SMT. NAVEENA A B v. SANITATION DIVISION, KOLAR

Judgment

2. STATE OF KARNATAKA REPRESENTED BY ITS CHIEF SECRETARY VIDHANA SOUDHA, BENGALURU 560001 ADDITIONAL CHIEF SECRETARY, FINANCE DEPARTMENT VIDHANA SOUDHA, BENGALURU 560001. -

6. 2 PRINCIPAL DIRECTOR KARNATAKA STATE AUDIT AND ACCOUNTS DEPARTMENT, TTMC BUILDING, 3RD FLOOR, A BLOCK, SHANTHINAGARA, BENGALURU - 560027. CHIEF EXECUTIVE OFFICER ZILLA PANCHAYATH KOLAR, KOLAR - 563101 EXECUTIVE ENGINEER RURAL DRINKING WATER AND SANITATION DIVISION, KOLAR - 563101. ANIL B R WORKING AS ACCOUNTS SUPERINTENDENT O/O CHIEF EXECUTIVE OFFICER, ZILLA PANCHAYATH, KOLAR - 563101 (NOW POSTED AS ACCOUNTS SUPERINTENDENT O/O EXECUTIVE ENGINEER RURAL DRINKING WATER AND SANITATION DIVISION, KOLAR) …RESPONDENTS (BY SRI. VIKAS RAJIPURA, AGA FOR R1 TO R3, SRI. VIJAYA SIMHA REDDY D.V., ADV. FOR C/R6, V/O DATED: 01.08.2024 NOTICE TO R4 & R5 IS D/WITH.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER OF THE HON'BLE TRIBUNAL DATED 29/07/2024 PASSED IN APPLICATION NO.1592/2024 (ANNEXURE-B) AND CONSEQUENTLY ALLOW THE APPLICATION FILED BY THE PETITIONER ETC. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 26.09.2024, COMING ON FOR PRONOUNCEMENT OF DAY, BASAVARAJA J., PRONOUNCED THE FOLLOWING: JUDGMENT THIS CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN HON'BLE MR. JUSTICE G BASAVARAJA - 3 CAV JUDGMENT (PER: HON'BLE MR JUSTICE G BASAVARAJA)

1. The petitioner in this writ petition is challenging the Order dated 29th July, 2024 passed in Application No.1592 of 2024 by the Karnataka State Administrative Tribunal at Bengaluru (for short hereinafter referred to as the "Tribunal"), whereby the Application filed by the petitioner herein came to be dismissed.

2. We have heard Shri. V. Lakshminarayana, learned Senior Counsel as instructed by Shri. Vikram Balaji and Smt. Anusha.L, learned counsel appearing for the petitioner, Shri. Vikas Rajipura, learned Additional Government Advocate for official respondents No.1 to 3 and Shri. Vijaya Simha Reddy D.V., learned counsel appearing for the caveator/respondent No.6.

3. It is submitted by the learned Senior Counsel appearing for the petitioner that the petitioner was posted as Accounts Superintendent in the office of Executive Engineer, Rural Drinking Water and Sanitation Division, Kolar, by order dated 01st January 2019. Subsequently, she - 4 has been transferred to Zilla Panchayat, Kolar as Accounts Superintendent by order dated 20th January, 2023, which was contested before the Tribunal in Application No.411 of

2023. This application was dismissed on 13th February, 2024, prompting the petitioner to challenge the dismissal in Writ Petition No.11101 of 2023 before this Court.

4. It is submitted that, subsequently, the petitioner was transferred again on 13th February, 2024, which was challenged by one Mr. Mukhtiyar Pasha in Application No.815 of 2023 before the Tribunal. The Tribunal quashed the transfer order on 27.03.2023, holding that the transfer was made based on the note of former Member of Legislative Assembly, Shri Vartoor Prakash without obtaining prior approval from the Chief Minister. Aggrieved by the order of the Tribunal, the petitioner filed Writ Petition No.8497 of 2023, wherein this Court granted an interim stay on 18th April, 2023.

5. It is further submitted that pursuant to the interim order dated 18th April, 2023, the Government issued - 5 a fresh posting order on 25th May, 2023, posting the petitioner as Accounts Superintendent in the Department of Rural Drinking Water and Sanitation Division, Kolar. The said posting order conferred tenure of two years starting from 25th May, 2023, thus rendering previous service records irrelevant.

6. It is also submitted that while the aforementioned writ petitions were still pending, the sixth respondent was promoted and posted as Accounts Superintendent on 12th January, 2024, to the office of Chief Secretary, Zilla Parishad, Kolar. Within two months, based on the request of an Member of Legislative Assembly, KGF, the respondent No.6 was transferred to the petitioner’s post. The petitioner asserts that this transfer, influenced by political pressure, is in contravention of Clause 12 of the Government Order dated 07th June, 2013, which explicitly prohibits transfers based on political influence.

7. It is submitted that this Court, in its judgment dated 28th February, 2020 in Writ Petiton No.212920 of - 6 2020, held that any transfer influenced by elected representatives constitutes a mala fide exercise of power and reliance of the Tribunal on such politically motivated instructions to justify the transfer order dated 12th March, 2024, is contrary to the established legal principles and the State Government’s transfer policy. Aggrieved by the order of the Tribunal, the petitioner is before this Court.

8. It is contended by the learned Senior Counsel appearing for the petitioner that the impugned transfer order, issued at the behest of Member of Legislative Assembly, constitutes a mala fide exercise of power. The said transfer is alleged to have violated the principles laid down by the Tribunal in Application No.815 of 2023, wherein it was held that political influence should not dictate transfer decisions. While the interim order was in effect, the issuance of the transfer order during the pendency of Writ Petition No.8497 of 2023 and Writ Petition No.11101 of 2023, amounts to interference with administration of justice. - 7

9. It is further contended that the fresh transfer order issued on 25th May, 2023, after quashing of the earlier transfer dated 13th February, 2023, was intended to commence a new tenure. Thus, any assertion that the two- years’ tenure of the petitioner is completely erroneous, as the tenure, by the respondents' own guidelines, should be calculated from 25th May, 2023.

10. It is contended that after quashing of an earlier transfer order dated 13th February, 2023, a fresh transfer order was issued on 25th May, 2023, which the petitioner claims should be treated as an independent order granting a new two years tenure starting from that date. Thus, the respondents’ assertion that the petitioner has completed the required tenure, is factually incorrect and the Tribunal erred in interpreting the Transfer Guidelines dated 07th June, 2013, which mandate a minimum tenure of five years for deputation, and not two years as concluded by the Tribunal.

11. That according to the petitioner, the subsequent order of the State Government dated 15th September, 2023, - 8 reaffirming the guidelines of 30th October, 2012 mandates that, only officials from the State Accounts Department should be appointed to "B" Group gazetted posts in the Accounts Department. The petitioner's position is that the transfer order could not stand under this directive, especially as it was influenced by political recommendations, evidenced by a letter dated 09th February, 2024 from Member of Legislative Assembly, to the Chief Minister.

12. It is contended that the Tribunal's reliance on political influence is deemed unlawful, especially in the light of Division Bench ruling in Writ Petition No.212920 of 2020 dated 28th February, 2020, which held that transfers initiated due to political pressure constitute a misuse of power. The petitioner highlights that the transfer of respondent No.6, within merely two months of their promotion on 12th January, 2024, was unwarranted and based solely on the letter of Member of Legislative Assembly, without any valid administrative reason. - 9

13. It is contended that the Tribunal ignored the effect of the interim stay granted by this Court on 18th April, 2023 in Writ Petition No.8497 of 2023. This stay was operational at the time the subsequent transfer orders were passed, rendering them illegal. Additionally, the Tribunal failed to consider Clause 12 of the Government Order dated 07th June, 2013 clearly prohibits transfers influenced by political pressure.

14. It is contended that the Tribunal erred in its findings by not recognizing the independent tenure right from the fresh order dated 25th May, 2023. The Tribunal only addressed two grounds in its decision, neglecting the broader arguments presented. The petitioner, therefore, seeks to set aside the order of the Tribunal dated 29th July, 2024 in Application No.1592 of 2024 and requests this Court to consider the petitioner's case on its merits, given the apparent procedural lapses and unjustified exercise of administrative power. - 10

15. In support of the contentions, the following decisions are relied on:- • Shyam Dutt v. Ashok Kumar and Another, reported in AIR 2007 HP 93; • Ramesh B. Desai and Others v. Bipin Vadilal Mehta and Others, reported (2006) 5 SCC 638; • S.G. Badinath v. Jagannathan and Another, reported in AIR 2004 Mad 161; • Sri. Anil B.R. v. The State of Karnataka, by Order

21.06.2024 passed W.P.No.11371 of 2024 (S-KSAT) and connected matters; • The Central Ware Housing Corporation v. Central Bank of India Ltd., Hyderabad and Another, reported in Andhra Pradesh Law Journal 1973 (2); • HCL Info Systems Ltd. v. Anil Kumar, reported in 2007 SCC OnLine Ker 513; • Banyan Tree Holding (P) Limited v. A. Murali Krishna Reddy & Another, reported in 2009 SCC OnLine Del 3780; and - 11 • M/s. BTV Kannada Private Limited v. M/s. Eaglesight Media Private Limited (ESMPL), by Order dated 07.06.2024 passed in Civil Revision Petition No.426 of 2023 (IPR).

16. On the other hand, it is contended by the learned Additional Government Advocate, that the petitioner is not entitled to any relief. The petitioner was not relieved from her post due to the stay order granted by this Court on 18th April, 2023, primarily on the grounds of her maternity leave and the non-vacancy of the post. The petitioner has already served beyond the mandatory period of two years' tenure for Group 'B' officers, as per the Government Order dated 07th June, 2013, which stipulates a minimum tenure of two years. By relying on the decisions of the Division Bench of this Court in the case of R.D. Ramdas v. State of Karnataka reported in 2022 (6) KLJ 21 and M.K. Yoganandamurty v. Sri B.K. Naveen and others in W.P.No.1757/2022, it is argued that transfers within a commutable distance, are permissible and hence, the - 12 impugned order does not warrant any interference by this Court.

17. It is contended by the learned counsel appearing for respondent No.6 that both the petitioner and respondent No.6 belong to the State Accounts Department, holding Group 'B' posts and the transfer order dated 12th March, 2024 issued by the competent authority complies with the guidelines of the Government Order dated 30th October,

2012. The respondent No.6 is duly qualified for the position of Accounts Superintendent, having been posted to Zilla Panchayat, Kolar, without causing any change of location or hardship to the petitioner. Furthermore, it is argued that the petitioner's challenge against the earlier Tribunal's order in Application No.411 of 2023 and the subsequent Writ Petition No.11101 of 2023 lacks merit, as the impugned transfer order was issued in compliance with applicable norms.

18. In support of the contentions, following decisions are relied on:- - 13 • Mohd. Masood Ahmed v. State of U.P. and others, reported in (2007) 8 SCC 150 and • Pubi Lombi v. State of Arunachal Pradesh and others, reported in 2024 SCC OnLine

19. We have given our anxious consideration to the contentions advanced by the learned counsel appearing for the parties and perused the order impunged. It is not in dispute that the order passed by the Tribunal in Applications No.1592 of 2024; No.815 of 2023; and No.411 of 2023 were challenged before this Court in Writ Petition No.11371 of 2024 connected with Writ Petitions No.8497 and 11101 of

2023. Vide order dated 21st June, 2024, this Court (of which one of us is party), disposed of the said writ petitions. The Order passed in the above Writ Petitions reads thus: “Heard the learned Senior counsel appearing for the 6th respondent and learned counsel appearing on either side.

2. The learned Senior counsel appearing for the 6th respondent in WP No.11371/2024 submits application filed by the 6th respondent who was applicant before the Tribunal is still pending consideration and that the issue with regard to transfers and postings have to be - 14 decided now, taking note of the changed circumstances by the Tribunal.

3. It is submitted that it was only from an interim order passed by the Tribunal, WP No.11371/2024 is filed.

4. Learned counsel appearing for the private respondents in WP No.8497/2023 submits that on account of further posting orders, nothing survives for consideration in WP No.8497/2023.

5. Having considered the contentions advanced and in view of the fact that the application in which the interim order was passed which is the subject matter of WP No.11371/2024 is still pending before the Tribunal, we are of the opinion that the matter is now to be considered by the Tribunal, taking note of the actual situation as available at present. In above view of the matter, all the writ petitions are disposed of.

6. With regard to the 4th respondent in WP No.8497/2023, it is submitted that on account of further orders passed which were the subject matter of application No.1592/2024, the 4th respondent has no further grievance. In view of the fact that he has completed his tenure at his present place of posting, all that is required in the issuance of fresh posting orders. The said writ petitions are therefore disposed of.

7. WP No.11371/2024 is disposed of directing the Tribunal to take up the application No.1592/2024, consider the contentions and decide the same on merits. - 15

8. With regard the 4th respondent W.P.No.8497/2023, the competent among the official respondent shall issue posting orders to the said respondent within the period of 3 weeks from today.”

20. The order impugned passed by the Tribunal in Application No.1592 of 2004 was disposed of directing the Tribunal to take up the said Application, to consider the contentions and to decide the same on merits. Pursuant to the order dated 21st June, 2024 passed by this Court, the Tribunal took the Application on 29th June, 2024 and passed the impugned order. Upon perusal of the averments made in the application, as well as the contentions advanced by the learned Counsel for the parties, the Tribunal, has, at paragraphs 8 to 12, observed as under: “8. It is not in dispute that applicant was posted as Accountants Superintendent in the office of respondent No.5 on 01.01.2019. The minimum tenure for Group ‘B’ officer is two years as per Transfer Guidelines (then applicable) dated

07.06.2013. The applicant has completed more than five years of service in the present place and learned Counsels for respondents contents that the there is no merit in the contention of the applicant.

9. On examination of all Annexures placed by the applicant and the respondents we do not find any strong reasons on behalf of the applicant. The applicant has pleaded - 16 that the she is under order of retransfer vide order dated

25.05.2023 (Annexure-A10) and 13.02.2023 (Annexure-A3). On perusal of these orders it is clear that the orders were passed merely continuing the applicant in view of Court orders and there is no mention of “retransfer” in the said order. As such the applicant seeking any benefit does not arise.

10. The other ground urged that during the stay order being operational the impugned order affecting the transfer was issued. From the available records it is revealed that pursuant to the aforesaid interim order of stay dated

18.04.2023 of Hon’ble High Court, order dated 25.05.2023 was issued and applicant was continued at present place of work in Kolar and respondent Shri Mukthiyar Pasha was continued at Chikkaballapura subject result of W.P.No.8497/2023 (S-KAT). Learned Counsel for respondent No.6 has filed memo dated 11.07.2024 enclosing therewith Final order dated 21.06.2024 passed by Hon’ble High Court in W.P.Nos.11371/2024 (S-KSAT), 8497/2023 and 11101/2023 in which Hon’ble High Court in their judgment has directed to consider matter taking note of actual situation available at present and disposed of all the writ petitions and directed to consider A.No.1592/2024 on merit. In view of this judgment there is no impediment to consider this application on merit.

11. On the ground that this transfer order issued on proposal generated by KGF MLA. On perusal of facts a letter has been sent by Dr. Roopkala MLA, KGF dated 09.02.2024 with two names, applicant and respondent No.6 for a mutual transfer. On receipt of this letter the Additional Chief - 17 Secretary, Finance Department has issued a letter dated

22.02.2024 therewith 4 names recommended by MLA, KGF and others by directing the respondent No.3 to submit proposal for appropriate action (Annexure-A14). It is a settled law that an elected representation can only propose the transfer of an employee. In the present case the proposal was submitted to Hon’ble Chief Minister by MLA, who in turn has sent this to ACS Finance (Hon’ble Chief Minister also being Finance Minister) who in turn has sent to the competent authority of the administrative department who is the competent authority to issue order of transfer. On perusal of records we find no arbitrariness in the impugned order. The applicant has continued in the said post beyond completion of her tenure since 01.01.2019. Respondent No.6 also from SAD department was recently promoted and is posted in place of applicant and is eligible to hold the post of Accountants Superintendent. As per the impugned Official Memorandum dated 12.03.2024 the 6th respondent herein has been posted to the aforesaid post held by the applicant as Accounts Superintendent in the office of the 5th respondent Executive Engineer, Rural Drinking Water and Sanitation Division, Kolar and the applicant has been posted to the post held by the 6th respondent herein as Accounts Superintendent in the Office of the 4th respondent Chief Executive Officer, Zilla Panchayat, Kolar. Both posts are in Kolar only. As per the aforesaid order the applicant has been given specific posting in Kolar Town only and therefore there would be no hardship to the applicant as per the said present order. Further as discussed above, the applicant has already completed more than the normal tenure of 2 years in her present place of work and the said transfer order has been passed by the competent - 18 authority. Added to that, the Hon’ble High Court in the case of R.D Ramdas Vs. State of Karnataka reported in 2022(6) KLJ 21 and, M.K. Yoganandamurty Vs. Sri B.K. Naveen and others W.P.No.1757/2022 (S-KSAT) decided on 22.02.2022, in view of that applicant is posted in communicable distance, as challenge is not permissible.

12. Hence, the aforesaid impugned order dated

12.03.2024 of the 3rd respondent herein posting the 6th respondent a Group-B officer of the 3rd respondent Department to the aforesaid post held by the applicant, a Group-B officer of the same 3rd respondent Department is proper and legal and the same is in accordance with Guidelines as per the Government Order dated 30.10.2012. We find no violation of guidelines in the impugned transfer order.”

21. Perusal of the impugned order makes it clear that the Tribunal, upon perusing the averments made in the Application as well as considering all the contentions urged by the parties, has passed the well-reasoned order, which cannot be found fault with. The contentions advanced by the learned Senior Counsel in this writ petition, are already considered by the Tribunal. Upon re-examination and reconsideration, we do not find any illegality/infirmity in the order impugned passed by the Tribunal. - 19

22. In the result, there is no water in the writ petition. Accordingly it fails and is hereby dismissed. Sd/- (ANU SIVARAMAN) JUDGE Sd/- (G BASAVARAJA) JUDGE