Mohammad Rafi Sab Nadaf vs State Of Karnataka

No,Cadre,"Number of

Years

1,2,3

1.,All Group â€" A Posts,3 years

2.,All Group â€" B Posts,

3.,All Group â€" C Posts,4 years

4.,All Group â€" D Posts,7 years

Before we proceed to examine the question raised before this Court, it is to be noted that this Court has consistently held that the guidelines laid",,

down for the purpose of transfer of government servants are to be held to be statutory having force of law. This fact is not in dispute. Keeping the,,

facts and circumstances of the case, we shall discuss the contentions raised before this Court.",,

The first and foremost contention which has been raised by the learned counsel for the petitioner is that the petitioner was working as a President,,

of the Karnataka State Government Employees Association at Mundaragi Unit when the orders dated 10.08.2018 and 13.11.2018 were issued and, as",,

such, there is violation of transfer guidelines at Clause 9 sub-clause (a)(vi). For the purpose of clarity, Clause 9, sub-clause (a)(vi) of the Government",,

Order quoted supra can be referred to. A close reading of the said clause states that a government servant shall not be transferred until the,,

completion of the term for which he has been elected. As could be seen from the records, after the death of earlier President, the petitioner was",,

nominated to hold the post of President and as such, he was holding the said post. No doubt, the above said guidelines prevent a government servant",,

from being transferred until completion of the term for which he has been elected, but, as could be seen from the records, the said term came to an",,

end by January 2019, only because General Elections to Lok Sabha were declared, the election to the Post of President and other Posts has not been",,

held and as such, he is continuing in the said post of President. The guidelines itself clarifies that in case no elections are held within three months of",,

the completion of the said term, he may be transferred. Under the said facts and circumstances, we feel that the right which had accrued to the",,

petitioner does not survive for consideration in view of Clause 9(a)(vi) and it becomes infructuous.,,

The second contention which has been taken up by the learned counsel for the petitioner is that he has been prematurely transferred i.e., before",,

the completion of four years period as indicated in the table in Clause 8. Admittedly, the petitioner was transferred on 15.09.2015 and he took charge",,

on 18.09.2015 as Revenue Inspector at Mundaragi Unit. As per the guidelines, insofar as Group-C employees are concerned, the minimum period of",,

stay at a place of posting is four years. As on the date of the order of transfer, the petitioner had not completed the said period. Though, during the",,

course of arguments, it is submitted by the learned Additional Government Advocate that the said period has been reduced by a period of six months,",,

by bringing an amendment, and if the said fact is admitted, even then the said period is not going to be completed. Be that as it may. Clause No.9(b)",,

prescribes that if an employee is to be prematurely transferred, then under such circumstances, the concerned Administrative Department of the",,

Secretariat have to obtain prior approval of the Hon’ble Chief Minister. It is the submission of the learned Additional Government Advocate that,,

she has not received any instruction from the concerned official as to whether they had obtained any prior approval of the Hon’ble Chief Minister,,

to transfer the present petitioner. In the absence of any such material, this Court is of the opinion that no such prior approval has been obtained as",,

contemplated in the transfer guidelines. It is not the case of the respondents that the petitioner is not suitable for discharging the duties at the place,,

where he was working. On the contrary, the transfer order shows that he has been specially transferred to handle the land acquisition cases and that",,

itself clearly goes to show that no adverse allegations are there as against the petitioner. These aspects have not been properly considered and,,

appreciated by the Administrative Tribunal though it was also made one of the grounds. When certain guidelines have been prescribed for transferring,,

a government servant which has statutory force, any order passed in violation of the said guidelines is liable to be set aside. Keeping in view the above",,

facts and circumstances of the case, we feel that the petitioner has made out a case to set aside the order of the Administrative Tribunal.",,

Accordingly, the writ petition is allowed. The impugned Order dated 22.11.2018 passed by the Karnataka State Administrative Tribunal in Application",,

No.8050/2018 is set aside. Consequently, the orders at Annexures-A4, A8 and A9 to the application filed before the Tribunal, are also set aside.",,