R. Suresh vs The State of Karnataka and Others

Raghvendra S. Chauhan, J.—Aggrieved by the transfer order dated 12.6.2015 whereby the petitioner has been transferred from Ramanagara District Urban Development Cell, Bangalore Rural to Chickmagalur District Urban Development Cell, Hassan, the petitioner has approached this Court.

According to the petitioner while he was working as Assistant Executive Engineer, he was transferred by an order dated 28.8.2013 to Bangalore Rural District. Subsequently, he was promoted in the post of Executive Engineer by an order dated 4.3.2014. By an order dated 12.6.2015, the petitioner has been transferred from Bangalore Rural to Hassan District. Hence, this petition before this Court.

Mr. A. Nagarajappa, the learned counsel for the petitioner has vehemently raised the following contentions before this Court:-

"Firstly, the State has a transfer policy. According to the said transfer policy, the minimum period of stay in a place for those who are working as Group-B officers is three years. However, the petitioner is being transferred prematurely as he is yet to complete three years in the post of Executive Engineer at Bangalore Rural.

Secondly, in the case of Chandru. H.N. Gowda Vs. State of Karnataka and Others, (2011) ILR (Kar) 1585 : (2011) 3 KarLJ 562 : (2011) 4 KCCR 399 SN and in the case of S.N. Gangadharaiah v. State of Karnataka, (Writ Petition No. 58375/2013, decided on 13th April 2015), two Full Bench of this Court have clearly held that "the transfer policy issued by the Government is a statutory in nature." Therefore, according to the learned counsel, the State is legally bound to adhere to the transfer policy. Hence, it cannot transfer an employee until and unless he/she completes the period of three years as far as persons of Group-B are concerned.

Lastly that, in case of Director of School Education, Madras and others v. O. Karuppa Thevan and another (1994 Supp (2) SCC 666), the Hon''ble Supreme Court had opined that if the employee''s children are studying in school, generally the employee should not be disturbed in the middle of the academic year. For the transfer adversely affects the studies of the children. Therefore, the present transfer order deserved to be interfered with."

On the other hand, Smt. Pratima Honnapura, the learned counsel for the State, has pleaded that, it is true that in the Full Bench decisions of this Court, this Court had opined that the transfer policy has a statutory force. However, merely because it has statutory force, does not mean that the provisions of the policy are mandatory in nature. The policy was not meant to tie the hands and feet of the Government in transferring its employees. The policy is merely directory in nature. Therefore, the Government is justified in transferring the petitioner, both in the public interest, and in the interest of administrative exigencies.

Secondly, in the case of O. Karuppa Thevan and another (supra), the Hon''ble Supreme Court has not laid down any universal principle that no transfer orders can be passed in the middle of the academic year. Therefore, according to the learned counsel for the State, since the transfer has been made in public interest and for administrative exigencies, the transfer order is legally valid. It does not call for any interference by this Court.

Mr. D.L. Jagadish, the learned Senior Counsel appearing for respondent No. 4 has adopted the arguments of the learned counsel for the State. Therefore, the pleas raised by the learned counsel for respondent No. 4 need not be reproduced.

It is, indeed, trite to state that the State Government is burdened with the administration of the State. It has to consider as to who is the most suitable person for carrying out a particular work. Therefore, the State Government has been given sufficient flexibility at the joints to decide as to who is supposed to be the best person at a particular place, and the nature of work that needs to be assigned to a particular employee. It is true that both in the case of Chandru H.N. (supra) and in the case of S.N. Gangadharaiah (supra), this Court has held that the Government''s transfer policy is a statutory in nature. But merely because a policy may be statutory in nature, it does not ipso facto imply that it is equally mandatory in nature. To say that guidelines are statutory in nature is merely to hold that they are legally enforceable. But by no stretch of imagination, these two decisions of Full Benches of this Court ever held that the provisions are absolutely mandatory so as to tie the hands and feet of the Government in transferring its employees. To interpret these judgments as putting an absolute bar on the power of the Government would be stretching the ratio of these judgments a bit too far. Such an interpretation of the policy would lead to administrative catastrophe, resulting in collapse of the administration in the State. Therefore, the contention of the learned counsel, that the policy is a mandatory one and cannot be deviated from, is unacceptable.

The transfer policy uses the words "ordinarily", and "generally". These words, by their very nature, indicate that the policy is directory in nature. In extra-ordinary situations, for public good, for administrative exigency, an employee can be transferred by the State.

Even in the case of O. Karuppa Thevan and another (supra), the Hon''ble Supreme Court has clearly opined "although there is no such rule, we are of the opinion that in effecting the transfer, the fact that the children of an employee are studying should be given due weight if exigencies of service are not urgent." Therefore, the Hon''ble Supreme Court has not laid down any universal principle of law that in case the employee''s children are studying in the school, he cannot be transferred by the State. Therefore, even this case does not rush to the rescue of the petitioner.

Needless to say, transfer is an incidence of service. The State Government has sufficient discretion in transferring and posting its employees. Therefore, the Court should generally be reluctant in interfering with transfer order as opined by the Hon''ble Supreme Court in catena of judgments. The jurisdiction of interfering with transfer order is a narrow one. It can only be interfered with if it is at the request of a third party, especially when it is a matter of political interference or suffers from mala fide. However, in the present case, these two grounds have not been canvassed by the petitioner.

For the reasons stated above, this Court does not find any illegality in the transfer order. This petition, being devoid of any merit, is dismissed.