Allowed

Sri Shrishail Akki v. the State of Karnataka

Karnataka HC16 Nov 2023WP/105580/2023

Case brief

AI extract

What is this about?

Two writ petitions challenging premature transfer orders of Excise Inspectors and the subsequent appointment of other officers violating transfer guidelines. The High Court set aside the tribunal's rejections, finding lack of Chief Minister approval, violation of tenure security, and illegal transfer without a vacant post order.

What did the court decide?

Impugned transfer orders set aside; petitioners restored to original posts; consequential appointments of other officers set aside or stayed.

Sri Shrishail Akki Vs the State of Karnataka — Service and Employment | Karnataka HC (2023)

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1 - NC: 2023:KHC-D:13586-DB WP No. 105580 of 2023 C/W WP No. 105983 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 16^TH DAY OF NOVEMBER, 2023

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PRESENT

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THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV

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AND

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THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL WRIT PETITION NO. 105580 OF 2023 (S-KAT)

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C/W

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WRIT PETITION NO. 105983 OF 2023 (S-KAT)

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IN WP.NO. 105580/2023

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BETWEEN:

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Digitally
signed by
VINAYAKA
VINAYAKA B V
B V Date:
2023.11.24
14:20:55
+0530

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SRI. SHRISHAIL AKKI, (NAME OF THE PETITIONER IS WRONGLY SHOWN AS SMT. SHAILA AKKI IN ANNEXURE-A4 AT SL NO. 34) S/O. GADIGEPPA, AGE: 38 YEARS, WORKING AS EXCISE INSPECTOR, SAVADATTI RANGE, BELGAVI DISTRICT 591126, R/O. C/O. MAHANTESH S. CHACHADI, NEAR PATTANSHETTI PETROL BUNK, SLAO CROSS, SAVADATTI, BELAGAVI DISTRICT 591126.

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PETITIONER

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(BY SRI. SHARANABASAVARAJ C.S., ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, BY ITS ADDITIONAL CHIEF SECRETARY, DEPARTMENT OF FINANCE (EXCISE), VIDHANA SOUDHA, BENGALURU 5600001.

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THE COMMISSIONER OF EXCISE, 2ND FLOOR TTMC A BLOCK, BMTC, K.H. ROAD, SHANTINAGAR,

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NC: 2023:KHC-D:13586-DB WP No. 105580 of 2023 C/W WP No. 105983 of 2023

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BENGLAURU 27.

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THE DEPUTY COMMISSIONER OF EXCISE, VGF8+R77, NEHRU NAGAR, BELAGAVI 590 016.

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SRI. R.G. ARENNAVAR S/O GURUNATH, AGE: 38 YEARS, WORKING AS EXCISE INSPECTOR, BYADAGI RANGE, HAVERI DISTRICT 581 106.

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RESPONDENTS

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(BY SMT. GIRIJA HIREMATH, HCGP FOR R1 TO R3, SRI. VIJAYKUMAR B. BAJENTRI, ADVOCATE FOR R4)

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THIS WRIT PETITION IS FILED U/A 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO, A. ISSUE A WRIT, ORDER OR DIRECTION IN THE NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER. 07.09.2023 IN A.NO.10751/2023 PASSED BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, BELAGAVI BENCH AND CONSEQUENTLY ALLOW THE APPLICATION IN A.NO.10751/2023 & ETC.

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IN WP.NO. 105983/2023

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BETWEEN:

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SRI. RAMASIDDAPPA ARENNAVAR, S/O. GURUNATH, AGE: 38 YEARS, WORKING AS INSPECTOR OF EXCISE, BYADAGI RANGE, HAVERI DISTRICT, R/AT NEHARU NAGAR, 4TH CROSS, BYADAGI, HAVERI DISTRICT.

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PETITIONER (BY SRI. SHARANABASAVARAJ C.S., ADVOCATE)

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3 - NC: 2023:KHC-D:13586-DB WP No. 105580 of 2023 C/W WP No. 105983 of 2023

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AND:

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THE STATE OF KARNATAKA, REP. BY ITS ADDITIONAL CHIEF SECRETARY, FINANCE DEPARTMENT, VIDHANA SOUDHA, BENGALURU-560 001.

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THE COMMISSIONER, DEPARTMENT OF EXCISE, TTMC ‘A’ BUILDING, 2ND FLOOR, BMTC, SHANTHINAGAR, BENGALURU-560 027.

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THE DEPUTY COMMISSIONER OF EXCISE, HAVERI DISTRICT, HAVERI-581 110.

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SRI. M.H. THIRUMALESH, WORKING AS INSEPECTOR OF EXCISE, KSBL DEPOT, SIRSI, UTTARA KANNADA DISTRICT-581 401.

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RESPONDENTS

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(BY SMT. GIRIJA HIREMATH, HCGP FOR R1 TO R3, SRI. MADANGOUDA M. PATIL, ADVOCATE FOR R4)

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THIS WRIT PETITION IS FILED U/A 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO, I) TO SET ASIDE THE ORDER DATED. 07.09.2023 PASSED BY THE HON’BLE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, AT BELAGAVI IN APPLICATION NO. 10754/2023 VIDE ANNEXURE-A AND ALLOW THE APPLICATION AS PRAYED FOR.

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THESE WRIT PETITIONS, COMING ON FOR PRELIMINARY HEARING, THIS DAY, S.SUNIL DUTT YADAV J., MADE THE FOLLOWING:

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ORDER

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Both the writ petitions are taken up together and disposed of by a common order.

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Sri Shrishail Akki, the petitioner in W.P. No. 105580/2023 has filed the petition calling in question the correctness of the order of the Tribunal in Application No. 10751/2023 whereby the Tribunal has rejected the application of Sri Shrishail Akki challenging the order of transfer at Sl. No. 34 in Annexure-A4 whereby one Sri. Arennavar has been posted in the place of the petitioner while the petitioner has not been shown any place of posting.

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It is the case of the petitioner that Sri Shrishail Akki was posted to his original post on 21.11.2020 and reported for duty on 31.11.2020 as the Excise Inspector, Savadatti Range, Belagavi District, which was a group ‘C’ post. Insofar as the Group-C posts as per the transfer guidelines the security of tenure being four years the petitioner was transferred on 03.08.2023 within the said period which was the subject matter of challenge.

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5 - NC: 2023:KHC-D:13586-DB WP No. 105580 of 2023 C/W WP No. 105983 of 2023

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It is contended that no reasons are assigned for passing such order of premature transfer and that the order of transfer was in violation of the transfer guidelines and the permission of the Chief Minister as required in the case of premature transfers has not been obtained. Further it is contended that the order of transfer was made after the last date specified in terms of the Government guidelines i.e. dated 31.07.2023 which is applicable as general transfers are concerned.

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The Tribunal in its order dated 07.09.2023 has rejected the contention of the petitioner as recorded above and has only observed that the transfer guidelines uses the term “ordinarily” which does not create any vested right in the government servant to challenge premature transfers that no grounds of malafide have been made and accordingly has rejected the application. Further the tribunal has observed that there could be a presumption raised regarding approval of the Chief Minister as no documents contrary to the same has been produced.

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Perused the order of the Tribunal.

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6 - NC: 2023:KHC-D:13586-DB WP No. 105580 of 2023 C/W WP No. 105983 of 2023

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It is the settled position of law that for premature transfers in terms of guideline No. 9 if there is a premature transfer in terms of 9(b) the approval of the Chief Minister must be obtained while assigning reasons. In the present case admittedly no document is placed to show that the Chief Minister’s approval has been obtained. The tribunal has grossly erred in casting such a burden regarding placing of material evidencing the Chief Minster’s approval on the petitioner. Such material is within the possession of the State and if such material is not placed there could be an adverse inference drawn.

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Counsel for the State even at this stage is unable to produce any material to evidence Chief Minister’s approval has been taken. Clearly there is a violation of guidelines relating to premature transfer. It is also to be noticed that the guidelines issued by the State have statutory force and are to be strictly adhered to. No reasons have been assigned for premature transfer. Further, as observed above there is no evidence regarding approval of the Chief Minister. On such ground the application ought to have been allowed by the Tribunal. It must also be noticed that the additional grounds raised by the

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petitioner is that there is no order of posting for the petitioner. It is also settled position which has been reiterated on numerous occasions that when a transfer is made of an employee to a post, the said post ought to be vacant and order of transfer without order of posting is an illegal order.

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Further the counsel representing Sri Shrishail Akki has also contended that after the period of general transfers the applicable Government Circulars provides that there cannot be transfer order without showing a place of posting and on that ground also the transfer order is required to be set aside.

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It needs to be observed that there has to be consistency by the Courts while passing orders. The Tribunal while dealing with Application No. 10752/2023 (Annexure-C) with respect to the same transfer order dated 03.08.2023, an employee was sought to be displaced and had challenged the very same transfer order, the Tribunal has set aside the transfer order on the ground that no posting order was shown as well as the transfer was premature.

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Accordingly, the order of transfer at Annexure-A4 insofar as Application No. 34 is concerned, is set aside. The petitioner

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8 - NC: 2023:KHC-D:13586-DB WP No. 105580 of 2023 C/W WP No. 105983 of 2023

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would now be relegated to her place of posting prior to the impugned order, i.e., the Excise Inspector, Savadatti zone, Belagavi District. The consequential order that requires to be passed is that the posting of Arennavar as Excise Inspector in place of Sri Shrishail Akki is also required to be set aside and accordingly Sri Arennavar will now be restored to the position prior to the impugned order of transfer. Consequent to Sri Arennavar being relegated to his position prior to that of the impugned order, the order of posting of Sri M.H. Tirumallesh to the place of Sri Arennavar as Excise Inspector, Byadagi Zone, Haveri District is also required to be set aside. The said orders are all consequential to the order in case of Sri Shrishail Akki which stands set aside.

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Insofar as Sri Arennavar (W.P. No. 105983/2023) is concerned, the petition has been filed calling in question the correctness of the order of the Tribunal in Application No. 10754/2023 which came to be dismissed on 07.09.2023. The Tribunal has dismissed the application of Sri Arennavar on the same grounds as in the case of Sri Shrishail Akki by a common order. Sri Arennavar also had raised the contention that posting of Sri Arennavar originally was on 21.11.2020 and

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9 - NC: 2023:KHC-D:13586-DB WP No. 105580 of 2023 C/W WP No. 105983 of 2023

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within the period of four years which is the security of tenure protected under the transfer guidelines by order dated 03.08.2023, Sri Arennavar was transferred from Byadagi to Savadatti. In light of the reasons assigned while disposing of the case of Sri Shrishail Akki, a similar ground for the order of transfer being premature and in violation of the transfer guidelines that the material regarding Chief Minister’s approval not being placed before the Court a case is made out for setting aside of the order of premature transfer.

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In the case of M.H. Thirumallesh who was posted in place of Sri Arennavar, it must be noticed that though contentions are raised that Sri Thirumallesh’s posting was on the basis of ‘couple ground’ and the order of transfer was made in accordance with transfer guidelines, however in light of the order of transfer of Sri Arennavar being set aside and Sri Arennavar being relegated to the original post, order of posting Sri Thirumalesh in the post of Excise Inspector at Byadagi Range would not arise.

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Insofar as the posting of Sri Thirumalesh is concerned consequent to setting aside of the order of transfer of Sri

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Arennavar, he (Thirumallesh) is now relegated back to the original post or in the alternative in light of the contentions raised by Sri Thirumallesh that there was case for transfer on spouse grounds, it is open for the State to take note of the representation to be made by Sri Thirumallesh within two weeks from the date of release of this order and appropriate decision be taken by the State in this regard.

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Accordingly the writ petitions are allowed. The order of transfer of the petitioners are set aside and they stand relegated to the same position as they held prior to the impugned order of transfer. In case of Sri M.H.Tirumallesh who is now displaced by virtue of the order passed herein, in light of the discussion made above the State is at liberty to pass appropriate order on his representation.

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Pending I.As, if any, also stand disposed off.

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Sd/JUDGE

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BVV / LIST NO.: 1 SL NO.: 12

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Sd/JUDGE

Sri Shrishail Akki v. the State of Karnataka

Case brief

What is this about?

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Sri Shrishail Akki v. the State of Karnataka

Case brief

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