C. Madhu vs The Secretary to Government, Public Works Department and Others

Mohan M. Shantana Goudar, J.—The order dated 19.11.2015 passed by the Karnataka Administrative Tribunal (''KAT'' for short), Bangalore, in Application No. 7160/2015 is called in question in this writ petition.

By the said order, the KAT has refused to interfere with the order of transfer dated 28.8.2015.

The records reveal that the petitioner who was working as Assistant Executive Engineer, Public Works Sub-division, Mandya, was transferred by virtue of the order dated 28.8.2015 and consequently, the services of the petitioner are placed at the disposal of Water Resources Department (Irrigation Department). The third respondent, who was working in Mysore City Corporation, Mysore, was placed in the place of the petitioner. The petitioner questioned the said order dated 28.8.2015 placing his services at the disposal of Water Resources Department before the KAT by filing an application on three grounds viz., the said order is pre-mature; that the transfer order is made at the verge of his retirement (date of retirement of the petitioner is end of June, 2015) and thirdly, on malafides.

The KAT considering the aforementioned grounds, dismissed the application by the impugned order.

It is no doubt true that the petitioner was working as Assistant Executive Engineer, Public Works Sub-division, Mandya, from 19.7.2013 and by virtue of the order dated 28.8.2015, he was transferred to Water Resources Department/Irrigation Department. Thus, it is clear that the transfer of the petitioner was within the period of three years. Consequently, the order of transfer prima facie appears that it is in violation of transfer guidelines issued by the Government in Government Order dated 7.6.2013, wherein minimum of three years was prescribed for both Group - ''A'' and Group - ''B'' employees.

However, in the present case, certain facts are to be kept in mind before proceeding further. The records clearly reveal that the petitioner has been working in different posts only in Mandya City, since more than nine (9) years that too in the same department in different posts. The petitioner was working in different posts at Mandya from 2006; such fact is not disputed by the petitioner and it cannot also be disputed by the petitioner. As per the order dated 13.10.2006, the petitioner was posted as Assistant Executive Engineer, No. 2, V.C. Sub-division, Mandya; thereafter as per the notification dated 23.9.2009 issued by the Department of Rural Development and Panchayat Raj, the petitioner was posted as Assistant Executive Engineer in Panchayath Raj Engineering Sub-division, Mandya and thereafter as per the order dated 10.7.2013, the petitioner was transferred to Public Works Sub-division, Mandya, which post was held by him as on the date of the order dated 28.8.2015, which came to be impugned before the KAT. Thus, it is evident that the petitioner worked in different posts at Mandya City alone from 18.10.2006. Under such circumstances, we do not find any reason to accept the contention of the petitioner that his transfer is pre-mature by virtue of the order dated 28.8.2015.

It is no doubt true that the petitioner will be attaining the age of superannuation on 30.6.2016. His date of retirement is just within about eight (8) months from this day. The transfer guidelines issued by the Government states that the employees should not be disturbed within a period of two years from the date of his retirement. In other words, the employee should not be transferred for a period of two years prior to the date of his retirement. But in the matter on hand, the petitioner is transferred to No. 1, V.C. Canal Sub-division, Cauvery Niravari Nigama Limited from Public Works Department, Mandya. The Division Bench of this Court in the case of Karnataka Public Service Commission & Others vs. K. Sharada & Others in W.P. Nos. 6500-6508/2009 (S-KAT) & connected matters disposed of on 15.12.2010 has observed that:

"76. The material on record discloses that steps have been taken to bifurcate Public Works Department and Irrigation Department. Separate recruitment rules are already framed. However, the said process of bifurcation is yet to complete. It is not in dispute that the common seniority/gradation list of Assistant Engineers is being operated for the purpose of promotion as vertical bifurcation of both the departments has not yet taken place. The process of bifurcating Public Works Service and Irrigation Service is being taken up. In the process it is found that many officers who exercised their option at one point of time came to be promoted to the next higher cadre have retired from service and consequently, the said option exercised by them has become infructuous. Now steps are taken to invite fresh option from among the officers in various cadres. After the recruitment under separate Rules meant for Irrigation Department, while preparing seniority list, persons who are recruited under both the Departments are considered and a common seniority list is prepared. Therefore the practice prevalent in the Department makes it clear that both the Departments were treated as belonging to one cadre, common seniority is prepared and promotion is given based on the said seniority. Even to this day, two cadres are not completely separated and they are treated as belonging to the same department."

(emphasis supplied)

From the aforementioned observations of the Division Bench of this Court, it is clear that as on this day, the process of bifurcation of Public Works Department and Irrigation Department is yet to complete. After the recruitment under separate Rules meant for Irrigation Department, while preparing seniority list, persons who are recruited under both the Departments are considered and a common seniority list is prepared. Therefore, the practice prevalent in the Department makes it clear that both the Departments were treated as belonging to one cadre, common seniority is prepared and promotion is given based on the said seniority. Even to this day, two cadres are not completely separated and they are treated as belonging to the same department.

Thus, it is clear that the petitioner is transferred from one table to another table in same department at the same place i.e., Mandya by virtue of the order dated 28.8.2015, that too in the public interest and for administrative reasons.

We also do not find any malafides in the impugned order. Even the transfer guidelines dated 7.6.2013 make it amply clear that period of three years can be relaxed by the Government on administrative exigencies and because of administrative reasons. In view of the same, we do not find any ground to interfere with the impugned order passed by the KAT.

Hence, petition fails and accordingly, the same stands dismissed.