Ravi V. Hosmani, J.
1. Though this matter was listed for hearing I.A. No.1/2020 for vacating of interim order dated 13.12.2019 granted by this Court, with the consent of learned counsel for the respective parties, the matter is heard finally.
2. This Writ Petition assails order dated 11.12.2019 passed by the Karnataka State Administrative Tribunal (hereinafter referred to as the 'KSAT' for the sake of convenience) in Application No.5586/2019. By the said order, the KSAT has set aside the Notification No.AaKuKa.300HSH.2019 dated 19.08.2019 issued by Respondent No.1 and directed Dr. Nagaraj (respondent no.3 therein) to handover charge of the post of District Surgeon, Davanagere to the applicant forthwith etc.,
3. We have heard the learned Senior Counsel Sri. Gurumath Gangadhar Rudramuni Sharma, for the petitioner and learned counsel Sri. Huleppa Heroor for respondent no.3 through Video Conference; learned AGA, who was present in person appeared on behalf of respondent nos.1 and 2.
4. Dr. N. Jayaprakash (respondent no.3 herein) had filed Application No.5586/2019 before the KSAT, challenging Notification dated 19.08.2019 issued by Respondent no.1 canceling the earlier transfer notification dated 18.07.2019 insofar as Dr. N. Jayaprakash and instead posting respondent no.3 - Dr. Nagaraj as District Surgeon, Davanagere. Dr. Nagaraj was arrayed as respondent no.3 in Application No.5586/2019.
5. The facts briefly stated are that, the Applicant - Dr. N Jayaprakash, joined the services of the State on his appointment as a Medical Officer, in the Department of Health and Family Welfare Services, on 16.09.1991. Thereafter, he obtained P.G. Diploma in Hospital Management in the year 2002 and Master's Degree viz., M.S. (Obstetrics and Gynecology) from Rajeev Gandhi University of Health Sciences, in the year 2009. On 05.02.2018, he was appointed as a District Surgeon, District Hospital, Chitradurga. He reported for duty on 08.02.2018. While he was working as such, a Notification dated 10.08.2018 was issued transferring him to the post of District Leprosy Officer (Control of Leprosy), Chitradurga. He challenged the same in Application No.6456/2018 before the KSAT, in which an interim order was granted on 21.08.2018. During its pendency, Notification dated 10.07.2019 was issued, whereunder Dr. Basavarajappa H.J., was posted as the District Surgeon, Chitradurga, by showing it as a vacant post. Challenging Notification dated 10.07.2019, Dr.Jayaprakash filed Application No.5855/2019 before KSAT. Thereafter on 18.07.2019, another notification was issued transferring Dr. N. Jayaprakash to the post of District Surgeon, Davanagere, stating, it had become vacant due to retirement of Dr. Neelambike, who was working there. But, Dr. Neelambike had not yet retired. In the meanwhile, Dr. Basavarajappa, was relieved from his post to join the duty as District Surgeon, Chitradurga. But on 31.07.2019, Dr. N Jayaprakash was telephonically informed by respondent no.2 not to implement the transfer order, if not already implemented. By that time, Dr. Neelambike retired from service and the post of District Surgeon at Davanagere became vacant. Seeking permission to take charge as District Surgeon at Davanagere, in terms of notification dated 18.07.2019, he submitted a representation to respondents no.1 and 2. When it remained without consideration, he filed an Application No.4931/2019 before the KSAT. During its pendency, another Notification dated 19.08.2019 came to be issued. Under the same, his transfer in terms of the Notification dated 18.07.2019 was cancelled and Dr. Nagaraj, was posted as District Surgeon, Davanagere. Assailing the said order, Dr. N Jayaprakash, filed another Application No.5586/2019. The KSAT clubbed both Applications No.5855/2019 and No.5586/2019 and disposed the same common order dated 11.12.2019. Application No.5855/2019 was dismissed, but Application No.5586/2019 was allowed quashing Notification dated 19.08.2019.
6. There is no challenge to the rejection of Application No.5855/2019. But aggrieved by the order passed in Application No.5586/2019, Dr. Nagaraj has filed this petition. The said matter having come up for Preliminary Hearing before this Court on 13.12.2019, this Court ordered issuance of notice to the respondents and granted an interim order of stay of the implementation of the order dated 11.12.2019 passed in Application No.5586/2019.
7. Learned Addl. Government Advocate accepted notice on behalf of respondents no.1 and 2; while respondent no.3 had filed caveat. As liberty was reserved to respondent no.3 to seek vacation of the interim order, he has filed I.A.No.1/2020 for vacating the interim order dated 13.12.2019.
8. Learned Senior counsel appearing for the petitioner firstly submitted that Dr. N Jayaprakash's conduct before the KSAT was not bonafide as he was pursuing two Applications simultaneously. In Application No.5855/2019, he was seeking to retain his posting as District Surgeon, Chitradurga. But in Application No.5586/2019, he was seeking to join duty as District Surgeon at Davanagere. Instead of dismissing both the applications, the KSAT allowed Application No.5586/2019. It was further contended that the order of the KSAT was based on an erroneous finding that both Dr. N Jayaprakash and Dr. Nagaraj had completed the period of minimum tenure. It was submitted that Notification dated 18.07.2019 was in fact, premature in respect of Dr. N Jayaprakash. It was further submitted that the KSAT failed to notice that the impugned order dated 20.08.2019 (Annexure-A10) was only a consequential order to the main order dated 26.07.2019 (Annexure-R3-7), which was not questioned. It was contended that an order of transfer cannot be interfered with except on the ground of malafides or for being contrary to any provision as held by the Hon'ble Supreme Court in Union of India Vs. SL Abbas, (1993) 4 SCC 357 [LQ/SC/1993/420] . It was also contended that the KSAT erred in allowing the Application on the ground of malafides, even though no case of 'malafides' as clarified by the Hon'ble Supreme Court in the case of Rajneesh Khajuria Vs. Wockhardt Ltd., and Another, (2020) 3 SCC 86 [LQ/SC/2020/63] , was made out. It was also contended that the petitioner - Dr. Nagaraj's wife was working as a Ayurvedic Doctor in Government Ayurvedic Hospital, Davanagere and their children were studying in Davanagere. Therefore, the impugned order of transfer was justified and sought for allowing the writ petition and rejecting Application No. 5586/2019. The learned Senior Counsel also relied upon the decision of a Co-ordinate Bench of this Court sitting at Kalaburagi in the case of Prem Singh Vs. State of Karnataka (W.P.No.212920/2020, disposed on 28.02.2020).
9. On the other hand, learned counsel Sri. Huleppa Heroor, appearing for respondent no.3 - Dr. N Jayaprakash, pointing to the various irregularities and illegalities in the impugned Notifications, submitted that there is no merit in the writ petition, hence, sought for its dismissal. He drew our attention to the Notification dated 10.07.2019, wherein, Dr. Basavarajappa, who was transferred to the post of District Surgeon, Chitradurga, by falsely showing that the post was vacant due to transfer of Dr. N Jayaprakash, even when he was not transferred. Even in the subsequent Notification dated 18.07.2019,whereunder Dr. N. Jayaprakash was transferred as District Surgeon, Davanagere, the post was shown as vacant due to retirement of Dr. Neelambike. But, Dr. Neelambike had not yet retired from service. Therefore, both the Notifications were illegal. It was further submitted that after the retirement of Dr. Neelambike, he submitted a representation to permit him to implement the Notification dated 18.07.2019. He also filed Application No.4931/2019 seeking direction to consider his representation dated 03.08.2019. During the pendency of this Application, the impugned Notification dated 19.08.2019 was issued canceling the Notification dated 18.07.2019 with regard to transfer of Dr. N Jayaprakash and posting Dr.Nagaraj as the District Surgeon, at Davanagere. As the said Notification did not show any posting to Dr. N Jayaprakash, it suffered from legal malice and the interference by the KSAT was fully justified.
10. It is seen that the no statement of objection was filed before the KSAT and neither before this Court on behalf of respondents no.1 and 2. However, the impugned Notifications were sought to be justified. Even before this Court, learned Addl. Government Advocate, sought to support the impugned Notifications.
11. Having heard the learned Senior counsel for the petitioner; learned AGA for the respondent nos.1 and 2, learned counsel for respondent no.3, and on perusal of the impugned order, the points that arise for consideration are:
i) Whether the interference with the Notification dated 19.08.2019 (Annexure-A9) in Application No.5586 of 2019 vide order dated 11.12.2019 by the KSAT is justified
ii) What order
12. Though, Dr. N Jayaprakash had filed two Applications and was pursuing his cause for retaining his posting as District Surgeon, Chitradurga and also seeking permission to take charge as District Surgeon, Davanagere, he has not challenged the order dated 11.12.2019 passed by the KSAT rejecting Application No.5855/2019. Thus, the dispute at present is only with regard to the legality of the Notification dated 19.08.2019.
Reg.Point No.1:
13. The contention regarding lack of bonafides on the part of the Applicant seeking to pursue two separate Applications with regard to two different posts, is liable to be rejected on two grounds: firstly, the said contention was not urged before the KSAT nor has the KSAT spelt on it. Secondly, at present, Dr. N Jayaprakash is pursuing his posting as District Surgeon, Davanagere, as the order of rejection of Application No.5855/2019 has attained finality.
14. The second contention regarding completion of minimum period of tenure by both the contenders, it was pointed out that Dr. N Jayaprakash was posted as District Surgeon, Chitradurga, only on 05.02.2018. Therefore, his transfer under the Notification dated 18.07.2019, was premature. But, the petitioner cannot seek to derive any benefit from the grievance of the respondent. Secondly, he did not question his transfer as being premature. In any case, it is seen that the said finding is given by the KSAT while dealing with Application No.5855/2019, which is not the subject matter of this writ petition. Hence, we do not find any merit in the above contention.
15. Even while considering petitioner's contention with regard to challenge only to a consequential order dated 20.08.2019, without challenging the main order dated 26.07.2019, it is seen that neither the order of the KSAT deals with the same nor its decision hinge on it. Any decision on this contention would not alter the final result and is academic in nature.
16. Even the further contention that no case for interference with the impugned order of transfer was made out satisfying the law laid down in S.L. Abbas's case (supra) or Rajneesh Khajuria's case (supra), does not have merit. In this case, the transfer orders passed with reference to Dr. N Jayaprakash suffer from illegalities. Moreover, a Division Bench of this Court in Miss Seema H Vs. State of Karnataka and Others, in W.P. No.48499/2016 disposed of on 16.09.2016), has held that transfer orders issued awaiting posting are malafide. Under the circumstances, exercise of jurisdiction by KSAT in this case does not violate the law in either S.L. Abbas or Rajneesh Khajuria's case.
17. Petitioner's reliance upon the decision in Prem Singh's case also does not lend him much help. In fact, in para-14 of the said judgment, it has held that lack of compelling reasons or administrative exigency indicate 'malice in law' and 'lack of bonafides'. The Bench also noted that cancellation of transfer Notification with regard to only one person from a general order of transfer would also be illegal. In the case on hand, it is seen that the transfer Notification dated 10.07.2019 is a general transfer order transferring nine officials. But the impugned order dated 19.08.2019 canceling the transfer order only with regard to sl.no.8 in the Notification dated 10.07.2019 pertaining to Dr. N Jayaprakash, does not contain any reason for singling him out. Hence, on this count also the impugned order dated 19.08.2019 would be malafides and illegal.
18. It is also contended that Dr. N Jayaprakash continued to work as District Surgeon at Chitradurga, until 12.09.2019; while Dr. Basavarajappa continued to work in his previous posting. But, it is seen that this fact is not suppressed and is clearly stated in para-1 of the Application. But, this contention was not urged before the KSAT. Hence, it does not merit consideration. Accordingly, it is rejected.
19. Lastly, in order to examine whether the exercise of jurisdiction by KSAT in this case calls for interference by this Court, it is necessary to tabulate the transfer Notifications concerning this case. They are tabulated as follows:
Sl. No.
Date of Transfer
Place of transfer
From
To
1
05.02.2018
Dr. N Jayaprakash posted as the Dist. Surgeon, Chitradurga.
2
10.08.2018
Dr.Jayaprakash Dist. Surgeon, Chitradurga
Dist. Leprosy Officer (Control of Leprosy), Chitradurga.
3
10.07.2019
Dr.Basavarajappa, Eye Specialist, Taluka Hospital, Challakere.
Dist. Surgeon Dist. Hospital Chitradurga, showing it as vacant due to transfer of Dr. N Jayaprakash.
4
18.07.2019
Dr.Jayaprakash Dist. Surgeon, Chitradurga.
Dist. Surgeon, Davanagere stating post became vacant due to retirement of Dr. Neelambike.
5
19.08.2019
Transfer of Dr.Jayaprakash as Dist. Surgeon, Davanagere, is canceled.
No posting given to Dr.Jayaprakash. Dr.Nagaraj posted as Dist. Surgeon, Dist. Hospital, Davanagere
20. The very first order dated 10.08.2018 transferring Dr. N Jayaprakash as District Leprosy Officer (Control of Leprosy) Chitradurga, was stayed on 21.08.2018 by the KSAT in Application No.6456/2018. Before the matter could have been decided on merits, the transfer order dated 10.07.2019 transferring Dr. Basavarajappa as District Surgeon, Chitradurga, came to be issued. However, the post of District Surgeon, Chitradurga, is shown as a vacant post on 10.07.2019 itself and the reason for such vacancy is stated to be the transfer of Dr. N Jayaprakash. As no order of transfer was in existence insofar as Dr. N Jayaprakash is concerned Notification dated 10.07.2019 suffers from illegality. Even the cure that came in the form of the subsequent transfer order dated 18.07.2019, it is seen that the transfer is to the post of District Surgeon, District Hospital, Davanagere. It is stated there in that the post of District Surgeon, Hospital, Davanagere, had already become vacant as on 18.07.2019 due to retirement of Dr. Neelambike, which was contrary to fact and not true. Hence, the said order also suffered from illegality until the date of actual retirement of Dr. Neelambike. After the retirement of Dr. Neelambike, Dr.N.Jayaprakash, submitted a representation dated 03.08.2019 seeking to implement the transfer order dated 18.07.2019. In fact, he has approached the KSAT seeking a direction to respondents no.1 and 2 to consider his representation dated 03.08.2019 in Application No.4931/2019. During its pendency, the impugned order dated 19.08.2019 is passed canceling the earlier order dated 18.07.2019 and without showing any posting to Dr. N Jayaprakash, Dr. Nagaraj is sought to be posted as the District Surgeon, Davanagere. A Division Bench of this Court in the case of Miss Seema H (Supra), has held that transfer orders issued awaiting posting are malafides. The transfer Notification also does not contain detailed reasons justifying the order. In view of the irregularities in the transfer Notifications issued with regard to Dr. N Jayaprakash, the relief given by the KSAT is justified. Hence point No.1 is answered in affirmative.
21. In the result, the writ petition is dismissed.
22. No order as to costs.
