Karnataka High CourtShri Thimmegowda D vs The State Of Karnataka on 20 January, 2020Equivalent citations: AIRONLINE 2020 KAR 98, 2020 (2) AKR 294Author:S.Sunil Dutt YadavBench:S. Sunil Dutt Yadav1\n\n\n IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\n      DATED THIS THE 20TH DAY OF JANUARY 2020\n\n                         BEFORE\n\n     THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV\n\n         WRIT PETITION No.49074/2019 (S-TR)\n\nBetween:\n\nShri Thimmegowda D.,\nS/o Shri M.L. Thimmegowda,\nAge: 51 years,\nExecutive Engineer,\nKarnataka Power Transmission\nCorporation Limited,\nOn deputation to BESCOM,\nO & M Division, Chandapura,\nBangalore - 99.                          ... Petitioner\n\n(By Sri Prashanth J., Advocate)\n\nAnd:\n\n1.     The State of Karnataka,\n       Represented by its Principal Secretary,\n       Energy Department,\n       Vikas Soudha,\n       Bangalore - 560 001.\n\n2.     The Karnataka Power\n       Transmission Corporation Limited,\n       Represented by its Managing Director,\n       Cauvery Bhavan,\n       Bangalore - 560 009.\n                             2\n\n\n3.   The Director,\n     Karnataka Power Transmission\n     Corporation Ltd. (Administration\n     And Human Resources),\n     Cauvery Bhavan,\n     Bangalore - 560 009.\n\n4.   The Managing Director,\n     Bangalore Electrical Company Ltd.,\n     Cauvery Bhavan,\n     Bangalore - 560 009,\n\n5.   Shri W.M. Shashidhara Shivacharya\n     Executive Engineer, TA & QC,\n     Karnataka Power\n     Transmission Corporation,\n     Cauvery Bhavan,\n     Bangalore - 560 009.            ... Respondents\n\n(By Sri M.A. Subramani, HCGP for R1;\n    Smt. Padma S. Uttur, Advocate for R2 to R4;\n    Sri K. Subba Rao, Senior Counsel for\n    Sri Nagaraja S., Advocate for R5)\n\n      This Writ Petition is filed underArticle 226of the\nConstitution of India, praying to call for the records\nrelating to the issue of the copy of the impugned official\nmemorandum dated 30.09.2019 vide Annexure-'G'\nissued by the R-3 and after perusal set aside the same\nin so far as it relates to transfer and posting of the R-5\nin place of the petitioner and etc.\n\n     This Writ Petition having been heard and reserved\non 17.12.2019 and coming on for pronouncement of\norders, this day, the Court made the following:\n                                3\n\n\n                         ORDERThe petitioner who is working as an Executive\n\nEngineer   in   the   Karnataka       Power    Transmission\n\nCorporation Limited (KPTCL) and who was sent on\n\ndeputation to O&M Division, Bangalore Electricity\n\nSupply Company        Limited      (BESCOM),   Chandapura,\n\nBengaluru has challenged the order transferring the\n\npetitioner to TA & QC, KPTCL, Bengaluru. In place of\n\nthe petitioner, the respondent No.5 has been transferred\n\nand posted. A further direction has been sought for to\n\ndirect the respondents to continue the services of the\n\npetitioner at the place he was working prior to the\n\nimpugned order till he completes the tenure as provided\n\nfor under the Government Order at Annexure-D dated\n\n07.06.2013, which lays down "Guidelines regarding\n\nTransfer of Government Servants", hereinafter referred\n\nto as 'Transfer Guidelines'.42.      By    virtue   of       the   impugned    order   at\n\nAnnexure-'G' dated 30.09.2019, the respondent No.3\n\nhas transferred respondent No.5 in place of the\n\npetitioner   while    the   petitioner      himself   has   been\n\ntransferred to TA & QC, KPTCL, Kaveri Bhavan,\n\nBengaluru. It is submitted that he was transferred and\n\nposted in his present posting as per the order at\n\nAnnexure-A        dated     01.08.2018       and      the   order\n\ntransferring him was passed on 30.09.2019. After his\n\ntenure of one year 20 days, he has been transferred as\n\nper the impugned order, which it is contended is\n\ncontrary to the assured tenure provided under the\n\nTransfer Guidelines which are adopted insofar as the\n\nemployees of the KPTCL are concerned.3.      It is further submitted that the petitioner is a\n\nGroup 'A' employee and cannot be transferred for a\n\nperiod of three years as per the Transfer Guidelines.          It\n\nis also contended that the Transfer Guidelines have\n\nstatutory force as per the judgment of this Court in the5case ofMr. Chandru H.N. v. State of Karnataka and\n\nOthersreported   in   ILR   2011   KAR      1585   and\n\naccordingly there can be no breach of the said Transfer\n\nGuidelines. Though it is pointed out that under Clause-\n\n9(b) of the Transfer Guidelines, there is a provision for\n\ndeviation from the Transfer Guidelines and though the\n\nsaid order must be preceded by the prior approval of the\n\nChief Minister, and despite respondent No.5 placing\n\nreliance on an order passed by Chief Minister, the said\n\norder is cryptic and does not contain any reasons and in\n\nlight of the settled law, unless reasons are assigned\n\nmaking out an exception, it is contended that the order\n\nof the Chief Minister is liable to be ignored.4.    The petitioner has also contended that he is\n\nan employee of the second respondent - KPTCL and the\n\nrespondent No.3 does not have power to pass an order\n\ntransferring the respondent No.5 in the place of the\n\npetitioner without the consent of BESCOM.               The6petitioner has relied on the order passed in Writ Petition\n\nNo.33802/2004 disposed off as per the order dated\n\n15.09.2004 in support of the aforesaid contention.5.    The    respondent    No.5     who   has    been\n\ntransferred to the place of the petitioner by virtue of the\n\nimpugned order has contended as follows:-That the adoption of the Transfer Guidelines as\n\napplicable to government servants insofar as employees\n\nof the KPTCL are concerned, does not make the Transfer\n\nGuidelines statutory in character. It is contended that\n\nunderSection 57of the Karnataka Electricity Reform\n\nAct, 1999 ('the Act' for brevity) power is conferred on the\n\nState Government to make Rules to carry out the\n\npurposes of the Act, and in the absence of such Rules\n\nframed, the adoption of Transfer Guidelines by KPTCL\n\ncannot    be   construed   as   having   statutory   force.\n\nAccordingly, it is contended that when the Transfer\n\nGuidelines have no statutory force, a writ underArticle7227of   the   Constitution       of   India   would   not   be\n\nmaintainable at the instance of an employee to enforce\n\nthe Guideline which is in the nature of an executive\n\norder.It is further contended that for the purpose of\n\ninvoking jurisdiction of the Court underArticles 226and227of the Constitution of India, petitioner ought to\n\nhave made out a case of prejudice caused to the\n\npetitioner by virtue of the impugned order. It is further\n\ncontended that the petitioner has no vested right to\n\nremain at a certain place and in light of which, it cannot\n\nbe said that the petitioner has been prejudiced by the\n\norder of transfer and accordingly, no case is made out\n\nfor exercise of power underArticles 226and227of the\n\nConstitution of India.The respondent has further contended that even\n\nas per the Transfer Guidelines, power is conferred on\n\nthe Chief Minister to approve transfers which may be8premature, which is the case herein and accordingly,\n\nthere    is   no    contravention     of   the    said   Transfer\n\nGuidelines.6.    The     learned       counsel      appearing    for\n\nrespondent Nos.2 to 4 has filed statement of objections\n\nand has adopted the arguments of learned Senior\n\nCounsel appearing on behalf of respondent No.5.7.    Heard Sri J. Prashanth , learned counsel for\n\nthe petitioner and Sri K. Subba Rao, learned Senior\n\nCounsel appearing for Sri Nagaraja S., for respondent\n\nNo.5, Sri M.A. Subramani, learned HCGP appearing for\n\nrespondent No.1 and Smt. Padma S. Uttur, learned\n\ncounsel appearing for respondent Nos.2 to 4.8.    The point that falls for consideration is as to\n\nthe validity of the order passed by respondent - KPTCL\n\ntransferring the petitioner from Management (O&M)\n\nDivision, BESCOM, Chandapura to TA & QC, KPTCL,\n\nKaveri Bhavan, Bengaluru.99.     It is not in dispute that the KPTCL has\n\nadopted      the        Guidelines      regarding    transfer     of\n\ngovernment servants dated 07.06.2013. While it is the\n\ncontention of the petitioner that in light of Full Bench\n\njudgment of this Court inChandru's case (supra) , the\n\nTransfer Guidelines have statutory force and hence,\n\ndoes not permit deviation of the same, the learned\n\nSenior Counsel appearing on behalf of respondent No.5\n\nvehemently submits that the Guidelines cannot be\n\nconstrued to have statutory force.                  The argument\n\nflowing from the contention of learned Senior Counsel\n\nfor respondent No.5 is that if the Guideline was only an\n\nexecutive order, the            question of enforceability by\n\ninvokingArticle 226of the Constitution of India would\n\nnot arise.What needs to be noticed is that the respondent -\n\nKPTCL has sought to support the order of transfer\n\nstating    that    it     has    been    effected    in   light   of10administrative reasons and as per the instructions of\n\nthe Chief Minister who also is the Chairman of KPTCL.10.    The respondent - KPTCL having adopted the\n\nTransfer Guidelines of the Government, the KPTCL\n\nought to adhere to the same unless grounds are made\n\nout to deviate from the guidelines.       In the Transfer\n\nGuidelines, premature transfer no doubt is permissible\n\nwith the prior sanction of the Chief Minister and in the\n\npresent case, it is the stand of the respondent - KPTCL\n\nthat the Chief Minister has indeed permitted such\n\ntransfer.In fact, learned Senior Counsel appearing on\n\nbehalf of the respondent No.5 has contended that the\n\ntransfer made in administrative exigencies by the Chief\n\nMinister who is also the Chairman of the KPTCL cannot\n\nbe a subject matter of judicial review.11.    Once KPTCL which is State for the purposes\n\nofArticle 12of the Constitution of India has adopted the11Transfer Guidelines, there is a corresponding duty to\n\nadhere to the procedure provided therein unless there\n\nare reasons made out to deviate from the procedure\n\nprescribed under the Guidelines. This duty to act in a\n\nreasonable non-arbitrary manner would flow from the\n\nmandate ofArticle 14of the Constitution of India.The Apex Court in the case ofJagdish Prasad\n\nSharma & Others v. State of Bihar and Othersreported in (2013) 8 SCC 633 while considering a\n\nscenario where the State Government was at liberty to\n\nframe its own regulations and was not necessarily\n\nobliged to follow the Regulations framed by University\n\nGrants Commission (UGC). However, when the State\n\ndecided to adopt the Regulations framed by the UGC it\n\nwas observed as follows:"72....... It is only natural that if they\n     wish to adopt the Regulations framed by the\n     Commission underSection 26of the UGC Act,\n     1956, the States will have to abide by the\n     conditions aslaid down bythe Commission."12Thus, in the present case, the transfer guidelines having\n\nbeen adopted and though rule making power was not\n\nexercised, there was an obligation to follow the same as\n\nif it were the rules which is a part of the obligation to\n\nact fairly and reasonably.12.   A perusal of the note of Chief Minister dated\n\n30.09.2019 would only reveal the transfer of respondent\n\nNo.5 to the place of petitioner's posting. No reasons are\n\nforthcoming. Despite it being contended that the order\n\nof transfer is due to administrative reasons, there is no\n\nindication of the same from the note of Chief Minister\n\nproduced as Annexure-R2 alongwith the statement of\n\nobjections of respondent - KPTCL.      Such exercise of\n\npower by the Chief Minister who is also stated to be the\n\nChairman of KPTCL is clearly an arbitrary exercise of\n\npower and violative ofArticle 14of the Constitution of\n\nIndia.1313.   As per the procedure prescribed in the\n\nGuidelines, the judgments referred to by the petitioner\n\nin his written arguments dated 20.12.2019 at Sl.Nos.1\n\nto 7 make out a case that a premature transfer would\n\nbe permissible if the prior approval of the Chief Minister\n\nis obtained with a further requirement of satisfaction by\n\nthe competent Authority regarding the reasons assigned\n\nat 9(a), I to VIII of the Transfer Guidelines. The Chief\n\nMinister's sanction must also be preceded by his\n\nsatisfaction of grounds referred to in Guideline No.9\n\nbeing made out so as to justify premature transfer.\n\nThough the competent authority does mention that the\n\ntransfer is made for administrative reasons, the records\n\nand the order at Annexure-'G' reveals that transfer of\n\nthe respondent No.5 is on the basis of his request.14.   A perusal of the file containing office notes\n\nand records of the respondent - KPTCL reveals that the\n\ntransfer of respondent No.5 to the place of the petitioner\n\nis on the basis of his request, which becomes clear on a14perusal of Annexure-'G'. Even if the order being passed\n\nis construed to be the one by Chairman of KPTCL as\n\nobserved above, the order passed by Chief Minister does\n\nnot refer to any administrative reasons occasioning\n\neffecting of transfer.15.    Insofar as the contention of learned Senior\n\nCounsel appearing on behalf of respondent No.5 to the\n\neffect that writ petition at the instance of the petitioner\n\ninvoking jurisdiction underArticles 226and227of the\n\nConstitution of India is not maintainable, as the\n\nGuidelines do not have statutory force and are only in\n\nthe nature of executive instructions, it is to be noted\n\nthat jurisdiction underArticle 226can be invoked in the\n\npresent case where the guidelines that are adopted\n\nwhere power to frame Rules though present has not\n\nbeen exercised, the enforcement of such guidelines\n\ncould     be    considered   to    have   statutory   flavour.\n\nEnforcement of such guidelines or its non-adherence15could be a subject matter of judicial review underArticle\n\n226of the Constitution of India.The respondent No.5 in support of the contention\n\nmade above has referred to the following judgments that\n\nare dealt with as below:-(i)     Union of India and Others v. S.L.\n             Abbasreported in AIR 1993 SC 2444 -order of transfer could be challenged\n             only where it is made in violation of\n             statutory guidelines or is mala fide.(ii)    Government of Andhra Pradesh v.G.Venkata Ratnam reported in (2008)\n             9 SCC 345.(iii)   Rajendra Singh and Others v. State of\n             Uttar Pradesh and Othersreported in\n             (2009) 15 SCC 178.The authorities cited at Sl. Nos.(ii) and (iii) are on the\n\npoint that there could be interference in the order of\n\ntransfer by way of judicial review only when the order of\n\ntransfer is mala fide or in violation of statutory rule.16With respect to the Authorities at Sl. Nos.(i) to (iii), the\n\nquestion of duty to act fairly and reasonably was never\n\na point of discussion and accordingly cannot be a bar\n\nfor this Court to intervene. Even otherwise, this Court\n\nis of the opinion that the guidelines that are adopted\n\nhave a statutory provision (see para 15 supra).16.   As regards the contention of learned Senior\n\nCounsel that petitioner has not made out any case of\n\nprejudice as the transfer is within the same city and\n\nhence, power underArticle 226of Constitution of India\n\nneed not be exercised, it must be noted that the\n\nquestion of prejudice is a relevant factor only insofar as\n\nexercise of jurisdiction by the court. It must be noted\n\nthat the present posting would amount to a transfer\n\nunder Clause 3(d) of the Transfer Guidelines.           The\n\nabsence of prejudice does not in any way confer right on\n\nthe respondent to non-suit the petitioner. In the facts of\n\nthe present case, the fact that transfer of respondent\n\nNo.5 is at his request, Transfer Guidelines adopted is17not adhered to, no reasons are forthcoming for effecting\n\ntransfer from the order of the Chief Minister who is\n\nstated to be the Chairman of the KPTCL, no reasons are\n\nmade     out     justifying   deviation   from   the   general\n\nguidelines as provided under Guideline No.9, all by\n\nthemselves are sufficient and have made out a case for\n\nexercise of jurisdiction underArticles 226and227of\n\nthe Constitution of India.17.     Though it is contended that the petitioner\n\ncould have invoked Guideline No.13 instead of invoking\n\njurisdiction of this Court, it cannot be said that\n\nGuideline No.13 which provides for the same Authority\n\nwhich passed the order to consider the request of the\n\npetitioner in the form of a review cannot be said to be a\n\nbar for invoking jurisdiction underArticle 226of\n\nConstitution of India.18.     As noticed by this Court, in the order dated\n\n06.06.2017 in the case ofSri Shivaji A Kawale v. The18State of Karnataka and othersin Writ Petition\n\nNo.200881/2017 (S-KAT) where the appeal or revision\n\nis to the same department, then it is "from Caesar to\n\nCaesar and which might not be regarded with any great\n\nconfidence".Accordingly, the petition is allowed and the\n\nimpugned order at Annexure-'G' dated 30.09.2019 is set\n\naside.Sd/-JUDGE\n\n\n\n\nVGR