Full Judgment
(Prayer: This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to call for the relevant records pertaining to the case on hand and be pleased to peruse the same and etc.)
1. Rule.
2. Mr. H.T.Narendra Prasad, learned AGA waives notice of Rule.
3. Mr. Balagangadhar, learned Counsel appears for respondent No.2 and waives notice of Rule.
4. With the consent of learned Advocates appearing for both the sides, the petition is finally heard.
5. The present petition is directed against the order dated 03.08.2016 passed by the Karnataka State Administrative Tribunal, (hereinafter referred to as the Tribunal for the sake of brevity) whereby the Tribunal for the reasons recorded in the order has dismissed the application and further has observed that the petitioner is permitted to make representation to the first respondent seeking posting and the first respondent is directed to consider the same and pass appropriate order within one month from the receipt of the representation.
6. The short facts of the case appear to be that the petitioner was posted vide order dated 30.09.2014 at Bailhongal. He did not complete the minimum tenure as per the transfer policy of two years and prior to the expiry of the period of two years, respondent No.2 is posted vice the petitioner vide order dated 29.07.2016 and so far as the petitioner is concerned, he has been lifted from the post where he was working and no order of posting is made simultaneously and as per the said order, the petitioner is supposed to approach before the Government for his place of posting. Under the circumstances, the petitioner approached to the Tribunal by filing the application challenging the transfer order in favour of respondent No.2 and lifting of the petitioner from the post of Executive Officer, Taluk Panchayat, where he was working. The Tribunal after hearing both the sides found that the minimum period of two years was over in October 2016 and the Tribunal found that there was no good ground for interference and the Tribunal found that as no posting is given to the applicant-petitioner, appropriate direction deserves to be given. Under the circumstances, the present petition before this Court.
7. We have heard Mr. Mahesh L., learned Counsel appearing for the petitioner, Mr. H.T. Narendra Prasad, learned AGA appearing for respondent Nos.1 and 3 and Mr. Balagangadhar, learned Counsel appearing for respondent No.2.
8. We may at the outset record that when the matter was considered by us for the first time on 20.08.2016 following order was passed:
We have heard Mr. Mahesh L., learned counsel appearing for the petitioner and Mr. H.T. Narendra Prasad, learned Additional Government Advocate, appearing for respondent No.1 and Mr. Balagangadhar, learned counsel appearing for respondent No.2 upon caveat.
2. Prima facie, it appears that the practice on the part of the concerned authority of transferring an officer from one place to another and the other officer, who is working at the transferred place is directed to approach before the Government for his posting, can be said as ex facie by non-application of mind and without there being any consideration of the fact that at the transferred place, another officer is already working and he is also required to be simultaneously posted at some other place. Then only, the vacancy would be available for the earlier officer. For example, if A is posted, in place of B , B is required to be posted somewhere else by identification of the post. As such, unless the order of transfer of B is passed posting him to any other place in law, there is not vacancy available for A . Prima facie, the method adopted in a reverse cycle not known to law and therefore, if not factual mala fide, it would be a legal mala fide. Hence, we would have stayed the transfer order by ad interim order, but as the charge is already taken over by respondent No.2, before we pass further order, we find it appropriate to direct the State Government to produce the original file and if respondent No.2 is desirous to make any submission by filing statement of objections, he may do so.
3. As the transferring authority is Under Secretary, Panchayat Raj Department, on behalf of the Government, he is also directed to remain present on the next date of hearing. He would also state as to why further appropriate direction should not be issued. The said officer shall be joined as party-respondent No.3 in the present petition. Necessary amendment shall be carried out.
4. Mr. H.T. Narendra Prasad, learned Additional Government Advocate, appears for respondent No.1 as well as the newly added respondent No.3 Under Secretary, Panchayat Raj Department of the State Government.
Hence, notice returnable on 23.08.2016.
Put up on 23.08.2016.
9. Pursuant to the aforesaid order, Mr. S.Ranganagowda, Under Secretary of the Panchayat Raj Department, is present with the original file, which has been made available to the Court.
10. As per the original file after the order dated 20.08.2016, the submissions appears to have been made on 22.08.2016 i.e., yesterday and one option given was to post the petitioner at the same place where he was working and consequently the second respondent to be posted to vacant post of Assistant Secretary (Administration), Belagavi Zilla Panchayat. The second option was to post petitioner at any of the vacant equivalent cadre post. The third option submitted was to post the petitioner at any other place shown in the list at page Nos.51 to 54 which shows 59 vacant posts. The file further shows that the same was placed before the Hon ble Minister and the second option for posting of the petitioner at equivalent post is accepted and as per the said order the petitioner would be required to be posted as Assistant Secretary (Administration), Belagavi Zilla Panchayat. It is under the above circumstances, we need to further consider and examine the matter.
11. We may also record that on behalf of respondent No.2, the statement of objections has been filed, wherein it is interalia at paragraph-11 it has been stated as under:
It is submitted that the Second respondent is having mother at this native place in Bylahongal Taluk and he has to look after his aged mother and has to take care of his family members.
It has been further stated that he has taken over charge on 05.08.2016.
12. The aforesaid record including the statement of objection filed by respondent No.2 shows the following aspects apparent:
1. When respondent No.2 was directed to be posted by way of transfer by the impugned order dated 29.07.2016, the petitioner is not simultaneously posted at any other place.
2. In the order may be of general transfer, nothing is mentioned about the administrative ground, more particularly, on the aspects as to why the posting/transfer order of the petitioner at any place is not passed.
3. The transfer order is passed in contravention of the guidelines, inasmuch as the minimum period of two years was not complete and as per the transfer guidelines if any Officer is to be transferred prior to the expiry of the minimum period of two years, the approval of the Hon ble Chief Minister is required, which has not been obtained.
4. The respondent No.2 appears to have been accommodated by his posting at his native place may be for his personal ground and circumstances.
5. Inspite of the aforesaid prima facie observations by this Court in order dated 20.08.2016 instead of restoring the petitioner at the place where he was earlier working, further order is passed for posting of the petitioner at a different place and the resultant effect is that the impugned transfer order which is subject matter of the petition before this Court is sought to be implemented by posting of the petitioner at a new place which was not mentioned in the transfer order.
13. The aforesaid facts and circumstances goes to show that at the first instance, the transfer order is suffering from legal malafide inasmuch as unless the vacancy was created of the petitioner by transferring him to a different place, the respondent No.2 could not have been posted at the place where the petitioner was working.
14. The second legal malafide is that the petitioner is lifted from the post where he was working prior to the expiry of the minimum period of two years without prior approval of the Hon ble Chief Minister and hence, in contravention to the transfer guidelines dated 07.06.2013. Further by the impugned transfer order posting of respondent No.2 at a place where petitioner was working without there being any transfer or posting of the petitioner appears to have been made to accommodate respondent No.2 at his native place, meaning thereby, there is no administrative exigencies more particularly, when no such administrative exigencies were shown before the Tribunal nor before this Court and hence it can be said on the consideration extraneous to the exercise of the power for transfer of any employee. Further in any case, even after the observations were made by this Court in the order dated 20.08.2016, instead of rectifying the mistake if it was bona fide and posting of the petitioner at his original place, posting of respondent No.2 is maintained and the petitioner is at a later date proposed to be transferred at a different place. Even if later order or the decision dated 22.08.2016 for posting of the petitioner at a different place is considered as transfer order, then also the minimum period of two years as per the transfer policy is not maintained and as per the transfer policy itself the prior approval of the Hon ble Chief Minister is required, if any Officer or any employee is to be transferred prior to the expiry of the minimum period of two years and as such, the approval has not been obtained. Therefore, even second decision dated 22.08.2016 would also be against the transfer policy apart from the aspects that pending the litigation before this Court, the order has been passed which may adversely affect the adjudication of the rights of the parties before this Court, if any new order is passed for posting of the petitioner.
15. In view of the aforesaid, if the order of the Tribunal is considered, we find that the Tribunal has not at all recorded any reasons for non interference to the transfer order nor the Tribunal has considered the aforesaid aspects which were germane to the exercise of power of judicial scrutiny while testing the legality and validity of transfer order. Under the circumstances, we find that the impugned order passed by the Tribunal as well as the transfer order which was subject matter of the challenge before the Tribunal both cannot be sustained in the eye of law and deserves to be quashed and set aside.
16. Since it has been contended on behalf of the respondent No.2 that he has taken over the charge, we find further consequential order also deserves to be passed so far as posting of respondent No.2 and let the competent authority consider for his appropriate posting at the appropriate place.
17. In view of the aforesaid observation and discussion, the impugned order of the Tribunal as well as the impugned transfer order dated 29.07.2016 at Annexure A1 so far as it relates to respondent No.2 and the petitioner is set aside, with the clarification that as a consequence of the order, the petitioner will be entitled to function as Executive Officer, Taluk Panchayat, Bailahongal, Belagavi District and the second respondent will not be entitled to work at that place. However, it would be open to the competent authority to pass appropriate order for posting of the second respondent at the appropriate place considering the administrative exigencies.
18. It is also observed that the present order shall not operate as a bar to the administration to pass any transfer order in future if otherwise permissible in law and at that stage, the rights and contentions of the petitioner as well as of the respondent No.2 shall remain open to be considered in accordance with law.
19. Petition is allowed to the aforesaid extent. Rule made absolute. No order as to costs.