CHIEF MINISTER`S ORDER OF TRANSFER CANCELLED BY THE HIGH COURT - BBMP

IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 12TH DAY OF DECEMBER 2013 BEFORE THE HON’BLE MR.JUSTICE H.G.RAMESH

BETWEEN:

SRI B.T. MOHAN KRISHNA

S/O LATE THAMMAIAH

AGED ABOUT 51 YEARS

WORKING AS DEPUTY DIRECTOR OF TOWN PLANNING (SOUTH) BRUHUTH BANGALORE MAHANAGAR PALIKE HUDSON CIRCLE, BANGALORE – 560 001 ... PETITIONER

(BY SRI M.S.BHAGWAT, ADVOCATE)

AND:

1. BRUHUTH BANGALORE MAHANAGAR PALIKE

REPRESENTED BY ITS COMMISSIONER

N R SQUARE, BANGALORE – 560 001

2. THE ADDITIONAL COMMISSIONER

(ADMINISTRATION)

BRUHUTH BANGALORE MAHANAGARA PALIKE

N R SQUARE, BANGALORE -560 001

3. SRI T.P. PANCHAKSHARAIAH

MAJOR, WORKING AS EXECUTIVE ENGINEER

OFFICE OF CHIEF ENGINEER

(ROAD AND INFRASTRUCTURE)

N R SQUARE, BANGALORE – 560 001 ...

RESPONDENTS

(BY SRI LOHITH S.R FOR

SRI K.N. PUTTE GOWDA, ADVOCATES FOR R1 & R2; SRI SUBRAMANYA JOIS, SR. ADVOCATE FOR SRI K.C.SHANTAKUMAR, ADVOCATE FOR R3) WP IS FILED UNDER ARTICLES 226 OF THE

CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS PERTAINING TO IMPUGNED ORDER BEARING NO.B12(6) PR/471/13-14 DATED 6.9.2013 ISSUED BY THE R2, VIDE ANNEXURE-A. WP COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

O R D E R

H.G.RAMESH, J. (Oral):

Heard. In this writ petition, the petitioner who is

an Executive Engineer in the Bruhath Bangalore

Mahanagara Palike (‘the BBMP’ for short) is challenging the order of internal transfer dtd. 06.09.2013, transferring him from his present post of Deputy Director (Town Planning-South), Bangalore to the office of the Chief Engineer (Lakes), Bangalore. The case of the petitioner is

that the impugned order of internal transfer is passed only to favour respondent No.3 to give a place of posting of his choice.

2. The BBMP in its statement of objections has stated that the impugned order of transfer was passed as respondent No.3 did not report for duty to the office to which he was posted and he insisted for posting to a particular office. It is relevant to refer to para 7 of the statement of objections filed by the BBMP: WP.No.41458/2013

 “7. It is submitted that these respondents

had passed the impugned order in the interest of

the smooth functioning of the administration of

BBMP and also in the interest of the public at large

and the petitioner cannot question the powers of

these respondents relating to the transfer, since the

third respondent after his transfer from the post of

Deputy Director, Town Planning (North) had not

reported to the said post and insisted on getting

himself posted to the office of the Deputy Director,

Town Planning (North) and in this regard, it is to be

mentioned that he had preferred a Writ Petition

questioning the transfer Order. Hence, these

respondents have transferred him to the post of

Deputy Director, Town Planning (South) where the

petitioner was working.”

3. This Court had directed the learned counsel for the BBMP to place the original file relating to the transfer in question before this Court. Accordingly, the counsel placed the original file before this Court for perusal.

4. Learned counsel for the BBMP submits that the

impugned order of transfer is passed pursuant to the

directions issued by the Chief Minister and the Transport Minister vide their letters dtd. 24.07.2013 and 25.07.2013 respectively. It is relevant to refer to the aforesaid two letters which read as follows:

WP.No.41458/2013

Government of Karnataka

RAMALINGA REDDY Room No.301, 301A

Minister for Transport and III Floor, Vidhana Soudha

District in-charge Minister, Bangalore – 560 001

Bangalore. Ph: (O): 080-22253747

22033273

22237240

5. As could be seen from the above, the Chief Minister has directed transfer of respondent No.3 from Mahadevapura Zonal Office of BBMP, Bangalore to the post of Deputy Director, Town Planning (South), BBMP, WP.No.41458/2013

Bangalore, which is the place to which he is now posted as per the impugned order. To the same effect is the letter written by the Minister for Transport and District in-charge Minister, Bangalore to the Chief Minister.

6. It is also relevant to state that the petitioner is no

less powerful than respondent No.3. He also got a letter dtd. 09.08.2013 from the Chief Minister directing the Commissioner, BBMP to continue the petitioner as Deputy Director, Town Planning (South), BBMP, Bangalore. The said letter of the Chief Minister reads as follows:

7. It is rightly stated by the learned counsel appearing for the BBMP that under S.69 of the Karnataka Municipal Corporations Act, 1976 (‘the Act’ for short), it is only the Commissioner or his delegatee who has power to give WP.No.41458/2013 internal postings to the employees and Officers of the BBMP. In my opinion, under the Act, neither the Chief Minister nor any Minister has any power to interfere with

the statutory power of the Commissioner under S.69 of the Act to make internal transfers of the employees or Officers of the Municipal Corporation. However, the State Government has power under S.91-A of the Act to transfer any officer or servant of a Municipal Corporation to another Corporation or a local Authority. It is a settled position in law that an authority empowered to exercise a power cannot abdicate its functions by acting at the dictates of another authority, howsoever high it may be.

Postings or transfers within the BBMP could be made only by the Competent Authority i.e. the Commissioner or his delegatee who has to apply his mind and to make the order. He cannot abdicate his statutory power at the dictation of another, who is not conferred with the power to dictate. The Commissioner would be failing in his statutory duty, if he acts at the dictation of any Minister including the Chief Minister in the matter of internal transfers within the BBMP.

8. The above referred letters would show the kind of interference by the Chief Minister even in the internal postings within the BBMP. The sooner this kind of interference is stopped, better it is for the administration and the people of this State. The impugned order of transfer dtd. 06.09.2013 which is admittedly passed at the dictation of the Chief Minister is unsustainable in law. It is liable to be set aside and it is accordingly set aside.

9. All internal transfers made in the BBMP at the

dictation of the Chief Minister or any other Minister are unsustainable in law. The Commissioner shall cancel all such transfers and give appropriate postings to the concerned Officers and employees having regard to their ability, honesty and integrity to bring efficient administration in the BBMP. This shall be done expeditiously, and in any event, within two months from the date of receipt of a copy of this order. The Commissioner shall also take steps to review all postings in the BBMP and to make appropriate internal transfers to increase the efficiency of the administration in the BBMP.

 I may add that I have come across several writ petitions filed by residents of Bangalore only for a direction to the BBMP to consider their applications which are kept pending for months and years. This only reflects the functioning of the BBMP. This must change at the  earliest. The sooner, the better.

Petition allowed.

Sd/-

JUDGE

BNS