Karnataka High Court
Smt Krishnaveni vs State Of Karnataka on 18 July, 2024
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MRS JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO. 9685 OF 2024 (S-KSAT)
BETWEEN
SMT. KRISHNAVENI
D/O P. CHIKKALINGAIAH,
AGED ABOUT 44 YEARS
WORKING AS SENIOR GEOLOGIST,
OFFICE OF THE SENIOR GEOLOGIST,
MINES AND GEOLOGY DEPARTMENT,
CHIKKABALLAPURA - 562101
PRESENTLY ON ELECTION TRANSFER TO
ROOM NO. 205, A BLOCK,
1ST FLOOR,
O/O THE SENIOR GEOLOGIST,
DEPARTMENT OF MINES AND GEOLOGY,
RAJATADRI,
MANIPAL 576 104
PRESENTLY RESIDING AT:
FLAT NO A 1004, TOWER A,
10TH FLOOR,
ROYAL EMBASSY, MANIPAL 576104
...PETITIONER
(BY SRI. P.S.RAJAGOPAL, SENIOR COUNSEL A/W
SRI. JAYANTH DEV KUMAR, ADV.)
2
AND
1. STATE OF KARNATAKA
BY ITS PRINCIPAL SECRETARY TO
THE GOVERNMENT,
DEPARTMENT OF COMMERCE AND
INDUSTRIES,
M.S.BUILDING,DR. AMBEDKAR VEEDHI,
BENGALURU - 560 001
2. DIRECTOR
DEPARTMENT OF MINES AND GEOLOGY
KHANIJA BHAVANA,RACE COURSE ROAD,
BENGALURU - 560 001.
3. JOINT DIRECTOR
DEPARTMENT OF MINES AND GEOLOGY,
CHIKKABALLAPURA - 562101.
...RESPONDENTS
(BY SRI. REUBEN JACOB, AAG A/W
SRI. VIKAS RAJIPURA, AGA.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL
FOR THE ENTIRE RECORDS PERTAINING TO A.NO-1341/2023
BEFORE THE HONBLE KSAT AND QUASH ORDER DATED
05.03.2024 PASSED BY THE KSAT BENGALURU IN A.NO-
1341/2023 (UNDER ANNEXURE-A) AND ALLOW A.NO-
1341/2023 (UNDER ANNEXURE-B) AND GRANT ALL THE
CONSEQUENTIAL RELIEFS ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 10TH JULY, 2024 AND COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
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CAV JUDGMENT
(PER: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE) The applicant before the Karnataka State Administrative Tribunal (Hereinafter referred to as the 'Tribunal' for short) in Application No.1341/2023 is the petitioner before this Court, and assailing the order of dismissal of the said application.
2. Petitioner, who was working in the cadre of Senior Geologist, was posted to Chikkaballapur by order dated 30.07.2021. On 10.08.2021, the petitioner was prematurely transferred from Chikkaballapur. The said order was set aside vide order dated 25.10.2021 in Application No.4213/2021 before the Tribunal.
3. Thereafter, the petitioner was kept under suspension by order dated 18.11.2022, which was challenged in Application No.5682/2022 before the Tribunal and it was set aside vide order dated 17.01.2023.
4. Petitioner contends that being unsuccessful in dislodging the petitioner from Chikkaballapur, the first respondent vide order dated 20.03.2023, in violation of applicable Rules, upgraded the post of Senior Geologist in 4 Chikkaballapur to the post of Deputy Director. The challenge to the said order before the Tribunal being unsuccessful, the petitioner is before this Court.
5. Learned Senior counsel appearing for the petitioner would contend that the order dated 20.03.2023 upgrading the post of Senior Geologist to the post of Deputy Director requires the previous concurrence of the Finance Department and sanction of the Department of Personnel and Administrative Reforms. It is further urged that the order is in violation of Sections 3 and 8 of the Karnataka State Civil Services Act, 1978 ('Act, 1978' for short) and the said order is void for want of cabinet's approval. It is also urged by the learned Senior counsel that the post is upgraded only to keep the petitioner out of Chikkaballapur and to place a person of choice in Chikkaballapur. It is also urged that both the Senior Geologist and the Deputy Director exercise the same power under the Karnataka Minor Mineral Concession Rules, 1994 as such there is no need to upgrade the post at all. It is also urged that the petitioner officiating as 5 Senior Geologist in Chikkaballapur has achieved 80% revenue target and there is no need to upgrade the post.
6. The learned Additional Advocate General appearing for the respondents raised the following contentions:
(i) The petitioner does not have a right to question the policy decision taken by the respondent/State to upgrade and downgrade a particular post when the decision is taken keeping in mind the administrative exigencies.
(ii) The exercise undertaken by the respondent/State does not have any financial implications and no procedure is violated in carrying out the said exercise.
(iii) The number of posts in the respective cadre of Deputy Director and Senior Geologist are not altered by the impugned order.
(iv) The exercise is undertaken to ensure that a Deputy Director who is more experienced than the Senior Geologist is posted in a place where there are more mines 6 and more applications seeking mining licenses are pending consideration.
(v) The allegation of malafide levelled against the respondents is untenable. Unless the person responsible for alleged malafide action is named and made a party to the application, the contention based on malafide cannot be accepted. Merely because the earlier applications filed by the petitioner challenging the order of transfer and challenging the order of suspension have been allowed, it cannot be presumed that the present exercise of upgrading and downgrading the petitioner is to transfer out the petitioner from Chikkaballapur.
7. After hearing the learned Senior counsel appearing for the petitioner as well as the learned AAG, this Court directed the AAG to produce the original file relating to the decision taken to upgrade the post of Senior Geologist and downgrade the post of Deputy Director in three places referred to above. 7
8. This Court has considered the contentions raised at the bar and perused the records. The points that arise for consideration are:
(1) Whether the respondent has violated any of the provisions of law while upgrading or downgrading the post of Senior Geologist and Deputy Director in Chikkaballapur and Bangalore Rural?
(2) Whether the act of the respondent in upgrading the post of Senior Geologist is a malafide act to transfer the petitioner out of Chikkaballapur?
9. Regarding point No.1 - Learned Senior counsel appearing for the petitioner referring to Section 3 of the Act, 1978 urged that the creation and abolition of posts can be only under the Cadre and Recruitment Rules, and even for that purpose, the procedure contemplated under Rule 17(1) of The Karnataka Government (Transaction of Business) Rules, 1977 ('Rules,1977' for short) have to be 8 followed and no such procedure is followed. Reliance is placed on the Judgment of the co-ordinate bench of this Court in Sri M V Dixit and Others vs State of Karnataka and others reported in ILR 2004 Kar 3802 to contend that the contention raised in this petition is squarely covered in terms of the ratio in the said decision.
10. Admittedly, Section 3 of the Act, 1978 provides for framing rules governing Recruitment and Service conditions of service. Section 8 of the said Act, 1978 provides for enacting Rules to carry out the object of the Act, 1978.
11. Relevant Portion of Section 3 reads as under:
3. Regulation of recruitment and the conditions of service - (1) Subject to the provisions of this Act, the State Government, may, by notification, make rules,-
(a) specifying the different categories of posts in the different branches of public services of the State, the total number and nature of posts in each such category and the scale of pay admissible to each such category;
(b) for regulation of the recruitment and conditions of service of persons appointed to public services;9
12. From Section 3 of the Act, 1978, it is evident that the State Government may by notification make rules specifying
(a) different categories of posts in different branches of public services of the State,
(b) total number and nature of posts in each category
(c) pay scale admissible to each category and regulations of recruitment and service conditions of persons appointed in public service.
13. Though by referring to the above said provision, it is urged that the upgradation and downgradation amounts to abolition and creation of the posts and the same can be done only as per the procedure contemplated under the Cadre and Recruitment Rules, no specific provision in the Cadre and Recruitment Rule is pointed to support the contention that the upgradation and downgradation amounts to the creation of new posts and abolition of the sanctioned posts.
14. Reference is made to Rule 17(1) of the Rules, 1977. This Court has also perused Rule 17(1) of the Rules 10 1977 referred to above. Relevant portion of Rule 17(1) reads as under:
Rule 17(1): No Department shall, without previous consultation with the Finance Department or as the case may be, the internal finance Adviser and Ex- officio Deputy Secretary to Government concerned in accordance with the Government of Karnataka (Consultation with Financial Adviser) Rules, 1982 authorise any orders (other than orders pursuant to any general delegation made by the Finance Department) which -
(a) xxx
(b) relate to the number of grading or cadre of posts or the emoluments or the other conditions of service (emphasis supplied)
15. On a reading of the aforementioned provision, it is apparent that in case, any Government Department has to make a decision relating to the number of grading or cadre of posts or emoluments or other conditions of service, there has to be a previous consultation under Rule 17(1). It is relevant to note that in terms of the impugned order before the Tribunal, the Government has upgraded the post of Senior Geologist to the post of 11 Deputy Director in three places and has downgraded the post of Deputy Director to the post of Senior Geologist in corresponding three places. This being the admitted position, it can be concluded that there is no change in the number of posts of Senior Geologist and the number of posts of the Deputy Director. Rule 17(1)(b) referred to above refers to the number of grading or cadre of posts.
The meaningful interpretation of the said provision would only mean that the consultation of the Finance Department or any other specified department is necessary in case the number of grading or cadre of posts are increased or decreased. In the present case, there is no such increase or decrease in the number of posts of Senior Geologist or number of posts of Deputy Director. Hence the exercise undertaken by the State in upgrading three posts of Senior Geologists and downgrading three posts of Deputy Directors in the same Department, coming under the same ministry, does not attract Rule 17(1) of the Rules, 1977 and there is no need to comply the requirement of the said Rule.
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16. Learned Senior Counsel placed heavy reliance on the judgment of the co-ordinate bench of this Court in M.V.Dixit supra to support his contention. In the case of M.V. Dixit supra, the facts are entirely different. The State had passed an order to downgrade 13 posts out of 252 posts of Accounts Superintendent in the State Accounts Department to provide avenue for promotion to employees belonging to certain cadre, to the said post of Accounts Superintendents, in other departments, which borrowed the Accounts Superintendents on deputation, from State Accounts Department. This exercise certainly created a few new posts in different departments and abolished few posts in the State Accounts Department. In such a scenario, the co-ordinate bench of this Court in M V Dixit supra has concluded that the said exercise could not have been carried out without complying with the mandate of Rule 17(1) of Rules, 1977 read with Section 3 of the Act of 1978. Thus, the contention that the impugned order of upgrading and downgrading the posts of Senior Geologist and Deputy Director is in contravention of Rule 17(1) cannot be accepted.
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17. Reliance is also placed on clause No.17 to the First Schedule of the Karnataka Government (Transaction of Business) Rules, 1977, the relevant portion of which reads as under:
FIRST SCHEDULE (CASES WHICH SHALL BE BROUGHT BEFORE THE CABINET) XXX XXX
17. Proposals for the making or amending of rules regulating "the recruitment and conditions of service of persons serving in connection with the affairs of the State, except where the proposals are of minor importance.
XXX.
18. On a reading of Clause No.17 of the First schedule referred to above, in case Rules regulating recruitment and conditions of service of a public servant, the proposal should be placed before the Cabinet for appropriate approval.
19. Though it is urged that no such proposal is placed before the Cabinet seeking approval of upgrading and downgrading of the posts in question, what is relevant is no rule mandates approval of the Cabinet for upgrading 14 or downgrading the posts where the number of posts remain the same even after upgradation or down gradation as happened in this case. Hence, the contention based on Clause No.17 has to be rejected.
20. It is also urged by the learned Senior counsel by placing reliance on the amended provisions of the Karnataka Minor Mineral Concession Rules, that the power exercised by the Senior Geologist and the Deputy Director are one at the same quo granting/refusing/and renewing the mining/quarrying license.
21. In this background, it is urged that there is no need to upgrade the post of Senior Geologist to the Deputy Director in Chikkaballapur and this exercise is carried out only to move the petitioner from Chikkaballapur to some other place, particularly in the backdrop of her earlier transfer order and suspension order being set-aside by the Tribunal.
22. It may be true that the Senior Geologist as well as the Deputy Director exercise the same power when it comes to granting/refusing/and renewing the 15 mining/quarrying license under the Karnataka Minor Mineral Concession Rules. Nevertheless, it is an admitted position that the post of a Deputy Director is a higher post than the post of Senior Geologist, and the Senior Geologist, on promotion will occupy the post of a Deputy Director. This goes to show that the Deputy Director will have more experience vis-à-vis the Senior Geologist. Considering the administrative exigencies, more particularly, given the fact that there is more mining area/activity in Chikkaballapur and other two places where the posts of Senior Geologists are upgraded. It is also noticed that more applications are pending consideration (Effect of amendment 17.03.2023 amendment to Karnataka Minor Mineral Concession Rules, reviving earlier applications which have been earlier rejected), and the work load in the concerned office in Chikkaballapur and other two places is more as compared to other three places where the post of Deputy Director is downgraded to the post of Senior Geologist. Merely because the petitioner is also authorised under law to exercise the same power exercised by the Deputy Director, the 16 petitioner cannot claim that the post in which she is occupying should not be upgraded. Such decisions are policy decisions and subject to binding regulations if any, occupying the field. The employee affected by such a decision may challenge the same if such exercise is contrary to law. Else it is not open to the employee to raise a contention that the exercise of upgrading is not required as the employee is capable and authorised to discharge the functions of the upgraded post.
23. In the backdrop of the aforementioned facts, this Court is of the view that the petitioner cannot have a say in the policy decision to contend that she should be allowed to work as Senior Geologist in Chikkaballapur and she cannot be permitted to contend that the post cannot be upgraded to the post of Deputy Director in a place where she is working as Senior Geologist. The decision of the Government in this regard cannot be questioned by the petitioner unless the petitioner is able to establish the violation of any applicable Rules. This Court has taken a 17 view that there is no violation of any of the Rules or regulations.
24. Regarding point No.2: Since it is alleged that the whole object of the respondent-State is to transfer out the petitioner from Chikkaballapur contrary to the Transfer Guidelines-2013 and malafide action, this Court has deemed it fit to peruse the original records pertaining to the decision taken for upgrading and downgrading the post of Deputy Director and Senior Geologist.
25. From the records, it is evident that the post of Deputy Director in three places namely Bangalore Rural, South Canara, and Chamarajanagar have been downgraded to the post of Senior Geologist and the post of Senior Geologist in three places Chikkaballapur, Ballary, and Kolar have been upgraded to the post of Deputy Director. It is also noticed from the original records that the decision was taken to upgrade and downgrade the aforementioned post with the object of realizing higher revenue. The statistics relating to the target sent for recovery of revenue and actual collection for the past five 18 years have been considered before taking the said decision. Though the process of upgrading and downgrading the post appears to have begun a month after the disposal of the application filed by the petitioner challenging her order of suspension, based on the timing of the decision taken to upgrade the post, it cannot be said that the whole exercise is a malafide exercise if some justifications are found or reasons assigned for such an action.
26. As already noted, number of posts in the cadre of Senior Geologist and in the cadre of Deputy Director remain the same despite the impugned order of upgrading and downgrading of posts. It is further noticed that the said exercise does not involve any financial implications.
27. From the proceedings of the Competent Authority which decided to upgrade the post of Senior Geologist in Chikkaballapur and to downgrade the post of Deputy Director in Bangalore Rural District, Bangalore, it is noticed that the target is not achieved by both offices in Bangalore Rural as well as Chikkaballapur for five years 19 commencing from 2017-18 to 2021-2022. However, in the year 2022-2023 up to February 2023, in both regions, the target is almost achieved. The proceedings would also reveal that in Bangalore Rural, starting from 12.08.2016, 143 applications were rejected. Those applications are now eligible for reconsideration in view of the amendment to the relevant Rules.
28. It is also noticed from the proceedings that the target of Rs.6400 lakhs is fixed for Chikkaballapur District and the process of awarding the mining licence has commenced. Accordingly, the decision is taken to upgrade the post of Senior Geologist to the post of Deputy Director. It is also noticed that the target is reduced in Bangalore Rural District from Rs.6000 lakhs to Rs.5440 lakhs for the year 2022-23 and the target was reduced to Rs.6000 lakhs for the year 2021-2022 from Rs.8500 lakhs in the year 2020-2021. However, in Chikkaballapur, the target has been revised to Rs.6400 lakhs from Rs.6200 lakhs for the year 2022-2023. It is also noticed that the earlier target of Rs.6500 lakhs is reduced to Rs.6200 lakhs in 20 Chikkaballapur for the year 2021-22. It is also stated that the use of M-sand in and around Bengaluru is to be encouraged and accordingly, the target for Bengaluru is rejected.
29. It is a well settled principle of law that the Courts will not interfere in the policy decisions unless an exceptional case is made out. The Courts will not interfere with the policy decision and will not substitute its wisdom for the wisdom of the Government in framing a policy. The Government is well-equipped and competent to make appropriate decision in this regard.
30. In the light of the aforementioned well-settled principle, this Court does not find any reason to interfere with the decision of the Government to upgrade the post of Senior Geologist in Chikkaballapur to the post of Deputy Director and to downgrade the post of Deputy Director in Bangalore Rural to the post of Senior Geologist.
31. Though in certain circumstances, it is permissible to contend that such a decision is a colourable 21 exercise of power and is done with a malafide intention to victimize the employee, on going through the original file containing the decision to upgrade and downgrade the post in question, this Court is of the view that there appears to be some rationable behind the decision to have an experienced hand of a Deputy Director in place of Senior Geologist. The chronology of events starting from premature transfer, suspension of the petitioner, and upgradation of the post itself, though tend to suggest that the exercise might have been carried out to ensure the petitioner is out of Chikkaballapur, before completion of the tenure, the reasons assigned in the proposal also suggest administrative exigencies as well as public interest. This being the position, to set aside the impugned order on the ground of malafide action, there has to be compelling material to justify the malafide action.
32. After going through the pleadings in the application before the Tribunal, this Court is also of the view that the pleadings are insufficient to accept the 22 contention of malafide raised before this Court. This being the position, the contention that the exercise is malafide exercise on the part of the State is not accepted. Though it is vehemently urged that the exercise is carried out to transfer out the petitioner at the behest of the person in power, the said person is not named in the petition and not made a party to the petition.
33. It is also relevant to note that in view of the benefit of the interim order, the petitioner continued in Chikkaballapur as Senior Geologist and has completed the tenure of two years. This being the position, the contention whether there is a malafide exercise of power or not becomes academic as the petitioner is due for transfer though it is up to the respondent to take a call as to whether the petitioner is to be retained in Chikkaballapur or not even if the order upgrading the post in Chikkaballapur is held to be invalid. This Court has also considered the reasons assigned by the Tribunal. The Tribunal has considered all contentions raised by the applicant before it. After going through the reasons 23 assigned by the Tribunal, this Court does not find any reason to interfere with the impugned order passed by the Tribunal.
34. We have also considered the judgments cited at the bar on the principle relating to malafide exercise of power and the requirement to follow the rules in exercising executive powers. Since, this Court has taken a view that the order upgrading and downgrading the post of Senior Geologist and Deputy Director is not in violation of any applicable Rules, the judgment of the Apex Court in BABU VERGHESE AND OTHERS vs BAR COUNCIL OF KERALA AND OTHERS ((1999)3 SCC 422) has no application. Since this Court has also taken a view that there are justifiable reasons to upgrade and downgrade the posts in question, the contention relating to malafide exercise based on the judgments of the Apex Court in KALABHARATI ADVERTISING vs HEMANT VIMALNATH NARICHANIA AND OTHERS ((2010) 9 SCC 437), B S MINHAS vs INDIAN STATISTICAL INSTITUTE AND OTHERS ((1983) 4 SCC 582 and 24 STATE OF PUNJAB AND ANOTHER vs GURDIAL SINGH AND OTHERS ((1980) 2 SCC 471) have no application to the present case.
35. For the reasons recorded above, the following is passed:
ORDER
(i) Writ Petition is dismissed.
(ii) The order dated 05.03.2024 passed in Application No.1341/2023 on the file of the Karnataka State Administrative Tribunal, Bengaluru is confirmed.
Sd/-
(ANU SIVARAMAN) JUDGE Sd/-
(ANANT RAMANATH HEGDE) JUDGE brn