S.A. Ram Prakash vs The State of Karnataka and Others

Raghvendra S. Chauhan, J.—With the consent of learned Counsel for the parties, this case is being decided at this stage itself.

The petitioner is aggrieved by the transfer order dated 24.2.2015 whereby petitioner has been transferred from Shidlaghatta to City Municipality, Chintamani as the ''Revenue Officer''.

The brief facts of the case are that on 1.1.2005 the petitioner had entered the services as ''Revenue Officer''. In the year 2007, he was posted as ''Chief Officer'', Town Municipal Council, Hoskote. However, by order dated 30.5.2013, he was suspended. Subsequently, his suspension order was revoked on 17.1.2014, and he was posted as ''Chief Officer, Town Municipal Council, Shidlaghatta. But, within five months of his joining the post at Shidlaghatta, he was transferred to Chintamani as ''Revenue Officer'' by Transfer order dated 19.7.2014; in his place, Mr. V. Nagaraj, Respondent No. 3 herein, was posted as ''Chief Officer'', Shidlaghatta. Since the petitioner was aggrieved by the transfer order dated 19.7.2014, he filed a writ petition before this court, namely WP No. 35193/2014. Initially, this Court stayed the said transfer order. However, by order dated 5.11.2014, this Court dismissed the writ petition. Subsequently, by Notification dated 6.12.2014, the Government cancelled the earlier transfer order dated 19.7.2014 and continued the petitioner as ''Chief Officer'', Shidlaghatta. However, by order dated 24.2.2015, the petitioner has been transferred as ''Chief Officer'', Shidlaghatta, to Chintamani as ''Revenue Officer'', and in his place, the Respondent No. 3 has been posted. Hence this petition before this Court.

The learned Counsel for the petitioner has vehemently raised the following contentions before this Court: firstly, by Notification dated 26.5.2014, the State Government has issued certain guidelines for transferring its employees. According to the Full Bench decision of this Court 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 the said guidelines have a statutory force, and are enforceable in law. Therefore, according to the learned Counsel for the petitioner, the Respondent No. 1 is duty bound to adhere to the said guidelines. According to the said guidelines, a Group-C employee cannot be transferred within three years of his/her posting. However, the petitioner is being transferred just within five months of his posting at Shidlaghatta. Therefore, the transfer order is in violation of the guidelines issued by the Government itself.

Secondly, the Respondent No. 3 does not belong to the Karnataka Municipal Administrative Service, but in fact belongs to the Education Department. Therefore, he is not qualified from holding the post of ''Chief Officer'', Shidlaghatta de hors sanction. Hence, the Respondent No. 3 could not possibly be posted to the said post. In order to buttress this plea, the learned counsel has relied upon the case of Sri P.G. Ramesh Reddy Vs. The State of Karnataka, Urban Development Department, The Deputy Commissioner and Sri K.B. Veerapura, (2008) ILR (Kar) 8 : (2008) 1 KarLJ 13 : (2007) 4 KCCR 2846 .

On the other hand, Sri. R.L. Patil, the learned Senior Counsel appearing for the Respondent No. 3, has contended that the Town Municipality, Shidlaghatta has been upgraded to City Municipality. Therefore, even the petitioner is disqualified from holding the office of the ''Chief Officer''. In fact, according to the learned Senior Counsel, no post of ''Chief Officer'' is available in City Municipality; only the office of the Commissioner Grade II exists in the City Municipality. But a Group-C employee, like the petitioner, cannot continue to hold the post of Commissioner as he is eligible only to hold the post of ''Chief Officer'' and not the post of Commissioner, Grade-II. According to the learned Counsel, petitioner has been transferred from Shidlaghatta to Chintamani as he is no longer qualified to hold the upgraded post in the City Municipality.

Moreover, the distance between Shidlaghatta and Chintamani is only twenty kilometers. Therefore, no inconvenience could possibly be caused to the petitioner by his transfer twenty kilometers away. Therefore, learned Senior Counsel appearing for the Respondent No. 3 has supported the impugned order.

Similarly the learned Counsel for the State has contended that with upgradation of the City Municipality, Shidlaghatta, the petitioner cannot continue as there is neither a post of ''Chief Officer'', nor is he qualified to hold the post of Commissioner, Grade-II. Therefore, the Respondent No. 1 was justified in transferring the petitioner to Chintamani. Secondly, although the guidelines do have a statutory force, but they are not mandatory in nature. For words used are ''ordinarily'' or ''generally'', both indicating that in extraordinary situations and for administrative exigencies, the Government would be justified in transferring the employee from one place to the other. Since the petitioner is not qualified to hold the post of Commissioner, Grade-II, since there is no post of ''Chief Officer'', the Respondent No. 1 was justified in transferring the petitioner from Shidlaghatta to Chintamani. Therefore, learned Counsel for the State has also supported the impugned order.

Heard learned the Counsel for the parties, perused the impugned order, and considered the case law cited at the Bar.

Undoubtedly, in the case of Chandru H.N. [supra], this Court has held that the Guidelines issued by the Government do have a statutory force. However, merely because Guidelines have a statutory force, does not mean that the Guidelines are mandatory. The fact that the Guidelines themselves use the word ''ordinarily'' and ''generally'' clearly indicates that the Guidelines are merely directory in nature. The Guidelines cannot be interpreted to mean that the Government has been deprived of its discretionary power to transfer the employee for administrative exigencies. After all, flexibility at the knees has to be given to the Executive to decide about the movement of its employees from one place to the other.

Considering the fact that the petitioner happens to be Group-C employee and there is no post of ''Chief Officer'', in City Municipality, Shidlaghatta, obviously he could not be permitted to stay at Shidlaghatta. Therefore, the Respondent No. 1 was well justified in transferring the petitioner from Shidlaghatta to Chintamani. Moreover, since the petitioner is not qualified to hold the post of Commissioner, Grade-II, the Respondent No. 1 had no other option, but to transfer him to another place and to post him as a ''Revenue Officer'', at Chintamani.

Therefore, the only issue which is pertinent in the present case is whether the Government is justified in transferring the Respondent No. 3 in place of the petitioner or not?

Admittedly, the Respondent No. 3 belongs to the Education Department and is not a Member of the Karnataka Municipal Administrative Service. According to learned Counsel for the petitioner, the procedure for deputation has not been followed in the present case. Moreover, even the Respondent No. 3 is not eligible to hold the post of Commissioner, Grade-II. This argument has not been contested either by the learned Counsel for respondent No. 3 or by the learned Additional Government Advocate. Hence, this part of the transfer order, i.e., transferring Respondent No. 3 in place of the petitioner is certainly illegal, and, thus unsustainable.

For the reasons stated above, this Court partly allows the present writ petition: this Court quashes the transfer order qua Respondent No. 3. But as far as the petitioner himself is concerned, he has no other option but to join the place of transfer as directed by the State.

Considering the fact that the administrative exigencies may require the posting of a person in place of Respondent No. 3 as Commissioner, Grade-II, the Respondent No. 1 is granted fifteen days'' time to place a person who is qualified to hold the said post.

With these directions, the petition is partly allowed.