SRI. H.B. MANJUNATH v. THE STATE OF KARNATAKA & Ors

2. Heard learned counsel Sri.Rakshith Kumar for petitioner, learned Additional Government Advocate Sri.Vikas Rojipura for respondent Nos.1 and 2 and learned counsel Ms.Adlene Stephante Mendes for respondent No.3. Perused the entire writ petition papers. 4

3. The petitioner, Revenue Inspector belonging to Revenue Department was posted to work as Revenue Inspector, Moodabidri Hobli, Moodabidri Taluk, Dakshina Kannada District under O.M., dated

29.06.2022 respondent. Under Annexure-A2, O.M., dated 14.06.2025, the petitioner was transferred from Moodabidri to Mulki as Food Inspector. Questioning said O.M. dated

14.06.2025, petitioner was before the Tribunal in the above stated application contending that the transfer of the petitioner is premature and opposed to the transfer guidelines prevailing at that point of time. Respondent No.3 contested the application stating that the third respondent is a regular holder of the post of Revenue Inspector/First Division Assistant whereas the petitioner is holding the posting under Rule 32 of KCSRs, as such he has no right to continue at Moodabidri. The Tribunal under impugned order 5 accepting the contention of the third respondent held that the third respondent being regular holder of the post is entitled to hold the post in view of the judgment of this Court in the case of RAGHURAM SHETTY VS. STATE AND ANOTHER1. Questioning the said order, the petitioner is before this Court in this writ petition.

4. Learned counsel for the petitioner would contend that the petitioner was posted to Moodabidri while he was holding the post under Rule 32 of KCSRs and subsequently he was regularly promoted on

06.07.2024 which was subsequently withdrawn on

26.07.2024. Thus, learned counsel would submit that the Tribunal without considering the contention that petitioner’s transfer from Moodabidri to Mulki is premature, rejected the application. Further, he submits that since the petitioner is a holder of 1 W.P.No.14393/2012 6 Group-C post, minimum tenure at a place would be four years and even before completion of four years, contrary to the transfer guidelines dated 12.05.2025, impugned O.M., transferring the petitioner is issued. Thus, he would pray for allowing the writ petition.

5. Per contra, learned Additional Government Advocate Sri.Vikas Rojipura for respondent Nos.1 and 2 would submit that in the interest of public and administrative exigency, transfer of the petitioner is effected. Hence, he prays for dismissal of the writ petition.

6. Learned counsel Ms.Adlene Stephante Mendes appearing for respondent No.3 would submit that the third respondent is a regular holder of the post whereas the petitioner is posted to hold the post of FDA/Revenue Inspector under Rule 32 of KCSRs. 7 Hence, has no right to continue at Moodabidri. Thus, it is prayed for dismissal of the writ petition.

7. Having learned counsel appearing for the parties and on perusal of the entire writ petition papers, we are of the considered view that it is not a case for interference, for the following reasons: Transfer is not a condition of service and it is an incidence of service. No Government servant has a right to continue in a particular post or a right to seek posting to a particular place or post.

8. It is an admitted fact that the petitioner is holding the post of FDA/Revenue Inspector under Rule 32 of KCSRs whereas the third respondent is a regular holder of the said post. Both the petitioner as well as respondent No.3 are holders of Group-C post who are provided with minimum tenure of four years at a 8 particular place or post, subject to other conditions. The petitioner was posted to Moodabidri under O.M., dated 29.06.2022. By virtue of interim order, the petitioner is continued as Revenue Inspector at Moodabidri till this date. As on this day, the petitioner is nearing completion of his tenure which is till June-

2026. As the petitioner is nearing completion of his tenure at Moodabidri, the contention that it is a premature transfer is not available to the petitioner. The tenure at a place cannot be measured with mathematical precision. It is for the employer or authorities, in the administrative exigencies, who could prematurely transfer by assigning reasons. Therefore, the transfer of petitioner and third respondent could be given effect to from 01.02.2026. For all purposes, the transfer of petitioner and third respondent shall be considered as transfer from 01.02.2026. 9

9. The observation of the Tribunal that third respondent being regular holder of the post is entitled to hold the post in view of the judgment of this Court in RAGHURAM SHETTY (supra) is made without noticing the decision of this Court in B.MADESH VS. STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF FINANCE (EXERCISE) BANGALORE AND OTHERS2, wherein this Court by distinguishing the RAGHURAM SHETTY (supra) at paragraphs 17, 18 and 19 has held as follows: “17. It is true that the posting of the petitioner as Deputy Commissioner of Excise, Bangalore West vide transfer order 1.9.2104 is under Rule 32 of KCSR but the said posting is done after assessing not only the eligibility of petitioner but also the suitability, by the Departmental Promotion Committee constituted by the Government. Though transfer order dated 1.9.2014 cannot be considered as an order of promotion, it can be 2 2014 SCC OnLine Kar 12827 10 certainly said that Government has taken into consideration all relevant criteria before posting eligible officers found in the seniority list with independent charge of the post of Deputy Commissioners of Excise. If respondent No. 3 had not completed one year of service as Deputy Commissioner of Excise, Bangalore West, it would have been certainly contrary to guidelines. His posting is on the basis of his completion of more than one year service as Deputy Commissioner of Excise, Bangalore West and therefore, his transfer accordance with the guidelines framed by the Government vide order dated 20.5.2014.

18. The facts in Raghurama Shetty's case are distinguishable vis-à-vis facts of the present case. The Tribunal has misapplied the decision rendered in Raghurama Shetty's case to the facts of the present case. It has proceeded on a wrong assumption that the petitioner's posting is purely under Rule 32 of KCSR that too against the post which is not vacant. Hence, we are inclined to interfere with the order passed by the KAT. As per the facts in Raghurama Shetty's case, apart 11 posting under Rule 32 of KCSR against the post which was not vacant, authority which had passed the order of transfer was not competent to pass the order of transfer. Both these aspects had not been considered by the Tribunal and the Tribunal had proceeded on the assumption that the petitioner was on deputation and the petitioner had completed 3 years and he had no substantive right. Since the Tribunal has proceeded on a wrong assumption in the present case, the order passed by the Tribunal is illegal and is liable to be set aside.

19. As already said, the facts of the present case are distinct from the facts of the Raghuram Shetty's case. As such the case on hand is not displacing the officer who has not completed one year of service. The posting of respondent No. 3 to Shimoga is in the nature of displacing him by way of a regular transfer, which is based on proper transfer guidelines, more particularly, in view of his stay being more than a year as Deputy Commissioner of Excise, Bangalore West. Since he has put in more than two years of service, 12 the moment the order of transfer is issued, his place has become automatically vacant and hence posting the petitioner as Deputy Commissioner of Excise, Bangalore West with independent charge under Rule 32 of KCSR by virtue of transfer order does not vitiate in any manner. The error so committed by the tribunal is apparent on the face of the record inviting the interference of this Court.”

10. Thus, we do not find any merit in the writ petition and accordingly writ petition stands rejected. Sd/- (S.G.PANDIT) JUDGE Sd/- (K.V.ARAVIND) JUDGE NC CT: bms