Dismissed

Sri D Thimmegowda v. the Karnataka Power Transmission Corporation Ltd.,.

Karnataka HC16 Dec 2020WA/555/2020

Case brief

AI extract

What is this about?

This writ appeal challenged the Karnataka High Court Single Judge's order setting aside a government transfer. The Division Bench held that the subsequent order modifying the transfer violated guidelines by lacking written reasons and failing to obtain the Chief Minister's prior approval, dismissing the appeal.

What did the court decide?

The appeal was dismissed; the appellant is at liberty to make a representation for posting.

Sri D Thimmegowda Vs the Karnataka Power… — Pension and Retirement Benefits | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF DECEMBER, 2020

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PRESENT

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THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA

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AND

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THE HON’BLE MR.JUSTICE NATARAJ RANGASWAMY

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WRIT APPEAL NO.555 OF 2020 (S-TR)

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BETWEEN:

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SRI. D. THIMMEGOWDA S/O M.L. THIMMEGOWDA, AGED ABOUT 52 YEARS, PRESENTLY WORKING AS EXECUTIVE ENGINEER (ELECTRICAL), CHANDAPURA, O & M DIVISION, BENGALURU ELECTRICITY SUPPLY COMPANY (BESCOM), PARK ROAD, SURYA CITY, PHASE-I, ANEKAL MAIN ROAD, ANEKAL TALUK, BENGALURU-560 107.

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… APPELLANT

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(BY SRI. ASHOK HARNAHALLI, SENIOR COUNSEL FOR SRI. VIJAYA KUMAR, ADVOCATE)

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AND:

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THE KARNATAKA POWER TRANSMISSION CORPORATION LTD., HEAD OFFICE, KAVERY BHAVAN, K.G. ROAD, BENGALURU-560 009, REP. BY ITS MANAGING DIRECTOR.

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THE BENGALURU ELECTRICITY SUPPLY COMPANY (BESCOM)

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CORPORATE OFFICE, K.R. CIRCLE, BENGALURU-560 001, REP. BY ITS MANAGING DIRECTOR

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SRI M.B. CHANDRASEKAR S/O BASAVEGOWDA. K, AGED ABOUT 44 YEARS, WORKING AS EXECUTIVE ENGINEER (ELECTRICAL), O & M DIVISION, BENGALURU ELECTRICITY SUPPLY COMPANY (BESCOM), CHANDAPURA, BENGALURU-560 107.

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… RESPONDENTS

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(BY SRI. A.S.PONNANNA, SENIOR COUNSEL FOR SRI. K.PUTTEGOWDA, ADVOCATE FOR CAVEATOR RESPONDENT NO.3)

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961 PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 10.11.2020 PASSED BY THE LEARNED SINGLE JUDGE IN W.P NO.11432/2020 AND DISMISS THE ABOVE WRIT PETITION FILED BY THE RESPONDENT NO.3.

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THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, NATARAJ RANGASWAMY J., DELIVERED THE FOLLOWING:

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JUDGMENT

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The legality and correctness of order dated 10.11.2020 passed by the learned Single Judge in W.P.No.11432/2020 is assailed in this appeal.

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The essential facts shorn of other details are

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that the appellant and respondent No.3 were officiating in the cadre of Executive Engineers with respondent No.2 - Bengaluru Electricity Supply Company (‘BESCOM’ for short). The appellant was then working as Executive Engineer (Electrical), (O & M) Division of BESCOM, Chandapura, while the respondent No.3 was working as Executive Engineer (Electrical) at (Q & S-3), Corporate Office of BESCOM. In terms of an official memorandum dated 19.09.2020, respondent No.3 was transferred from Corporate office to (O & M) Division, Chandapura, as Executive Engineer (Electrical) in the place of the appellant, but no place of posting was shown in respect of the appellant. Respondent No.2 approved the transfer consequent to which, respondent No.3 handed over charge of Executive Engineer (Q & S-3), Corporate Office, to the concerned officer on 21.09.2020. Respondent No.3 took charge as Executive Engineer (Electrical), (O & M) Division, Chandapura on 22.09.2020. Respondent No.3 was deputed as a Nodal officer to Mahadevapura zone for the effective control and management of Covid-19 in terms of an Official Memorandum dated 06.10.2020.

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Contemporaneously, in terms of an Official Memorandum dated 06.10.2020, respondent No.2 modified its earlier order dated 19.09.2020 and transferred respondent No.3 to the vacant post of Executive Engineer (Operations), Corporate office and continued the tenure of the appellant as Executive Engineer (Electrical), (O & M) Division, Chandapura.

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Feeling aggrieved by such transfer, respondent No.3 challenged the order dated 06.10.2020 transferring him out of the post of Executive Engineer (Electrical), (O & M) Division, Chandapura, to the post of Executive Engineer (Operations) at Corporate office of respondent No.2 on the ground that the transfer was premature and there was no reason justifying the premature transfer. He contended that the transfer was in clear violation of the guidelines prescribed for transfer of Government servants.

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Respondent No.3 contended before learned Single Judge that under the guidelines for transfer of Government servants which is applicable to the employees of respondent No.2, his transfer was within 15 days which was not permissible, unless there were genuine reasons

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set out in writing. He contended that the premature transfer was without any reason but was due to a vague and undefined “administrative exigencies” and “in the interest of the Corporation”. He further contended that transfer from one post to the other within the same headquarters would amount to transfer and since the same was brought about in violation of the guidelines for transfer, the same was liable to be set aside.

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Per contra , the appellant contended before learned Single Judge that the official memorandum dated 06.10.2020 was not a transfer but a modification of the earlier order of transfer dated 19.09.2020 and thus the question of construing the order dated 06.10.2020 as an order of transfer would not arise. It was also contended that respondent No.3 was deputed as a Nodal officer for control and management of Covid-19.

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Learned Single Judge secured the file relating to the transfer of respondent No.3 herein and found in the note sheet that except mentioning that the transfer was due to administrative exigency, no reason was mentioned. Learned Single Judge thus allowed the writ petition and

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held that the transfer of respondent No.3 was clearly in violation of the guidelines relating to transfer of Government servants.

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Feeling aggrieved by the order of learned Single Judge, the appellant has filed this appeal.

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We have heard learned senior counsel, Sri. Ashok Harnahalli, for the appellant and learned senior counsel, Sri. A.S.Ponnanna for the caveator/respondent No.3. We have perused the material on record.

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Learned Senior Counsel, Sri.Ashok Harnahalli, appearing for the appellant submitted that the order impugned before the learned Single Judge was not a transfer but a modification of the earlier order dated 19.09.2020 by which the appellant was continued at O & M Division, Chandapur. He contended that this was not a case of transfer and therefore, the question of violating the transfer guidelines would not arise.

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Learned Senior Counsel, Sri. A.S. Ponnanna,

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appearing for respondent No.3 contended that the appellant was posted at O & M Division, Chandapura, on

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10.09.2018 and that he had completed two years of service at O & M Division, Chandapura as on 10.09.2020. He further contended that pursuant to the order of transfer dated 19.09.2020, respondent No.3 handed over charge of his previous post on 21.09.2020 and took charge of the office of Executive Engineer, (O & M) Division, Chandapur on 22.09.2020. He thus claimed that the subsequent order dated 06.10.2020 transferring respondent No.3 back to the Corporate office of respondent No.2 as Executive Engineer (Operations) was indeed a transfer and such transfer was clearly in violation of the guidelines for transfer of Government servants.

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In the case on hand, it is not in dispute that

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the appellant took charge as the Executive Engineer (O & M) Division, Chandapur on 10.09.2018 and had completed two years in the said post on 10.09.2020. Hence in terms of an order dated 19.09.2020, respondent No.3 was transferred as Executive Engineer (Electrical), (O & M) Division, Chandapura. It is found that respondent No.3 handed over charge of his previous post on 21.09.2020 and took charge as the Executive Engineer (Electrical), (O

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& M) Division, Chandapura on 22.09.2020. Respondent No.3 was deputed as a Nodal officer to Mahadevapura zone for effective control and management of Covid-19 in terms of an official memorandum dated 06.10.2020. Contemporaneously, in terms of an official memorandum dated 06.10.2020, respondent No.2 modified its earlier order dated 19.09.2020 and transferred respondent No.3 to the vacant post of Executive Engineer (Operations), Corporate office and continued the tenure of the appellant as Executive Engineer (Electrical), (O & M) Division, Chandapura. The fact that he was deputed as a Nodal Officer in Mahadevapura zone for control and management of Covid-19 itself indicates that respondent No.3 had taken charge as Executive Engineer (Electrical), (O & M) Division, Chandapura. Hence modifying the earlier order dated 19.09.2020 by the impugned order dated 06.10.2020 amounted to a premature transfer, which was not supported by any reasons but was based on a vague omnibus reason namely “in the interest of the Corporation”. Further this premature transfer was done without obtaining prior specific approval of the Hon`ble Chief Minister and the contention of the appellant that the

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Hon’ble Chief Minister had passed a general order for transfer on account of Covid-19 and that the impugned order of transfer stood covered by the general order of the Chief Minister, cannot be accepted. If an act is to be effected in a particular manner, either it should be done in that manner or not at all. The transfer guidelines are designed to root out arbitrary action and therefore, all orders of transfer should strictly comply with the guidelines.

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A Division Bench of this Court in Ramesh Babu K. vs. The State of Karnataka in W.P.No.28507/2009 (disposed of on 19.01.2010) had held that the guidelines for transfer of Government servants has statutory force and therefore, every transfer should be in accordance with the guidelines.

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Para No.9 of the guidelines issued by the Government of Karnataka for transfer of its servants reads thus:

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“9. Premature / delayed Transfer

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a. Generally there should be no premature transfers. The tenure of posting of a Government servant may be extended or reduced by the Competent Authority in the following cases after recording the reasons for the same in writing. The minimum period of stay at a place as prescribed in para 8 can be reduced and the concerned Government servant transferred prematurely if the competent authority feels that he or she is not suitable for discharging the duties at the present place and the reasons are recorded to this effect in writing:-

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(i) The employee due for transfer after completion of tenure at a place or posting or post has less than two years of service for retirement.

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(ii) The employee possesses special technical qualifications or experience for the particular job for which a suitable replacement is not immediately available;

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(iii) The employees working on a project or Flagship programmes of Government of India which are in the crucial stage of implementation and his withdrawal will seriously jeopardize timely completion of such projects;

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(iv) Where both the spouses are Government servants and if one of the

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spouses is transferred, then the other spouse may also be transferred to the same place or nearby place depending upon the availability of vacancy even if one of them has not completed the minimum period of stay;

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(v) Where a female Government servant is a widow / spinster/ unmarried divorcee, she may be transferred and in case she is appointed for the first time, may be posted to a place of her choice subject to availability of vacancy;

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(vi) Where a Government servant is an office-bearer of the Karnataka State Government Employees Association only, such Government servant shall not be transferred until the completion of the term for which he has been elected. In case no elections are held within three months of the completion of the said term, he may be transferred. In case he is reelected, he may be continued in the same place until the completion of the second term only.

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(vii) Where a Government servant is physically handicapped/ challenged or disabled subject to certification by the Medical Board;

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(viii) Where a Government servant or his/her spouse or children are suffering from serious or terminal ailments, depending upon the availability of the facility of medical treatment at the requested place subject to certification by the Medical Board;

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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 seeks ratification / post facto approval of the Chief Minister.”

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A perusal of the guidelines indicates that a

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premature transfer can be effected only on proper and sufficient grounds and after obtaining prior approval of the Hon`ble Chief Minister. A Division Bench of this Court in Writ Appeal No.1425/2019 ( Sri B. Mallikarjunaswamy vs. Sri B.S. Jagadeesh and others, disposed of on 27.05.2019) held as follows:

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“It is settled that premature transfer requires the competent authority to record reasons justifying such transfer as per Para-9(a)(i) to (viii) of the Government Order.”

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In view of the aforesaid discussion, we do not find any merit in the appeal. Hence, the appeal is dismissed .

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However, the appellant is at liberty to make a representation for his posting consequent upon the quashing of the Order dated 06.10.2020 (Annexure-K).

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In view of the dismissal of the appeal, I.A No.1/2020 stands dismissed.

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Sd/JUDGE

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Sd/JUDGE

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sma

Sri D Thimmegowda v. the Karnataka Power Transmission Corporation Ltd.,.

Case brief

What is this about?

What did the court decide?

Sri D Thimmegowda v. the Karnataka Power Transmission Corporation Ltd.,.

Case brief

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