Transfer Orders Cannot Be Passed In Absence Of Vacancy, Must Show Place Of New Posting: Karnataka High Court

A single judge bench of Justice S Sunil Dutt Yadav allowed a petition filed by one Murthy and set aside the order of transfer dated 23.12.2021 issued to him. It placed the petitioner back in the position prior to the impugned order of transfer.

Further the bench said,

"It is only expected that the State will ensure strict compliance with its own Circular of 27.03.2017 as well as directions of the Division Bench passed in M.Arun Prasad's case (supra) and the observations in Mahiboob Sab's case (supra)."

In its order in the case of M Arun, W.P.No.58931/2016 (S-KAT) dated 02.03.2017 the bench had deprecated the practice of lifting an officer from one post but not clarifying about his next posting. "He is expected to approach before the concerned Department for appropriate posting and another Officer vice him is already posted. This practice would keep the Officer in lurch..."

The government circular dated 27.03.2017 stipulates that reasons must be recorded in writing for not showing posting to any Government Servant and such reasons should be "compelling administrative reasons like non availability of post due to abolishment/ up-gradation/ down-gradation, shifting in lieu of suspension, requirement of Government Servant to perform urgent confidential work in a post, unsuitability or inefficiency to work in the existing vacancy or for being utilised against temporary and leave vacancy etc., which are only illustrative but not exhaustive". Procedure is also shown to review orders of transfer by the Head of the Department where a person displaced is not shown posting recording reasons in writing.

The petitioner by the impugned order was asked to report to the competent authority for obtaining an order for posting. Only after six months, that is only on 20.07.2022, after the order during the pendency of the present proceedings, the petitioner was given an order of posting at the Town Municipal Council, Ullal (for vacant post).

To which the bench said,

"In the present case, none of the procedures are followed. Despite the observations by the Division Bench of this Court in M.Arun Prasad's case (supra) and also the Government Circulars referred to above, time and again orders of transfer are being passed without showing places for posting."

Further it observed,

"In the present case, as stated earlier, there was no vacant place while considering the representation of the respondent No.6 to be transferred and posted in the place of the petitioner. It is also noticed that the case of respondent No.6 is on the basis of the letter of the Member of the Legislative Assembly. Nevertheless, procedure requires to be followed."

Finally it held,

"Accordingly, on two grounds i.e., not showing an order of posting for a period of more than six [6] months and on the ground that no transfer must be made except to a vacant post after the period of general transfers, while noticing that the transfer is made in December 2021 as noticed in the proceedings of transfer, the petition is allowed. The impugned order dated 23.12.2021 at Annexure - A is set aside. The parties are directed to be placed in the position prior to the impugned order."

Case Title: MURTHY v. THE STATE OF KARNATAKA

Case No: WRIT PETITION NO. 14860 OF 2022

Citation: 2022 LiveLaw (Kar) 341

Date of Order: 18TH DAY OF AUGUST, 2022

Appearance: Advocate PAVANA CHANDRA SHETTY H for petitioner; AGA M.C.NAGASHREE, FOR R1 TO R4; Advocate H.V.MANJUNATH, FOR C/R5 AND R6

Click Here To Read/Download Order