B. Ravi vs The State of Karnataka and Others

B. Veerappa, J.—The above writ petition is filed challenging the order dated 6.10.2015 made in Application No. 5747/2015 on the file of the Karnataka Administrative Tribunal, Bangalore, quashing the notification dated 20.06.2015 posting the petitioner in the place of 2nd respondent (original applicant) with a direction that the 2nd respondent shall continue as Assistant Executive Engineer in National Highway SubDivision at Sringeri in Chickmagalur District till his transfer becomes necessary in public interest or in terms of the Transfer Guidelines issued by the Government. The Tribunal also observed that if the petitioner has taken charge in the said post at Sringeri, he shall hand over charge to the original applicant and go back to his earlier post or he may seek an alternative posting.

The 2nd respondent herein was the applicant before the Karnataka Administrative Tribunal who had filed application No. 5747/2015 challenging the notification dated 20.06.2015 issued by the 1st respondent transferring the petitioner, who was the 2nd respondent before the Karnataka Administrative Tribunal in the place of the applicant contending that he was group ''B'' Officer working as Executive Engineer, National Highway Sub-Division, Sringeri, Chickmagalur District w.e.f. 17.12.2014; he was initially appointed as Asst. Executive Engineer and later he was placed under Rule 32 of the Karnataka Civil Services Rules, 1957. Thereafter his service was placed before the then Irrigation Department by notifications dated 07.04.2011 and 12.12.2014. He further contended that he was working as Executive Engineer discharging his duties to the utmost satisfaction of the officials superiors and through out his service he has maintained an excellent record and he has not received any adverse communication whatsoever questioning his integrity and devotion to duty. When things stood thus, he was in utter shock and surprise even though he could not complete his minimum term in the office of the Assistant Executive Engineer, National Highway SubDivision, Shringeri, he has been displaced prematurely, without posting; even though the name of the applicant does not appear in the entire notification, the 1st respondent without knowing the facts transferred the 2nd respondent to the place of the applicant stating that the services of the 2nd respondent are withdrawn from the Water Resources and posted to Public Works Department by a notification dated 20.6.2015 etc.

The application was resisted by the present petitioner, who was the 2nd respondent before Tribunal, by filing objections and contended that Shimoga Lokayukta Police have raided the house of the applicant and registered FIR in Crime No. 2/2015 under the provisions of Section 13(1)(e) r/w Section 13(2) of the Prevention of Corruption Act, 1988, and the applicant was facing criminal case of dis-proportionate assets of Rs. 86,79,271/-. In pursuance of the same the applicant was suspended on 28.5.2015 and the 2nd respondent has taken charge at Sringeri as Assistant Executive Engineer on 26.6.2015 and the applicant has suppressed the material facts of the case, therefore, he sought for dismissal of the application. The State Government also filed objections before the Karnataka Administrative Tribunal and contended that the notification dated 20.06.2015 before the Karnataka Administrative Tribunal was made in public interest and for administrative exigencies. Therefore, State sought for dismissal of the application.

The Administrative Tribunal, after hearing both the parties by the impugned order dated 6.10.2015, has allowed the application and quashed the notification dated 20.6.2015 holding that the transfer order is premature and the alleged suspension order was subject matter before the Tribunal in Application No. 5790/2015 and Tribunal order dated 11.8.2015 has set aside the order of suspension on the ground of non-compliance of Rule 10(3) of the Karnataka Civil Services (CCA) Rules 1957. Against the said order passed by the Karnataka Administrative Tribunal, the present writ petition is filed by the petitioner.

We have heard the learned counsel for the parties to the lis.

Sri P.B. Vijaya Kumar, learned counsel for the petitioner has contended that the impugned order passed by the Karnataka Administrative Tribunal allowing the application filed by the 2nd respondent is without any basis. The Tribunal has failed to notice that the application was filed by the 2nd respondent suppressing all the material facts of the case including the Lokayukta raid and the suspension order and hence, the Tribunal ought to have dismissed the application for suppression of material facts. He further contended that Clause 6(a) of the Government Transfer Guidelines specifically provides that the Government servant against whom there are serious charges and against whom the Departmental Enquiry proceedings are initiated are pending, should not be posted to sensitive or executive post and should be posted to non-executive posts, where there cannot be interference with the investigation against them. Therefore, the impugned order passed by the Karnataka Administrative Tribunal is contrary to the Government Order dated 7.6.2013. He also contended that the petitioner who was the 2nd respondent before Tribunal reported to duty on 26.6.2015 and has been discharging the duties in the post. Therefore, the applicant could not have been directed to be continued in the said post; that the transfer order has been issued by the 1st respondent in public interest and administrative exigencies. Therefore, he sought to set aside the impugned order passed by the Karnataka Administrative Tribunal.

Per contra, Sri Subramanya Jois, learned Senior Counsel for Sri H.M. Nagendra for 2nd respondent sought to justify the impugned order passed by the Karnataka Administrative Tribunal and contended that displacement of the applicant from the present post is premature as he has been working at Sringeri only from 17.12.2014 and within a span of six months he has been displaced as against the minimum period of stay of three years available to him under the Transfer Guidelines issued by the Government. The posting of present petitioner in the place of the applicant was by political motivation. Therefore, he sought for dismissal of the writ petition.

Sri. H.B. Mahesh, learned Government Pleader appearing for the respondent - State Government has sought to justify the transfer order dated 20.06.2015 and contended that the transfer order was made in public interest and for administrative reasons and government is always at liberty to issue transfer orders under exigencies and the present impugned order was passed in public interest. Therefore, he sought to support the case of the petitioner.

We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties to the lis and perused the entire material on record.

It is not in dispute that the 2nd respondent was working as Superintendent Engineer, National Highways Sringeri w.e.f. 17.12.2014 and during the said period the Lokayuktha Police have raided the house of the 2nd respondent on 28.4.2015 and registered FIR in Crime No. 2/2015 for the offences punishable under the provisions of Section 13(1)(e) r/w 13(2) of the Prevention of Corruption Act, 1988, for having amassed disproportionate wealth to the known sources of income of Rs. 86,79,271/-. The Additional Director General of Police, Lokayuktha on 28.5.2015 has recommended that the 2nd respondent be placed under suspension and shift his lien from the present post to elsewhere; otherwise he is likely to interfere with the investigation conducted by the Lokayuktha Police. Considering the said recommendation the 1st respondent - State Government effected transfer in the Department by an order dated 20.06.2015 and the present petitioner was posted in the place of the 2nd respondent and subsequently the 2nd respondent was placed under suspension on 24.6.2015. It is also not in dispute that before suspension, the concerned Minister approved the proposal on 11.6.2015. All these material facts has been suppressed by the 2nd respondent/applicant petitioner by filing application on 24.6.2015 before the Karnataka Administrative Tribunal. The original records produced by the learned Government Pleader at paragraph 9 of the Notes (Records) clearly indicates that on 6.6.2015 at Sl. No. 162 B. Ravi, the present petitioner was transferred to National Highway Sub Division, Sringeri in the place of the 2nd respondent - Chandrashekarappa, who was suspended. In the records at Page 161 dated 20.06.2015 at Sl. No. 111 B. Ravi was transferred to Sringeri approved by the concerned Minister in public interest and administrative reasons.

It is relevant to state at this stage, that in Clause 6(a) of the Transfer Guidelines dated 7.6.2013 specifically provides that while the Government servant against whom there are serious charges and against whom Departmental Proceedings or criminal proceedings are initiated or pending or prosecution being contemplated shall not be posted to sensitive or executive posts and should be posted to non-executive posts. The same reads as under:-

"Responsibility of competent authority:-

The competent Authority, while effecting transfers/deputations or giving postings may further ensure that,-

(a) The Government servant against whom there are serious charges and against whom departmental proceedings/criminal proceedings are initiated or pending or prosecution is being contemplated, shall not be posted to sensitive/executive posts and should be posted to non executive posts where they cannot interfere with the investigations against them. Further, a Government servant against whom a departmental enquiry/criminal case is pending should not be deputed to a post on his request.

Taking into consideration the said provision found in the Government notification and considering the conduct of the 2nd respondent who has amassed the wealth to the tune of Rs. 86,79,271/- disproportionate to his known sources of income and in view of the recommendation made by the Additional Director General of Police on 28.4.2015. The general Transfer order was passed transferring the present petitioner in the place of the 2nd respondent in public interest and for administrative exigencies. The same is in accordance with law and as such transfer order should not have been interfered with by the Tribunal. No allegations of mala fides are made in the application. The Hon''ble Supreme Court in the case of AIRPORT AUTHORITY OF INDIA Vs. RAJIV RATAN PANDEY AND OTHERS reported in 2010 AIR SCW 321 at paragraph 5 was observed as under:

"5. In the case of State of U.P. and Others Vs. Gobardhan Lal, , while dealing with a matter of transfer, this Court observed that allegations of mala fides must inspire confidence of the Court and ought not to be entertained on the mere asking of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference would ordinarily be made with an order of transfer. That the burden of proving mala fides is on a person leveling such allegations and the burden is heavy, admits of no legal ambiguity. Mere assertion or bald statement is not enough to discharge the heavy burden that the law imposes upon the person leveling allegations of mala-fides; it must be supported by requisite materials. In the present case, as noticed above, at the threshold, no allegations of mala-fides have been pleaded in the writ petition. It is only by way of a supplementary affidavit that allegations of mala-fides have been put forth by the Respondent No. 1 but even such allegations are not supported by any material whatsoever. In a matter such as the present one where plea of mala-fides is not made in the writ petition and the assertion of mala-fides is made for the first time in a supplementary affidavit which too is not supported by any convincing and cogent material, the plea of mala-fides hardly deserved acceptance, prima facie, justifying stay of operation of a transfer order. The High Court has referred to a decision of this Court in the case of Arvind Dattatraya Dhande Vs. State of Maharashtra and others, but in what we have said above, that decision cannot be applied to the facts of the present case. In the writ petition, the transfer order has been assailed by the present Respondent No. 1 on the sole ground that it was violative of transfer policy framed by the appellant. The High Court, did not, even find any contravention of transfer policy in transferring the Respondent No. 1 from Lucknow to Calicut. In a matter of transfer of a government employee, scope of judicial review is limited and High Court would not interfere with an order of transfer lightly, be it at interim stage or final hearing. This is so because the courts do not substitute their own decision in the matter of transfer. In the present case, High Court fell into a grave error in staying the transfer order which, if allowed to stand, may cause prejudice to the administrative functioning of the appellant."

In view of the aforementioned observations also the impugned order passed by the Tribunal cannot be sustained in law. Therefore, the contention of learned Senior Counsel that transfer order made was premature and not in public interest or administrative exigencies are not involved, cannot be accepted.

It is the specific contention of the learned Senior Counsel for the 2nd respondent that posting of the petitioner in the place of the 2nd respondent was politically motivated. The entire original records produced before the Court by the learned Government Pleader does not disclose that such political interference while passing the transfer order. In fact the very petitioner during the present proceedings filed an affidavit on 14.10.2015 stating that he has not made any request for transfer to Sringeri in the place of the 2nd respondent as alleged by the 2nd respondent, which reads as under:-

"I submit that during the course of argument, the 2nd respondent contended that in terms of the order dated 20.06.2015, by which I was posted in place of the 2nd respondent is a request transfer made by me as evident from the note-3 to the order dated 20.06.2015. In my humble submission I respectfully submit that I have not made any request seeking transfer to Shringeri in place of 2nd respondent as alleged by the 2nd respondent. However, in the order dated 20.06.2015 my name appears at Sl. No. 111 and 2nd respondent has not been assigned any place. I also submit that I have not brought any pressure or influence from the politicians requesting to post me in place of 2nd respondent as alleged."

It is relevant to mention here that the transfer order was made on 20.06.2015 and the present application was filed by the 2nd respondent before the Karnataka Administrative Tribunal on 24.06.2015. At paragraph 7 of the application it is specifically stated that he was working as Assistant Executive Engineer and discharging his duties to the utmost satisfaction of the officials superior and he has maintained an excellent record of services and he has not received any adverse communication whatsoever questioning the integrity and devotion to duty; but he has suppressed about the factum of raid by the Lokayukta on 28.04.2015 and registering a Crime in No. 2/2015 under the provisions of Section 13(1)(e) r/w 13(2) of the Prevention of Corruption Act, 1988 for having amassed disproportionate wealth to the known sources of income and the recommendation made by the Additional Director General of Police on 28.5.2015 to suspend him and he was suspended 24.6.2015. Hence, he has not approached the Court with clean hands. Therefore, he was not entitled to the relief sought for. The transfer order dated 20.06.2015 was made in public interest and for administrative reasons, which is clear from the original records produced by the learned Government Advocate. Therefore, the Tribunal was not justified in interfering with the transfer order made by the State Government in public interest.

The records reveal that considering the recommendation made by the Lokayuktha, while effecting the General Transfers in the Department by an order dated 20.06.2015, the petitioner was posted in the place of the 2nd respondent who was to be placed under suspension and subsequently he was suspended on 24.6.2015. However, the suspension order was challenged and it was set aside merely on the technical ground that while passing the suspension order, the authorities have not followed the procedure as contemplated under Rule 10(3) of the CCA Rules. However, it was observed by the Tribunal that the said order does not come in the way of the competent authority in passing a considered order in accordance with law.

In view of the aforesaid reasons and the pendency for the criminal case against the 2nd respondent, for amassing disproportionate wealth to his known sources of income and in view of the Guidelines of the Government Order dated 7.6.2013 and the dictum of the Hon''ble Supreme Court stated supra, the impugned order by the Karnataka Administrative Tribunal is liable to be set aside. Accordingly, writ petition is allowed, the impugned order dated 6.10.2015 made in Application No. 5747/2015 on the file of the Karnataka Administrative Tribunal is set aside. The transfer order dated 20.06.2015 is upheld.