(This Writ Petition is filed under Article 226 of the Constitution of India praying to call for records from the R2 In respect of the impugned order dated 26.10.2021 Annexure-F and quash the impugned order dated 26.10.2021 passed by the R2 Annexure-F.)
The petitioner is before this Court under Article 226 of the Constitution of India questioning the correctness and legality of O.M. bearing No.”KANNADA” 100/13608/2020-21 dated 26.10.2021 (Annexure-F), by which the petitioner is transferred from O & M Division BESCOM, Nelamangala without providing any posting and posting 3rd respondent in petitioner’s place.
2. Heard Sri M.S.Bhagwat, learned counsel for the petitioner, Sri S. Sriranga, learned counsel for respondents 1 and 2 and Sri. P.S.Rajagopal, learned Senior Counsel for Sri Jayant Devkumar, learned counsel for respondent No.3. Perused the writ petition papers.
3. Learned counsel for the petitioner would submit that by notification dated 15.03.2021, the petitioner was placed in charge of the post of Executive Engineer and was posted to work at O & M Division, BESCOM, Hoskote, where the 3rd respondent was working. The 3rd respondent was transferred from Hoskote and was posted to O & M Division, Nelamangala. By O.M. dated 18.03.2021 (Annexure-B), notification dated 15.03.2021 was modified and petitioner was posted as Executive Engineer, Rural Works Division, O & M Rural Circle Office, BESCOM, Bangalore and 3rd respondent was posted from Nelamangala to SLDC (TBC-1), KPTCL, Bangalore, where the petitioner and respondent No.3 reported to duty. On the request of the petitioner, he was transferred from Rural Works Division, BESCOM, Bangalore to O & M Division, BESCOM, Nelamangala under OM dated 27.07.2021, where the petitioner reported to duty on the same day and took charge from one Sri Gangaraju B.T., Executive Engineer. Subsequently, by impugned O.M. dated 26.10.2021 (Annexure-F) the 3rd respondent was posted in place of the petitioner at Nelamangala without providing any posting to the petitioner.
4. Learned counsel for the petitioner contends that transfer of the petitioner is totally premature and opposed to the transfer guidelines dated 07.06.2013 which is held to have statutory force by the Full Bench of this Court in S.N.GANGADHARAIAH V/S STATE OF KARNATAKA, REPRESENTED BY ITS PRINCIPAL SECRETARY AND ANOTHER reported in ILR 2015 KAR 1955. It is submitted that the petitioner and 3rd respondent belong to Group A Officers of the respondent–Corporation and are provided with minimum tenure of two years under the transfer guidelines dated 07.06.2013. The petitioner was posted to the present place at Nelamangala on 27.07.2021 and even before completion of three months, petitioner is again transferred under impugned O.M. dated 26.10.2021, hence the transfer would be totally premature. Further the learned counsel would submit that premature transfer is permissible under clause 9 of the transfer guidelines dated 07.06.2013, but reasons are to be recorded for effecting premature transfer. It is his submission that in the present case, no reasons are recorded for effecting premature transfer of the petitioner. Learned counsel would submit that the respondent-Corporation could not have transferred the petitioner without providing any posting to the petitioner.
5. Sri S. Sriranga, learned counsel appearing for respondents 1 and 2 submits that transfer of the petitioner and posting of 3rd respondent was effected under the impugned O.M. dated 26.10.2021, only after obtaining prior approval of the Chief Minister as required under clause 9(b) of the transfer guidelines dated 07.06.2013. Learned counsel further submits that the respondent-Corporation was ready to issue posting to the petitioner and in the meanwhile the petitioner rushed to this Court.
6. Sri P.S. Rajagopal, learned Senior Counsel for Sri Jayant Devkumar, learned counsel for 3rd respondent submits that, 3rd respondent is a regular and substantive holder of the post of Executive Engineer and the petitioner is holder of the post of Executive Engineer on in-charge arrangement. It is submitted that on completion of his tenure at Hoskote, the 3rd respondent was transferred from Hoskote and posted to Nelamangala under notification dated 15.03.2021. But, before he could report at Nelamangala, the said transfer was modified under notification dated 18.03.2021 posting the 3rd respondent to KPTCL Bangalore, where he reported to duty. Learned Senior Counsel submits that on providing posting to 3rd respondent at Bangalore, the petitioner got himself posted to O & M Division, Nelamangala under OM dated 27.07.2021, which order of transfer is opposed to transfer guidelines dated 07.06.2013 and the same is not approved by the Chief Minister. Learned Senior Counsel contends that if the impugned order of transfer is interfered with by this Court, it would give effect to revival of an illegal OM of transfer dated 27.07.2021 (Annexure-C). Article 226 of the Constitution of India would not permit grant of such relief, which would revive an illegal order. Petitioner had also requested for transfer to Nelamangala and accordingly the petitioner’s request ought to have been given priority. Further he submits that this Court should not enforce an illegal order of transfer (Annexure-C), by setting aside the impugned transfer order. Learned Senior Counsel referring to various Annexures produced along with the statement of objections submits that transfer and posting of petitioner to Nelamangala under (Annexure-C) OM dated 27.07.2021 is not approved by the Chief Minister and the transfer of the petitioner is at the instance of recommendation of a legislator.
7. On hearing the learned counsel for the parties and on perusal of the writ petition papers the only point which falls for consideration is as to whether the impugned OM of transfer in relation to petitioner and 3rd respondent is legally sustainable?
8. Answer to the above point is in the negative and that the impugned O.M. of transfer is not legally sustainable for the following reasons:-
It is an admitted fact that the respondent- Corporation has adopted the transfer guidelines issued by the State Government dated 07.06.2013. Transfer guideline provides two years tenure at a place of posting to Group A and Group B Officers. Clause 9 (b) permits premature transfer for the reasons to be recorded and on obtaining prior approval of the Chief Minister.
9. A Full Bench of this Court in GANGADARAIAH case (supra) following the earlier Full Bench decision in CHANDRU H.N. v/s STATE OF KARNATAKA AND OTHERS, has held that transfer guidelines issued by the State Government has statutory force and relevant portion reads as follows:-
“19. It is also very necessary to notice here that in H.N.Chandru’s case a Full Bench of this Court, while dealing with the effect of the Government Order dated 22.11.2001, which contained somewhat similar regulatory measures regulating transfer of the Government servants, has held the Government Order relating to transfer of a Government servant had statutory force. The present Government Order dated 07.06.2013 contains revised instructions regulating transfer/deputation of Government servants in supersession of the Government Order dated 22.11.2001. Therefore, it has to be held that the present Government Order has also got statutory force because it is issued to supplement the KCSRs as regards matters that are not provided in the KCSRs.”
10. A Division Bench of this Court in SRI.RAJASHEKAR M. v/s THE STATE OF KARNATAKA AND OTHERS reported in 2019 (2) KLJ 352 has made it clear that premature transfer could be effected only after recording reasons for such premature transfer and on obtaining prior approval of the Chief Minister. Relevant portion at paragraph 6 of the order reads as follows:-
“6. As could be seen from para 9 of the Government Order extracted above, premature/ delayed transfer of Government servants is permitted in the circumstances stated in para 9(a)(i) to (viii) with the prior approval of the Chief Minister. It requires the competent authority to record reasons stating as to how the case would fall under any of the circumstances stated in para 9(a)(i) to (viii) of the Government Order to warrant premature/delayed transfer of a Government servant and the said reasons have to be placed before the Chief Minister to obtain his prior approval as mandated in para 9(b) of the Government Order. After perusal of the reasons, if the Chief Minister is satisfied that the case would fall under any of the circumstances stated in para 9(a)(i) to (viii) of the Government Order, only then the Chief Minister may give his prior approval for premature/delayed transfer of the Government servant. If prior approval is given by the Chief Minister for transfer not falling under any of the circumstances stated in para 9(a)(i) to (viii) of the Government Order, it will be invalid in law and any premature/delayed transfer made pursuant thereto will be illegal and hence is liable to be set aside.”
11. The petitioner as well as respondent No.3 are Group-A Officers of the respondent-KPTCL. As stated above, Group-A officers are provided two years tenure at a place of posting. The petitioner was posted to present place at Nelamangala on 27.07.2021 and he had completed just three months, when the impugned order of transfer dated 26.10.2021 was issued posting the 3rd respondent in place of petitioner without providing any posting to the petitioner. The transfer of petitioner without providing any posting prematurely is opposed to the Transfer Guidelines dated 07.06.2013. A Division Bench of this Court in SEEMA H v/s STATE OF KARNATAKA (2017) 2 AIR KAR R-59, has held that unless a posting is given, one cannot be lifted from the place where he is working. Paragraph 7 therein reads as follows:
“7. There are two serious infirmities in the transfer order. One is that when the petitioner is transferred from the post of Assistant Conservator of Forest, there is no deer posting order at a Particular post of the petitioner. Unless the petitioner is lifted from one place and posted at another place, it cannot be said that any vacancy has arisen of the petitioner and such an exercise of the power cannot be appreciated even if one keeps in mind the administrative circumstances for the public interest as the case may be. It is hardly required to be stated that when ‘A’ is posted in placed of ‘B’ from one place to another then only there will be a vacancy of ‘A’ and ‘B’ can be posted at the place of ‘A’. If ‘A’ is lifted and his posting is kept in lurch and ‘B’ is posted vice-A such practice cannot be appreciated and deserves to be rather deprecated and the reason being that the officer who is lifted from one place is not certain at which place he has to join the duty and unless he joins the duty at different place, it cannot be said that vacancy in law had arisen at his original place. So long as there is no vacancy at the original place, the question of posting is without any foundation. Hence, the said transfer order can be said to be with the exercise of legal malafide.”
12. It is true that transfer guidelines dated 07.06.2013 permits premature transfer, but with certain conditions. Premature transfer could be effected by the competent authority by recording reasons by stating as to why and under what circumstances premature transfer is warranted. No such reason or reasons are recorded for premature transfer of the petitioner. Learned counsel for respondents No.1 and 2 made available the original records during the course of hearing and on perusal of the records, it is found that even though the approval of the Chief Minister is obtained, no reasons are recorded as required under clause 9(b) of transfer guideline dated 07.06.2013. Therefore, the impugned order of transfer is not sustainable in law.
13. Learned Senior Counsel submits that the respondent No.3 is a regular holder of the post of Executive Engineer and petitioner is holder of the post of Executive Engineer on in-charge arrangement. It is contended that a person holding the post on regular or substantive basis, ought to have been given preference as against holder of the post on in-charge. Learned counsel for respondents No.1 and 2 submitted that whether regular or in-charge would make no difference as the in-charge Executive Engineer also could exercise all powers of Executive Engineer. The Division Bench of this Court in W.A.No.480/2020 by its order dated 13.11.2020 while permitting the respondent-Corporation to make in-charge arrangement to higher position
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, observed as follows: “(b) The employees placed on in-charge arrangement shall not have any right of lien to the posts in question. They can, however, exercise substantive functions of the said posts, having regard to the interest of administration.” Hence, there is no merit in the above contention. 14. The contention that O.M. dated 27.07.2021 posting the petitioner to Nelamangala itself is an illegal order as the same is not approved by the Chief Minister; posting of the petitioner is at the behest of a Legislator and if the impugned order is set aside, it would result in giving effect to an illegal order, is not available for the third respondent to press into service in this writ petition for the simple reason that as on that date, the third respondent was not working at Nelamangala and he was working at SLDC (TBC-1), KPTCL, Bangalore. As on the date of O.M. dated 27.07.2021, posting the petitioner to Nelamangala had not affected respondent No.3 and he could not have challenged the same. The said O.M. posting the petitioner to Nelamangala is not challenged by the affected person and the said order has spent itself. Therefore, examining its validity in the present proceedings would not arise. 15. For the reasons recorded above, the writ petition is allowed. The impugned O.M. bearing No.PA “KANNADA”100/13608/2020-21 dated 26.10.2021 (Annexure-F) is quashed.