chief Minister, and despite respondent No.5 placing reliance on an order passed by Chief Minister, the said order is cryptic and does not contain any reasons and in light of the settled law, unless reasons are assigned making out an exception, it is contended that the order of the Chief Minister is liable to be ignored.
4. The petitioner has also contended that he is an employee of the second respondent - KPTCL and the respondent No.3 does not have power to pass an order transferring the respondent No.5 in the place of the petitioner without the consent of BESCOM. The petitioner has relied on the order passed in Writ Petition No.33802/2004 disposed off as per the order dated 15.09.2004 in support of the aforesaid contention.
5. The respondent No.5 who has been transferred to the place of the petitioner by virtue of the impugned order has contended as follows:-
That the adoption of the Transfer Guidelines as applicable to government servants insofar as employees of the KPTCL are concerned, does not make the Transfer Guidelines statutory in character. It is contended that under Section 57 of the Karnataka Electricity Reform Act, 1999 ('the Act' for brevity) power is conferred on the State Government to make Rules to carry out the purposes of the Act, and in the absence of such Rules framed, the adoption of Transfer Guidelines by KPTCL cannot be construed as having statutory force. Accordingly, it is contended that when the Transfer Guidelines have no statutory force, a writ under Article 227 of the Constitution of India would not be maintainable at the instance of an employee to enforce the Guideline which is in the nature of an executive order.
It is further contended that for the purpose of invoking jurisdiction of the Court under Articles 226 and 227 of the Constitution of India, petitioner ought to have made out a case of prejudice caused to the petitioner by virtue of the impugned order. It is further contended that the petitioner has no vested right to remain at a certain place and in light of which, it cannot be said that the petitioner has been prejudiced by the order of transfer and accordingly, no case is made out for exercise of power under Articles 226 and 227 of the Constitution of India.
The respondent has further contended that even as per the Transfer Guidelines, power is conferred on the Chief Minister to approve transfers which may be premature, which is the case herein and accordingly, there is no contravention of the said Transfer Guidelines.
6. The learned counsel appearing for respondent Nos.2 to 4 has filed statement of objections and has adopted the arguments of learned Senior Counsel appearing on behalf of respondent No.5.
7. Heard Sri J. Prashanth, learned counsel for the petitioner and Sri K. Subba Rao, learned Senior Counsel appearing for Sri Nagaraja S., for respondent No.5, Sri M.A. Subramani, learned HCGP appearing for respondent No.1 and Smt. Padma S. Uttur, learned counsel appearing for respondent Nos.2 to 4.
8. The point that falls for consideration is as to the validity of the order passed by respondent - KPTCL transferring the petitioner from Management (O&M) Division, BESCOM, Chandapura to TA and QC, KPTCL, Kaveri Bhavan, Bengaluru.
9. It is not in dispute that the KPTCL has adopted the Guidelines regarding transfer of government servants dated 07.06.2013. While it is the contention of the petitioner that in light of Full Bench judgment of this Court in Chandru's case (supra), the Transfer Guidelines have statutory force and hence, does not permit deviation of the same, the learned Senior Counsel appearing on behalf of respondent No.5 vehemently submits that the Guidelines cannot be construed to have statutory force. The argument flowing from the contention of learned Senior Counsel for respondent No.5 is that if the Guideline was only an executive order, the question of enforceability by invoking Article 226 of the Constitution of India would not arise.
What needs to be noticed is that the respondent - KPTCL has sought to support the order of transfer stating that it has been effected in light of administrative reasons and as per the instructions of the Chief Minister who also is the Chairman of KPTCL.
10. The respondent - KPTCL having adopted the Transfer Guidelines of the Government, the KPTCL ought to adhere to the same unless grounds are made out to deviate from the guidelines. In the Transfer Guidelines, premature transfer no doubt is permissible with the prior sanction of the Chief Minister and in the present case, it is the stand of the respondent - KPTCL that the Chief Minister has indeed permitted such transfer.
In fact, learned Senior Counsel appearing on behalf of the respondent No.5 has contended that the transfer made in administrative exigencies by the Chief Minister who is also the Chairman of the KPTCL cannot be a subject matter of judicial review.
11. Once KPTCL which is State for the purposes of Article 12 of the Constitution of India has adopted the Transfer Guidelines, there is a corresponding duty to adhere to the procedure provided therein unless there are reasons made out to deviate from the procedure prescribed under the Guidelines. This duty to act in a reasonable non-arbitrary manner would flow from the mandate of Article 14 of the Constitution of India.
The Apex Court in the case of Jagdish Prasad Sharma and Others v. State of Bihar and Others reported in (2013) 8 SCC 633 while considering a scenario where the State Government was at liberty to frame its own regulations and was not necessarily obliged to follow the Regulations framed by University Grants Commission (UGC). However, when the State decided to adopt the Regulations framed by the UGC it was observed as follows:
"72....... It is only natural that if they wish to adopt the Regulations framed by the Commission under Section 26 of the UGC Act, 1956, the States will have to abide by the conditions as laid down by the Commission."
Thus, in the present case, the transfer guidelines having been adopted and though rule making power was not exercised, there was an obligation to follow the same as if it were the rules which is a part of the obligation to act fairly and reasonably.
12. A perusal of the note of Chief Minister dated 30.09.2019 would only reveal the transfer of respondent No.5 to the place of petitioner's posting. No reasons are forthcoming. Despite it being contended that the order of transfer is due to administrative reasons, there is no indication of the same from the note of Chief Minister produced as Annexure-R2 alongwith the statement of objections of respondent - KPTCL. Such exercise of power by the Chief Minister who is also stated to be the Chairman of KPTCL is clearly an arbitrary exercise of power and violative of Article 14 of the Constitution of India.
13. As per the procedure prescribed in the Guidelines, the judgments referred to by the petitioner in his written arguments dated 20.12.2019 at Sl.Nos.1 to 7 make out a case that a premature transfer would be permissible if the prior approval of the Chief Minister is obtained with a further requirement of satisfaction by the competent Authority regarding the reasons assigned at 9(a), I to VIII of the Transfer Guidelines. The Chief Minister's sanction must also be preceded by his satisfaction of grounds referred to in Guideline No.9 being made out so as to justify premature transfer. Though the competent authority does mention that the transfer is made for administrative reasons, the records and the order at Annexure-'G' reveals that transfer of the respondent No.5 is on the basis of his request.
14. A perusal of the file containing office notes and records of the respondent - KPTCL reveals that the transfer of respondent No.5 to the place of the petitioner is on the basis of his request, which becomes clear on a perusal of Annexure-'G'. Even if the order being passed is construed to be the one by Chairman of KPTCL as observed above, the order passed by Chief Minister does not refer to any administrative reasons occasioning effecting of transfer.
15. Insofar as the contention of learned Senior Counsel appearing on behalf of respondent No.5 to the effect that writ petition at the instance of the petitioner invoking jurisdiction under Articles 226 and 227 of the Constitution of India is not maintainable, as the Guidelines do not have statutory force and are only in the nature of executive instructions, it is to be noted that jurisdiction under Article 226 can be invoked in the present case where the guidelines that are adopted where power to frame Rules though present has not been exercised, the enforcement of such guidelines could be considered to have statutory flavour. Enforcement of such guidelines or its non-adherence could be a subject matter of judicial review under Article 226 of the Constitution of India.
The respondent No.5 in support of the contention made above has referred to the following judgments that are dealt with as below:-
(i) Union of India and Others v. S.L. Abbas reported in AIR 1993 SC 2444 - order of transfer could be challenged only where it is made in violation of statutory guidelines or is mala fide.
(ii) Government of Andhra Pradesh v. G.Venkata Ratnam reported in (2008) 9 SCC 345.
(iii) Rajendra Singh and Others v. State of Uttar Pradesh and Others reported in (2009) 15 SCC 178.
The authorities cited at Sl. Nos.(ii) and (iii) are on the point that there could be interference in the order of transfer by way of judicial review only when the order of transfer is mala fide or in violation of statutory rule. With respect to the Authorities at Sl. Nos.(i) to (iii), the question of duty to act fairly and reasonably was never a point of discussion and accordingly cannot be a bar for this Court to intervene. Even otherwise, this Court is of the opinion that the guidelines that are adopted have a statutory provision (see para 15 supra).
16. As regards the contention of learned Senior Counsel that petitioner has not made out any case of prejudice as the transfer is within the same city and hence, power under Article 226 of Constitution of India need not be exercised, it must be noted that the question of prejudice is a relevant factor only insofar as exercise of jurisdiction by the court. It must be noted that the present posting would amount to a transfer under Clause 3(d) of the Transfer Guidelines. The absence of prejudice does not in any way confer rig
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ht on the respondent to non-suit the petitioner. In the facts of the present case, the fact that transfer of respondent No.5 is at his request, Transfer Guidelines adopted is not adhered to, no reasons are forthcoming for effecting transfer from the order of the Chief Minister who is stated to be the Chairman of the KPTCL, no reasons are made out justifying deviation from the general guidelines as provided under Guideline No.9, all by themselves are sufficient and have made out a case for exercise of jurisdiction under Articles 226 and 227 of the Constitution of India. 17. Though it is contended that the petitioner could have invoked Guideline No.13 instead of invoking jurisdiction of this Court, it cannot be said that Guideline No.13 which provides for the same Authority which passed the order to consider the request of the petitioner in the form of a review cannot be said to be a bar for invoking jurisdiction under Article 226 of Constitution of India. 18. As noticed by this Court, in the order dated 06.06.2017 in the case of Sri Shivaji A Kawale v. The State of Karnataka and others in Writ Petition No.200881/2017 (S-KAT) where the appeal or revision is to the same department, then it is "from Caesar to Caesar and which might not be regarded with any great confidence". Accordingly, the petition is allowed and the impugned order at Annexure-'G' dated 30.09.2019 is set aside.