Allowed

Sri. Manjesh. B v. State of Karnataka

Karnataka HC5 Jun 2024WP/11980/2024

Case brief

AI extract

What is this about?

A government servant prematurely transferred eight months after posting challenged the transfer order before KSAT; his application was dismissed. The High Court found no specific reasons recorded for the premature transfer as required by clause 9(a), set aside both the Tribunal's order and the transfer order.

What did the court decide?

Writ petition allowed; Tribunal order dated 19.04.2024 in Application No.1452/2024 and transfer order dated 16.03.2024 set aside; fresh transfer permissible with recorded reasons; stay application dis

Sri. Manjesh. B Vs State of Karnataka — Service and Employment | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF JUNE, 2024

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PRESENT

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THE HON'BLE MRS. JUSTICE ANU SIVARAMAN

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AND

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THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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WRIT PETITION NO. 11980 OF 2024 (S-KSAT)

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BETWEEN:

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SRI. MANJESH B. S/O. BASAVALINGEGOWDA A.L. AGED ABOUT 55 YEARS WORKING AS MEMBER SECRETARY AND JOINT DIRECTOR ANEKAL PLANNING AUTHORITY NO.430, HENNAGAR GATE HOSUR MAIN ROAD BANGALORE-560 099 R/AT. C/O. NANDHANA NO.9, 2^ND FLOOR TERRACON RESIDENCE BENGALURU-560 099

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… PETITIONER

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(BY SHRI. S.M. CHANDRASHEKAR, SENIOR COUNSEL ALONG WITH Ms. SUVARNA M.L., ADVOCATE)

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AND:

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1 . STATE OF KARNATAKA

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BY ITS PRINCIPAL SECRETARY TO THE GOVERNMENT DEPARTMENT OF URBAN DEVELOPMENT VIKASA SOUDHA, DR. B.R.AMBEDKAR VEEDHI BENGALURU-560 001

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2 . ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT URBAN DEVELOPMENT DEPARTMENT ROOM NO.436, VIKASA SOUDHA Dr. B.R. AMBEDKAR VEEDHI BENGALURU-560 001

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3 . BANGALORE DEVELOPMENT AUTHORITY COMMISSIONER T. CHOWDAIAH ROAD KUMARA PARK WEST BENGALURU-560 020

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4 . SRI. SURESH. H MAJOR BY AGE WORKING AS JOINT DIRECTOR SHIVAMOGGA MAHANAGARA PALIKE SHIVAMOGGA-577 201

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… RESPONDENTS

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(BY SHRI. V.G. BHANU PRAKASH, AAG ALONG WITH SRI. VIKAS ROJIPURA, AGA FOR R1 & R2; SRI. MURUGESH V. CHARATI, ADVOCATE FOR R3; SRI. K.N. PHANINDRA, SENIOR COUNSEL ALONG WITH SRI. PAVAN G., ADVOCATE FOR R4)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE ENTIRE RECORDS LEADING TO THE ORDERS DATED 19.04.2024 AND QUASH THE ORDER OF THE HON'BLE TRIBUNAL DATED 19.04.2024 IN APPLICATION NO.1452 OF 2024 (ANNEXURE - A) BY ISSUE OF A WRIT IN THE NATURE OF CERTIORARI AND CONSEQUENTLY ALLOW THE SAID APPLICATION NO.1452 OF 2024 PREFERRED BY THE PETITIONER AS PRAYED (ANNEXURE - B) & GRANT ALL CONSEQUENTIAL BENEFITS, IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 30.05.2024 AND COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, ANU SIVARAMAN J., PRONOUNCED THE FOLLOWING:

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ORDER

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This Writ Petition is filed by the applicant in Application No.1452 of 2024 before the Karnataka State Administrative Tribunal, Bangaluru (hereinafter referred to as 'the Tribunal' for short). The applicant had challenged an order of transfer dated 16.03.2024 issued by the first respondent on the ground that he had been prematurely transferred to accommodate the fourth respondent on political dictates. The Application was dismissed which has led to this writ petition.

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It is submitted that the petitioner had been posted as Joint Director and Member Secretary, Anekal Planning Authority on 26.07.2023. He contended that he has been transferred out on 16.03.2024 barely 8 months after having taken charge at Anekal and that the same was bad in law. It is submitted that on 21.03.2024, the Tribunal had granted an interim order of stay of transfer. Thereafter, the petitioner was suspended from service based on an FIR

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lodged by the Lokayukta Police invoking Section 13 of the Prevention of Corruption Act, 1988. The said order of suspension was challenged in Application No.1713 of 2024 before the Tribunal and on 10.04.2024, an interim order of stay of the suspension was granted. It is stated that thereafter the matter was heard by the Tribunal and the records leading to the transfer were also made available. It is stated that without considering the valid contentions raised by the petitioner, the Tribunal held that the transfer of the petitioner was in public interest and administrative exigencies and was therefore justified.

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The learned Senior Counsel appearing for the petitioner contended that the transfer of the petitioner admittedly being a premature transfer in terms of Rule 9(a) of the guidelines regarding Transfer of Government Servants, the Tribunal ought to have seen that the said guidelines are statutory in nature and that the transfer could not have been affected without there being specific reasons recorded by the appropriate authority, which secured the prior sanction of the Chief Minister. It is submitted that in

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the instant case, there were no reasons whatsoever recorded for the premature transfer much less any sustainable reasons, which were approved by the Chief Minister. It is submitted that the finding of the Tribunal that the Chief Minister had approved the premature transfer and therefore no judicial review was required to be conducted was per se illegal.

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The learning Senior Counsel appearing for the petitioner also contended that the reliance placed on by the Tribunal on the decision of this Court in C. Manjunath v. State of Karnataka, represented by its Principal Secretary to Government and others¹ , as also on the decisions of the Apex Court, which did not consider the specific guidelines for transfer, which have been held to be statutory in nature by two Full Bench decisions of this Court was completely misconceived. It is contended that, it is apparent from the materials on record that there was a request made by the Deputy Chief Minister on 22.09.2023 seeking a transfer of the petitioner from Anekal to the

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1 (2021) 1 AIR Kant R 140

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BBMP., and the posting of the third respondent to the petitioner's place at Anekal. It is stated that thereafter, a further request had been made on 30.10.2023 to post the petitioner to the Bangalore Development Authority since he could not be accommodated in the BBMP. It is contended that there is no available post of Deputy Director in the Bangalore Development Authority to accommodate the petitioner and that the transfer is clearly vitiated by malice and political considerations.

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The learning Senior Counsel appearing for the petitioner also placed reliance on the decisions of this Court in Mr. Chandru H.N. v. State of Karnataka and others² , Sri S.N.Gangadharaiah, K.A.S., v. The State of Karnataka, Rep. by its Principal Secretary, Department of Personnel and Administrative Reforms (Services-II) and Another³ , Alla Saheb v. The State of Karnataka, Department of Urban Development and Others⁴ , Rajashekar M. v. State of Karnataka, Rep. by its Principal Secretary, Department of Backward Classes

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2 ILR 2011 KAR 1585

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3 ILR 2015 KAR 1955

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4 ILR 2017 KAR 86

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Welfare and Others⁵ , Sri. Shivakumar v. The State of Karnataka and others (WP No.202412 of 2018 (SKAT)), Smt. P.V. Poornima v. State of Karnataka and others (WP No.2661 of 2020 (S-KSAT) and several other judgments of this Court as well as the Apex Court. It is further contended that when there were several decisions specifically on the point, it was not open to the Tribunal to have relied on judgments which were not applicable to the facts of the case.

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The learned Additional Advocate General appearing for the official respondents would contend that the contention of the petitioner before the Tribunal was only that he had been prematurely transferred without obtaining prior sanction from the Chief Minister. It is contended that the note file with regard to the transfer had been produced before the Tribunal from which it is clear that prior sanction had been granted by the Chief Minister for the premature transfer of the petitioner. It is further contended that on 08.01.2024, an FIR had been registered by the Lokayukta

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5 2018 SCC OnLine Kar 3777

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Police against the petitioner in a case relating to disproportionate assets possessed by him on the basis of a raid conducted in his residence, office and other related premises. It is stated that it was on account of the said criminal case registered against the petitioner that he had been transferred out of Anekal. It is contended that there is every chance that he would tamper with the evidence if he is permitted to continue in Anekal, which is the reason why the order of transfer had also been issued. It is submitted that in a case of this nature where there is a clear allegation that the petitioner had amassed huge wealth much in excess of his known sources of income, this Court exercising discretionary jurisdiction under Article 226 of the Constitution of India should not exercise such jurisdiction in favour of a person, who is facing such serious allegations as the petitioner herein.

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The learned senior Counsel appearing for the contesting respondent submits that there was no material available on record to show that the contesting respondent had in any manner sought any transfer or posting to Anekal.

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It is contended that the noting dated 30.10.2023, made by the Deputy Chief Minister refers only to the posting of the petitioner and does not refer to the fourth respondent at all. It is contended that even if an earlier Tippani dated 22.09.2023, which is produced only on the last date of hearing before this Court is taken into account; there is nothing to suggest that it was the fourth respondent who had approached the Deputy Chief Minister and obtained the said Tippani. It is stated that it could be a case where the petitioner himself had approached the Deputy Chief Minister seeking an accommodation at BBMP., which was granted by the Tippani. Thereafter, when it was found that the petitioner could not be accommodated in the BBMP, the posting was changed as Deputy Director to the BDA, which was not to the liking of the petitioner, which is the reason for the challenge against the order. It is submitted that in the light of the pleadings placed before the Tribunal, the Tribunal had considered all relevant matters and had come to the conclusion that the instant case was not a fit one for exercise of the discretionary jurisdiction since the petitioner

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was a person who had continued at Anekal continuously for the past 10 years with only extremely short breaks or other postings in between. It is further contended that the fact that a criminal case for possession of disproportionate assets having been initiated against the petitioner. The decision of the Tribunal not to exercise jurisdiction in favour of the petitioner was only understandable and perfectly legal and valid.

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We have considered the contentions advanced on

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all sides at considerable length. We have also perused the pleadings and the materials on record.

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The note file regarding the transfer of the petitioner dated 16.03.2024 has also been perused by us. We notice that the proceedings appears to have commenced with a note of the Deputy Chief Minister dated 22.09.2023 requesting for a posting of the petitioner as Deputy Director to the BBMP., and the fourth respondent in his place at Anekal. However, from the perusal of the materials, there is nothing to suggest that it was on the request of the fourth respondent that the said communication had emanated.

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There is a further noting on 30.10.2023 that since the petitioner cannot be accommodated in the BBMP., he is to be transferred to the BDA. Though it is contended that the petitioner had been working at Anekal for long years, it is an admitted case that in the present instance, the petitioner

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had been posted as Deputy Director at the Anekal Development Authority only on 25.07.2023. In the said view of the matter, the transfer on 16.03.2024 appears to be a premature transfer. However, from the perusal of the notings, it is clear that there are no specific reasons stated for the transfer though a prior approval appears to have been obtained from the Chief Minister. It is the admitted case of all the parties that a raid was conducted i.e., a crime was registered as crime No.2 of 2024 by the Lokayukta Police under Section 13(1)(b) and 13(2) of the Prevention of Corruption Act,1988 against the petitioner on 08.01.2024. It is also admitted that a raid was conducted in the petitioner's premises and disproportionate assets were allegedly found. Thereafter, it is only on 16.03.2024 that the impugned order of premature transfer was issued. However, we notice that

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in none of the notings or the order the reason with regard to registering of a crime against the petitioner is stated as a reason for his transfer. The order dated 16.03.2024 which was challenged before the Tribunal only states that it is issued in the interest of the public and for administrative reasons. The files also do not disclose any reason having been stated for the premature transfer of the petitioner. Clause 9(a) of the guidelines regarding Transfer of Government Servants, which have been held to be statutory in nature reads as follows:-

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"9(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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Learned senior counsel for the petitioner has placed specific reliance on the judgment of co-equal bench of this Court in Smt. B.S Pushpa v The State of Karnataka & Others (W.P.107475 of 2023 (S-KAT)), wherein, this Court has specifically stated as follows:

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"12…..Though words, "in the interest of public and due to administrative exigencies" are common in all transfer orders, that common words would not be sufficient and there shall be more than that to effect premature transfer. For effecting premature transfer, reasons other than 'in the interest of public and administrative exigencies' are to be recorded….."

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We notice that apart from stating that the transfer is recorded in public interest and administrative exigencies, no such specific reasons or exigencies are recorded in the order.

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In the light of the decisions of this Court with regard to the reasons to be stated for premature transfer, as relied on by the learned senior counsel for the petitioner, we are of the opinion that the premature transfer of the petitioner without stating any reasons was bad in law.

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However, we hasten to add that this does not mean that the petitioner cannot be transferred out from Anekal. If a proper consideration showing the reasons is passed either in terms of clause 9 or in terms of clause 6 of the Transfer Guidelines. In the facts and circumstances of the instant case, we are not inclined to hold that the transfer order was vitiated on account of clause 12 since there is nothing to show as to the involvement of the fourth respondent in making any request for the present posting.

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In the above factual situation, we pass the following:

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ORDER

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(i) The writ petition is allowed .

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(ii) The order of the Tribunal in Application No.1452 of 2024 dated 19.04.2024, is set aside.

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(iii) The impugned order before the Tribunal that is Annexure-A5 dated 16.03.2024 shall stand set aside. However, it is made clear that there will be no interdiction for the official respondents from passing a further order of transfer either under clause 6 or

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clause 9 after complying with all procedural formalities as required by law, which is supported by necessary reasons.

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Ordered accordingly.

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Pending I.A.No.1/2024 for Stay is hereby dismissed.

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Sd/JUDGE

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Sd/JUDGE