Disposed

Sri. Gangaram v. the State of Karnataka

Karnataka HC9 Aug 2024WP/25955/2023

Case brief

AI extract

What is this about?

The Division Bench addressed a writ petition challenging a transfer order that left the petitioner without a posting. Relying on settled law and transfer guidelines prohibiting transfers without vacancies, the court held such practice illegal and directed officials to post the petitioner within two weeks.

What did the court decide?

Direct the official respondents to show the petitioner a place of posting preferably within the District within two weeks from the date of receipt of the judgment.

Sri. Gangaram Vs the State of Karnataka — Service and Employment | Karnataka HC (2024)

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NC: 2024:KHC:32078-DB WP No. 25955 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 09^TH 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. 25955 OF 2023 (S-KSAT)

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BETWEEN:

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SRI. GANGARAM AGED ABOUT 58 YEARS PANCHAYATH DEVELOPMENT OFFICER KANNURU GRAMA PANCHAYATH YELAHANKA TALUK, BIDARAHALLI HOBLI BENGALURU EAST TALUK BENGALURU URBAN DISTRICT RESIDING AT NO.78 DEVINAGAR MAIN ROAD LOTTEGOLLAHALLI BENGALURU-560 094

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…PETITIONER

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(BY SRI. B.O. ANIL KUMAR, ADVOCATE)

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Digitally signed by CHANNEGOWDA PREMA Location: High Court of Karnataka

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AND:

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THE STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY RURAL DEVELOPMENT AND PANCHAYATH RAJ DEPARTMENT MULTI STORIED BUILDINGS, BENGALURU-560 001

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THE COMMISSIONER RURAL DEVELOPMENT AND PANCHAYATH RAJ COMMISSIONERATE K.R. ROAD, GANDHINAGARA BENGALURU-560 009

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NC: 2024:KHC:32078-DB WP No. 25955 of 2023

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THE CHIEF EXECUTIVE OFFICER BENGALURU URBAN DISTRICT S. KARIYAPPA ROAD, BANASHANKARI BENGALURU

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SRI. N. MUNICHIKKAIAH PANCHAYAT DEVELOPMENT OFFICER URBAN ZILLA PANCHAYAT BENGALURU URBAN DISTRICT

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…RESPONDENTS

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(BY SRI. B. RAVINDRANATH, AGA FOR R1 TO R3; SMT. SHILPA S. GOGI, ADVOCATE FOR R4)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO SET-ASIDE THE IMPUGNED FINAL ORDER DATED 08.11.2023 PASSED IN APPLICATION Nos.4154/2023 c/w 2625/2023 BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, IN THE INTEREST OF JUSTICE AND EQUITY AND CONSEQUENTLY ALLOW THE APPLICATION No.4154/2023 FILED BY THE PETITIONER BEFORE THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL AND REJECT THE APPLICATION No.2625/2023 FILED BY THE RESPONDENT No.4 HEREIN BEFORE THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL AND ETC.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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

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ORAL JUDGMENT

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(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN)

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Heard learned counsel appearing for the writ petitioner, learned Additional Government Advocate

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appearing for respondent Nos.1 to 3 and as well as learned counsel appearing for the contesting private respondent No.4.

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It is submitted by the learned counsel for the

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petitioner that pursuant to the transfer order issued on 07.03.2023, the petitioner was posted to Kannur Grama Panchayath in the place of the private respondent. The private respondent handed over charge on 20.03.2023. But thereafter, after three months he had challenged the order of transfer on 27.06.2023. It is submitted that during the pendency of the said application, an order was passed on 11.09.2023 reposting the private respondent to Kannur Grama Panchayath rendering the petitioner without orders of posting. Though the order dated 11.09.2023 was also challenged by the writ petitioner herein both the applications were heard together and the application filed by the private respondent was allowed and application of the petitioner raising identical grounds had been dismissed. It is submitted that as a result,

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petitioner is rendered without posting orders. It is submitted by the learned counsel for the petitioner that the private respondent has completed his term of four years9 in the Kannur Grama Panchayath.

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Learned counsel appearing for the petitioner

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has placed reliance on the following judgments:

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i. Arasmeta Captive Power Company Private Limited and another v. Lafarge India Private Limited reported in (2013)15 SCC 414; and

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ii. T.Suneel Kumar, IPS v. State of Karnataka, rep by Chief Secretary & Others reported in ILR 2013 KAR 4564.

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Learned counsel appearing for the private

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respondent submits that the private respondent had challenged the order dated 08.03.2023 on the ground that he had been disturbed prematurely without showing him a

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posting and that the Tribunal had considered the contentions and had upheld the order dated 11.09.2023 by which, he was brought back to his original place of

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posting. It is submitted that the petitioner had been granted a posting out side the District, which was challenged by him and was set aside. It is further contended that the private respondent is due to retire in 15 months time and that he may therefore, not be disturbed at this juncture.

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Having considered the contentions advanced, we are of the opinion that the practice of issuing transfer orders disturbing persons prematurely without even showing them places of posting is clearly illegal. The law is well settled by judgments of this Court which have considered this aspect of the matter. In Miss. Seema H. v. The State of Karnataka and others in W.P.No.48499/2016(S-KAT), a co-equal Bench of this Court clearly held as follows:-

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" xxxx Unless the petitioner is lifted from one place and posted at another place, it cannot be said that any vacancy has arisen of the petitioner and such an exercise of the power cannot be appreciated even if one keeps in mind the administrative circumstances for the public interest as the case may be. It is hardly required to be

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stated that when 'A' is posted in place of 'B' from one place to another then only there will be a vacancy of 'A' and 'B' can be posted at the place of 'A'. If 'A' is lifted and his posting is kept in lurch and 'B' is posted vice-A such practice cannot be appreciated and deserves to be rather deprecated and the reason being that the officer who is lifted from one place is not certain at which place he has to join the duty and unless he joins the duty at different place, it cannot be said that vacancy in law had arisen at his original place. So long as there is no vacancy at the original place, the question of posting is without any foundation. Hence, the said transfer order can be said to be with the exercise of legal malafide."

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This judgment has been followed by co-equal

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Benches of this Court in several later judgments including the following:-

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1. Kanteppa v. The State of Karnataka reported in 2020 SCC OnLine Kar 3348;

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2. H K Puttalakshmi v. Commissioner of Animal Husbandry and Veternary Department and others in W.P.No. 20922/2016 (S-KAT);

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3. M. Aran Prasad v. The Commissioner of Excise and others reported in 2017 SCC OnLine Kar 6746 ;

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4. N. Mohammed Zubair v. The State of Karnataka reported in 2019 SCC OnLine Kar 3717;

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5. Murthy v. The State of Karnataka and others reported in 2022 (6) KLJ 93 .

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Further, in the transfer guidelines and circulars issued by the Government as well, it is made clear that transfers are to be effected only to vacant posts only transferring the holder of the post by providing a posting to such person. We are distressed to find that these directions are being observed only in their breach by the Government and the competent authorities. The instant case is one where the breach is all the more obvious. We also refer to the present guidelines for transfer issued after the subject transfers involved in the instant case only to emphasize the point that they do not permit transfers to occupied posts.

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In the above circumstances, we are not inclined to interfere with the order of the Tribunal. However, we are of the clear opinion that it is due to action of the official respondents in issuing order of premature transfer without issuing posting orders that situations arise where parties are driven to Court for procuring posting orders.

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In the above view of the matter, we are of the opinion that the issuance of transfer orders without issuing posting orders to the displaced persons is a practice which cannot be countenanced. We, therefore direct the official respondents to immediately show the petitioner, a place of posting preferably within the District itself, in view of the fact that he has been prematurely disturbed from his place of posting on 11.09.2023. Appropriate orders shall be passed within a period of two weeks from the date of receipt of copy of this judgment.

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