Allowed

Sri S M Shiva Kumar v. the State of Karnataka

Karnataka HC7 Aug 2024WP/20732/2024

Case brief

AI extract

What is this about?

The High Court allowed the writ petitions and quashed the Karnataka State Administrative Tribunal's order dismissing applications against an illegal transfer. The Court held the transfer violated mandatory Transfer Guidelines due to premature displacement before the two-year tenure, issued contrary to a Tribunal status quo order, and lacked a specific posting for the petitioner.

What did the court decide?

Impugned Tribunal order and transfer orders dated 04/07/2024 and 09/07/2024 are quashed; petitioner to continue in post.

Sri S M Shiva Kumar Vs the State of Karnataka — Service and Employment | Karnataka HC (2024)

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WP No. 20732 of 2024 C/W WP No. 20740 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF AUGUST, 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 G BASAVARAJA WRIT PETITION NO. 20732 OF 2024 (S-KSAT)

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c/w

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WRIT PETITION NO. 20740 OF 2024 (S-KSAT)

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IN W.P.NO. 20732/2024

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BETWEEN:

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Digitally signed by NANDINI D Location: High Court of Karnataka

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SRI S. M. SHIVA KUMAR, S/O LATE S M MAYANNA AGED ABOUT 49 YEARS PRESENTLY WORKING AS A SPEICAL LAND ACQUISTION OFFICER 2 KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD (KIADB) NO 43/3, 1^ST FLOOR MAHARSHI ARAVIND BHAVANA, DR. AMBEDKAR VEEDHI, SAMPANGIRAMA NAGAR, BENGALURU - 560009

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RESIDING AT NO.20, ELITE APARTMENT, 1^ST 'D' CROSS, ANNAYYAPPA LAYOUT, 80 FEET ROAD, GEDDALAHALLI, BENGALURU - 560094

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…PETITIONER

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(BY SRI. R.SUBRAMANYA, ADV. A/W SRI. NARASIMHARAJU, ADV.)

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AND:

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THE STATE OF KARNATAKA REPRESENTED BY PRINCIPAL SECRETARY DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS (SERVICES-2) VIDHANA SOUDHA, BENGALURU-560001.

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…RESPONDENT

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(BY SRI. V.G.BHANUPRAKASH, AAG A/W SRI. NAVEEN CHANDRASHEKAR, AGA FOR RESPONDENT)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF CERTIORARI BY QUASHING THE IMPUGNED ORDER PASSED BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL IN APPLICATION NO.3144/2024 DATED 31/07/2024 AS PER ANNEXURE-A AND CONSEQUENTLY QUASH THE IMPUGNED ORDER OF TRANSFER PASSED BY THE RESPONDENT DATED 09/07/2024 BEARING NO.C AA SU E 150 A SE VA 2024 BY ALLOWING THE APPLICATION NO.3144/2024 AS PER ANNEXURE-A9 IN THE APPLICATION IN SO FAR AS THE PETITIONER IS CONCERNED.

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IN W.P.NO. 20740/2024

BETWEEN:

WP No. 20732 of 2024 C/W WP No. 20740 of 2024

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RESIDING AT NO.20, ELITE APARTMENT, 1^ST 'D' CROSS, ANNAYYAPPA LAYOUT, 80 FEET ROAD, GEDDALAHALLI, BENGALURU - 560094

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…PETITIONER

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(BY SRI. VIVEK S.REDDY, SENIOR COUNSEL A/W SRI. NARASIMHARAJU, ADV.)

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AND:

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THE STATE OF KARNATAKA REPRESENTED BY PRINCIPAL SECRETARY DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS (SERVICES-2) VIDHANA SOUDHA, BENGALURU-560001.

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SRI H. N. SHIVEGOWDA, WORKING AS SPECIAL LAND ACQUISITION OFFICER NATIONAL HIGHWAY AUTHORITY OF INDIA (NHAI), MYSURU - 570001.

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…RESPONDENTS

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(BY SRI. V.G.BHANUPRAKASH, AAG A/W SRI. NAVEEN CHANDRASHEKAR, AGA FOR R-1, SRI. C.M.NAGABHUSHAN, SENIOR COUNSEL A/W SRI. BASAVARAJU PATEL G.K., ADV. FOR C/R-2.)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI BY QUASHING THE IMPUGNED ORDER PASSED BY THE KSAT IN A.No-3116/2024 DATED 31.07.2024 AS PER ANNEXURE-A AND CONSEQUENTLY QUASH THE IMPUGNED ORDER OF TRANSFER PASSED BY THE 1^ST RESPONDENT DATED 04.07.2024 BEARING No.C AA SU E 140 A SE VA 2024 BY ALLOWING THE APPLICATION No-3116/2024 AS PER ANNEXURE-A5 IN SO FAR AS THE 2^ND RESPONDENT IS CONCERNED AS PER ANNEXURE-A5 IN THE APPLICATION.

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THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 02.08.2024 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, BASAVARAJA J., PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MRS JUSTICE ANU SIVARAMAN and HON'BLE MR JUSTICE G BASAVARAJA

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CAV JUDGMENT (PER: HON'BLE MR JUSTICE G BASAVARAJA)

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Since the issues involved in these petitions are one and the same and both the petitions are arising out of the common order dated 31^st July, 2024 passed in Applications No.3144 of 2024 and 3116 of 2024 passed by the Karnataka State Administrative Tribunal, Bengaluru, (for brevity, hereinafter referred to as the "Tribunal), both these petitions are clubbed and are disposed of by this common order.

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These writ petitions arise from the common order dated 31^st July 2024, passed by the Tribunal, whereby the applications filed by the petitioner seeking the quashing of the order dated 4^th July 2024, posting the respondent No. 2, and the order dated 9^th July 2024, providing posting to the petitioner, were dismissed by the Tribunal.

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The material on record discloses that the petitioner was in the cadre of KAS Junior Scale and was posted to work as Special Land Acquisition Officer-II to Karnataka Industrial Areas Development Board by order dated 22^nd November 2022 and

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reported on 22^nd November 2022 itself. While the petitioner was discharging his duties in the said post, the order dated 28^th June 2024 was issued, promoting the petitioner to the KAS Senior Scale and continuing him in the said post and place, upgrading the post of Special Land Acquisition Officer. Pursuant to the said posting, the petitioner continued as Special Land Acquisition Officer-II in Karnataka Industrial Areas Development Board. The Government of Karnataka issued a notification for the acquisition of 5,000 acres of land for the extension of Industrial Area Development in and around Chikkaballapura and Bengaluru Districts on various dates, and the scheme of notification is under process and not yet completed. It is contended that the petitioner has not at all completed the minimum tenure in the present place, and as per the Transfer Guidelines, the tenure of a Group 'A' Officer in one place is two years, and in contravention of the said Transfer Guidelines, without assigning or recording reasons, the petitioner was prematurely disturbed by way of an order of transfer dated 4^th July 2024, and one Sri H.N. Shivegowda was posted in the place of the petitioner. Accordingly, as per Rule 4(1) of the Transfer Guidelines dated 25^th June 2024, the petitioner has challenged the order of transfer before the

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Tribunal in Application No.3116 of 2024. The Tribunal, considering the grievance of the petitioner, has rightly passed the interim order of status quo on 8^th July 2024. Surprisingly, contrary to the order passed by the Tribunal, the respondentauthority erroneously passed one more order of transfer in the form of a Notification dated 9th July 2024 and transferred the petitioner as Deputy Commissioner (Assets), Bruhat Bengaluru Mahanagara Palike, Bengaluru in contravention of the orders passed by this Court. Having been surprised to see the order of transfer dated 9^th July 2024, the petitioner, rightly on the ground of premature transfer and also under Rule 4(1) of the Transfer Guidelines dated 25^th June 2024, challenged the said order of transfer before the Tribunal in Application No.3114 of 2024, which applications came to be dismissed by the Tribunal. Aggrieved by the same, the petitioner is before this Court in these writ petitions.

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Heard Sri Vivek Subba Reddy, learned Senior Counsel, along with Sri Narasimharaju and Sri R. Subramanya, learned counsel for the petitioner; Sri C.M. Nagabhushan, learned Senior Counsel, along with Sri Basavaraju Patel for caveator respondent No.2; and Sri V.G. Bhanuprakash, learned

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Additional Advocate General, along with Sri Naveen Chandrashaker, learned Additional Government Advocates for official respondents.

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Sri Vivek Subba Reddy, learned Senior Counsel for the petitioner, reiterated various contentions from the writ petitions and referred to the material on record, arguing that the impugned transfer order and the posting of respondent No.2, H.N. Shivegowda, who was working as Special Land Acquisition Officer at the National Highway Authority of India, Mysuru, are illegal and should be set aside. He contended that the transfer order is premature and violates the Transfer Guidelines dated 25^th June 2024, which stipulate a minimum tenure of two years for a Group 'A' Officer. The transfer order, which did not assign a new posting to the petitioner, violates the Transfer Guidelines, which have statutory force as per the Full Bench decision in H.N. CHANDRU v. STATE OF KARNATAKA AND OTHERS reported in ILR 2011 KAR 1585 (FB). These guidelines are binding on the State Government and are meant to protect employees, requiring adherence to Rule 6(1) for any premature transfer. Despite these issues, the Tribunal dismissed the applications.

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The learned Senior Counsel argued that the impugned order lacked the mandatory prior approval of the Hon'ble Chief Minister, as required by the Division Bench rulings in ALLA SAHEB v. STATE OF KARNATAKA AND OTHERS reported in ILR 2017 KAR 86, and N. MUNIRAJU v. STATE OF KARNATAKA AND OTHERS in Writ Petition No. 33158 of 2017. Additionally, no reasons were given for the premature displacement of the petitioner. In DR. T.S. MURALIDHAR v. STATE OF KARNATAKA AND OTHERS rendered in Writ Petition No.105251 of 2023, the Court held that any posting given during the pendency of an application before the Tribunal is void ab initio. Despite the Tribunal's interim order on 8^th July 2024, a posting was given on 9^th July 2024, contrary to the Division Bench's judgment. The Tribunal erroneously found that the posting complied with the Transfer Guidelines, despite contrary evidence.The Karnataka State Administrative Tribunal passed an order on 31^st July 2024 in Applications No.3269 and 2914 of 2024 in the case of SMT. SHOBITHA R. V. STATE OF KARNATAKA, where it quashed the premature transfer order dated 4^th July 2024 and the impugned notification dated 9^th July 2024. However, in the current case, the Tribunal ignored the decisions of this Court. The Senior Counsel also submitted a memo with a copy of the

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First Information Report for Crime No. 89 of 2020, registered by Sheshadripuram Police against Respondent No. 2 for offenses under Sections 406, 409, 420, 467, 470, 471, 472, 473, 474, 475, and 476 of the Indian Penal Code. The Counsel argued that transfers should only be made by competent authorities if there is a prima facie complaint against a government servant. In this case, despite the pending charges against Respondent No.2, the transfer order was issued, which is contrary to Sub-Rule (5) of Rule 4 of the Transfer Guidelines dated 25^th June 2024. On these grounds, he sought the allowance of the writ petitions, also citing the Division Bench judgment in K.G. JAGADEESHA v. STATE OF KARNATAKA AND ANOTHER (W.P. No. 48988 of 2016, decided on 6th October 2016).

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Conversely, the learned Counsel for respondent No.2, along with the learned Additional Advocate General and the learned Additional Government Advocate, defended the impugned order passed by the Tribunal. They further submitted that there are no grounds to interfere with the impugned order and, therefore, requested the dismissal of the writ petitions.

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In response to the submission of learned Senior Counsel for the petitioner regarding the filing of the First Information Report against respondent No. 2, H.N. Shivegowda, for the offenses punishable under Sections 406, 409, 420, 467, 470, 471, 472, 473, 474, 475, and 476 of the Indian Penal Code, the said H.N. Shivegowda approached this Court in Criminal Petition No. 6061 of 2022, challenging the proceedings in CC No.5017 of 2021, and the same came to be allowed by this Court by order dated 28^th September 2022, whereby the proceedings initiated for prosecution came to be quashed on the grounds that the same was without sanction. The copy of the order passed in Criminal Petition No.6061 of 2022 is also produced. Learned counsel for the caveator respondent No. 2 also placed reliance on the Division Bench judgment of this Court in the case of SRI C. MADHU v. STATE OF KARNATAKA AND OTHERS rendered in Writ Petition No.51992 of 2015, decided on 25^th November 2015, and in the case of Sri M.S. Purushothama Reddy v. State of Karnataka and Others, rendered in Writ Petition No.20158 of 2015, decided on 1^st June 2015.

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We have given our anxious consideration to the rival submissions advanced by the learned counsel for the parties and perused the material on record. In our considered opinion, the impugned transfer order dated 4^th July 2024, posting respondent No.2 in Application No.3116 of 2024, and thereafter, the Transfer Order dated 9th July 2024, providing posting to him and the impugned order passed by the Tribunal in Applications No.3114 and 3116 of 2024, is erroneous, illegal, and contrary to law and material on record and the same deserve to be quashed, for the following reasons:

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a. The question/issue of whether the transfer guidelines issued by the State Government vide Government Order DPAR 33 STR 2024 dated 25^th June 2024 have statutory force and are mandatory is no longer res integra in light of the judgments of the Full Bench of this Court in the case of H.N. CHANDRU (supra) and in the case of S.N. GANGADHARAIAH v. STATE OF KARNATAKA, reported in ILR 2015 KAR 1955 (FB), wherein it is clearly held that the Government Orders have statutory force, are mandatory, and are binding upon the State Government and its officials. Clause 6 of the Transfer Guidelines

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dated 25^th June 2024 prohibits/bars any premature transfer for a period of less than two years to all Group 'A' posts, subject to the conditions prescribed in the said guidelines. In the instant case, it is an undisputed fact that the petitioner was an Officer of KAS Junior Scale and was posted to work as Special Land Acquisition Officer-II, Karnataka Industrial Areas Development Board, Bangalore, on 22^nd November 2022, and he reported to duty on the same day. While the petitioner was discharging his duties in the said post, an order dated 28^th June 2024 was issued, promoting him to the cadre of KAS Senior Scale, and he was continued to work in the post of Special Land Acquisition Officer-II, Karnataka Industrial Areas Development Board, by upgrading the post. Before completion of two years, on 4^th July 2024, H.N. Shivegowda was posted to the post of Special Land Acquisition Officer-II, Karnataka Industrial Areas Development Board, Bengaluru. It is an undisputed fact that the petitioner obtained a status quo order from the Tribunal as per the order dated 8^th July 2024. After passing the said status quo order dated 8^th July 2024, the concerned authority issued Notification

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No. SiAaSuE 150 AaSeVa 2024 dated 9^th July 2024, and by virtue of the said Notification, the petitioner was posted as Deputy Commissioner (Assets), Bruhat Bengaluru Mahanagara Palike. The order of transfer dated 4^th July 2024, without giving a posting to the petitioner and directing respondent No.2-H.N. Shivegowda, to report to the post of Special Land Acquisition Officer-II, Karnataka Industrial Areas Development Board, Bengaluru, which post was being occupied by the petitioner is well within the period of two years prescribed, which is clearly a premature transfer, and is issued without providing any posting to the petitioner and is thus contrary to the Transfer Guidelines dated 25^th June 2024, and the same is vitiated and deserves to be set aside.

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b. It is an admitted fact that the petitioner has obtained the order of status-quo from the Tribunal on 08^th July, 2024 and after passing the status-quo order, the concerned authority has passed the order on 09^th July, 2024 by showing the place to the petitioner, which is also a clear violation of the Transfer Guidelines as well

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as the interim order passed by the Tribunal, and the same is also not sustainable under law;

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c. Further, a perusal of the order of the Tribunal dated 4^th July 2024 does not indicate that in the transfer of the petitioner, without giving any posting to him, the concerned authority has shown the name of Sri H.N. Shivegowda, a KAS Senior Scale Officer, as Special Land Acquisition Officer-II, National Highway Authority of India, Mysuru, to the post of Special Land Acquisition Officer-II, Karnataka Industrial Areas Development Board, Bengaluru, which post was held by the petitioner. Therefore, it is crystal clear that without giving any posting to the petitioner in view of the Notification dated 4^th July 2024, Sri H.N. Shivegowda was transferred to the post of Special Land Acquisition Officer-II, Karnataka Industrial Areas Development Board, Bengaluru, where the petitioner was working, which is contrary to Rule 100 of the Karnataka Financial Code, 1958, and also the Transfer Guidelines dated 25^th June 2024 issued by the Government of Karnataka.

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d. A perusal of the transfer order dated 4^th July 2024 will also indicate that, except for directing respondent No. 2 to be transferred and posted to the petitioner's post, no posting has been provided to the petitioner. In view of the Division Bench judgment of this Court in the case of MISS SEEMA H v. STATE OF KARNATAKA AND OTHERS, rendered in Writ Petition No.48499 of 2016 decided on 16^th September 2016, which is followed in the case of KANTEPPA v. STATE OF KARNATAKA, rendered in Writ Petition No.204826 of 2019, decided on 29^th May 2020 (DB), any transfer order should not only direct the transfer of the government official but also show or provide him with a posting, failing which such a transfer order would be rendered illegal. In the instant case, the impugned order of transfer merely displacing and transferring the petitioner simpliciter by directing him to report to the post of Special Land Acquisition Officer-II, Karnataka Industrial Areas Development Board, Bengaluru, without showing or providing posting to the petitioner, suffers from serious and glaring infirmity and illegality, which is sufficient to vitiate the impugned

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transfer order, and the same is liable to be quashed on this ground also.

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e. Furthermore, as regards the First Information Report filed against the respondent No.2 is concerned, the subject matter of the case on hand is not as to the offences registered against the respondent No.2, and hence we need not give any opinion in this regard.

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It is pertinent to mention here the cardinal rule established in numerous cases by the Hon'ble Supreme Court and this Court: "Expressio unius est exclusio alterius." meaning, if the law requires something to be done in a particular manner, then it must be done in that manner, and if it is not done in that manner, then it would have no existence in the eye of the law.

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On a careful examination of the entire material on record, we are of the considered opinion that the orders impugned passed by the concerned authority are contrary to the Transfer Guidelines dated 25^th June, 2024 and also the decisions of this Court also of the Hon'ble Apex Court. The Tribunal has not properly appreciated the material on record

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and facts and also the decisions of the Co-ordinate Bench of

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this Court.

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For the foregoing reasons and discussions, we proceed to pass the following:

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O R D E R

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i. Writ Petitions are allowed;

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ii. Impugned order dated 31^st July, 2024 passed in Applications No.3144 of 2024 and 3116 of 2024 passed by the Karnataka State Administrative Tribunal, Bengaluru is set aside;

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iii. Consequently Orders bearing No. SiAaSuE 140 AaSeVa 2024 dated 04^th July, 2024 and Notification bearing No. SiAaSuE 150 AaSeVa 2024 dated 09^th July, 2024, also stand quashed.

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