Karnataka High Court
Sri S Nandeesha vs The State Of Karnataka on 28 June, 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MRS. JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO. 12151 OF 2024 (S-KSAT)
BETWEEN:
SRI. S. NANDEESHA
S/O LATE SIDDAIAH
AGED ABOUT 47 YEARS
AT PRESENTLY
UNDER AN ORDER OF POSTING AS
SUB REGISTRAR
MYSORE (WEST)
MYSORE-570 021
... PETITIONER
(BY SHRI. M.S. BHAGWAT, SENIOR COUNSEL A/W.
SHRI. SATISH K., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF REVENUE
REPRESENTED BY ITS PRINCIPAL SECRETARY
M.S. BUILDING, BANGALORE-560 001
2. THE INSPECTOR GENERAL OF REGISTRATION
AND COMMISSIONER OF STAMPS
8TH FLOOR, KANDAYA BHAVAN
K.G. ROAD, BANGALORE-560 009
3. SRI. N. SRIKANTH
S/O. N. HANUMANTHAPPA
AGED ABOUT 41 YEARS
-
2
WORKING AS SUB REGISTRAR
OFFICE OF THE SUB REGISTRAR
MYSORE (WEST)
NO.283, 284 AND 285
KARNATAKA BANK BUILDING
1ST FLOOR, VIJAYANAGARA WATER TANK ROAD
VIJAYANAGARA 2ND STAGE
MYSORE-570 017
....RESPONDENTS
(BY SHRI. REUBEN JACOB, AAG A/W.
SHRI. VIKAS ROJIPURA, AGA FOR R1 & R2;
SHRI. GURUDAS S. KANNUR, SENIOR COUNSEL A/W.
SHRI. PRITHVEESH M.K., ADVOCATE FOR C/R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR
RECORDS FROM KARNATAKA STATE ADMINISTRATIVE
TRIBUNAL, BANGALORE, PERTAINING TO APPLICATION
No.4512/2023 (ANNEXURE-A) AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 12.06.2024 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, ANU SIVARAMAN J.,
PRONOUNCED THE FOLLOWING:
ORDER
The substantial prayers in this writ petition are as follows:-
"(a) CALL for records from the Hon'ble Karnataka State Administrative Tribunal, Bengaluru pertaining to Application No.4512/2023 (Annexure - A);
(b) SET ASIDE the impugned Order dated 18.04.2024 passed by the Hon'ble Karnataka
-3
State Administrative Tribunal, Bengaluru in Application No.4512/2023 (Annexure - A) and CONSEQUENTLY DISMISS the Application No.4512/2023 preferred by Respondent No.3 before the Hon'ble Tribunal, in the interest of justice and equity."
2. The writ petitioner was the contesting respondent No.3 before the Karnataka State Administrative Tribunal, Bengaluru (hereinafter referred to as 'the Tribunal' for short). An application was filed by the third respondent herein challenging Annexure-A6 dated 11.10.2023 by which the petitioner herein was posted to the place of the applicant. The writ petitioner and the third respondent were working as Sub Registrars. The third respondent was appointed as Sub Registrar by Annexure-A1, order dated 15.06.2019 under Hyderabad Karnataka Local cadre. His probation was declared on 25.11.2021 by Annexure-A2 and after the training period, he was posted as Sub-Registrar, Chikkamagaluru. By Notification dated 21.05.2022 by Annexure-A3, he was transferred and posted as Sub- Registrar, Mysore (West). He reported for duty at Mysore (West) on 23.05.2022. It was contended that the said post
-
4 is a Group 'C' post and that the order of transfer dated 11.10.2023 was therefore a premature transfer, which is not informed by any reasons as required under Clause 9 of the transfer guidelines. The petitioner herein, who was the third respondent, had been posted as Sub-Registrar at Mysore (West) by the order impugned before the Tribunal while the third respondent was left without posting orders.
3. The contention raised by the writ petitioner as evidenced by the reply statement filed before the Tribunal was that the third respondent herein was appointed by direct recruitment of Hyderabad Karnataka Local cadre. It was urged by the respondents before the Tribunal that the Government by order dated 27.04.2015, amended the transfer guidelines and provided that employees appointed under the Hyderabad Karnataka Local cadre shall not be transferred outside the region for a period of ten years. It was therefore contended that the third respondent/applicant could have been posted only in the Hyderabad Karnataka region for a period of ten years from his date of recruitment
-
5 and that he cannot claim tenure under the Government Order dated 07.06.2013 outside the said region.
4. The applicant filed rejoinder before the Tribunal contending that the initial posting of the third respondent at Chikkamagaluru was made in public interest and that his posting to Mysore having been effected only on 23.05.2022, the transfer order dated 11.10.2023 is indeed an order of premature transfer. It was contended that reasons should have been recorded by the competent authority and without doing so; it was not open to the official respondents to transfer the third respondent out from the place where he had been accommodated in public interest. It was also contended that any provision, which states that a person appointed in the Hyderabad Karnataka region cannot work anywhere except in the said region would be contrary to the mandate of Article 16(2) of the Constitution of India and would be resultantly void.
5. The Tribunal considered the contentions advanced as well as the constitutional provision in Article 371-J, the Government orders issued on the basis of the same, as well
-
6 as the decisions relied on and held that the posting of the third respondent as Sub-Registrar to the residual region was evidently one in public interest and that his transfer out of the post held by him before completion of the tenure, therefore, required the recording of reasons. It was further held that the posting of the writ petitioner in the place of the third respondent without showing any posting to the third respondent was itself illegal and unjustified. Further, the judgments of this Court were considered and it was held that the guidelines are statutory in nature. Further, in the absence of recording reasons in the order or in the order sheet, it was held that the reasons could not be supplemented by placing affidavits on record. It was held that the tenure of an officer working in a Group 'C' post is four years and since the period of four years was not completed, the third respondent's posting at Mysore, was a premature transfer and was not informed by reasons.
6. The learned senior counsel appearing for the writ petitioner would contend that the findings of the Tribunal are contrary to the constitutional provisions and the Government
-
7 orders issued on the subject. It is submitted that the writ petitioner was a Sub - Registrar, who does not belong to the Hyderabad Karnataka region. It is stated that the third respondent was admittedly appointed by order dated 15.06.2019 - Annexure-A1 by direct recruitment as Sub- Registrar in the Hyderabad Karnataka region and was deputed for training to the District Office, Kalaburagi. Thereafter, he was posted at Chikkamagaluru and later to Mysore (West). It is submitted that the third respondent had approached the Tribunal on 12.10.2023 and by 13.10.2023, an interim order was passed by the Tribunal interdicting the transfer. However, by order dated 09.01.2024, the Tribunal clarified that the Government can provide posting to the third respondent herein. It is submitted that pursuant thereto on 19.01.2024, the third respondent had been granted a posting to Sedam in Kalaburagi District in the Hyderabad Karnataka region. It is submitted that in view of the Government orders, the guidelines as amended and the circulars in force, the third respondent was to continue in the Hyderabad Karnataka
-
8 region for a period of ten years from the date of his appointment and with his posting to Sedam in Kalaburagi District, which is within the Hyderabad Karnataka region, the matter stands rendered infructuous and no further adjudication is required. It is submitted by the learned Senior Counsel for the petitioner that the complaint of the third respondent before the Tribunal was that he was moved out without showing him a posting and that with the posting granted to him within the local cadre; he looses any right to further agitate the question of his transfer.
7. The learned Additional Advocate General appearing for the party respondents would support the contentions of the learned senior counsel appearing for the petitioner. It is contended that Article 371-J of the Constitution of India as inserted by the Constitution 98th Amendment Act, 2012 provided for establishment of a separate Development Board for Hyderabad Karnataka region and for an order to be made under clause (c) thereof, which may provide for identification of posts or classes of posts under the State Government and in any body or
-
9 organization under the control of the State Government in the Hyderabad-Karnataka region and reservation of a proportion of such posts for persons who belong to that region by birth or by domicile and for appointment thereto by direct recruitment or by promotion or in any other manner as may be specified in the order. It is submitted that a Notification was issued on 06.11.2013 identifying the Hyderabad Karnataka region, providing a local cadre and reserving posts in the region to be organised as local cadres. Clause 5 of the said order of 2013, provided that the region for which a local cadre has been organised in respect of any category of posts, shall be a separate unit for purposes of recruitment, appointment, seniority, promotion and transfer and such other matters as may be specified by the State Government in respect of that category of posts. The order was further amended on 20.01.2014 providing for identification by notification, the number of posts in each cadre into the local cadre. Thereafter, appropriate rules were promulgated notifying the local cadres with roster, wherein, it was provided that wherever non local person is
-
10 occupying a local cadre post, such non local person shall be shifted to the residual parent cadre for cadre control purposes and may continue to occupy the post in the local cadre as a deputationist.
8. Reliance is also placed on the operational guidelines issued on 17.06.2014 as well as the amendments brought about in the Transfer guidelines, which specifically provide that a person appointed in the local cadre shall continue to hold the post within the Hyderabad Karnataka region for a period of ten years. It is therefore contended that it was only to give effect to the guidelines and the circulars that the third respondent had been moved out from the post held by him in Mysore to the Hyderabad Karnataka region by granting him a posting to Sedam and therefore the writ petition is now to be closed recording such transfer. It is further contended that the provisions of the Government Orders and the amended guidelines have not been challenged before the Tribunal and therefore, the Tribunal ought to have followed the said prescriptions.
-
11
9. The learned senior counsel appearing for the third respondent, on the other hand, contended that the third respondent had been posted first to Chikkamagalur, later to Mysore, apparently in public interest. It is submitted that after affording a posting to him at Mysore in 2022, it was not open to the Government to turn around and contend that the said posting was not justified and to post the petitioner herein in the place of the third respondent without showing any posting to the third respondent. It is submitted that had it been a case of transfer and posting to give effect to the orders passed in pursuance to Article 371-J, such reason would definitely have found a place in the files, which is not the case. It is further submitted that a transfer effected without granting any posting orders is violative of the further Government Circular dated 27.03.2017. It is contended that the very submission that a person belonging to the Hyderabad Karnataka region cannot be permitted to work outside the region amounts to an affront to the principles of equality and non-discrimination as provided by the Constitution of this country.
-
12
10. It is further contended that what was under
challenge before the Tribunal being an order of premature transfer, the fact that an order of posting to the Hyderabad Karnataka region had been provided during the pendency of the writ petition, by itself, will not make any difference to the situation on hand. It is further contended that the said order is a dependent order, which cannot survive in view of the fact that the challenge against the initial order of transfer itself stands accepted by the Tribunal. It is submitted that as against the interim orders granted by this Court, an SLP was filed before the Apex Court, which is pending consideration. However, the Apex Court had specifically ordered that the pendency of the SLP will not stand in the way of this Court considering the writ petition on its merits. We therefore proceed to consider the contentions on merits on consent of all parties.
11. The learned counsel appearing for the petitioner has relied on the following decisions:-
• Gadde Venkateshwar Rao v. Government of Andra Pradesh & Others reported in AIR 1966 SC 828, Para 17;
-13
• Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar & Others reported in (1999) 8 SCC 16, Para 13;
• Smt. Veena H.S. v. The State of Karnataka & Others in Writ Petition No.24786/2023 and connected matters decided on 22.01.2024, Paras 8 & 9; and • Sri. Pubi Lombi v. The State of Arunachal Pradesh & Others in Civil Appeal No.4129/2024 decided on 13.03.2024, Paras 9 & 10
12. The learned senior counsel appearing for respondent No.3 has relied on the following decisions:-
• State of Assam & Another v. Raghava Rajagopalachari reported in 1967 SCC OnLine SC 1, Paras 1 & 13;
• State of Bihar & Others v. Shyama Nandan Mishra & Others reported in 2022 SCC OnLine SC 554, Paras 26-28;
• S.K. Nausad Rahaman & Others v. Union of India & Others reported in (2022) 12 SCC 1, Paras 26, 49-51;
• Smt. Mohanakumari H.M. v. State of Karnataka & Others in Writ Petition No.24192/2022 - Order dated 06.12.2022, Para 8;
-
14 • K.M. Vasu v. Bruhat Bengaluru Mahanagara Palike and others reported in (2020) (1) Kant LJ 594, Para 3(g);
• Dr. T.S. Muralidhar v. State of Karnataka & Others, Order dated 01.09.2023 passed in Writ Petition No.105251/2023, Internal Page No.11- Para 7(f);
• N.K. Bagayat v. The State of Karnataka & Others passed in SLP(C) No.13046/2019, Order dated 22.05.2019.
• Ms. Seema H. v. State of Karnataka & Others in Writ Petition No.48499/2016 vide Order dated 16.09.2016, Para 6;
• M. Aran Prasad v. Commissioner of Excise & another reported in (2017) 2 AIR Kant R 321, Para 4;
• N. Mohammed Zubair v. State of Karnataka and others reported in (2019) 5 Kant LJ 556, Para 22; • Commissioner of Police, Bombay v. Gordhandas Bhanji reported in 1951 SCC 1088, Para 9; • Mohinder Singh Gill and another v. The Chief Election Commissioner and others reported in (1978) 1 SCC 405, Para 8;
-
15 • Xiaomi Technology India Ltd. v. Deputy Commissioner of Income Tax and others in Writ Petition No.16692/2022 vide Order dated 16.12.2022, Para 18;
• Joyce Lynn Peters v. RBI and others reported in ILR 2022 KAR 1357, Para 5(ii);
• Sri. M. Revannasiddappa v. State of Karnataka & Others in Writ Petition No.18489/2021 connected with Writ Petition No.19793/2021 vide Order dated 24.12.2021, Paras 4 to 6;
• Dr. Jayanna H.S. v. The State of Karnataka & Another in Writ Petition No.11937/2022 vide Order dated 28.06.2022, Para 8;
13. Having considered the contentions advanced, we notice that Article 371-J of the Constitution of India which was introduced by the 98th amendment to the Constitution provides for equitable opportunities and facilities for the people belonging to the region in matters of public employment, educational and vocational training. Identification of posts or classes of posts and reservation of a proportion of such posts for persons belonging to the region is provided for. The State of Government (Special
-
16 Responsibility of Governor for Hyderabad-Karnataka Region) Order, 2013 was published on 24.10.2013. In pursuance thereto, the Karnataka Public Employment (Reservation in appointment of Hyderabad-Karnataka Region) Order, 2013, was published on 06.11.2013. A local cadre was identified and reservation provided for the specified number of posts. The said order defines local cadre as any local cadre in the State Government or in any local authority or body organised in pursuance of paragraph No.3 thereto. Paragraph No.3 of Chapter 1 of the order reads as follows:-
"3. Organization of Local Cadres.- (1) The Governor shall within a period of three months from the commencement of this Order, by notification identify posts in the civil services or civil posts under the State Government in the Hyderabad-Karnataka Region or posts in Local Authority or body or organization under the control of the State Government in that region into the local cadre to the extent and in the manner, hereinafter provided.
(2) 75% of the posts in the region belonging to Group-A (Junior Scale) and Group-B posts in each department of the State Civil Service or in local Authority or body or organization shall be organized into as local cadres.
-
17
(3) 80% of the posts in the Region belonging to the category of Group-C and 85% percent of the posts in the Group-D in each department of State Civil Service or in local Authority or body or organization shall be organized as local cadres.
Provided that, notwithstanding the expiration of the said period, the Governor may, by order, require the State Government, whenever he considers it expedient to do so, organize any classes of posts in the civil services or under the State or in any Local Authority or body or organization into local cadres in the said region."
14. Paragraph No.4 provides for allotment of persons to the local cadre.
15. Paragraph No.5 reads as under:-
"5. Local cadres and transfer of persons.-
(1) The region for which a local cadre has been organized in respect of any category of posts, shall be a separate unit for purposes of recruitment, appointment, seniority, promotion and transfer and such other matters as may be specified by the State Government in respect of that category of posts.
(2) Nothing in this order shall prevent the State Government from making provision for:-
-18
(a) the transfer (or deputation) of a person from any local cadre to any other local cadre or to any office or establishment to which this order does not apply, or Vice versa.
(b) the transfer (or deputation) of a person from one local cadre to another cadre where no qualified or suitable person is available in the latter cadre or where such transfer is otherwise considered necessary in the public interest.
(c) the overall joint seniority list in the State (along with the separate local cadre seniority list) for such cadres which ordinarily have state wide cadre.
(d) The Governor may ensure that the persons borne on the local cadre at Gazetted levels are not discriminated against in being posted anywhere in Karnataka."
Paragraph No.9 confers power on the Governor to require the State Government to issue directions necessary to give effect to the order.
16. Thereafter, by the Karnataka Public Employment (Reservation in Appointment for Hyderabad-Karnataka Region) (Amendment) Order, 2013, published on
-
19 20.01.2014. Paragraph No.3 of 2013 order was amended as follows:-
3. Amendment of para 3.- In para 3 of the said Order,-
(i) for sub-para (1), the following shall be substituted, namely:-
"(1) Government or any officer or authority authorized by the Government may within a period of three months from the commencement of this Order, identify by notification "the number of posts"
in the civil services or civil posts under the State Government in each cadre in the Hyderabad- Karnataka Region or posts in Local Authority or body or organization under the control of the State Government in that region into the local cadre to the extent and in the manner, hereinafter provided".
17. Thereafter, the Karnataka Public Employment (Reservation in Appointment for Hyderabad-Karnataka Region) (Organisation of Local Cadres, Allotment and Transfer of Persons) Rules, 2013, were published on 29.01.2014. Chapter VI Rule 8 thereof, reads as follows:-
"8. Shifting of Non Local Person from a Local Cadre.- Wherever a non local person is occupying a local cadre post, such non local person
-20
shall be shifted to the Residual Parent cadre for cadre control purposes. Provided, such non local person may continue to occupy such post in a local cadre as a Deputationist."
18. Further, operational guidelines were also issued on 17.06.2014. The transfer guidelines issued by the Government Order dated 07.06.2013 were also amended on 27.04.2015 providing that "The candidates who are recruited against the vacant posts in the different local cadres and remainder cadres in the Hyderabad Karnataka areas, should not be transferred outside Hyderabad Karnataka area for a minimum period of 10 years."
19. It is in the above background that, the facts of the instant case requires to be considered. The third respondent was admittedly a person appointed against a reserved post to the local cadre under the Hyderabad Karnataka region by direct recruitment. However, it is clear that paragraph No.5(2)(b) of the Karnataka Public Employment (Reservation in Appointment for Hyderabad- Karnataka Region) Order, 2013 specifically provides that nothing shall prevent the State Government from making
-
21 provision for the transfer (or deputation) of a person from one local cadre to another cadre where no qualified or suitable person is available in the latter cadre or where such transfer is otherwise considered necessary in the public interest. Clause 5(2)(d) also provides that the Governor may ensure that the persons borne on the local cadre at Gazetted levels are not discriminated against in being posted anywhere in Karnataka. It is therefore clear that there is no complete bar to a person appointed against the local cadre in the Hyderabad-Karnataka region from being posted outside the region in public interest. It is true that the transfer guidelines stand amended and that the Government Orders passed pursuant to Article 371-J and the transfer guidelines have not been challenged by the third respondent herein before the Tribunal. However, it is clear that there was no embargo on the State Government in posting a person belonging to the local cadre to any other cadre in public interest.
20. The Tribunal has considered the contentions advanced and come to the conclusion that the posting of the
-
22 third respondent to Mysore being only in 2022, the transfer order dated 11.10.2023 was indeed a premature transfer, which would require the stating of reasons and the approval of the same by the Chief Minister. Further, it was found that the transfer, without granting orders of posting was bad in law and against the provisions of the Government Circular dated 27.03.2017.
21. Having considered the provisions of law and the government orders, transfer guidelines and the circulars placed on record, we are of the opinion that the initial posting of the petitioner outside Hyderabad-Karnataka region would be one issued in administrative exigencies and in public interest. Therefore, we are of the opinion that the finding of the Tribunal that the transfer order was a premature transfer without stating the reasons cannot be found fault with.
22. The fact that the third respondent had been granted a posting on 19.01.2024 to Sedam in Kalaburagi District or that the petitioner had assumed charge during the pendency of the proceedings will also not make a difference
-
23 to the situation since it was an order passed during the pendency of the challenge to the transfer order dated 11.10.2023 before the Tribunal. Hence, we are of the opinion that the findings of the Tribunal do not require any interference.
23. In the result, the writ petition fails, the same is accordingly dismissed. However, this will not stand in the way of the State Government to pass appropriate orders in public interest and stating sufficient reasons for transfer if the same is warranted.
Sd/-
JUDGE Sd/-
JUDGE cp*