K.V. Sreenivasa Murthy vs C. Munishamaiah and State of Karnataka

Cyriac Joseph, C.J.—The challenge in this Writ Petition is against the order dated 27.3.2006 passed by the Karnataka Administrative Tribunal, Bangalore in Application No. 7762/2005. As per the impugned order, the Tribunal quashed the order No. RD/152/BS1/2005 dated 18.7.2005 (Annexure-''A.2'') passed by the Government of Karnataka transferring and posting Sri K.V. Sreenivasa Murthy, F.D.A., Magadi (petitioner herein) working within the limits of Bangalore Urban District, as Revenue Inspector at Vijayapura Hobli in Devanahalli Taluk, in the place of Sri. C. Munishamaiah (Respondent No. 1 herein). The Tribunal also quashed Annexure-''A.3'' Order No. EST (1) CR 15/05-06 dated 20.7.2005 passed by the Deputy Commissioner, Bangalore Rural District, implementing Annexure-''A.2'' Government Order. Application No. 7762/2005 was filed by Sri. C. Munishamaiah, first respondent herein.

The background of the case requires to be stated. The first respondent was posted as Revenue Inspector at Vijayapura Hobli as per Annexure-''A.1'' order dated 6.11.2002. While the petitioner was working as Village Accountant at Vijayapura Hobli in Devanahalli Taluk, he was promoted and posted as F.D.A. in the Taluk Office, Magadi, as per Annexure-''A.4'' order dated 28.4.2005. A Member of the Legislative Assembly from Devanahalli Constituency submitted a representation to the Minister for Revenue on 7.5.2005 requesting to transfer the petitioner to Vijayapura Hobli as Revenue Inspector. The Minister for Sericulture also sent a letter dated 19.5.2005 to the Minister for Revenue requesting to transfer the petitioner to Vijayapura Hobli as Revenue Inspector. No representation was submitted by the petitioner either to the Minister or any of the authorities in the Government making such a request. The Private Secretary of the Minister forwarded the above mentioned representation and letter to the Revenue Department for necessary action. The Deputy Secretary to the Government (Service) in the Revenue Department noted on the file that the proposed transfer is a premature transfer as the petitioner Sri. Sreenivasa Murthy is working at Magadi only from 5.5.2005 and that Sri. Munishamaiah (first respondent herein) is working at Vijayapura Hobli from 11.11.2002. With the above noting the file was submitted to the Secretary to the Government, Revenue Department. The Secretary to the Government submitted the file to the Minister for Revenue on 27.5.2002 with the observation that "it is not proper to change within a period of two weeks". The Minister for Revenue ordered on the file on 17.7.2005 to "transfer Sri. K.V. Sreenivasa Murthy as Revenue Inspector, Vijayapura Hobli as per the request made by Honbale M.L.A." Thereupon Annexure-''A.2'' Order dated 18.7.2005 was issued by the Government transferring and posting the petitioner as Revenue Inspector at Vijayapura Hobli in the place of the first respondent. However, no posting was given to the first respondent C. Munishamaiah. In implementation of Annexure-''A.2'' order dated 18.7.2005, the Deputy Commissioner, Bangalore Rural District, passed Annexure-''A.3'' order dated 20.7.2005 transferring and posting the petitioner Sri. K.V. Sreenivasa Murthy as Revenue Inspector, Vijayapura Hobli, in the place of the first respondent Sri. C. Munishamaiah. In Annexure-''A.3'' order also, no posting was given to the first respondent. In such circumstances, the first respondent filed Application No.5841/2005 challenging Annexures-''A.2'' and ''A.3'' orders before the Karnataka Administrative Tribunal, Bangalore. Taking note of the fact that the first respondent had already filed a Review Application dated 23.7.2005 before the Cadre Management Authority in terms of paragraph 11 of the Government Order dated 2.11.2001, the Tribunal disposed of the application directing the Cadre Management Authority to consider the Review Application filed by the first respondent and to pass appropriate orders in accordance with law within two weeks from the date of receipt of a copy of the order of the Tribunal. It was also directed that in the meantime, if the first respondent had not been relieved, the official respondents should not give effect to the impugned order of transfer, in so far as the first respondent was concerned, till final orders were passed by the Cadre Management Authority on the Review Application filed by the first respondent. It is not disputed that as on the date of disposal of Application No. 5841/2005, the first respondent stood relieved from the post of Revenue Inspector at Vijayapura Hobli. The Cadre Management Authority rejected the Review Application of the first respondent as per Annexure-''A.9'' order dated 25.8.2000. For rejecting the Review Application, the Cadre Managing Authority stated two reasons:

(i) The impugned transfer order had already been implemented;

(ii) Even though the impugned transfer was a premature transfer, the Government had the power to order such premature transfer in view of Clause 24 of the Government Order dated 22.11.2001 and the Cadre Management Authority cannot review the order of the Government.

Thereafter, the first respondent filed Application No.7762/2005 before the Karnataka Administrative Tribunal, Bangalore, challenging Annexures-''A.2'', ''A.3'' and ''A.9'' orders. The first respondent as well as respondents 2 to 4 filed separate reply statements in the Application. After considering the rival contentions and after perusing the relevant Government file, the Tribunal came to the conclusion that the impugned transfer was in violation of the guidelines contained in the Government order dated 22.11.2001 and that the transfer was not in conformity with the principles governing transfers. Accordingly, the Tribunal held that the impugned transfer was bad in law and quashed Annexure-''A.2'', ''A.3'' and ''A.9'' orders and also directed the official respondents to continue the applicant (first respondent herein) at the place at which he was working before passing the impugned order of transfer.

We have heard Sri. S.V. Narasimhan, learned Counsel for the petitioner, Sri. K. Subba Rao, learned Senior Counsel appearing for the first respondent and have considered the averments contained in the Writ Petition and the materials placed on record.

The first contention raised by Sri. Narasimhan is that the Tribunal erred in interfering with the transfer order on the ground that the transfer was in violation of the guidelines contained in the Government Order dated 22.11.2001. According to the learned Counsel, the Tribunal proceeded on the wrong assumption that the guidelines fire mandatory and any violation of the guidelines will justify the interference by the Tribunal. Learned Counsel contended that in State of U.P. and Ors. v. Gobardhan Lal 2004(2) SCSLJ 42, the Supreme Court held that "even administrative guidelines for 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." Learned Counsel also referred to the decision of the Supreme Court in Mrs. Shilpi Bose and others Vs. State of Bihar and others, , wherein it was held that "even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order, instead affected party should approach the higher authorities in the Department." Learned Counsel also relied on the decision of the Supreme Court in National Hydroelectric Power Corporation Ltd. Vs. Shri Bhagwan and others, wherein it is observed that "unless an order of transfer is shown to be an outcome of male fide exercise of power or stated to be in violation of statutory provision prohibiting any such transfer, the courts or tribunals cannot interfere with such orders as though they were the appellate authorities substituting their own decision for that of the management."

Mr. C.V. Subbarao, learned Senior Counsel appearing for the first respondent submitted that in Sarvesh Kumar Awasthi v. U.P. Jal Nigam and Ors. 2004 S.C.C. (L&S) 523, the Supreme Court held that transfer of officers is required to be effected on the basis of set norms or guidelines and that the power of transferring an officer cannot be wielded arbitrarily, mala fide or an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned.

Having regard to the facts and circumstances of this case, we do not consider it necessary to decide whether the guidelines are mandatory or not. It is sufficient in this case to consider whether the Tribunal was justified in interfering with the impugned transfer even assuming that the guidelines are not mandatory. In State of U.P. and Ors. v. Gobardhan Lal, cited supra, relied on by the learned Counsel for the petitioner, the Hon''ble Supreme Court held that, 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 routine for any or every type of grievances sought to be made. In other words, if the order of transfer is shown to be an outcome of a malafide exercise of power, the transfer can be interfered with. The Supreme Court also held that, even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer of 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 or 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. It implies that if it is shown that the transfer of a particular officer to any place is not in public interest or that the transfer was not necessitated by exigency of service, the transfer can be interfered with. The Supreme Court further held that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, it is shown to be vitiated by mala fides or is made in violation of any statutory provisions. Hence the Supreme Court did not rule out the possibility of interference by the Tribunal or the Courts in a case where the transfer is shown to be vitiated by mala fides. For convenience, paragraphs 7 and 8 of the decision reported in State of U.P. v. Gobardhan Lal 2004(2) SCSLJ 42 are extracted hereunder:

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 conditions of service in the absence of any specific indication to the contra, in the law 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 routine for any or every type of grievance sought to be made. Even administrative guidelines for 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. The Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, no noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provisions.

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, which could assess the niceties of the 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 a mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of its 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.

Even in the decision in Major General J.K. Bansal v. Union of India and Ors. 2005(2) SCSLJ 342, the Supreme Court did not hold that the Courts/Tribunal cannot interfere with a transfer order when it is shown that it is not made in public interest and for administrative reasons or that the transfer order was a result of mala fide exercise of power. On the other hand, the Supreme Court quoting from Mrs. Shilpi Bose and others Vs. State of Bihar and others, , stated that the Courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer order is made in violation of any mandatory statutory rule or on the ground of mala fide.

The facts stated in the earlier paragraphs in this order and the notings from the Government file extracted in the order of the Tribunal clearly demonstrate that the impugned transfer order was not issued in public interest or for administrative reasons. They also demonstrate that the transfer was ordered not on the request of the petitioner but on the request made by a Member of the Legislative Assembly and another Minister who has nothing to do with the Revenue Department. As per the guidelines contained in the Government order dated 22.11.2001, the minimum period of stay at a place in the case of Government servants holding Group-C post is five years. The petitioner was posted on promotion in the Taluk Office, Magadi, only as per Annexure-''A.5'' order dated 6.5.2005. Within two months of his posting at Magadi, he was ordered to be transferred from Magadi to Vijayapura Hobli as per Annexre-''A.2'' order dated 18.7.2005. The first respondent was posted at Vijayapura Hobli as per Annexure-''A.1'' order dated 6.11.2002 and he had not completed the normal minimum period of five years. Either in the Government file or in the order of the Cadre Management Authority or in the reply statement filed by the Government before the Tribunal, no specific administrative exigency was pointed out for granting the request made on behalf of the petitioner within two months of his posting at Magadi or for transferring out the first respondent from Vijayapura Hobli before completing the normal minimum period of five years. Even while considering the review application of the first respondent, the Cadre Management Authority could not point out any valid and justifiable reason for the premature transfer. The only grounds on which the review application was rejected are that the order had already been implemented and that even though the transfer was premature, the Government had the power to order premature transfer and the Cadre Management Authority cannot review the decision of the Government. Apart from the request made by the M.L.A. and the Minister holding charge of another Department, the file does not disclose any administrative reason or exigency or any public interest for disturbing the first respondent from his place or for granting the request made on behalf of the petitioner for posting to a place of his choice. Therefore, the conclusion is irresistible that the impugned transfer was not made in public interest or for any administrative exigency. The impugned transfer was ordered only to oblige the M.L.A. and the Minister who made a representation on behalf of the petitioner. We have no doubt in our mind in holding that it was mala fide exercise of power, totally ignoring the guidelines issued by the Government themselves and without taking into account any public interest or administrative exigency. It only reflects the over anxiety of the Government to extend a favour to the petitioner who was supported and recommended by one M.L.A. and a Minister. It is significant that the petitioner had joined duty at Magadi only in the afternoon of 6.5.2005 and the representation on his behalf was made by the M.L.A., on 7.5.2005. It is obvious that even on promotion from the post of Village Accountant to the cadre of First Division Assistant, the petitioner wanted to continue at Vijayapura Hobli. The very obliging M.L.A. and Minister came to his help and the Government was only too happy to throw into winds its own guidelines and policy for transfer. In such circumstances, the Tribunal was fully justified in quashing the impugned order of the transfer.

It is also to be mentioned that in Mrs. Shilpi Bose and others Vs. State of Bihar and others, , the Supreme Court held that even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order and instead, the affected party should approach the higher authorities in the Department. It is significant that the Supreme Court said that the Courts should not ordinarily interfere. It is also relevant that in this case, the transfer order was passed by the Government itself and hence there was no higher authority in the Department to whom the first respondent could have approached.

In Annexure-''A.9'' order passed by the Cadre Management Authority, it is stated that under paragraph-4 of the Government Order dated 22.11.2001, the Government have the power to order premature transfer. Clause 2.4 of the Government Order No. DPAR 4 STR 2001 dated 22.11.2001 is extracted hereunder:

2.4 Transfer of Government servants shall be made by the Cadre Management Authority only during the months of April and May. However, in extraordinary circumstances relating to a case, transfer may be considered by the Cadre Management Authority beyond the period of transfer for reasons to be recorded in writing and after obtaining the prior approval of the Chief Minister through the administrative department concerned of the Karnataka Government Secretariat.

It is clear from the above provision that in extraordinary circumstances relating to a case, transfer may be considered by the Cadre Management Authority beyond the period of transfer for reasons to be recorded in writing and after obtaining the prior approval of the Chief Minister through the administrative department concerned of the Karnataka Government Secretariat. In the first place, the decision regarding the impugned transfer was not taken by the Cadre Management Authority. It was decided by the Minister for Revenue. Secondly, while ordering the transfer, the Minister has not pointed out any extraordinary circumstance for deviating from the general guidelines. Except the request of the M.L.A., and the Minister, no other reason is recorded in the file. Moreover, it is recorded that the transfer is ordered as per the request of the Hon''ble M.L.A. Thirdly, the file did not disclose that the Chief Minister had granted approval for the transfer. The Private Secretary to the Chief Minister had only forwarded the representation of the M.L.A., and the Minister for Sericulture to the Revenue Department for necessary action. Thus the impugned order of transfer was not even in accordance with paragraph 2.4 of the guidelines contained in the Government Order dated 22.11.2001. The undue hurry and haste in the matter is reflected from the fact that the Government did not even give a posting to the first respondent consequent on his transfer from Vijayapura Hobli.

In the above circumstances, there is no merit in the Writ Petition. Writ Petition is dismissed.