ORDER ON REFERENCE

1. W.P. No. 6551/2010 and connected W.P. No. 13605/2008 are posted before this Full Bench for consideration of the question of law framed in W.P. No. 6551/2010, which reads as under:

“Whether the guidelines of Government vide order No. DPAR 4 STR 2001, Bangalore dated 22.11.2001 relating to the transfer of Government servants which has come into force with effect from 22.11.2001 has statutory force or not?”

2. We have heard the learned senior counsel appearing for the petitioner in W.P. No. 6551/2010, which is filed being aggrieved by the order passed by the Karnataka Administrative Tribunal, Bangalore, dated 25.02.2010 in Application No.4452/2009, wherein the application filed by the third respondent herein challenging the order of transfer dated 30.09.2009 has been allowed. The learned senior counsel submitted that in view of the provisions of Articles 309 and 162 of the Constitution of India and the provisions of the Karnataka State Civil Services Act, 1978 (for brevity, ‘ the Act’) providing for promulgation of the rules for implementing the provisions of the Act, the State Government can only regulate the proceedings by framing Rules providing for guidelines of transfer. He has also referred to the provisions of the Karnataka State Civil Services Rules (for short ‘ the Rules’), which have come into effect from 01.04.1958, wherein the word ‘Transfer’ has been defined under Rule 8 (49) of the Rules as follows:

“(49) “Transfer” means the movement of a Government servant from one headquarters station in which he is employed to another such station either (a) to take up the duties of a new post; to (b) in consequence of a change of his headquarters;”

The learned senior counsel has further referred to Section 8 of the Karnataka Civil Services Act, 1978, (hereinafter referred to as ‘the Act’), wherein the power to make rules is provided to the State Government and he has further relied upon the provisions of Section 3 (2) regarding the procedure to be followed for promulgation of the Rules. The learned senior counsel, having regard to the provisions of the above said Articles of the Constitution of India and the Act and the Rules submitted that since transfer is a condition of service and there is already a provision made under the Act, wherein the word ‘transfer’ has been defined, empowering the State Government to make Rules for transfer of Government servants in the State, the transfer of Government servants can be effected only by making the rules. In the light of the said provisions under the Act and the Rules no executive power under Articles 162 and 309 of the Constitution of India could be exercised by the executive of the State. The learned senior counsel further submitted that the Government order, which is admittedly, an executive order passed in exercise of the executive power of the State and which has come into effect from 22.11.2001 has no statutory force and the same cannot be enforced.

3. The learned counsel appearing for the respondents 3,5,7 and 9 in W.P. No. 13605/2008 submitted that the provisions of the Government order providing for guidelines for transfer of Government servants in the State dated 22.11.2001 have statutory force in view of the settled position of law that in the absence of any provision made in the Act, nor any rules having been promulgated regarding the conditions of transfer, it is always open to the State to provide guidelines for transfer by passing executive orders under Article 162 read with Article 309 of the Constitution of India. In support of this contention, he has relied upon a number of decisions of this Court and the Honorable Supreme Court. The learned counsel further submitted that even when there are Rules providing for transfer to any other condition of service if there is a lacuna, the same can be filled up by issuing an executive order.

4. The learned Government Advocate appearing for the State submitted that the Government order dated 22