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2020 Supreme(Kar) 707
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
N.S. Sanjay Gowda, J.
Dayanand Bhandari - Appellant
Versus
State Of Karnataka - Respondent
Writ Petition No. 6715 of 2020
Decided On : 26-06-2020
S.S. Naganand, Advocate, Afsar Ahmed S, Advocate, Prabhuling K Navadg, Advocate, R. Subramanya, Advocate, M.V. Ramesh Jois, Advocate, M.S. Bhagwat, Advocate
The court established that the Authorities under the Disaster Management Act cannot decide on the postings of Government servants and the Act does not empower them to exercise control or superintendence over the Government servants. The court also ruled that the provisions of the Disaster Management Act cannot override the Guidelines for transfer of Government servants.
Headnote:
Transfer - Government Servant - Guidelines - Disaster Management Act - S. 14, 18 and S. 72 of the Disaster Management Act - The court quashed the order of transfer dated 30.5.2020 as it did not adhere to the stipulations in the Guidelines for effecting a premature transfer. The court held that the Authorities under the Disaster Management Act cannot decide on the postings of Government servants and the Act does not empower them to exercise control or superintendence over the Government servants. The court also ruled that the provisions of the Disaster Management Act cannot override the Guidelines for transfer of Government servants.
Fact of the Case:
The petitioner, a Government servant, was transferred multiple times within a short period. The petitioner challenged the transfer orders, arguing that the Tribunal was non-functional due to the lockdown, making the normal remedy unavailable to him. The court entertained the writ petition and ultimately quashed the order of transfer dated 30.5.2020.
Finding of the Court:
The court found that the order of transfer did not adhere to the stipulations in the Guidelines for effecting a premature transfer. The court ruled that the Authorities under the Disaster Management Act cannot decide on the postings of Government servants and the Act does not empower them to exercise control or superintendence over the Government servants. The court also held that the provisions of the Disaster Management Act cannot override the Guidelines for transfer of Government servants.
Issues: The main issue was whether the order of transfer dated 30.5.2020 was legal and valid, and whether it adhered to the stipulations in the Guidelines for effecting a premature transfer.
Ratio Decidendi: The court held that the order of transfer did not adhere to the stipulations in the Guidelines for effecting a premature transfer. The court ruled that the Authorities under the Disaster Management Act cannot decide on the postings of Government servants and the Act does not empower them to exercise control or superintendence over the Government servants. The court also held that the provisions of the Disaster Management Act cannot override the Guidelines for transfer of Government servants.
Final Decision: The court quashed the order of transfer dated 30.5.2020 and directed the 6th respondent to hand over charge to the petitioner. The court allowed the petitioner to continue in the post of the Assistant Commissioner, Bangalore North for the remaining period of his tenure as prescribed in the Guidelines dated 7.6.2013. The court also directed the Registry to return the original files to the Office of the Advocate General.
JUDGMENT
N.S.Sanjay Gowda, J. - The petitioner is an Assistant Commissioner who was posted to work as Assistant Commissioner, Bengaluru
North Division, Bengaluru, by an order dated 12.07.2019.
2. The petitioner during this posting was promoted to the post of Assistant Commissioner (Senior Scale) and he was continued in the same post of Assistant Commissioner, Bengaluru North, by an order dated 20.09.2019. In fact, by the very same order, the said post was also upgraded as a K.A.S. (Senior Scale) post.
3. Thereafter, in the month of March, 2020 i.e., within a period of six months, the petitioner, by an order dated 24.03.2020 (Annexure-E to the Writ Petition), was transferred as Chief Administrative Officer, Karnataka State Highway Improvement Project (hereinafter referred to as 'KSHIP').
4. Thereafter, by an order dated 09.04.2020 (Annexure-F to the Writ Petition), the order dated 24.03.2020 was modified and instead of being posted as the Chief Administrative Officer, KSHIP, the petitioner was posted as Secretary to the Karnataka Electricity Regulatory Commission (hereinafter referred to as 'KERC').
5. The petitioner, as a consequence, filed this writ petition challenging not only the order dated 24.03.2020 by which he was transferred to KSHIP, but also the subsequent order dated 09.04.2020 by which the earlier order of transfer was modified and he was posted as Secretary to KERC.
6. The petitioner, being a Government servant, in the normal circumstances, was required to have availed the remedy of approaching the Karnataka State Administrative Tribunal (hereinafter referred to as 'the Tribunal'), under the Administrative Tribunals Act, to impugn the orders of transfer passed against him.
7. However, on 08.05.2020, when the matter was posted before this Court and the bar to entertain the present writ petition was raised by the State and the 6th respondent, the learned Senior Counsel for the petitioner Sri. S.S. Naganand submitted that the Tribunal was non functional due to the lock down declared by the Government and thus the normal remedy available to the petitioner became unavailable to him.
8. This Court, thereafter, directed the Registry to ascertain from the Tribunal whether the Tribunal was entertaining Applications through video conferencing during the lockdown. On being contacted telephonically by the Registry, the Registry of the Tribunal informed the Registry of this Court that the Tribunal had no option of video conferencing and that the physical filing of Applications was a must.
9. In view of the said fact, this Court came to the conclusion that compelling the Counsel for the petitioner to physically appear and to physically file an Application, in the present scenario, was not desirable and it was therefore a fit case to entertain the Writ Petition.
10. As against this order, it was stated at the Bar, that the 6th respondent had preferred a Writ Appeal in W.A.No.284/2020 but the same was dismissed as withdrawn.
11. Thus, the order dated 08.05.2020 passed in this Writ Petition, to entertain the writ petition has become final and the writ petition is therefore required to be considered on merits. Accordingly on 19.05.2020, the writ petition was heard on merits.
12. Sri S.S. Naganand, learned Senior Counsel appearing for petitioner, the learned Additional Advocate General for the State and Sri M.S. Bhagawat, learned counsel for the sixth respondent were heard through video conferencing.
13. In order to ensure that there was no misapprehension caused to the learned counsel regarding the arguments that they advanced through video conferencing, they were permitted to file the written submissions within a period of seven days and the judgment was reserved.
14. Pursuant to the order dated 19.05.2020, the State e-filed their statement of objections on 22.05.2020 and the Learned counsel for the petitioner e-filed his written submissions on 20.05.2020.
15. Thereafter on 26.05.2020, the State moved a memo for posting the matter
