Judgment:
(Prayer: This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the order dated 11.06.2015 passed by the R-1 vide Ann-C and etc.,)
1. The petitioner has challenged the legality of the order dated 11.6.2015 passed by the Additional Secretary to Department of Urban Development, whereby the respondent No.4, Mr,H.T.Krishnamurthy was posted on the post of Chief Officer, Alur Grama Panchayat, the post which was held by the petitioner from 31.7.2013 till passing of the transfer order.
2. The brief facts of the case are that the petitioner Mr. C. Vasudeva was appointed on 17.3.1976 on the post of water supply Helper in the Department of Urban Development. He was posted in town Municipal Council, Holenarasipura. He worked in the said post for ten years. Subsequently, he was transferred to Town Municipal Council, Sakaleshpur. He was promoted to the post of Typists and transferred to Hassan City Municipal Council. Thereafter, he was promoted as First Division Clerk in 1998 and was transferred to Arasikere as First Division Clerk and Assessing Officer. Subsequently, in 2001, he was transferred to Belur Town Panchayat; thereafter, in 2004, he was transferred from Arakalagudu Town Panchayat; he served Arakalagudu Town Panchayat till 2013. By order dated 31.07.2013, he was transferred from Arakalagudu Town Panchayat to the Alur Town Panchayat. He was working as the Chief Officer till the impugned order dated 11.6.2015 was passed. By the said order, while the petitioner has been kept awaiting posting order, the respondent No.4 has been posted as the Chief Officer to the Alur Town Panchayat. Hence, the present petition before this court.
3. Mr. Lohitaswa Banakar, the Learned Counsel for the petitioner has pleaded that according to the Transfer Policy,2001 an employee who has less than two years of service before retirement, he/she should not be disturbed from his/her place of posting. In the present case, the petitioner is due to retire on 31.5.2016. With only 11 month left to his retirement, the petitioner has been transferred without any valid reason. Thus, the transfer policy has been violated by the respondents. Therefore, the impugned order deserves to be set-aside.
4. On the other hand, the Learned Counsel for the State has pleaded that by order dated 31.7.2013 the petitioner was, in fact not transferred from Arakalagudu town panchayat, but was merely adjusted at the Alur town Panchayat. Secondly, according to the order dated 31.7.2013, it was only a temporary administrative decision and the Government had kept the right reserved for itself to transfer the petitioner to his original post. Therefore, the Government is justified in passing the transfer order dated 11.6.2015.
5. Similarly, Mr. A.Nagarajappa, the Learned Counsel for respondent No.4 has vehemently contended that since petitioner had already stayed at the Alur Town Panchayat even on the previous occasion, and that too for a long tenure, the Government was justified from transferring and keeping him awaiting positing order.
6. The learned Council for the respondent has also contended that in the case of R.SURESH vs. THE STATE OF KARNATAKA writ petition no 24622/2015 decided on 22nd June 2015 this Court has held that the transfer policy is not a mandatory one. Therefore, even if there is a condition that would debar the Government from transferring its employees within two years of his retirement, the said policy is not mandatory in nature. Hence the Learned Counsel has supported the impugned order.
7. Heard the Learned Counsel for the parties, perused the record and perused the impugned order.
8. Undoubtedly, in the case of R.SURESH (supra), this Court has held that while the transfer policy may be statutory in nature, ipso facto, it is not mandatory in nature. Item No.9 (a)(i) of the Transfer Policy is as under:
9. Premature/delayed Transfer
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:-
(i) The employee due for transfer after completion of tenure at a place or posting or post has less than two years of service for retirement. ?
10. Item No. 9 clearly used the word generally there should not be any premature transfer . It is clearly indicative of the fact that the policy leaves sufficient discretion in the hands of the Government to prematurely transfer an employee. However the word generallydoes not mean that a transfer can be done capriciously or whimsically or without any valid reason. Item 9 (a)(i)clearly stipulates that, generally a person would not be transferred within two years of his tenure to retire from the service. Such a restriction has been imposed upon the power of the Government for a beneficial purpose-a purpose which is well recognized in service jurisprudence. When an employee is at the last lap of his service, he is inundated with numerous responsibilities, numerous concerns, and is inflicted with numerous anxieties, both with regard the remaining service period, and most importantly, with regard to post-retiremental life that he would be required to undergo. In order to ensure that the transitional period at the fag end of his life is a smooth one, in order to ensure that he has sufficient time to tie up the lose-ends of his service tenure, that he has ample time to move his papers for seeking the retiremental benefit, and for settling any other dispute that his life may face, ample time has to be given to an employee for doing the needful. Keeping this beneficial purpose in mind, the policy is laid down which generally debars the Government from transferring an employee at the dusk of his life. Therefore, before an employee can be transferred within two years of his date of retirement, some extraordinary circumstances or reasons must exist for disturbing his peaceful life.
11. This Court has pointedly enquired from the Learned Counsel for the Government, if there are any unusual, extraordinary circumstances which have compelled the Government to transfer the petitioner from his place of posting? To this query, the Learned Counsel for the State has frankly conceded that no such compelling reason exist. This Court also enquired from the Learned Counsel for the State if the Government has received any complaints with regard to the functioning of the petitioner which could possibly embarrass the department? Even to this query, the Learned Counsel for the State has conceded that there are no complaints registered or pending against the petitioner
12. A bare perusal of the order dated 31.7.2013 clearly reveals that even on the said date, the petitioner was awaiting posting order. Therefore the contention raised by the Learned Counsel of the State that the petitioner is being merely adjusted ?, is an unacceptable plea. Once an employee is awaiting positing order, and once he is posted, obviously it is a transfer order, transferring him from his previous place to a new place.
13. Needlesstosay, having transferred an employee, the Government does continue to reserve the right to transfer an employee even thereafter. Thus, the contention raised by the Learned Counsel for the State that it was a provisional or a temporary administrative decision, is too obvious. Every transfer order, is, after all, an administrative decision which merely places a person temporarily at a given place.
14. Even if a contention raised by the Learned Counsel for respondent No.4 were to be accepted, for the sake of argument, that the petitioner has stayed at Alur on a previous occasion, even then such a stand could not justify the impugned order: firstly, such a stand has not been taken by the State. Even if such a stand were taken by the State, the state is duty bound to keep in mind that presently the petitioner has merely ten more months before he retires. If the State thought him fit to work at Alur Town Panchayat for all these years, the State has failed to show any reason whatsoever for suddenly transferring the petitioner from the Alur Town Panchayat and keeping him awaiting posting orders.
For the reasons above, this Pettion is hereby allowed. The impugned order dated 11.6.2015 is set-aside. The respondent is directed to repost the petitioner with the Alur Town Panchayat till his retirement.