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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
S.G. PANDIT, J.
SRI.SHASHIDHAR CHANNAPPA KAGAWAD - PETITIONER
Versus
THE STATE OF KARNATAKA REPRESENTED BY UNDER SECRETARY, DEPARTMENT OF URBAN DEVELOPMENT - RESPONDENTS
WRIT PETITION NO.116199/2019 (S-TR)
Decided On : 28-01-2020
Code of Civil Procedure, 1908 – Section 151 – Constitution of India, 1950 – Article 226 – Replacement of Services without notice or guidelines – Petitioner, working as Chief Officer, Town Municipal Council, Ramdurg, Belagavi District is before this Court under Article 226 of Constitution of India assailing order Annexure-H to writ petition by which 4th respondent is posted in place of petitioner as Chief Officer, Town Municipal Council, Ramdurg without giving any posting to petitioner. – Held, Perusal of annexure-R1 would indicate that proposal was placed before Hon’ble Chief Minister for posting of 4th respondent as Chief Officer, Ramdurg Town Municipal Council, in place of petitioner, but there is no corresponding approval for transfer of petitioner from out of Ramdurg Town Municipal Council. Moreover, as required under Clause 9(b) of Government Order no reasons are forthcoming and no reasons are recorded by competent authority for premature transfer of petitioner and posting of 4th respondent. – Prior approval of Chief Minister is necessary and recording of reasons also would be necessary. In instant case, no reasons are forthcoming nor have any reasons been recorded for premature transfer of petitioner and for posting 4th respondent in his place. – Moreover, petitioner contends that he would retire from service on attaining age of superannuation – Government, while effecting transfer of petitioner and posting of 4th respondent in petitioner’s place, ought to have taken note of petitioner’s retirement as required under Clause 9 of Government Order – Impugned notification states for transfer and posting to post of Chief Officer, general transfer guidelines would not be applicable – Counsel for 4th respondent was also not in a position to answer as to on what basis said clause is incorporated. – There is nothing in Government Order, to show that exclusion of transfer guidelines to cadre of Chief Officer of Town Municipal Council or City Municipal Councils. – Counsel for 4th respondent today along with a memo has placed on record notification dated 27.01.2020 to show that one Shri S.H.Naikar, is posted as Chief Officer, Town Municipal Council, Laxmeshwar, from where petitioner was transferred and posted as Chief Officer, CMC, Ramdurg. – Same would not assist 4th respondent in any way. – Transfer and posting of 4th respondent in place of petitioner without providing any posting to petitioner is wholly contrary to Government Order – Impugned notification Annexure-H is set aside – Writ Petition Allowed.
ORDER :
The petitioner, working as Chief Officer, Town Municipal Council, Ramdurg, Belagavi District is before this Court under Article 226 of the Constitution of India assailing the order bearing No. XXXX 100 XXXX 2019 dated 29.11.2019 Annexure-H to the writ petition by which the 4th respondent is posted in place of the petitioner as Chief Officer, Town Municipal Council, Ramdurg without giving any posting to the petitioner.
2. The brief facts of the case are that both the petitioner as well as the 4th respondent are in the cadre of Senior Health Inspectors in the 2nd respondent-Director of Municipal Administration. The petitioner was posted to work as Chief Officer, Town Municipal Council, Ramdurg by order dated 06.12.2018 Annexure-C. Earlier to his posting to Ramdurg, the petitioner was working at Athani from 05.02.2016. Under Annexure-D notification dated 25.03.2019 in view of the election to the Lok-Sabha-2019, the petitioner was posted to work as Chief Officer, Municipal Council, Haliyal. After completion of the election process, again the petitioner was posted back to work as Chief Officer, Town Municipal Council, Ramdurg under notification dated 12.06.2019. When he was working as Chief Officer, Town Municipal Council, Ramdurg, under notification bearing No. XXXX 100 XXXX 2019 dated 29.11.2019 Annexure-H, the 4th respondent was posted in place of the petitioner who was working at Town Municipal Council, Laxmeshwar, Gadag District without providing any posting to the petitioner, directing the petitioner to report to the competent Authority requesting for further posting. Aggrieved by the same, the petitioner is before this Court in this writ petition.
3. The 4th respondent filed I.A.No.1/2020 under Section 151 of CPC praying for vacation of interim order granted by this Court on 10.12.2019. The averment made in the application is that the transfer of 4th respondent in place of the petitioner is approved by the Hon’ble Chief Minister and that he had taken charge of the post on 03.12.2019 and the petitioner was relived of his duties on 03.12.2019 itself.
4. No statement is filed on behalf of the Government.
5. Heard the learned counsel for the petitioner, learned Additional Government Advocate for respondents No.1 to 3 and the learned counsel, Sri.S.B.Hebballi appearing for respondent No.4.
6. The learned counsel for the petitioner would submit that the transfer of 4th respondent in petitioner’s place and not providing posting to the petitioner is wholly arbitrary and opposed to the transfer guidelines dated 07.06.2013. He submits that the petitioner has not completed minimum tenure at Ramdurg as Chief Officer. The petitioner has a minimum tenure of two years at Ramdurg. He was posted to Ramdurg under notification dated 06.12.2018 and he has been transferred out of Ramdurg within a period of one year. Therefore, it is a premature transfer. It is further submitted that Clause 9(b) of the transfer guidelines provides for premature transfer but the same shall be effected with the prior approval of the Hon’ble Chief Minister that too after recording reasons for such transfer. In the instant case, no reasons have been recorded for transferring the petitioner and no approval of the Hon’ble Chief minister is taken for petitioner’s transfer. Moreover, the petitioner contends that the petitioner is at the verge of retirement and he retires on attaining the age of superannuation on 24.04.2021. Thus, he prays for allowing the writ petition.
7. Per contra, the learned counsel for the 4th respondent submits that the petitioner has no cause of action to challenge the writ petition since he had not been transferred out of Ramdurg. It is only the 4th respondent is posted as Chief Officer, City Municipal Council, Ramdurg. Until and unless the petitioner is provided with a posting, he has no locus standi to challenge the posting of 4th respondent. In that regard the 4th respondent relies on the decision of this Court reported in 2016 (4) KCC
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