MR. B.K. JAYAPPA v. THE COMMISSIONER FOOD AND CIVIL SUPPLIES AND CONSUMER AFFAIRS DEPARTMENT & Ors.

Judgment

1. THE COMMISSIONER FOOD AND CIVIL SUPPLIES AND CONSUMER AFFAIRS DEPARTMENT, NO.8, CUNNINGHAM ROAD, BANGALORE-560052.

2. MR. N. HANUMANTHARAYA, S/O. ERANNA, FOOD INSPECTOR, TALUK OFFICE, EAST TALUK, K.R. PURAM, BANGALORE-560 064.

(BY SRI. VENKAT SATHYANARAYANA. A, ADV. FOR C/R. SMT. REVATHY ADINATH NARDE, HCGP FOR R-1) ... RESPONDENTS -2- THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO; QUASH THE ORDER DATED 3.9.12 PASSED BY KAT, IN APPLN. NO.3063/12 VIDE ANNEXURE-A AND ETC. THIS WRIT PETITION COMING ON FOR PRLY. HEARING THIS DAY, N.Kumar J. MADE THE FOLLOWING: ORDER Petitioner has challenged in this writ petiton the order passed by the Karnataka Administrative Tribunal, setting aside the order of transfer.

2. For the purpose of convenience, the parties are referred as per their rank referred to in the application before the Tribunal.

3. The applicant - N.Hanumantharaya was working as a Food Inspector in the office of the Deputy Director of Food & Civil Supplies and Consumer Affairs Department, East Range, Bangalore. He has been transferred to Taluk Office, East Range, K.R.Puram, Bangalore, in place of respondent No.2, who in turn has been posted in place of the applicant.

4. The transfer was challenged on the ground that it is premature and malafide. The petitioner has been displaced only with a view to accommodate respondent No.2 in his place. No public interest is involved. It is also contended that in a Disciplinary Enquiry initiated against the respondent No.2, he -3- was found guilty and he was dismissed for the proved misconduct. However, the Appellate Authority has set aside the order of dismissal and imposed a lesser penalty. Prior to the order of dismissal, the second respondent was working in the very same office to which he is now transferred. In spite of aforesaid events, he has been brought back to the same place by transferring the petitioner and therefore he has sought for setting aside the order.

5. The said application was opposed. The Tribunal on consideration of the rival contentions came to the conclusion that the transfer was not in public interest, the transfer of the applicant was premature, and therefore it set aside the order. Aggrieved by the said order, the petitioner is before this Court.

6. Learned counsel appearing for the respondent in the application contended that, a transfer is an incident of service. No government employee can contend that he has to continue in a place for all time to come. In fact the applicant is not transferred out of Bangalore, he is transferred to another office in Bangalore. The Tribunal was not justified in drawing an adverse inference, it has not looked into the records, therefore, the order passed by the Tribunal is vitiated. In support of his contention he relied on the judgment of the Apex Court in the -4- case of State of U.P. and others Vs. Gobardhan Lal reported in AIR 2004 SC 2165.

7. Per contra, learned counsel for the applicant supported the impugned order.

8. In the light of the aforesaid facts and the rival contentions, the point that arises for our consideration is; “Whether any case is made out for interfering wit the order passed by the Tribunal?”

9. In para 8 and 9 of the aforesaid judgment in Gobardhan Lal, the Apex Court has clearly laid down the law on the point. It reads as under: Para 8: It is too late in the day for any Government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra in the governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or -5- routine for any or every type of grievance sought to be made. Even administrative guidelines regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made transgression administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by male fides or is made in violation of any statutory provision. Para 9: A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, assess the niceties administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such -6- as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.

10. From the aforesaid judgment it is very clear that the transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra in the law governing or conditions of service. The order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. The administrative guidelines cannot also be interfered with, as they do not confer any legal enforceable right. However, it is equally settled if an order of transfer is shown to be an outcome of a mala fide exercise of power or validity of any statutory provision or by an authority not competent to do so, the order of transfer can be interfered with.

11. In the instant case, the applicant was appointed to the post where he was working on 9.7.2010. In the normal course he is entitled to be there for a period of five years i.e. up-to July

2015. He has only another 1½ years service to retire. Still he -7- could be transferred from the said post in public interest. In the instant case the person who is transferred to his place is a person who has worked earlier in the said office. For the proved misconduct he was dismissed from service. Now the Appellate Authority has modified the order of dismissal and directed reinstatement. The finding of guilt still hangs on him. It is to accommodate the person who was once dismissed the applicant is transferred. It is time that the authorities though they have absolute powers to effect transfer, should exercise that power in a reasonable manner. For various reasons, the findings of misconduct are set aside. But the fact remains, for the proved misconduct, he was dismissed and it is not yet decided that there is no misconduct. It is only the modification of the order of punishment. When persons are transferred pending enquiry, persons who are found to have committed misconduct after an enquiry are sought to be restored to their original place. An order of transfer made to give effect to such a situation is a clear case of abuse of power. When the Apex Court has declared that the authorities have absolute power to make a transfer, the employees have no right to agitate, it does not mean that when the powers are abused, persons found to have committed misconduct, are restored to the very same place, without any justification, Courts have to keep quite. The Tribunal was -8- justified in interfering with the order of transfer and in setting aside the same. We do not see any justification to interfere with the said order. Hence, no merit. Dismissed. JUDGE Sd/- Sd/- JUDGE AP/-