N Mohammed Zubair vs State Of Karnataka

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Heard Sri Ananth Mandgi, learned Senior Counsel along with Sri Jagadish Patil, learned counsel for the petitioner and Sri Nanjund Reddy, learned",,

Senior Counsel along with Sri K.L.Patil, learned counsel for respondent No.4 and the learned Additional Government Advocate on behalf of",,

respondents 1 to 3.,,

The instant petition has a checkered history. The petitioner had approached the Karnataka Administrative Tribunal (for short ‘the Tribunal’),,

calling in question the transfer order bearing No.SiAaSuE 107 AaSeVa 2018 dated 18.08.2018 produced as Annexure-A7 to the application registered,,

as Application No.6623/2018.,,

Initially the Tribunal was pleased to grant an the interim order of stay staying the operation thereby disabling the 4th respondent from occupying the,,

post in which post the petitioner is working and discharging his duties. Thereafter, the matter was heard and by order",,

10.2018, the Tribunal construing the impugned order as an order transferring the petitioner proceeded to hold that if no posting is shown, the",,

petitioner ought to have reported before the department of Personnel and Administrative Reforms. It further held that the transfer of the petitioner,,

was an Election Transfer (Assembly Elections of 2018) and the elections having been completed, the petitioner ought to have reported back to his",,

previous posting as an officer on special duty with the Hon’ble Speaker, the Legislative Assembly. Holding thus, the Tribunal was pleased to",,

reject the application. Aggrieved, by the same, the petitioner is before this Court in the instant writ petition.",,

This Court by considered order dated 02.11.2018 was pleased to grant interim relief by staying the operation of the impugned order dated,,

18.08.2018 in so far as it related to the petitioner. Further, this Court was further pleased to direct respondents 1 to 3 to give a posting to the 4th",,

respondent. Aggrieved by the interim relief granted by this Court, the 4th respondent approached the Hon’ble Apex Court by way of SLA (C)",,

No.31854/2018. The Hon’ble Apex Court after taking note of the fact that the appeal was directed against an interim order, deemed it appropriate",,

to request this Court to dispose of the pending writ petition expeditiously and preferably within three weeks from the date of receipt of a copy of the,,

said order. The Hon’ble Apex Court further reiterated that part of the interim order directing that the 4th respondent herein and the petitioner,,

being assigned a posting by observing that public interest demands that an official should not be without any posting and also permitted the State to,,

pass such orders in the nature of pro ten arrangement till the petition is disposed of. The Hon’ble Apex Court observed that it is not expressing,,

any opinion on merits and demerits on the arguments advanced by the counsel and further proceeded to adjourn the proceedings to 15.03.2019.,,

Thereafter, the copy of the interim order of the Hon’ble Apex Court was placed before a bench comprising of BVNJ and BASJ on 27.02.2019.",,

After perusing the same, the petition was directed to be listed on 08.03.2019. On account of change of roster, the matter was listed before this bench",,

on 08.03.2019 for the first time. This Court after adverting to the orders of the Hon’ble Apex Court directed to list the matter on 12.03.2019. On,,

12.03.2019, the Court after hearing the learned Senior Counsel on behalf of the petitioner and the learned counsel for the 4th respondent and the",,

learned Additional Government Advocate had ordered and passed a detailed order as below:,,

“During the course of hearing and on perusal of the order of transfer impugned at Annexure-A7 dated 18.08.2018, the notification reads as under:",,

,,

“ .. . ( / ) ,",,

,,

.â€​,,

On a reading and understanding of the above, what one can gather is that the officers whose names are found in the list have been transferred to the",,

place or post detailed against their names. On perusal, it is seen that the name of the 4th respondent is found at Sl.No.5. As against her name, it is",,

ordered as under:,,

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,,

,",,

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.â€​,,

We have perused the impugned proceedings in its entirety. The name of the petitioner does not find a place in column No.2 which details the names of,,

the officers who are supposed to have been transferred under the said order. The impugned order details 15 names in column No.2. The name of the,,

petitioner is not found in column No.2. That apart, the proceedings of the Government of Karnataka has stipulated guidelines in respect of transfer of",,

government servants that had been issued on 22.11.2001. In super-session of the same, the Government Order No.DPAR 2 STR 2017 Bengaluru,",,

dated 27.03.2017 came to be issued and Clause 3 of the said Government Order pertains to Explanation and (d) defines transfer to mean as under:,,

‘Transfer’ means the posting of a Government servant from one headquarters to another headquarters or from one office to another within the,,

same headquarters, to take up duties of a new post or in consequence of a change of headquarters;",,

A note is appended to it which reads as under:,,

“Note:- Movement of a Government servant within the same office/unit from one post to another one or desk/compilation to another one under the,,

same head office shall not be treated as transfer.â€​,,

If the preamble to the impugned Notification dated 18.08.2018 is read in conjunction with clause 3 (d), prima facie we are of the opinion that transfer",,

means movement of a government servant pursuant to posting from one headquarter to another headquarter or from one office to another within the,,

same headquarter to take up duties of a new post or in consequence of a change of headquarter. Implying thereby, there must be an order or",,

proceedings of the government authorizing or sanctioning the posting of the government servant from one post to another post or one headquarter to,,

another post or from one post to another headquarter on account of the change of headquarter. On a plain reading of the impugned notification, we",,

are unable to discern any of the above much any directing the transfer or posting of the petitioner. In that view, the same is put to the learned Principal",,

Government Advocate by the bench. On the bench expressing the above view, the learned counsels have sought time to examine the issue. Hence,",,

.",

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/

Admittedly, the name of the petitioner is found only in the third column i.e, the column pertaining to a place to which the official is transferred.",,

Though, this lacunae is pointed out, no efforts were made by either the 4th respondent or the learned Additional Government Advocate to clarify the",,

lacunae.,,

Per contra, the learned Senior Counsel Sri.D.N.Nanjundreddy would invite the attention of the Court to document No.4 produced along with the",,

memo filed into Court on 02.11.2018 . He would contend that the only grievance of the petitioner was that no place of posting has been shown and,,

that the said grievance has been subsequently addressed by the 1st respondent by its notification dated 29.10.2018. He would point out that the,,

petitioner by the said notification has been transferred to the post of Joint Managing Director, Smart City Project, Hubballi-Dharwad. We have",,

perused the said notification. Though the order reads as an order of transfer, it is interesting to note the details set out at Sl.No.4 of the second column,",,

wherein the name of the officer i.e., the petitioner is detailed and below his name it is described as an officer without posting. Thereby the only",,

inference that can be drawn is that the petitioner is said to have been transferred from no post or office because of the second column. The heading,,

of the second column is as under:,,

“Name of the officer and post i.e., the post which is presently occupied.â€​",,

Admittedly, as pointed out by this Court earlier, under the order impugned, the name of the petitioner is not found in the second column, i.e., in the",,

list of officers who have been transferred. If that be so, the only fall out or the implication that flows is that, the 4th respondent is transferred to an",,

occupied post without the incumbent occupant (petitioner) being transferred out of the post. If that is the inference that is to be drawn in respect of the,,

impugned transfer order, then the reliance on the notification dated 29.10.2018 is of no avail. As the notification does not order his transfer from the",,

post occupied by him i.e., Assistant Commissioner Dharwad Sub-Division to which post he has been validly transferred under the notification dated",,

13.03.2018.,,

The learned Senior Counsel would make an attempt to convince the Court that the omission to include the name in the list of transferred officers,,

i.e., in column (2), is not a material irregularity and that the mere fact that the name of the petitioner is mentioned in the notification would suffice to",,

construe that the official stood transferred. If we have to accept the said contention, it would be virtually amount to creating a legal fiction of deemed",,

transfer.,,

The learned Senior Counsel Sri. D.N.Najundreddy would contend that, even otherwise the order transferring the 4th respondent to the post of the",,

Assistant Commissioner, Dharwad Sub-division is validly made. In that view of the matter, the petitioner as an obedient government servant was",,

required to handover charge and he cannot resist the same and the only option left with the petitioner was to report to the Head of the Department,,

pursuant to the Government Order No.DPAR-2/STR/2017 Bengaluru dated 27.03.2017.,,

The learned AGA would fairly submit that there is no provision under the KCSR Rules or the Transfer Guidelines with regard to the deemed,,

transfer. Rule 8(49) of KCSR Rules defines transfer in a restricted sense, whereas Guideline 3(d) explains transfer in a more inclusive manner, while",,

the note to Guideline 3(d) clarifies that a movement of the government servant in a same unit from one post to the other post and desk etc., is not",,

treated as transfer. Guideline or Instruction 4 deals with the process of transfer and Guideline 5 pertains to restriction of transfer while Guideline 6,,

deals with the responsibility of the competent authority while effecting transfers or giving postings. The use of the very word ‘effect transfers’,,

would indicate that the movements of the officers ought to be preceded by an act of the competent authority which would imply a proceeding. Thus,",,

the contention that the petitioner is deemed to have been transferred in view of the transfer of the 4th respondent to the post occupied by him prima,,

facie appears to be fallacious and fallible.,,

It is also brought to the notice of the Court that, pursuant to the orders of the Hon’ble Apex Court, the 4th respondent has now been appointed",,

as the Joint Managing Director of Hubballi-Dharwad Smart City Project.,,

We have also perused the statement of objections preferred by respondents 1 to 3. Apart from narrating the sequence of events. We do not find,,

any clarifications with regard to the lacunas as pointed out by this Court vide order dated 12.03.2019. Though various arguments are addressed with,,

regard to the deemed transfer and the alleged subsequent transfer order dated 29.10.2018, we are not convinced with the legitimacy and efficacy of",,

the said order. The onus was on the 1st respondent to clarify as to whether the petitioner stood transferred under the impugned order or transferred in,,

the light of the query raised by this Court on 12.03.2019. Unfortunately, the respondents 1 to 3 had maintained a stoic silence.",,

The learned senior counsel appearing on behalf of the petitioner placed reliance on the ruling of the Hon’ble Apex Court reported in 1994 3,,

SCC 434 in the case of State of Orissa Vs. Dr.Sivasanker Lal Bajoria and Anothe rto contend that there can be no appointment against an occupied,,

post. Secondly, he places reliance on the ruling of the Hon’ble Apex Court reported in (2010) 13 SCC 336 in the case of Sant Lal Gupta and",,

Others Vs. Modern Cooperative Group Housing Society Limited and Other,s he would contend that the law does not permit a party to do indirectly",,

what it cannot do directly. Enlarging further he would contend that, if the law mandates that the particular act, act of transfer as in the present case, is",,

required to be done only under an order of transfer, it cannot be gainfully argued that the order of transfer of the 4th respondent ought to be construed",,

as deemed transfer of the petitioner. He would further contend that the Courts cannot legislate what the legislature has designedly omitted. He would,,

place reliance on the ruling of the Hon’ble Apex Court reported in (1999) 6 SCC 82 reported in Ajaib Singh Vs. Sirhind Cooperative Marketing-,,

cum-processing Service Society Limited and Another, to contend that legislation is beyond the scope of the jurisdiction of the courts.",,

Though several contentions have been raised, we find that none of these contentions have been addressed or raised before the Tribunal. In fact in",,

the impugned order paragraph 3 reads as under:,,

“Learned Government Pleader submits that he has not received any instructions or parawise remarks in this caseâ€​,,

It is apparent that there is no active participation of the respondents 1 to 3 in the decision making process and as stated supra, the issue of deemed",,

transfer or the efficacy of the order dated 29.10.2018 have not been considered by the Tribunal. The Tribunal being the final fact finding body, we are",,

of the opinion that the matter be remitted back to the Tribunal to render a finding on merits after adverting to all the facts. It is made clear that, while",,

so remitting the matter to the Tribunal, the finding of the Tribunal that the transfer of the petitioner to the office of the Assistant Commissioner,",,

Dharwad Sub-Division as an election transfer is set aside and the said issue is not left open. As certain other issues have been pointed out by this,,

Court, more particularly with regard to the aspect of deemed transfer, we deem it fit to remit the same to the Tribunal for reconsideration of the",,

application on merits.,,

Accordingly, the impugned order is set aside and it is made clear that the petitioner shall be continued in the post of the Assistant Commissioner,",,

Dharwad Sub-Division till the decision of the Tribunal is rendered or till the petitioner completes the minimum tenure, whichever is earlier.",,

Petition stands ordered in the above terms. In view of the above, there shall be no order as to costs.",,