Dismissed

Smt Sheela N v. the State of Karnataka

Karnataka HC4 Jun 2024WP/13728/2024

Case brief

AI extract

What is this about?

Excise Inspector challenged the Tribunal's order treating her transfer as an election transfer requiring reversion after the election code of conduct ended. The High Court held her posting filled a vacancy created by Election Commission-directed transfers, so it too was an election transfer, and dismissed the petition.

What the court decided

AI extract

Smt Sheela N Vs the 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 4^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. 13728 OF 2024 (S-KSAT)

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BETWEEN:

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SMT. SHEELA N D/O SRI. SURENDRA SINGH AGED ABOUT 39 YEARS WORKING AS INSPECTOR OF EXCISE PERNOD-RICARD INDIA PRIVATE LIMITED 4^TH FLOOR, JNR CITY CENTRE RAJARAM MOHAN ROY ROAD SAMPANGI RAMA NAGARA BENGALURU-560 027 (AS SHOWN IN THE CAUSE TITLE OF THE KAT APPLICATION)

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WORKING AS INSPECTOR OF EXCISE SUBRAMANYANAGARA RANGE RANGE NO.24, BUD-1 BENGALURU.

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… PETITIONER

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(BY SHRI. D.R. RAVISHANKAR, SENIOR COUNSEL FOR SHRI. PRASHANTH H.S., ADVOCATE)

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AND:

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1 . THE STATE OF KARNATAKA DEPARTMENT OF FINANCE (EXCISE) REP. BY ADDITIONAL CHIEF SECRETARY VIDHANA SOUDHA, BENGALURU-560 001

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2 . THE COMMISSIONER OF EXCISE 2^ND FLOOR, TTMC, 'A' BLOCK BMTC BUILDING, SHANTINAGARA BENGALURU-560 027

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3 . SRI. SHIVAKUMAR S. S/O SRI. S.K. SHEKAPPA AGED ABOUT 48 YEARS WAS WORKING AS INSPECTOR OF EXCISE RANGE NO.24, BUD-01 BENGALURU.

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(AS SHOWN IN THE CAUSE TITLE OF THE KAT APPLICATION) R/AT NO.220, 3^RD CROSS NAGARABHAVI 1^ST BLOCK BENGALURU - 560 072

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….RESPONDENTS

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(BY SHRI. VIKAS ROJIPURA, AGA FOR R1 & R2; SHRI. PRITHVEESH M.K., ADVOCATE FOR C/R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI TO SET ASIDE/QUASH THE ORDER DATED 18.04.2024 PASSED BY THE HON'BLE KARNATAKA ADMINISTRATIVE TRIBUNAL IN APPLICATION NOS.642/2024, VIDE ANNEXURE - A AND CONSEQUENTLY DISMISS THE APPLICATION BEARING NO.642/2024, ON THE FILE OF HON'BLE KARNATAKA ADMINISTRATIVE TRIBUNAL VIDE ANNEXURE - B.

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 03.06.2024 AND COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, ANU SIVARAMAN J., PRONOUNCED THE FOLLOWING:

ORDER

This writ petition is filed challenging Annexure-A, order

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dated 18.04.2024 of the Karnataka State Administrative Tribunal (hereinafter referred to as 'the Tribunal' for short), Bengaluru, allowing the Application No.642/2024 filed by respondent No.3 herein against his transfer order dated 31.01.2024. The applicant before the Tribunal, who is respondent No.3 herein was working as Inspector of Excise. He was transferred to Mudigere Range, Chikkamagaluru District on 31.01.2024. He contended that he was prematurely transferred out from Range-6, Subramanyanagara, Bengaluru Urban District-1 and the petitioner herein was posted in his place by order dated 31.01.2024. It was contended that the order of transfer was one of premature transfer and was to be set aside.

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The Tribunal issued notice to the respondents and

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the writ petitioner, who was respondent No.3 had entered appearance and filed objections. The first and second respondents also filed objections contending that the transfer of respondent No.3, who was the applicant, was on

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public exigencies and administrative convenience and that it was approved by the Hon'ble Chief Minister. It was further contended that Annexure-A4 order had been passed pursuant to directions issued by the Election Commission of India transferring the applicant/respondent No.3 herein to Mudigere Range, Chikkamagaluru District, as part of the election proceedings. It was stated that it was to fill up the vacancy which arose on account of the election transfer of respondent No.3 that the writ petitioner was transferred.

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The submissions that both the orders of transfer i.e., Annexures-A4 and A5 were election transfers were accepted by the Tribunal and it was held that the officers were liable to be posted back to the post earlier held by them. This finding is under challenge in this writ petition.

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It is submitted by the learned Senior counsel appearing for the petitioner that the transfer of respondent No.3 was a politically motivated transfer and that the petitioner's transfer was not an election transfer but was a general transfer with the prior approval of the Chief Minister. It is stated that the petitioner had taken charge in his

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transferred place i.e., Range-6, Subramanyanagara,

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Bengaluru Urban District-1 and that she is to be permitted to continue there. It is submitted that the Tribunal granted interim order in favour of respondent No.3. Thereafter, the matter was heard and the application was disposed of holding that the transfer of the petitioner to the place of respondent No.3 is also an election transfer and directed respondent No.2 to transfer respondent No.3 and the petitioner to their earlier places once the Election Code of Conduct comes to an end. It is submitted by the learned senior counsel that the specific pleadings of the Government were ignored by the Tribunal to hold that the petitioner's transfer was also an election transfer. It is contended that since the petitioner had completed her normal tenure at Parnad Record India Limited, Nelamangala, Bengaluru Rural District, she was entitled to continue in his present place of posting Range-6, Subramanyanagara, Bengaluru Urban District-1. The writ petition is therefore filed challenging the order of the Tribunal and seeking retention of the writ petitioner treating her transfer to Range-6,

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Subramanyanagara, Bengaluru Urban District-1, as a

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general transfer.

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The learned Additional Government Advocate

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appearing for respondent Nos.1 and 2 submits that it is clear from the reading of Annexures A-4 and A-5 orders that the transfer of respondent No.3 to Mudigere Range, Chikkamagaluru District, was admittedly an election transfer. It is revealed from the order impugned before the Tribunal that it was only to fill up the vacancy which arose consequent on Annexure - A5 that Annexure - A4 order dated 31.01.2024 was issued. It is stated that, it is therefore clear that the same is also an election transfer which was necessitated due to the earlier round of election transfers, which were issued on the same day. Further, it is contended that the State had a specific case before the Tribunal that the order transferring the petitioner to Range6, Subramanyanagara, Bengaluru Urban District-1 was only to accommodate respondent No.3, who was transferred due to general elections and that the said transfer is liable to operate only as long as the Election Code of Conduct is in

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force. It is submitted that general transfer orders are imminent and that the claim, if any, of the writ petitioner for a posting will be considered in accordance with law and in accordance with the transfer guidelines at the time of general transfer.

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The learned counsel appearing for respondent No.3 would also contend that it is clear from the impugned order as well as the pleadings placed on record that the transfer of respondent No.3 as well as of the writ petitioner herein were only election transfers and the order specifically mentioned that the incumbents would be liable to be transferred back to their earlier posts as and when the Election Code of Conduct is withdrawn.

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Learned senior counsel appearing for the petitioner places reliance on the statements made in the objections preferred by the State before the Tribunal. They read as follows:-

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" 3. It is submitted that the impugned Official Memorandum dated 31.01.2024 bearing No.ECE/AaUa/01/TRF/2024 Adalita, the 3^rd Respondent came to be posted at Range-06,

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Subramanyanagara, Bengaluru Urban District, (BUD-1) as Inspector of Excise. The said impugned Official Memorandum came to be passed as per the correspondence of the first Respondent vide letter No. AaE 20 EPS 2024 dated 31.01.2024.

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4. It is submitted that, it is pertinent to state here that admittedly the Applicant came to be transferred from Range-06, Subramanyanagara, Bengaluru Urban District, (BUD-1), as Inspector of Excise and was working in Bangalore Urban District since 01.06.2020 for the last 4 years. As per the Election Guidelines, he has been transferred from the said place to Mudigere Range, Chikkamagaluru District as Inspector of Excise by the first Respondent by order No. AE 23 EPS 2024 (ii). dated:31.01.2024. The copy of the same which is produced herewith and marked as ANNEXURE-R1.

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6. It is submitted that, the transfer of the Respondent No. 3 was initiated and the said transfer came to be approved by the Hon'ble Chief Minister. Accordingly, the first Respondent by an vide order No. AaE20 EPS 2024 dated 31.01.2024 transferred the 3^rd Respondent to Range-06, Subramanyanagara, Bengaluru Urban District, (BUD-1) the place at which the Applicant was working. A Copy of the order dated 31.01.2024 passed by 1^st respondent is produced herewith and marked as ANNEXURE-R2.”

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The learned Additional Government Advocate

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appearing for respondent Nos.1 and 2 would place reliance on the judgments of a co-equal Bench of this Court in Election Commission of India, New Delhi and another v. State of Karnataka and others¹ as well as in R.O.Suresh s/o Onkarnaik R. v. State of Karnataka and others² . It is contended that transfers effected on the strength of directions issued by the Election Commission cannot be equated to transfers governed by the guidelines and would have to be reversed as soon as the Election Code of Conduct came into effect. Learned AGA would therefore contend that the prayers made in the writ petition as well as the attempt made by the writ petitioner to continue at Ashoknagara where he get be posted only as a part of the election procedure is completely unfounded.

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We have considered the contentions advanced. The specific case of the petitioner before this Court is to the effect that her transfer to Range-06, Subramanyanagara, Bengaluru Urban District, (BUD-1) by order dated

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1 2013(6) Kar.L.J.363 (DB)

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2 2019 (3) AKR 178

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31.01.2024 is a general transfer on completing her tenure at Parnad Record India Limited, Nelamangala, Bengaluru Rural District and therefore she is entitled to continue at the present place of posting for her term.

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Having considered the orders of transfer which are at Annexures - A4 and A5, respectively, we notice that the writ petitioner was transferred from Parnad Record India Limited, Nelamangala, Bengaluru Rural District to Range-06, Subramanyanagara, Bengaluru Urban District, (BUD-1) by order dated 31.01.2024. The order does not specifically state that it is an election transfer. It also refers to the approval of the Chief Minister. However, it is pertinent to notice that there was an earlier order issued on the same date i.e., Annexure - A4 which is specifically refers to the letter of the Election Commission of India and transfers Excise Inspectors specifically as per the guidelines of the Election Commission due to general elections of 2024. The respondent No.3 herein has been transferred from Range-06 Subramanyanagara, Bengaluru Urban District, (BUD-1) to Mudigere Range, Chikkamagaluru District while the officer,

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who was working at Mudigere Range, Chikkamagaluru District has been posted in the Office of the Inspector of Excise, Range - 44 (H.S.R. Layout), BUD-7, Bengaluru. The said order i.e., Annexure A-4 specifically states as follows:-

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"After the completion of the Election Code of Conduct, the said officials shall report to the place where they were serving before the election."

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The respondents had taken a specific stand in

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their reply that the order of transfer of the petitioner was necessitated due to the election transfers issued on the

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basis of the directions of the Election Commission. Construing the same, the Tribunal came to the conclusion that since Annexure - A4 order was admittedly an order of election transfer and since the persons transferred by Annexure - A4 would have to be transferred back to their original places once the Election Code of Conduct is complete, the resultant and consequential orders of transfer issued to the writ petitioner and other officers could also only be election transfers.

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Having considered the contentions advanced on all sides and having taken note of the judgments which are referred before us, we are of the opinion that to take a different view of the matter would result in a situation where the officers transferred as per Annexure - A4 including respondent No.3 would be placed in a situation where there would be no vacancy to accommodate them in the places from where they were transferred as specifically required in their orders of transfer.

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The learned Additional Government Advocate would further contend that if the contentions of the petitioner are accepted, it would lead to a situation where the transfers ordered on the basis of the Election Code of Conduct which are intended to be recalled as soon as the Code of Conduct is completed, would be rendered impossible of performance. It is conducted that since the retention of the officers, who are transferred due to the general elections, is not intended either by the orders themselves or by the directions issued by the Election Commission, such an interpretation cannot be accepted under any circumstances.

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Having considered the contentions advanced, we are inclined to agree with the findings of the Tribunal on the nature of the transfer of the petitioner. Since the petitioner was transferred specifically to accommodate the persons who had been transferred on account of the directions issued by the Election Commission, the said order by which the petitioner and others were transferred also can only be construed as an election transfer. Moreover, the petitioner had not completed her normal tenure at the earlier date of posting on 31.01.2024 when the order of transfer was issued. It is contended that she has done so now. If that be so, it is for the petitioner to make appropriate requests or options, as the case may be, when the exercise of general transfer, which is imminent, is taken up by the competent among the respondents.

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