Karnataka High Court
Mahiboob Sab vs The State Of Karnataka on 31 May, 2022
Bench: G.Narendar, Shivashankar Amarannavar
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF MAY, 2022
PRESENT
THE HON'BLE MR. JUSTICE G.NARENDAR
AND
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
WRIT PETITION NO.16363/2021 (S-KSAT)
BETWEEN:
MAHIBOOB SAB,
S/O MOULA SAB,
AGED 41 YEARS,
DIRECTOR,
O/O THE DIRECTORATE OF MINORITIES,
MINORITY WELFARE DEPARTMENT,
V.V.TOWER, DR. AMBEDKAR VEEDHI,
BENGALURU-560001,
R/AT NO. EMBASSY HABITAT,
VASANTHA NAGAR, FLAT NO.114,
PALACE ROAD,
BENGALURU - 560051.
... PETITIONER
(BY SRI S.M.CHANDRASHEKAR, SENIOR COUNSEL FOR
SRI M.B.CHANDRACHOODA, ADV.)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF PERSONNEL AND
ADMINISTRATIVE REFORMS,
VIDHANA SOUDHA,
BENGALURU-560001.
2
2. DR. H.R.SHIVAKUMAR,
SPECIAL LAND ACQUISITION OFFICER,
3RD FLOOR, OFFICE OF THE KARNATAKA
ROAD DEVELOPMENT CORPORATION,
SAMPARK SOUDH,
OPP. ORION MALL,
(NOW UNDER ORDER OF POSTING AS
DIRECTOR OF MINORITIES WELFARE)
BENGALURU-560010.
... RESPONDENTS
(BY SRI SUBRAMANYA R, AAG FOR
SRI. VENKATSATHYANARAYAN.A, HCGP FOR R1,
SRI. D.R.RAVISHANKAR, SENIOR COUNSEL FOR
SRI. VIJAY KUMAR V.B, ADV. FOR R2.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 11.08.2021 PASSED BY THE KARNATAKA
ADMINISTRATIVE TRIBUNAL, IN APPLICATION NO.3447/2021
VIDE ANNEXURE-A, AND CONSEQUENTLY, DIRECT THE
RESPONDENT NO.2 TO VACATE THE POST OF THE DIRECTOR,
MINORITIES WELFARE DEPARTMENT, BENGALURU, AND DIRECT
THE PETITIONER TO ASSUME THE CHARGE OF THE SAID POST
ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON
FOR PRONOUNCEMENT OF ORDER THIS DAY, G.NARENDAR J.,
MADE THE FOLLOWING:
ORDER
Heard the learned Senior counsel Sri S M Chandrashekar along with learned counsel for the
petitioner. Learned AAG Sri Subramanya along with learned HCGP Sri Venkatasatyanarayana A for respondent No.1 and 3 learned Senior counsel Sri D R Ravishankar along with learned counsel Sri V B Vijayakumar for respondent No.2.
2. The petitioner who was discharging duties as Director of the Directorate of Minorities, Minority Welfare Department was transferred out of the post by impugned order dated 23.07.2021 and aggrieved he approached the Tribunal. The Tribunal after a detailed hearing has been pleased to negate the challenge on the short ground that he does not possess the eligibility stipulated under the C and R (Cadre and Recruitment) Rules of the minority department i.e.., the Karnataka Minorities Welfare Services (Cadre and Recruitment) Rules, 2010 published on 15.03.2011 (hereinafter referred to as the 2011 Rules for the sake of brevity). That the petitioner being in the cadre of Deputy Secretary was ineligible to be appointed as the Director of the Minorities Department, as the C and R Rules stipulates that the director can only be from among the cadre of Karnataka Administrate Services (Selection Grade/Higher Pay scale) or Indian Administrative Service (IAS) (Senior 4 Scale Officer). On that short ground the Tribunal was pleased to repel the challenge mounted by the petitioner.
3. It is contended on behalf of the petitioner that the post of Deputy Secretary is equivalent in grade to that of IAS and KAS Officer of Senior scale. In this regard the learned senior counsel would invite the attention of the Court to the notification issued by the Department of Personnel and Administrative Reforms bearing No.DPAR 105 SRD 2014, Bengaluru, dated 10.07.2019 and would take the Court to Schedule I and more particularly would draw the attention to the entry at Sl.No.17 wherein the filling up of the post of Deputy Secretary to Government, Karnataka Government Secretariat is shown to be by way of promotion from the cadre of Under Secretary to Government, Karnataka Government Secretariat Services or by posting of IAS and KAS (Group A) (Senior scale) officers and he would further take the Court through the Note I, which states that out of the posts of Deputy Secretaries 12 posts shall be filled up by posting IAS or KAS group A (Senior scale 5 officers). Provided that six posts in the cadre of Deputy Secretaries to Government shall be filled up by the deputation of officers of the Karnataka Administrative Services shall be filled up by the deputation of the Karnataka Administrative Services (Senior scale) subject to the condition that an equal number of officers of the Karnataka Government Secretariat Services are deputed to any other State Civil Services.
4. From a reading of the above it is apparent that by the said notification the Government has, as a policy permitted the appointment of officers of the KAS Group A (Senior scale officers) to be posted as Deputy Secretaries and officiate in the in the post of the Karnataka Government Secretariat. Further reading of the note only states that the said postings are subject to the condition that an equal number of officers of the Karnataka Government Secretariat Services are deputed to any other State Civil Services and in that view he would contend that the posting of the petitioner cannot be faulted with on the ground that the C 6 and R Rules do not permit the posting of the non KAS or non IAS officer to the post of Director. In our opinion the said contention is fallacious and requires to be rejected at the threshold itself. Eligibility once stipulated requires to be adhered to strictly. Merely because, by the above notification the Karnataka Government Secretariat Services Recruitment Rules of 2019 enabled the posting of the officers of KAS Group A (Senior scale) to be posted in the Secretariat Services Department and stipulation of a quid pro quo in the cadre and recruitment Rules of 2019 of the Karnataka Government Secretariat Services Recruitment Rules, 2019 cannot be construed as automatically amending C and R Rules of the Karnataka Minorities Welfare Services (Cadre and Recruitment) Rules, 2010 published on 15.03.2011. The stipulation with regard to the qualification required to be possessed by the candidates to be appointed as Director, has not been amended and remains the same. In our opinion it would be fallacious to contend that the C and R Rules should be deemed to have been amended in view of the amendment carried out to the C and R Rules of 7 another department/wing of the Government. In our opinion, the case canvassed is too far fetched and if accepted would result in undesirable consequences and deemed amendments are unknown to the canons of service law.
5. In that view of the matter, the said contention requires to be rejected. To that extent we also affirm the order of the Tribunal, but while so doing we are constrained to express our dismay the manner in which the Tribunal has appreciated two rulings of the Division Bench and two rulings of its own and incidentally one ruling which is by the same bench.
6. A coordinate bench of this Court while disposing of W.P. No.43919/2016 while appreciating the case of the petitioner therein has been pleased to observe and hold as under :
"2. Prima facie, it appears that the practice on the part of the concerned authority of transferring an officer from one place to another and the other officer, who is working at the transferred place is 8 directed to approach before the Government for his posting, can be said as ex facie by non-application of mind and without there being any consideration of the fact that at the transferred place, another officer is already working and he is also required to be simultaneously posted at some other place. Then only, the vacancy would be available for the earlier officer. For example, if 'A' is posted, in place of 'B', 'B' is required to be posted somewhere else by identification of the post. As such, unless the order of transfer of 'B' is passed posting him to any other place in law, there is no vacancy available for 'A'. Prima facie, the method adopted is a reverse cycle not known to law and therefore, if not factual malafide, it would be a legal malafide. Hence, we would have stayed the transfer order by ad interim order, but as the charge is already taken over by respondent No.2, before we pass further order, we find it appropriate to direct the State Government to produce the original file and if respondent No.2 is desirous to make any submission by filing statement of objections, he may do so."
7. From a reading of the above it is apparent that the Coordinate Bench, even by its interim order, as noted supra has by its order dated 28.02.2016, had been pleased to hold that transfer of a person without him being posted 9 elsewhere amounts to a legal malafide i.e., where 'A' is ordered to be transferred out of his post without there being a movement order against him. In the instant case the order under challenge would reflect that there is no order transferring the petitioner out of the said post, but despite the post being occupied the second respondent has been transferred to the post of Director when the same was not vacant. This aspect has been appreciated by the coordinate bench and has categorically held that such a transfer would constitute a legal malafide. Proceeding further the coordinate bench has observed and held in paras 12 and 13 as follows:
"12. The aforesaid record including the statement of objection filed by respondent No.2 shows the following aspects apparent:
1. When respondent No.2 was directed to be posted by way of transfer by the impugned order dated 29.07.2016, the petitioner is not simultaneously posted at any other place.
2. In the order may be of general transfer, nothing is mentioned about the 10 administrative ground, more particularly, on the aspects as to why the posting/transfer order of the petitioner at any place is not passed.
3. The transfer order is passed in contravention of the guidelines, inasmuch as the minimum period of two years was not complete and as per the transfer guidelines if any Officer is to be transferred prior to the expiry of the minimum period of two years, the approval of the Hon'ble Chief Minister is required, which has not been obtained.
4. The respondent No.2 appears to have been accommodated by his posting at his native place may be for his personal ground and circumstances.
5. Inspite of the aforesaid prima facie observations by this Court in order dated 20.08.2016 instead of restoring the petitioner at the place where he was earlier working, further order is passed for posting of the petitioner at a different place and the resultant effect is that the impugned transfer order which is subject matter of the petition before this Court is sought to be 11 implemented by posting of the petitioner at a new place which was not mentioned in the transfer order.
13. The aforesaid facts and circumstances goes to show that at the first instance, the transfer order is suffering from legal malafide inasmuch as unless the vacancy was created of the petitioner by transferring him to a different place, the respondent No.2 could not have been posted at the place where the petitioner was working"
8. The coordinate bench disapproving the action was further pleased to direct passing of consequential orders in respect of the government servant who had been transferred to an occupied post and further held that such a government servant would not be entitled to continue to work in the said post. We are in respectful agreement with the findings of the coordinate bench and would have unhesitatingly tread the path but for the sole reason that the continuation of the petitioner would be in contravention of the very C and R Rules of 2010 (15.3.2011). In that view of the matter, only we are constrained to affirm that part of the order.
12
9. We also not with dismay that despite the orders of the Division Bench in Hittalmani's case and Devendrappa S Biradar's case again by a coordinate bench being placed before the Tribunal. The Tribunal has acted with scant regard and pointedly ignored the legal proposition settled by the coordinate bench. The consideration of these rulings of the division benches and this court and that of the Tribunal is reflected in para 4. Apart from that the petitioner has relied on rulings, the Tribunal, which is bound by the law laid down by the Division Benches has omitted any consideration of the same. More so when the case of V G Hittalmani was applicable to certain facts of the case. Atleast to the extent that the second respondent herein could not have been posted to an occupied post which was not vacant. To that extent the Tribunal was bound to follow the precedent and ought to have set aside the order or ought to have quashed the order even if it desired not to continue the petitioner in the post.
10. The other aspect of the Hittalmani's case which was binding on the Tribunal is that an officer could not have 13 been left without a post. The Tribunal for reasons best known has completely ignored and has not assigned any reasons for not appreciating the rulings. Reading of para Nos.4 and 6 of the judgment does not reflect any appreciation nor reveals any reasoning for the judgments placed before not being appreciated and followed. As stated earlier any order of this court restoring the petitioner to the post would amount to restoring an illegal order i.e., the order dated 29.05.2021 by which the petitioner came to be posted as the Director of the Minorities Welfare Department as the same is contrary to the very C and R Rules.
11. With regard to the posting of the second respondent it has been contended by the learned Senior counsel Sri S M Chandrashekar that the second respondent is also not entitled to be appointed as the Director. He would strenuously contend that the second respondent belongs to the KAS (Junior scale) and that the C and R Rules permit only a KAS officer of the selection grade or higher pay scale to be appointed as the director and that on 14 that ground also the Tribunal erred in not allowing the application and on the short ground that the second respondent does not satisfy the stipulation under the C and R Rules has been glossed over by the Tribunal and that the same is wholly unsustainable.
12. We have perused all the pleadings and material produced. There is no document which demonstrates the movement of the second respondent from Junior scale to selection grade as on the date of his appointment as the Director of the minorities department. The Tribunal has rejected the contention regarding the ineligibility of the second respondent to hold the post by placing reliance on a communication addressed by a senior accounts officer (Annexure R6) to the Under Secretary to Government, DPAR (Services-II) dated 8/9-7-2021 which letter has been extracted by the Tribunal in para 6 and which reads as under:
"Sub: Furnishing of Officiation Certificate under Rule 53(f) of KCSRs in respect of Sri H.R.Shivakumar, KAS (Sel Gr)-reg.15
Ref: No.DPAR 30 ASV 2021 dated 23/03.2021.
Please refer to the above.
I am to inform you that the annual increment date of Sri H.R.Shivakumar, KAS (Sel. Gr) has been revised to 01/07/2021 consequent upon regulation of pay in accordance with the Karnataka Civil Services (1998 Batch Gazetted Probationers) (Declaration of Probation &Fixation of Pay) (Special) Rules, 2021.
The Government vide letter under reference had already furnished officiation certificate with effect from 29/11/2019 to 23/03/2021. However, in order to release the annual increment due on 01/07/2021, officiation certificate under Rule 53(f) of KCSRs is required with effect from 24/03/2021 since the Officer is on Foreign Service at Karnataka Road Development Corporation Ltd., Bengaluru from 13/02/2020 onwards. The same may be forwarded to this office at the earliest to release increment due to the officer on 01/07/2021."
13. From a reading of the above it is apparent that the pay scale of selection grade has been granted to the second respondent and that the said officiation certificate 16 has been issued in terms of Rule 53F as the officer i.e., the second respondent was on foreign service or in other words his service were lent to the Karnataka Road Development Corporation Limited. This officiation certificate cannot by any stretch of imagination be construed to be a proceeding under the rules whereby the second respondent would be recognized to have been promoted or conferred a selection grade. The reasoning otherwise by the Tribunal in our considered opinion is highly fallacious and unsustainable. Merely because the second respondent has been given the pay scale as on July, 2021 in the absence of any proceedings promoting him to selection grade, it can by no stretch of imagination be concluded that a mere communication amounts to a proceeding promoting the petitioner to selection grade and the finding otherwise by the Tribunal would be wholly unsustainable. The petitioner has produced a document issued by the DPAR Department (Services - II) Under Secretary wherein in para 2 it is stated as under:
17
"PÀ£ÁðlPÀ ¸ÀPÁðgÀ ¸ÀASÉå: ¹D¸ÀÄE304 D¸ÉÃE 2021 PÀ£ÁðlPÀ ¸ÀPÁðgÀzÀ ¸ÀaªÁ®AiÀÄ, «zsÁ£À ¸ËzsÀ, ¨ÉAUÀ¼ÀÆgÀÄ, ¢£ÁAPÀ: 19.08.2021 EªÀjAzÀ, ¸ÀPÁðgÀzÀ C¢üãÀ PÁAiÀÄðzÀ²ð ºÁUÀÆ ¸ÁªÀðd¤PÀ ªÀiÁ»w C¢üPÁj, ¹§âA¢ ªÀÄvÀÄÛ DqÀ½vÀ ¸ÀÄzsÁgÀuÉ E¯ÁSÉ (¸ÉêÉUÀ¼ÀÄ-2), gÀÆ.£ÀA.20, £É®ªÀĺÀr, «zsÁ£À ¸ËzsÀ, ¨ÉAUÀ¼ÀÆgÀÄ-560 001.
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14. From a reading of the above it is apparent that the second respondent came to be appointed to the KAS cadre (junior scale) on 15.06.2019 and post 15.6.2019 no order promoting the second respondent has been passed as on 19.8.2021. The above information only reiterates the fact that the second respondent also does not qualify to be appointed as director of the minorities welfare department as the C and R Rules clearly stipulates that only a KAS officer of selection grade is eligible to be appointed.
15. The action of the first respondent is sought to be defended by the Additional Advocate General Sri R Subramanya. In support an affidavit of one Umadevi, Under Secretary to Government, DPAR (Services-II) dated 23.11.2021 came to be filed. In para 5 it is deposed as under:
"5. I submit that the Respondent No.2 - Sri H.R.Shivakumar is a KAS (Junior scale) officer whose pay has been fixed in KAS (Selection Grade) Post from 20.09.2019 in the pay scale of Rs.90,500 - Rs.1,23,300/- in accordance with the Rule 5 of Karnataka Civil Services (1998 Batch Gazetted 19 Probationsers) (Declaration of probation and fixation of pay)(Special), Rules 2021, and the same is herewith produced and marked as ANNEXURE-R1. Accordingly, the officers pay has been regulated from Office of the Accountant General (A&E), Karnataka, Bengaluru vide Pay Salary Slip letter dated 09.07.2021 and the same is herewith produced and marked as Annexure-R2."
16. From the reading of the said paragraph the designation of the second respondent is described as KAS (junior scale), but that he has been awarded selection grade pay scale from 20.09.2019 under the provisions of Rule 5 of the Karnataka Civil Services (1998) (gazetted probationers) (Declaration of probation and fixation of pay)(special), Rules 2021. It would not be out of place to state that this is nothing but an attempt to divert the Court from the issue of eligibility which is so vehemently canvassed against the petitioner. It is nothing but some smart drafting. The affidavit though describes his designation as junior scale, it would place the bogey of him being given a selection grade pay scale. The qualification or eligibility stipulated under 20 the C and R Rules is not a pay scale, but the grade or designation of office i.e., the occupant of a designated office, stipulated in the C and R rules, is alone entitled to be appointed as the director.
17. The history of appointing the second respondent is also produced along with the affidavit i.e., notification dated 22.3.2021 which details the history which preceded and mandated the framing of special rules, 2021. The reading of Rule 2-B, would leave no doubt in the mind of this Court, that the second respondent who was appointed only in 2019 could not have been conferred or promoted to selection grade and there is nothing to show that as on the date of their entry into service they were conferred with any higher grade other than the entry level grade of Junior scale. Rule 4 also provides for a deemed declaration of the probation. This only leaves us bewildered as to how an officer, with no administrative experience came to be appointed as Director of a department. In other words, to head an organization. This fact leaves us bewilder and 21 wondering if there are no competent and "experienced hands" available in government service to head and give direction to an organization. We are unable to fathom the reasons behind the appointment of this person, to head and capable of giving direction to an organization.
18. The reason for fixing and awarding the pay scale of a higher grade is also not difficult to decipher. From a reading of the Special Rules it is seen that Rule 5 is compensatory nature as regards the scales of pay but the rules do not confer nor are we able to decipher any deemed conferment of the higher level than the entry level of KAS junior scale. Another document i.e., enclosed along with the affidavit is one that emanates from the office of the Accountant General (A and D), Karnataka. This document is dated 07.07.2021 further obviates any discussion and leaves no doubt in the mind of the Court that the second respondent was appointed as a KAS (junior scale) officer and as on the date of his appointment as the director he 22 continued in the said cadre only i.e., KAS (junior grade). To the said affidavit the petitioner has preferred objections.
19. The learned AAG would strenuously canvass that the second respondent having been granted selection grade pay scale it ought to be construed that the petitioner has been conferred or his occupying or is promoted to KAS selection grade. In our opinion the second respondent became entitle to the pay scale on account of the special rules of 2021 and but for the said rules persons like the petitioners would have been drawing the pay scale attached to their grade i.e., KAS (Junior Scale). We are flummoxed by this contention and unable to appreciate the attempt of the AAG to generalize and contend contrary to the special rules, that the grant of the pay scale ought to be construed as conferring the selection grade itself. This in our considered opinion is contrary to the mandate and scheme of the service rules and contrary even to the scheme of the special rules. If it was the intendment of the legislature to confer any such special concession in respect of the 23 post/grade then the same would have found an expression in an appropriate manner.
20. As noted supra, the special rules do not provide for any such out of turn promotion or deemed conferment of such grade or cadre. The case canvassed by the learned AAG, in our considered opinion, is in the teeth of the special rules and the same being contrary to all known canons of service law, we have no hesitation to reject the same.
21. Our findings are further fortified by the two documents produced by the petitioner along with a memo dated 12.01.2022. One is the true copy of the notification dated 03.01.2022, whereby officers who had been transferred by the Election Commission came to be retransferred. The said document is produced to demonstrate that there are four grades i.e., junior scale, senior scale, selection grade and super time scale in the KAS cadre. The next document is a booklet published by the Government of Karnataka and which is titled Civil List of KAS officers, 2020 and it indicates that the same has been 24 compiled and published by the department of personnel and administrative reforms, Bengaluru. The booklet comprises of several lists pertaining to the different grades in the cadre of KAS officers. One is KAS (Senior super time officers), KAS officers (super time scale officers), next is KAS (selection grade officers) and the learned counsel would take this court to the list of KAS officers of selection grade and would submit that the name of the second respondent is not found in the list of KAS selection grade officers published as on 31.07.2020. The learned counsel would next take the court through the next list i.e., KAS (Senior grade officers) and would point out that the name of the petitioner is not found even in the said list.
22. Lastly the learned counsel would take us through the list of KAS (Junior scale) officers and point out that the name of the second respondent is found at Sl.No.1 of the said list and he would highlight the date of joining and it is shown as 11.2.2020. He would further contend that this list which is published by the department clearly falsifies the 25 attempt made by the deponent i.e, the Under Secretary of the said department itself.
23. Per contra, the learned senior counsel appearing on behalf of the second respondent would primarily contend that the petitioner has no locus standi to question the appointment of the second respondent as the Tribunal has found him ineligible (in terms of the C and R of the minority department, 2011) to hold the post and in that view the petitioner has no locus standi to question the correctness or otherwise of the order appointing the second respondent to the post of director.
24. At first blush the contention appears to be appealing on but in the facts and circumstances of the case the said contention requires to be rejected at the threshold itself. Firstly, the petitioner has not approached this Court in a public interested litigation nor is the petition in the nature of PIL. Secondly, the petitioner is an aggrieved person as he is sought to be "transferred" from the post, rather or in other words the second respondent has been 26 appointed to the post occupied by the petitioner. Whether he is eligible or not to hold the post is not the question or the issue that was gone into by the respondent while appointing the second respondent to the post. Till date there is no order of removal of the petitioner on the ground that the petitioner is ineligible to hold the post. On the other hand the second respondent has been transferred to the post which was held and occupied by the petitioner. In these circumstances it would be far fetched to not consider the petitioner as an aggrieved person.
25. The first respondent having transferred the second respondent to the post occupied and held by this petitioner, and it not being preceded by an order of removal, on the ground of ineligibility of the petitioner to hold the post, it cannot be gainfully argued that the petitioner cannot have a grievance against the order posting the second respondent to the post held by him.
26. That apart the order of the first respondent transferring the second respondent to the petitioner's post 27 is not simultaneously accompanied by an order of movement moving the petitioner out of the said post. If that be the case the said orders are in the teeth of law laid down by the coordinate bench in Hittalmani's case. Despite the said legal position staring at the Tribunal and the respondents, both have acted contrary to the law occupying the field.
27. Be that as it may, the question of eligibility of the petitioner to hold the post is a case that has been canvassed before the Tribunal only. Assuming that the petitioner was ineligible to hold the post director, minority welfares department then the order transferring the second respondent ought to have been preceded by an order removing or canceling the order appointing the petitioner as director, department of Minorities Welfare. This is not the case of the respondents and the respondents seek to justify the transfer orders on the ground of ineligibility of the petitioner to hold the post. Whether at all these issues could have been gone into an application questioning the 28 correctness of the transfer order which is perse in the teeth of the law laid down by this Court in Hittalmani's case is itself a moot question. Be that as it may, the contention canvassed by the second respondent that the petitioner has no locus standi, is requires to be rejected and is accordingly rejected as the challenge in the application before the Tribunal is to the order of transfer only on the ground that the transfer order is contrary to the law laid down in Hittalmani's case.
28. Another fact which demonstrates that the order impugned before the Tribunal is hit by Hittalmani's case is the addendum issued by the first respondent on 26.7.2021 whereby the first respondent has by separate proceedings directed the petitioner to report to the parent department. This by itself would suffice to demonstrate that the earlier order impugned in the application is directly hit by the law laid down by the coordinate bench in Hittalmani's case wherein a transfer order without there being a simultaneous 29 order transferring the occupant of the post has been decried and held to be a case of legal malafide.
29. The learned senior counsel would emphasize on the officiation certificate and the authorization issued by the office of the Accountant General (A and D) Karnataka, Bengaluru, whereby the second respondent has been granted the selection grade pay scale. Another document which is pressed into effect is Annexure R2 produced by the second respondent which is yet again a document which refers to giving pay scales in terms of Rule 5 of the 2021 rules. In fact the concluding part of the sentence in the second para of the first page would obviate any discussions on the issue and negates the contention that the second respondent has been conferred or given the KAS selection grade post.
"PÀ£ÁðlPÀ GZÀÒ £ÁåAiÀiÁ®AiÀÄzÀ W.P.No.27674/2012 ªÀÄwÛvÀgÀ ¥ÀæPÀgÀtUÀ¼À°è ¢£ÁAPÀ:21.06.2016gÀ wæð£À ¥ÀæPÁgÀ PÀ£ÁðlPÀ UÉeÉmÉqï ¥ÉÆæ¨ÉõÀ£ÀgïUÀ¼À £ÉêÀÄPÁw (¸ÀàzsÁðvÀäPÀ ¥ÀjÃPÉëUÀ¼À ªÀÄÆ®PÀ £ÉêÀÄPÁw) ¤AiÀĪÀÄUÀ¼ÀÄ, 1997 gÀ£ÀéAiÀÄ PÀ£ÁðlPÀ ¯ÉÆÃPÀ¸ÉêÁ DAiÉÆÃUÀªÀÅ 1998£Éà ¸Á°£À UÉeÉmÉqï ¥ÉÆæ¨ÉõÀ£À¸ïð ¥ÀjµÀÌøvÀ DAiÉÄÌ ¥ÀnÖUÀ¼À£ÀéAiÀÄ PÉ.J.J¸ï(Q.±ÉæÃ) ºÀÄzÉÝUÉ £ÉêÀÄPÀUÉÆArgÀĪÀ C¢üPÁjUÀ¼À ¥ÉÊQ F PɼÀPÀAqÀ C¢üPÁjUÀ¼ÀÄ ¥Àæ¸ÀÄÛvÀ 30 ¢£ÁAPÀ 30.1.2021gÀ ¥ÀgÀµÀÌøvÀ DAiÉÄÌ ¥ÀnÖAiÀÄ°èAiÀÄÆ ¸ÀºÀ E¯ÁSÉ / ªÀÈAzÀ / ºÀÄzÉÝUÀ¼À°è AiÀiÁªÀÅzÉà §zÀ¯ÁªÀuÉ E®èzÉà PÉ.J.J¸ï(Q.±ÉæÃ) ºÀÄzÉÝAiÀÄ°èAiÉÄà AiÀÄxÁ¹ÜwAiÀÄ°ègÀÄvÁÛgÉ.
PÀæ.¸ÀA ºÉ¸ÀgÀÄ 1 ²ªÀPÀĪÀiÁgï ºÉZï.Dgï 2 «ÃgÀ¨sÀzÀæ ºÀAa£Á¼À 3 gÀÆ¥À²æà PÉ 4 ªÀÄAdÄ£ÁxÀ¸Áé«Ä f.J£ï 5 ¥Àæ«Ãt ¦ ¨ÁUÉêÁr 6 qÁ J ZÉ£ÀߥÀà 7 ¸ÀIJîªÀÄä J£ï 8 ¹ÃªÀiÁ£ÁAiÀiïÌ © 9 gÁªÀÄ¥Àà ºÀnÖ [¢£ÁAPÀ 31.5.2020gÀAzÀÄ ªÀAiÉÆäªÀÈwÛ ºÉÆA¢gÀÄvÁÛgÉ]"
30. The last paragraph in the first page of the document is reproduced herein below.
"ªÉÄîÌAqÀ C¢üPÁjUÀ½UÉ PÀ.£Á.¸ÉÃ. (1998£Éà ¨ÁåZï UÉeÉmÉqï ¥ÉÆæ¨ÉõÀ£ÀgïUÀ¼ÀÄ) (¥ÉÆæèÉõÀ£ï WÉÆõÀuÉ ªÀÄvÀÄÛ ªÉÃvÀ£À ¤UÀ¢) («±ÉõÀ) ¤AiÀĪÀÄUÀ¼ÀÄ, 2021gÀ ¤AiÀĪÀÄ 05gÀ£ÀéAiÀÄ PÉJJ¸ï (»jAiÀÄ ±ÉæÃtÂ)(ªÉÃvÀ£À ±ÉæÃtÂ:
gÀÆ.74400-109000/-) ªÀÈAzÀPÉÌ ¢£ÁAPÀ: 17-9-2011 gÀAzÀÄ ªÀÄvÀÄÛ PÉJJ¸ï (DAiÉÄ̱ÉæÃtÂ) (ªÉÃvÀ£À ±ÉæÃt gÀÆ:90500-123300/-) ªÀÈAzÀPÉÌ ¢£ÁAPÀ: 20-9- 2019gÀAzÀÄ CºÀðvÁ ¢£ÁAPÀUÀ¼ÀÄ ®¨sÀåªÁUÀĪÀÅzÀjAzÀ ¸ÀzÀj 09 C¢üPÁjUÀ¼À ªÉÃvÀ£ÀªÀ£ÀÄß PÉJJ¸ï (»jAiÀÄ ±ÉæÃtÂ) ªÀÄvÀÄÛ PÉJJ¸ï (DAiÉÄÌ ±ÉæÃtÂ) ªÀÈAzÀUÀ¼À°è CªÀgÀÄUÀ½UÉ ®¨sÀåªÁUÀĪÀ CºÀðvÁ ¢£ÁAPÀUÀ½AzÀ PÁ®à¤PÀªÁV ¤UÀ¢¥Àr¸À¨ÉÃQgÀÄvÀÛzÉ."
31. It is further contended that in these special circumstances the question of insisting upon DPC to infer 31 conferment of the promotional post is unwarranted. It is contended that in view of the 2021 special rules it has to be construed that the second respondent has been conferred the promotional post of KAS selection grade. Despite there being no specific provision atleast even a deeming provisions in the rules which confer such a right on the candidates who were the beneficiaries under the 2021 special rules. Rule 5 as noted supra has only granted a limited benefit of entitling the petitioners to draw a salary equivalent to the post that they may have held had they been selected at the first instance itself. In fact the rule further limits the financial benefits itself i.e., to state that it would be only prospective in effect and prohibits the candidates from claiming any financial benefits retrospectively. If that be the intendment of the legislature and where the legislature has deemed it fit to restrict even the financial benefit it can by no stretch of imagination be considered and held that the legislature intended to confer or grant deemed promotion to the candidates/beneficiaries under the special rules. Hence the contention of the 32 learned senior counsel appearing on behalf of the second respondent requires to be rejected on the basis of the very rule under which the second respondent has been appointed and granted the pay scale. It is no more res integra that a seniority of a person would commence from the date he is born in service. If the contention canvassed by the AAG and the senior counsel is accepted it would amount to recognizing the date of entry or birth of the second respondent in the service from 1998 itself of 2006 itself, which is clearly contrary to the settled law. On that ground also the contention that promotional post of KAS selection grade ought to deemed to have been considered requires to be rejected.
32. The learned AAG has relied upon two rulings reported in (2015) 11 SCC 669 rendered in the case of National Institute of Technology and another vs. Pannalal Choudhury and another and another ruling reported in (2003) 4 SCC 239 rendered in the case of High Court of Judicature for Rajasthan vs. P P Singh and another to 33 contend that the subsequent promotion granted to the second respondent by notification dated 12.01.2022 would cure, the defect or ineligibility of the second respondent to be appointed to the post of director stands cured. In this regard the learned AAG would take this Court through the notification dated 12.01.2022 produced as Annexure R2 along with the statement of objections filed on behalf of the first respondent on 21.01.2022. We are constrained to express our displeasure. In our opinion this is an act of overreach by the first respondent. The matter having been seized off by the courts drawing up proceedings and attempting to cure any lacuna in the case during the pendency itself cannot be appreciated. That too attempting to cure an incurable defect of eligibility certainly cannot be appreciated at all. As rightly contended by the learned senior counsel appearing on behalf of the petitioner this is clearly an act of overreach.
33. Be that as it may, we do not wish to delve deeper into the merits of the said notification. It would suffice to 34 note that the notification places reliance on the 2021 rules for conferring the alleged promotional post on the second respondent. The said proceedings further refers to a reliance on a temporary seniority list/provisional seniority list for the purpose of conferring senior scale selection grade to the officers who have been appointed in 2020 pursuant to the judgment of this Court rendered in 2016 and affirmed by the Apex Court. We have already held that the Special Rule of 2021 does provide for any deemed promotion or accelerated promotion.
34. As discussed above, it is settled law that seniority of a person will count from the date he is born in service in other words the day on which he enters or reports to duty. In the instant case the second respondent has entered service only in 2020 and granting of promotion without holding DPC or legislating any special provision in this regard, is unknown to service law jurisprudence. We do not wish to dwell deeper into the correctness/legality or 35 otherwise of the notification in the present proceedings and we deem it appropriate to reject the said contention.
35. The said contention is also canvassed by the learned Senior counsel appearing on behalf of the second respondent. He would attempt to canvass a similar case and would contend that the order dated 12.1.2022 ratifies the earlier order dated 27.3.2021 appointing the second respondent to the post held by the petitioner. In this regard both the learned AAG and the learned senior counsel appearing on behalf of the second respondent would place reliance on the ruling reported in 2015 (11) SCC 669 and in particular would take the court through paragraphs 28, 29, 30 to 32 to contend that it is permissible to ratify and set right any lacuna in the appointment/transfer of the second respondent to the post of Director. In the said ruling the Hon'ble Apex Court was examining the law relating to ratification. The observations of the Apex Court in paragraphs 28 to 32 are as under:
36
"28. That apart, the issue in question could be examined from yet another angle by applying the law relating to "ratification" which was not taken note of by the High Court.
29. The expression "ratification" means "the making valid of an act already done". This principle is derived from the Latin maxim "ratihabitio mandato aequiparatur" meaning thereby "a subsequent ratification of an act is equivalent to a prior authority to perform such act". It is for this reason, the ratification assumes an invalid act which is retrospectively validated.
30. The expression "ratification" was succinctly defined by the English Court in one old case, Hartman v. Hornsby as under:
" 'Ratification' is the approval by act, word, or conduct, of that which was attempted (of accomplishment), but which was improperly or unauthorisedly performed in the first instance."
31. The law of ratification was applied by this Court in Parmeshwari Prasad Gupta v. Union of India. In that case, the Chairman of the Board of Directors had terminated the services of the General Manager of a Company pursuant to a resolution taken by the Board at a meeting. It was not in 37 dispute that the meeting had been improperly held and consequently the resolution passed in the said meeting terminating the services of the General Manager was invalid. However, the Board of Directors then convened subsequent meeting and in this meeting affirmed the earlier resolution, which had been passed in improper meeting. On these facts, the Court held: (SCC pp. 546-47, para 14) "14. ... Even if it be assumed that the telegram and the letter terminating the services of the appellant by the Chairman was in pursuance of the invalid resolution of the Board of Directors passed on 16-12-1953 to terminate his services, it would not follow that the action of the Chairman could not be ratified in a regularly convened meeting of the Board of Directors. The point is that even assuming that the Chairman was not legally authorised to terminate the services of the appellant, he was acting on behalf of the Company in doing so, because, he purported to act in pursuance of the invalid resolution. Therefore, it was open to a regularly constituted meeting of the Board of Directors to ratify that action which, though unauthorised, was done on behalf of the Company. Ratification would always relate back to the date of the act ratified and so it 38 must be held that the services of the appellant were validly terminated on 17-12-1953."
This view was approved by this Court in High Court of Judicature of Rajasthan v. P.P. Singh.
32. The aforesaid principle of law of ratification was again applied by this Court in Maharashtra State Mining Corpn. v. Sunil. In this case, the respondent was an employee of the appellant Corporation. Consequent to a departmental enquiry, he was dismissed by the Managing Director of the appellant. The respondent then filed a writ petition before the High Court. During the pendency of the writ petition, the Board of Directors of the appellant Corporation passed a resolution ratifying the impugned action of the Managing Director and also empowering him to take decision in respect of the officers and staff in the grade of pay the maximum of which did not exceed Rs 4700 p.m. Earlier, the Managing Director had powers only in respect of those posts where the maximum pay did not exceed Rs 1900 p.m. The respondent at the relevant time was drawing more than Rs 1800 p.m. Therefore, at the relevant time, the Managing Director was incompetent to dismiss the respondent. Accordingly, the High Court held the order of dismissal to be invalid. The High Court further held that the said defect could not be rectified subsequently by the resolution of the Board 39 of Directors. The High Court set aside the dismissal order and granted consequential relief. The appellant then filed the appeal in this Court by special leave. Ruma Pal, J. speaking for the three-Judge Bench, while allowing the appeal and setting aside the order of the High Court held as under: (Sunil case SCC pp. 96g-h & 97a-b) "The High Court rightly held that an act by a legally incompetent authority is invalid. But it was entirely wrong in holding that such an invalid act could not be subsequently 'rectified' by ratification of the competent authority. Ratification by definition means the making valid of an act already done. The principle is derived from the Latin maxim ratihabitio mandato aequiparatur, namely, 'a subsequent ratification of an act is equivalent to a prior authority to perform such act'.
Therefore, ratification assumes an invalid act which is retrospectively validated.
*** In the present case, the Managing Director's order dismissing the respondent from the service was admittedly ratified by the Board of Directors unquestionably had the power to terminate the services of the respondent. Since 40 the order of the Managing Director had been ratified by the Board of Directors such ratification related back to the date of the order and validated it."
36. From a reading of the above and the facts involved in the said case it is apparent that the Apex Court was not dealing with the issue of eligibility and the Apex Court in the facts and circumstances involved therein was pleased to hold that the power of ratification was vested in the authority, namely the Board and hence held that the subsequent ratification by the competent authority of the initial orders was legal. We have no quarrel with the observations of the law laid down by the Apex Court. Another ruling is also placed before us by the learned AAG reported in 2003 (4) SCC 239. The three Judges bench of the Apex Court was yet again dealing with the case of ratifying actions pursuant to delegated administrative powers and not the question of eligibility which is the issue involved herein.
41
37. The bogey of eligibility was raised by the second respondent and on scrutiny we find that even the second respondent does not possess the eligibility to be appointed as there is no proceeding whereby the merits of the case of the second respondent interse other officers of the KAS cadre have been assessed by the department and he has been found fit to be promoted to the next post of selection grade. In fact the hierarchy in the KAS cadre would indicate there was one more intermediate scale i.e., of KAS senior scale as is found in the book published by the department of parliament, DPAR, a wing of the first respondent.
38. Per contra, the learned senior counsel for the petitioner would place reliance on the ruling of the Apex Court reported in 2021 SCC online SC 1284 in the case of Sunny Abraham vs. Union of India and another and another and would place reliance on the observations of the Apex Court in paragraph 13 as follows:
42
"13. The next question we shall address is as to whether there would be any difference in the position of law in this case vis-a-vis the case of B.V. Gopinath (supra). In the latter authority, the charge memorandum without approval of the Disciplinary Authority was held to be non est in a concluded proceeding. The High Court has referred to the variants of the expression non est used in two legal phrases in the judgment under appeal. In the context of our jurisprudence, the term non est conveys the meaning of something treated to be not in existence because of some legal lacuna in the process of creation of the subject-instrument. It goes beyond a remediable irregularity. That is how the Coordinate Bench has construed the impact of not having approval of the Disciplinary Authority in issuing the charge memorandum. In the event a legal instrument is deemed to be not in existence, because of certain fundamental defect in its issuance, subsequent approval cannot revive its existence and ratify acts done in pursuance of such instrument, treating the same to be valid. The fact that initiation of proceeding received approval of the Disciplinary Authority could not lighten the obligation on the part of the employer (in this case the Union of India) in complying with the requirement of sub-
clause (3) of Rule 14 of CCS (CCA), 1965. We have quoted the two relevant sub-clauses earlier in this 43 judgment. Sub-clauses (2) and (3) of Rule 14 contemplates independent approval of the Disciplinary Authority at both stages - for initiation of enquiry and also for drawing up or to cause to be drawn up the charge memorandum. In the event the requirement of sub-clause (2) is complied with, not having the approval at the time of issue of charge memorandum under sub-clause (3) would render the charge memorandum fundamentally defective, not capable of being validated retrospectively. What is non-existent in the eye of the law cannot be revived retrospectively. Life cannot be breathed into the stillborn charge memorandum. In our opinion, the approval for initiating disciplinary proceeding and approval to a charge memorandum are two divisible acts, each one requiring independent application of mind on the part of the Disciplinary Authority. If there is any default in the process of application of mind independently at the time of issue of charge memorandum by the Disciplinary Authority, the same would not get cured by the fact that such approval was there at the initial stage. This was the argument on behalf of the authorities in the case of B.V. Gopinath (supra), as would be evident from paragraph 8 of the report which we reproduce below:--
"8. Ms. Jaising has elaborately explained the entire procedure that is followed in each 44 and every case before the matter is put up before the Finance Minister for seeking approval for initiation of the disciplinary proceedings. According to the learned Additional Solicitor General, the procedure followed ensures that entire material is placed before the Finance Minister before a decision is taken to initiate the departmental proceedings. She submits that approval for initiation of the departmental proceedings would also amount to approval of the charge memo. According to the learned Additional Solicitor General, CAT as well as the High Court had committed a grave error in quashing the departmental proceedings against the respondents, as the procedure for taking approval of the disciplinary authority to initiate penalty proceeding is comprehensive and involved decision making at every level of the hierarchy.""
39. The learned Senior counsel would press the above argument to contend that the eligibility being a threshold bar cannot be rectified by a subsequent rectification and the initial order of appointment being vitiated on account of the ineligibility of the second 45 respondent to hold the post the same could not have been rectified by the subsequent proceedings dated 12.1.2022. He would submit that the very notification dated 12.01.2022 absolutely demonstrates that the respondents were well aware that the second respondent was ineligible to hold the post even as on the date of the impugned order dated 27.3.2021 and hence he would submit that malafides has to be inferred against the first respondent and the impugned order amounts to a colourable exercise of jurisdiction and would pray that the writ petition be allowed and the impugned order dated 27.3.2021 be set aside.
40. The learned senior counsel appearing on behalf of the second respondent would press into service two rulings of the Apex Court reported in 2014 (15) SCC 466 and would place reliance on the observations of the Apex Court in paragraphs 6 to 13 to contend that the question of eligibility cannot be gone into as there is no specific challenge to the eligibility of the second respondent to hold the post. In our opinion the said contention is fallacious for 46 the very proceedings impugned before the Tribunal and this Court is the order dated 27.3.2021 whereby the petitioner stood deprived of his right to hold the post and a similar right to hold the post was conferred on the second respondent. Another ruling of the Apex Court the learned senior counsel would place reliance which is reported in 2013 (4) SCC 465 would place reliance on the observation of the apex court in paragraphs 9 to 17. In our opinion the said ruling is of no avail to the petitioner and is distinguishable on the facts of the instant case. Paragraphs 9 to 11 are extracted herein below for the sake of convenience.
"9. It is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the authority/court, that he falls within the category of aggrieved persons. Only a person who has suffered, or suffers from legal injury can challenge the act/action/order, etc. in a court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there 47 has been a breach of statutory duty on the part of the authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can, of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that the relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same. [Vide State of Orissa v. Madan Gopal Rungta, Saghir Ahmad v. State of U.P., Calcutta Gas Co. (Proprietary) Ltd. v. State of W.B., Rajendra Singh v. State of M.P. and Tamilnad Mercantile Bank Shareholders Welfare Assn. (2) v. S.C. Sekar .]
10. A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person 48 aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must, therefore, necessarily be one whose right or interest has been adversely affected or jeopardised. (Vide Shanti Kumar R. Canji v. Home Insurance Co. of New York and State of Rajasthan v. Union of India.)
11. In Anand Sharadchandra Oka v. University of Mumbai, a similar view was taken by this Court, observing that, if a person claiming relief is not eligible as per requirement, then he cannot be said to be a person aggrieved regarding the election or the selection of other persons."
41. As noticed by us in the earlier part of this order, the impugned order was contrary and in the teeth of law settled by this court in Hittalmani's case. That (1) it was premature as the petitioner had not completed the minimum fixed tenure; (2) there was no simultaneous movement order moving the petitioner out of the post while transferring and appointing the second respondent to the post occupied by the petitioner and (3) the order appointing/transferring the second respondent to the post held by the petitioner was not preceded by any order of 49 removing the petitioner from the post of Director on the ground of his ineligibility to hold the post. In that view of the matter, in the absence of an order of removal, the case of the petitioner was squarely covered by the law laid down by this Court in Hittalmani's case and which has been relied upon by the petitioner, both before the Tribunal and this Court.
42. We refrain from interfering with the proceeding transferring the petitioner out of the post in view of the C and R Rules of Karnataka Minorities Department (published on 15.3.2011). Consequently, we reject the writ petition in so far as it seeks to restore the petitioner to post.
43. We partly allow the writ petition. We hold that the second respondent is ineligible to be transferred and appointed as Director, Minorities Welfare Department, in terms of the very same cadre and recruitment rules, as no document has been placed before this Court to demonstrate that any promotion either regular or deemed has been 50 conferred on the second respondent in a manner known to law as on the date of the impugned order i.e., 23.07.2021.
44. We also hold that the proceedings dated 12.01.2022 is an act of overreach and we direct that second respondent be forthwith removed from the post of Director, Department of Minorities and compliance of this order shall be reported to this Court expeditiously.
The writ petition is ordered accordingly.
Sd/-
JUDGE Sd/-
JUDGE ykl CT-HR