Doddaiah vs The State of Karnataka

Rathnakala, J.—In the instant case, the petitioner is questioning the correctness of the order dated 15.9.2014 passed in Application No. 6609/2013 on the file of the Karnataka Administrative Tribunal at Bangalore (hereinafter referred to as ''the Tribunal''), vide Annexure-A wherein the Tribunal has quashed the order dated 27.9.2013 passed by the State in transferring the applicant before it i.e., fourth respondent herein, reserving liberty to the competent authority to transfer him by posting a regular holder of the post of Revenue Inspector, by following the transfer guidelines.

Sri. D.N. Nanjunda Reddy, learned Senior Counsel appearing for the petitioner submits that, petitioner was working as a Village Accountant and was promoted as Revenue Inspector on 4.4.2005. The fourth respondent was posted to Kasaba Hobli as Revenue Inspector in the year 2005. On the allegation of serious misconduct, a case was registered against him before the Karnataka Lokayuktha. After enquiry, he was recommended for imposition of penalty under Karnataka Civil Service (Classification, Control Appeal) Rules, 1957 (''the Rules'' for short). Consequently, he was compulsorily retired from service. He challenged the said order before the Tribunal and by virtue of interim order, he is continuing in service. Petitioner was transferred vide official memorandum dated 27.9.2013 to the post of Revenue Inspector on independent charge under Rule 32 of the Rules to Kasaba Hobli, Srirangapatna Taluk, in the place of fourth respondent, consequently, the fourth respondent was transferred as First Division Assistant in Srirangapatna Taluk Office. In fact, petitioner got himself relieved and reported to the post of Revenue Inspector to the transferred place. But fourth respondent in the meanwhile approached the Tribunal and was successful in obtaining an interim order of stay of transfer order. In view of the stay order, fourth respondent is continuing in the same post for more than four years, as such, it was not a transfer to the fourth respondent since he was accommodated in the same office as First Division Assistant. By virtue of an interim order passed by the Tribunal, he is continuing in the position of Revenue Inspector. Though he is not eligible under Rule 32 to continue in the same place, the Tribunal by misinterpreting the order of this Court in W.P. No. 14393/2012 held that his (petitioner''s) transfer was not proper. The fourth respondent is not at all entitled to continue in the present post since he is already recommended for compulsory retirement under Rule 8(iv) of the Rules.

In reply, Smt. K.R. Indira, learned Counsel for the fourth respondent submits that, the petitioner is not entitled to work in the regular post of Revenue Inspector since he is promoted under Rule 32 of the Rules. The Tribunal having observed that the transfer is not in accordance with the transfer guidelines, has quashed his transfer. Though he is working in the said post for more than three years, the Tribunal has given liberty to the Government to transfer him by posting a regular holder of the post of Revenue Inspector. Hence, no illegality is committed by the Tribunal and the matter does not call for invoking the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India.

After hearing the rival submissions and also on perusal of the order of the Tribunal, following point arises for our consideration:

"Whether the Tribunal was justified in interfering with the transfer order in question?"

Since both parties did not concur with each other about the years of fourth respondent''s stay at Srirangapatna, learned Additional Government Advocate was directed to furnish the details of the service. Accordingly, he submitted that the fourth respondent served as Revenue Inspector from 6.4.2005 to 23.8.2007 at Kasaba Hobli, Srirangapatna taluk; from 24.8.2007 to 15.7.2009 he was on deputation as Revenue Inspector at K. Shettihalli, 1st Circle, Srirangapatna taluk and from 15.7.2009 till date, he is working as Revenue Inspector at Kasaba Hobli, Srirangapatna taluk. The transfer order in question is dated 27.9.2013. That being so, as on 27.9.2013, he had completed four years of service in the same place and this was in accordance with the transfer policy of the Government dated 10.6.2013 published in the official gazette dated 20.6.2013, which contemplates the minimum period of stay for Group-C employees in one place of work is four years. It is also a fact that, he was imposed penalty of compulsory retirement on the allegation of misconduct, vide order of the Government dated 5.9.2012. Immediately he had challenged the order before the Tribunal in Application No. 6176/2011. By virtue of the interim order granted in the said case, he is continuing in service till date. It is evident from the objection statement filed by the writ petitioner before the Tribunal that, these facts were brought to the notice of the Tribunal. Despite the same, the Tribunal without addressing the substantial right of the applicant (fourth respondent herein) to challenge the impugned order has hastened to pass the impugned order placing its reliance on a para extracted from the judgment of this Court in W.P. No. 14393/2012 (S-KAT). By observing that the petitioner herein was holding the post of Revenue Inspector under Rule 32 of the Karnataka Civil Services Rules cannot displace the fourth respondent, who is holding his regular post of Revenue Inspector, the petition is allowed by brushing aside all the contentions raised by the writ petitioner.

There is no discussion in the body of the impugned order as to what was the facts involved, and under what circumstances, this Court made observation to the effect that, existence of vacant post is sine qua non for application of Rule 32, which does not deal or make a distinction in respect of persons holding the post on deputation or the person, who is holding the post by way of regular promotion in the same Department. The observation made by this Court in respect of particular facts and circumstances of the case therein is not properly perceived by the Tribunal.

The much vexed Rule 32 of the KCSRs reads thus:

"Rule 32:- Instead of appointing a Government servant to officiate, it is also permissible to appoint him to be in-charge of the current duties of a vacant post. In such a case a "charge allowance"(additional pay) is payable as specified in Rule 68.

Note(1):- A Government servant can be appointed under this Rule to be in-charge of the current duties of a vacant post only if he is eligible to be promoted to officiate in that post according to the Cadre and Recruitment Rules applicable to that post or if he is holding a post in a equivalent or higher grade.

Note(2):- The provisions of this Rule apply also to case where a Government servant being relieved of his own appointment is appointed to be in independent charge of a higher appointment as a temporary measure".

(emphasis supplied)

As per the particulars furnished by the learned Additional Government Advocate, the petitioner herein has been working under Rules 32, in the cadre of regular Revenue Inspector from 4.4.2005 and as on the date of the order, he was working at Malavalli Taluk, B.G. Pura, 1st Circle. Hence, he is not disqualified for a posting to a regular vacancy of Revenue Inspector as enumerated in Note I of Rule 32 i.e., "......if he is holding a post in an equivalent or higher care....."

We are at a loss to understand how the Tribunal could consider the case of the applicant who is continuing by virtue of an interim order granted in an earlier application filed by him in the year 2011. Had if the earlier petition taken up firstly for consideration and disposed of, then the Tribunal would have been in a better position to adjudicate the present application on the basis of his substantial right being prejudiced by the transfer order.

It is now well settled by recent decisions of the Apex Court that Courts or Tribunals cannot sit in appeal over administrative decisions of transfer of government officials. The transfer is an incidence of service. The order of transfer can be challenged only on two grounds viz., its being in violation of statutory rules or malafide (vide (1) AIR 1992 SC 2444 - Union of India & Ors. v. S.L. Abbas; (2) 1995, SCC L&S 666 -State of Madhya Pradesh & another v. S.S. Kaurav & Ors.; (3) Rajendra Roy Vs. Union of India (UOI) and Another, . In the present case, there is no allegation of malafide intention nor the transfer is shown to be contrary to any statutory rules.

It is visible from the very nature of the litigation, that the matter is "kissa kursi ka -fight for the chair". After all it was not a transfer but just a change of work in the same office. In its objection statement filed before the Tribunal itself, the petitioner has brought to the notice of the Tribunal that, the fourth respondent has been transferred to a non-executive vacant post of First Division Assistant in the same taluka office. With a hidden agenda to avoid the non-executive post, the fourth respondent has approached the Tribunal. As per the present transfer policy, if an official is proposed for termination, he shall not be posted for sensitive or executive post and shall be posted to the non-executive post where he cannot intrude. In that view of the matter, the change of vacancy of fourth respondent to a non-executive post of First Division Assistant is justified and the order of the Tribunal is not only against the guidelines of the transfer policy of the State, but also against the settled legal principles.

While parting, we deem it appropriate to place on record our disapproval to the way in which remedy made available by the Constitution of India, is abused. We deprecate the trend of officials in rushing to the Courts and Tribunals whenever they are assigned with posts not to their choice. The administrator knows it better whom to post where in the interest of the public. Interference in the transfer orders, which are not tainted with malafide or illegality is nothing but intervention in public administration and transgression of jurisdiction. Hence, the order of the Tribunal is not sustainable.

Accordingly, the writ petition is allowed.

The impugned order dated 15.9.2014 passed in Application No. 6609/2013 on the file of the Karnataka Administrative Tribunal at Bangalore, is hereby quashed.