Central Administrative Tribunal - Bangalore
Y.R. Patil, Ips vs Union Of India (Uoi) And Ors. on 4 April, 2005
Equivalent citations: 2006(1)SLJ154(CAT)
ORDER Mukesh Kumar Gupta, Member (J)
1. The case was listed today for hearing and Mr. M. Nagarajan, learned Counsel for respondents 2 - 4 produced a communication dated 2nd April, 2005 from the office of Chief Secretary, Govt. of Karnataka, addressed to him stating that since the applicant had completed 30 years of qualifying service and attained the age of 50 years, he can apply for voluntary retirement by giving three months' notice to the Government. The said communication also stated that as far as the regularization of period from 21.9.2004 is concerned, upto 30.10.2004 it could be considered on production of medical certificates and rest of the period will be regularised under the relevant rules depending on the application for extension of leave to be submitted by the concerned officer.
2. Mr. Subramanya Jois, learned Senior Counsel appearing for the applicant, on instructions, stated that he is not willing to seek voluntary retirement, as suggested, and therefore he proceeded with the matter on merits.
3. I may note that the present matter was adjourned on 28.3.2005 as the learned Counsel for official respondents sought time to seek instructions from the Government and to explore the possibility of settling the issues.
4. Shri Y.R. Patil, a member of Indian Police Service, 1979 Batch, due to retire on attaining the age of superannuation with effect from 28.2.2006, in this O.A. challenges validity of Notification dated 20.9.2004 (Annexure A-9) as well as Movement Order of instant date issued immediately thereafter (Annexure A-10) besides questioning the notification dated 5.11.2004 posting and promoting various officers of the said cadre, including respondent No. 7.
5. The present O.A. is sequal to earlier O.A. No. 505/2004. The brief facts are that vide notification dated 24.2.2004, the applicant was posted, until further orders, as Inspector General of Police (Training), Bangalore, in the existing vacancy, the charge of which post was assumed by him on 25.2.2004. Immediately thereafter, vide notification 27.2.2004 he was again transferred with immediate effect and posted until further orders as Inspector General of Police, Southern Range, Mysore. Once again, he was transferred vide notification dated 17.7.2004 as Inspector General of Police, Anti Terrorist Cell, Bangalore and Shri Kempaiah, IPS, 1981 Batch, was to replace him. The Movement Order was issued on 19.7.2004, despite the fact that applicant's representation dated 18.7.2004, highlighting frequent transfers issued in a short span of four months, as well as his mother's medical condition and children's education was pending and no action was taken thereon. Therefore, he instituted O.A. No. 505/ 2004. Vide interim order dated 23.7.2004, the operation of the aforesaid orders dated 17.7.2004 and 19.7.2004 was stayed. The said O.A. was disposed of vide order dated 15.9.2004 with the following observations:
5. On perusal of the entire matter and considering the arguments advanced at bar, I deem it fit that instead of going into the merits of the case, the present application can be disposed of at this stage with direction to respondents to consider applicant's representation dated 18.7.2004 in "proper perspective and in accordance with law", within a period of one week from today. It will be in the fitness of things that the authorities shall consider the averments made by the applicant in the present application also, while deciding the aforesaid representation. Till such time, appropriate authority pass reasoned and speaking order, as directed aforesaid, the said transfer order qua applicant shall not be enforced and insisted upon.
6. Accordingly the O.A. is disposed of. It is made clear that the contentions raised on merits, by the respective parties have not been adjudicated.
Pursuant to the aforesaid direction and in purported compliance of the same, the respondents issued Notification dated 20.9.2004, though allowed the applicant "to continue to be at Mysore" but placed him at the disposal of Education Department (Higher Education) with immediate effect with a further order to post him as Registrar, Karnataka State Open University, Mysore, in the existing vacancy. The order issued vide Notification dated 17.7.2004 posting the applicant as IGP (Anti Terrorist Cell), Bangalore was, therefore, cancelled. On the same date and swiftly movement order was also passed and the applicant was directed to hand over the charge of the post of IGP, Southern Range, Mysore to Shri Kempaiah immediately.
6. The aforesaid orders dated 20.9.2004 as well as movement order of the said date were initially challenged by filing the present O.A. impleading amongst others, Deputy Chief Minister, State of Karnataka, Shri M.D. Singh, IPS (Retd.), the Cadre Management Authority as well as Shri Kempaiah, who took over charge from the applicant on various divergent grounds including mala fides. However, vide order dated 29.10.2004, the aforesaid officials, except Sri Kempaiah were deleted from the array of parties. Detailed orders were passed on 4.11.2004, 5.11.2004, 9.11.2004 as well as on 12.11.2004. The matter was adjourned on 5.11.2004 to enable the official respondents' Counsel to seek instructions from the Government as to whether any vacancy in cadre/non-cadre or equivalent post held by the applicant was available, against which he could be adjusted. The official respondents reported back on 12.11.2004 stating that as large number of officials have been transferred and posted vide order dated 5.11.2004, the vacancy in the post of Commissioner of Police, Mysore, was filled up by promotion of Shri Praveen Sood, respondent No. 7. An affidavit dated 8.11.2004, was filed by the applicant alleging that the said transfer and posting order dated 5.11.2004 was issued and effected hurriedly, vindictively in aclandastined manner and charge of the said post was taken over from Shri Bipin Gopala Krishna by Shri Praveen Sood between 7.30 pm and 8.00 pm on a Sunday, in a casual dress, not befitting the dignity of the disciplined force, as required under the Police Manual. Therefore, the applicant was allowed to amend the O.A. as well as impleading Shri Praveen Sood. The official respondents have filed their additional reply.
7. The contentions raised by the applicant are on the following lines, namely, the impugned transfer and notification is a classic instance of arbitrary exercise of a non-existing power professed to be invoked for causing harm to the applicant and confer on respondent No. 5, the largesse of posting of his choice as the Deputy Chief Minister as well as the said respondent, hail from Mysore Legislative Constituency, belonging to the same caste and community, communal equations and overtones having outweighed all legitimate and objective considerations of public interest. There was no public interest involved in disturbing the applicant. Nobody was posted in place of Shri Kempaiah, when he was ordered to be transferred from the post of Inspector General of Police, North East Range, Gulbarga to the post of Inspector General of Police, Southern Range, Mysore. The said respondent No. 5 is facing serious charges under the Prevention of Corruption Act, 1988. In this connection reliance was placed on an order passed by the learned Court of XXIII Additional City Civil and Sessions Judge and Special Judge, Bangalore City in Crime No. 11/1993 to the effect that the State of Karnataka is patronizing and shielding the said respondent facing serious allegations of amassing wealth grossly disproportionate to his known source of income. A raid was conducted by the Karnataka Lokayukta and after investigation, a detailed report was submitted to the Government for securing the sanction order for prosecution of the said accused. His challenge to quash the said proceedings registered against him were negatived by the Hon'ble High Court of Karnataka by dismissing Criminal Petition No. 1155/1993, vide order dated 2.7.96 and despite completion of investigation long ago, no effective steps have been taken by the State of Karnataka to secure sanction order from Competent Authority, though final report was submitted on 16.10.2000 holding that it was a fit case for prosecution. It is because of want of sanction, the prosecution could not proceed further in the matter. Vide order dated 4.9.2004 as well as 15.9.2004 in the said proceedings, the learned Special Judge strongly disapproved the State's action in pursuing the said proceedings in lackadaisical manner, particularly when the proceedings were initiated under the Prevention of Corruption Act, especially when persons involved therein are occupying high position. A perusal of the said order goes to show that the office of Chief Secretary, Government of Karnataka refused to accept the Court Order due to some technical reasons. With reference to above, it was contended that the State action in transferring the applicant was neither fair nor just but the end result of colourable exercise of power and therefore the action being malice in law, is liable to be quashed and set aside.
The further contention raised was that despite directions issued by this Tribunal vide order dated 15.9.2004, directing the respondents to consider applicant's representation against the said transfer order "in proper perspective and in accordance with law", its true import had not been duly appreciated by the respondents and the applicant was subjected to a further raw deal of being sent on foreign service to the Karnataka State Open University, Mysore seemingly camouflaging, the same as continuing him at Mysore itself, and mechanically, passing movement order on the same date, even before the ink could dry on the impugned notification of the said date.
The next contention raised was that the aforesaid notification dated 20.9.2004 was violative of the provisions of Karnataka State Open University Act, 1992 as he is being sent on foreign service without his consent. Karnataka State Open University, is not a body owned wholly or substantially or controlled by Government of India/State of Karnataka. It was contended that the said body is an independent autonomous body, constituted under the Karnataka State Open University Act, 1992. The provisions of the said Act, namely, Section 3(3) and Section 11 which deals with establishment and incorporation of the University and the Registrar have been violated. The State notified under Section 22 of the said Act, requires that the Registrar shall be appointed by the Chancellor in consultation with the Vice Chancellor and the State Government, which mandate has also been violated. The said provisions reads as follows:
Section II. The Registrar--The Registrar shall be appointed in such manner, on such emoluments and other conditions of service, and shall exercise such powers and perform such functions, as may be prescribed by the statutes.
Section 8 states that the Governor of Karnataka shall be the Chancellor of the University. Para 3 under the Second Schedule of the aforesaid Act dealing with First Statutes of the University, reads as under:
3. Registrar:
(1) The Registrar shall be appointed by the Chancellor in consultation with the Vice-Chancellor and the State Government.
(2) The Registrar shall, while performing the function of the Vice-Chancellor under Sub-clause (6) of Clause 1 shall continue in office notwithstanding the expiration of his term of office as Registrar until a new Vice-Chancellor assumes his office or until existing Vice-Chancellor attends to the duties of his office, as the case may be.
(3) The emoluments and terms and conditions of service of the Registrar shall be such as may be prescribed by the Ordinances.
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(g) perform such other functions as may be specified in the Statutes, Ordinances or Regulations or as may be required from time to time by the Board of Management or the Vice-Chancellor.
(Emphasis supplied) It was further contended that though there was a vacancy in the cadre in the shape of Commissioner of Police, Mysore, which post was equivalent to the post held by the applicant, i.e. Inspector General of Police as on 5.11.2004 but instead of adjusting him against the said cadre post, the same was filled by the respondents in a clandestine manner particularly in order to thwart and circumvent the order passed by this Tribunal of the said date; the respondents stick to its gun by depriving him his legitimate posting and also to continue undeserved favour conferred on 5th respondent, by issuing hurriedly notification dated 5.11.2004 and directing the respondents No. 7 to take over charge immediately on a day of holiday between 7.30 and 8.00 pm on 7.11.2004 in a casual dress, not befitting the dignity of police, a disciplined force. All these were State managed and had been planned by the respondents to make a case of no vacancy at Mysore. In continuation of the above, the applicant further contended that having accomplished the oblique object of overrating the order of this Tribunal dated 5.11.2004, Deputy Secretary to the Government, DP and AR issued communication dated 8.11.2004 falsely representing "as of now" there was no vacancy in the cadre post at Mysore.
Ultimately, it was contended that the impugned transfer and posting order as well as movement order are camouflage, product of colourable exercise of assumed power, for an alien purpose, tempted by mala fides and not in public interest, besides the fact that the same are in derogation of the mandatory provisions of Karnataka State Open University Act, 1992. Neither the Chancellor nor the Vice Chancellor or State had any prior consultation about the applicant's posting as Registrar of the said University.
The official respondents, Shri Kempaiah as well as Shri Praveen Sood filed their separate reply and contested the applicant's claim. The official respondents stated that the impugned notification dated 20.9.2004 was issued keeping in view the applicant's hardships and personal difficulties pointed out vide representation dated 18.7.2004 against transfer order dated 17.7.2004 and also with a view to accommodate him at Mysore itself. Therefore, he was now estopped to contend that the said impugned notification was opposed to fundamental rules etc. The Government is a Competent Authority to decide the fact whether the public interest would be served if a particular officer is posted to a particular place or not. The allegations made against the DG and IG of Police was based on his imagination and figment. In fact, no recommendations whatsoever had been put up by the said official for posting of Shri Kempaiah. Upon passing the said impugned notification dated 20.9.2004, "the alleged hardship came to be erased" by retaining the applicant at Mysore itself. The applicant was bent upon and adamant in continuing at a particular post, to which he was not entitled to. Allegations of mala fides were denied being vague. It was further contended that the applicant being holder of transferable post, was not entitled to remain in the post concerned. By an additional affidavit, the official respondents further stated that the notification dated 5.11.2004 was not a "sudden and hurried one", as contended and the issue relating to promotion of respondent No. 7 and other officers of the batch, to the grade of IG, Police as well as promotion of 1990 Batch to DIG grade had been engaging the attention of the Government for some time, and DPC was held for this purpose on 22.7.2004, minutes of which were approved by the Competent Authority on 4.8.2004. The applicant's allegation that the aforesaid notification dated 5.11.2004 was issued to thwart/circumvent, overcome and defeat the spirit of the order passed by this Tribunal, were denied. There was no illegality on the part of respondent No. 7 in taking over the charge of the new post at Mysore on Sunday, i.e. 7.11.2004. It was further contended that the Deputy Secretary, being a senior officer of the Government, was well within his competence to communicate the factual position to the Government advocate as on 8.11.2004.
8. The respondent No. 7, Praveen Sood also filed his reply opposing the applicant's claim and basically reiterated what has been said by the official respondents vide their additional affidavit.
Shri Kempaiah, respondent No. 5, also filed his reply stating that he was not at all interested to occupy a particular post, at a particular place, and had always obeyed the order of transfer, as directed by the authorities. At no point of time he had approached the Government or the Director General of Police in the matter of transfer. The pendency of proceedings before the Special Court had not relevance to the issue involved in the present O.A. 'B' Reports were submitted by the Investigating Authorities thrice, but because of prejudice prevailing against him, the matter had not been finalized. He further stated that he had already assumed the charge of the said post on 22.9.2004.
9. I have heard Mr. Subramanya Jois, learned Senior Counsel appearing for the applicant alongwith Mr. T. Kumar as well as Mr. M. Nagarajan, learned Standing Counsel for the State Government and Mr. N.B. Bhat, learned Counsel appearing for respondent No. 7 and perused the records carefully, besides the original records produced by the State Government.
10. Before proceeding further it would be expedient to note certain statutory provisions. Rule 6 of Indian Police Service (Cadre) Rules, 1954 deals with deputation of cadre officers. It is undeniable fact that the applicant is a cadre officer and belongs to Indian Police Service. According to the said Rule 6, no cadre officer can be deputed to an autonomous body except with his consent. It is an admitted fact that no consent of the applicant was either sought or obtained prior to issuing notification dated 20.9.2004. The said Rule 6, reads as under:
6. Deputation of cadre officers - (1) A cadre officer may, with the concurrence of the State Government or the State Government concerned and the Central Government, be deputed for service under the Central Government, or another State Government or under a company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by the Central Government or by another State Government:
Provided that in case of any disagreement the matter shall be decided by the Central Government and the State Governments concerned shall give effect to the decision of the Central Government.
(2) A cadre officer may also be deputed for service under :
(i) a company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by a State Government, a Municipal Corporation or a Local Body, by the State Government on whose cadre he is borne, and
(ii) an international organization, an autonomous body not controlled by the Government, or a private body by the Central Government, in consultation with the State Government on whose cadre he is borne:
Provided that no cadre officer shall be deputed to any organization or body of the type referred to in item (ii), except with his consent:
...
(Emphasis supplied) A University is an autonomous body not controlled by the Government. I am fortified in this view from a clarificatory O.M. issued by the Government of India, Department of Personnel and Administrative Reforms dated 28.1.1974. The contents of the same are reproduced under Government of India decision under Rule 6 of the aforesaid rules, by Sarkar's: The All India Services Manual, Ed. 2005, Vol. II at page 762, which reads as follows:
2.1 G.I., Deptt. of Per and AR letter No. 13/1/74-AIS (II) dated 28.1.1974- A University is an autonomous body not controlled by the Government. In view of this, the deputation of a member of Indian Administrative Service to a University will come within the ambit of Clause (ii) of Sub-rule (2) of Rule 6 of the Indian Administrative Service (Cadre) Rules, 1951, and can be ordered only by the Central Government in consultation with the State Government on whose cadre he is borne.
Similarly, vide O.M. dated 17.1.75, it was directed that the proposal for deputing a member of IAS to a University should be furnished to the Central Government to enable it to examine and issue necessary orders. The said O.M. dated 17.1.75 reproduced at page 762 of the afforested Book, reads as under:
2.2 G.I. Deptt. of Per and AR letter No. 13/27/74-AIS (II), dated 17.1.1975-Whenever it is proposed by a State Government to depute a member of Indian Administrative Service to a University full particulars of the terms of deputation which are proposed to be allowed to him should be furnished to the Central Government in order to enable to examine the proposal and issue necessary orders.
Since the provisions of IAS (Cadre) Rules, 1954 are pan materia with that of IPS (Cadre) Rules, 1954, instructions/ orders issued under the earlier rules, would apply to the latter.
Malice in law and malice in fact have not been defined under any statute. Mala fides violating the proceedings may be legal or factual. Former arises as a matter of law where a public functionary acts deliberately in defiance of law without any malicious intention or improper motive whereas the latter is actuated by extraneous considerations. It is well settled that the public functionaries should be duty conscious rather than power charged. Its actions and decisions which touch the common man have to be tested on the touchstone of fairness and justice. That which is not fair and just is unreasonable. And which is unreasonable is arbitrary. An arbitrary action is ultra vires. It does not become bonafide and in good faith merely because no personal gain or benefit to the person exercising discretion. An action is mala fideif it is contrary to the purpose for which it was authorized to be exercised. Dishonesty in discharge of duty vitiates the action without anything more. An act is bad even without proof of motive of dishonesty, if the authority is found to have acted contrary to reason.
In Tandon Brothers v. State of West Begnal and Ors. , it was held that:
Governmental action must be based on utmost good faith, belief and ought to be supported with reason on the basis of the state of law- if the action is otherwise or runs counter to the same the action cannot but be ascribed to be mala fide and it would be a plain exercise of judicial power to countenance such action and set the same aside for the purpose of acquitting good conscience and justice. Justice of the situation demands action clothed with bona fide reason and necessities of the situation in accordance with the law. But if the same runs counter, law Courts would not be in a position to countenance the same.
(Emphasis supplied) In Union of India v. Dinesh Engineering Corporation and Anr. it was observed that: "Any decision, be it a simple administrative decision or a policy decision, if taken without considering the relevant facts, can only be termed as an arbitrary decision. If it is so, then be it a policy decision or otherwise, it will be violative of the mandate of Article 14 of the Constitution."
The burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, was the observation made in E.P. Royappa v. State of T.N. . But as held in the later cases, namely Rajendra Roy v. Union of India:- "It may not be always possible to establish malice in fact in a straight-cut manner. In an appropriate case, it is possible to draw reasonable inference of mala fide action from the pleadings and antecedent facts and circumstances. But for such inference there must be firm foundation of facts pleaded and established."
11. Mr. Subramanya Jois, learned Senior Counsel vociferously contended that the verification made by the respondents in their reply statement that as well as additional reply, is not in accordance with the requirements of the rule and law in as much as the Under Secretary, DPAR, Services (I), Govt. of Karnataka, Bangalore had not indicated about the source of information or the basis for making submissions therein. Reliance was placed on Lipton India Limited and Anr. v. State of Karnataka and Ors. particularly Paragraph 7 wherein the Hon'ble Supreme Court recorded strong displeasure about the manner in which the Karnataka State Government made a statement on oath before the High Court, which was incorrect. Following observations were made in Para 7 therein:
7. The administration of the State of Karnataka represented by its Chief Secretary, does not find the said officer guilty of gross negligence. The Chief Secretary does not find it unpardonable that the statement was made on oath on behalf of the State Government in a pending proceeding before the High Court. We cannot agree whether the Chief Secretary thinks it necessary to take action against the said officer or not is not our concern. Our concern is that the State Government made a statement on oath before the High Court that was incorrect and the judgment of the High Court accepts and proceeds upon the basis of that statement. The High Court's judgment must, therefore, be set aside and the matter remanded to the High Court to be heard and decided afresh.
(Emphasis supplied) Reliance was also placed on Jagadish Prasad v. State of Bihar particularly Para 5. Further reliance was placed on Mohd. Ibrahim v. B. Rama Rao Para 6 wherein the Court expressed its grave concern to the irresponsible statements made, without any record to any accuracy, in the affidavits filed on behalf of the State Government. As far as the case of Jagadish Prasad (supra) is concerned the said case was in relation to the detention matter whereby the civil liberty of an individual is curtailed and therefore, observation made therein would not be applicable in the facts and circumstances of the present case. I may note that Rule 12 of CAT (Procedure) Rules, 1987, deals with filing of reply and other documents by the respondents. As per the mandate of the said rule, written statement by the respondents has to be signed and verified in the same manner as provided for in Order VI, Rule 15 of Code of Civil Procedure. The said order and rule of CPC in turn specifically requires that every pleadings shall be verified at the foot by the party and shall specify by reference to number, paragraphs of the pleadings what he verifies of his own knowledge and what he verifies upon information received and believed to be true, besides putting a date on which and the place at which it is signed. On perusal of the written statement as well as additional reply, I find that the verification made therein is not in accordance with the mandate of the aforesaid rules. The official who has filed written statement verified that the statement made therein as "believed to be true and correct to the best of my knowledge, belief and information". What is the source of knowledge, how he believed and what are the source of information etc., have not been spelt out. Similarly, the additional reply filed by the Under Secretary to Government, DPAR Services I, Bangalore has been verified stating that the contents of Para 1 - 10 of the reply "are true and correct and that I have not suppressed any material facts". This additional reply statement also suffers from the same infirmities as of earlier reply statement. On perusal of the aforesaid, I am of the considered opinion that the mandate of Rule 12 of CAT (Procedure) Rules, 1987 as well as Order VI, Rule 15 of CPC has been breached.
The administrator/ executive seems to be least bothered about the future of the children/ young generation studying in school/colleges, by appointing and posting Senior Police Officers in such institutions. The chaotic and whimsical nature of administration seems to be percolating down to the education system. It appears that the State of Karnataka is policising the temple of learning by posting senior police officials to the University and other educational institutions. On a pointed query raised to the respondents' Counsel and an opportunity granted to the respondents to retrieve their stand by appointing the applicant to a cadre post, instead of to the post of Registrar, Karnataka State Open University, Mysore, the respondents remained adamant and hurriedly posted respondent No. 7 to the post of Commissioner of Police, Mysore vide order dated 5.11.2004. In order to frustrate the object and the intention of the order of the said date, they also ensured that the charge of the said post was taken on a holiday in a casual manner and that too in not proper uniform. I may make it clear that it is neither the purport or the intention of this order to hold that the charge of such post cannot be taken over on a holiday. What is intriguing is that the charge has been taken in a manner which is unknown to law as well as the procedure prescribed under the Police Manual.
12. I have also perused the original files produced by the learned Standing Counsel being No. (1) CB 1/2/2004-05 and (2) DPAR 69 SPS OW. On examination of File No. DPAR 69 SPS OW, I find that the Hon'ble Chief Minister, State of Karnataka approved promotion and transfers of IPS Officers on 5.11.2004 and on the same date, the senior functionaries of the Government were informed about this fact and a draft notification was put up for approval on the same date. On the very next date, certain modifications were ordered, by the Principal Secretary to the Chief Minister in respect of 3 officers.
I may note that the learned Special Judge, Bangalore recorded its strong displeasure for the indifferent approach adopted by the State of Karnataka for non-prosecuting criminal proceedings pending against Shri Kempaiah as well as for not taking proper steps to obtain sanction order against him. Fairness in procedure is a fundamental principle of good administration. It is a rule to ensure that the vast power in the modern State is not abused but properly exercised. The State power is used for proper and not for improper purposes. The authorities is not misguided by extraneous or irrelevant considerations. Fairness is also a principle to ensure that the statutory authority arrives at a just decision either in promoting the interest or affecting the rights of the person. Justice must not only be done but be seen to be done is basic to our system.
13. On cumulative reading of all facts noticed hereinabove, rule position as well as the contentions raised at Bar and on perusal of the judgments referred thereto, I am of the considered opinion that on the one hand the State of Karnataka agreed to retain the applicant at Mysore but yet posted him to Karnataka State Open University, Mysore, which was not only in violation of the provisions of Indian Police Service (Cadre) Rules, 1954 but also violates the mandate of Karnataka State Open University Act, 1992. Merely because the applicant was holding a transferable post, it does not confer a licence to the State to post him to any ex cadre post completely disregarding the provisions of statutory rules by which he, as a member of Indian Police Service, is governed. Holding of transferable post does not mean that the State and its officials have unbriddled power, jurisdiction and authority to transfer and post an official in a capricious manner. Without going into the merits or demerits of the allegations made by the applicant against the Deputy Chief Minister of the State vis-a-vis the special favour and largesse distributed to respondent No. 7,1 find that there are sufficient material on record to return the finding that part of the notification dated 20.9.2004 posting the applicant as Registrar, Karnataka State Open University, Mysore is trained by mala fides besides violative of statutory rules in the nature of IPS (Cadre) Rules, 1954 as well as provisions of the Karnataka State Open University Act, 1992. No record has been produced by the State Government to establish that there was any prior consultation between the Chancellor, Vice Chancellor and the State Government, as required under Para 3 of the 2nd Schedule of the aforesaid Act, 1992. Further, it is an admitted position that no prior consent was obtained from the applicant for his posting to University. As such, I am of the considered view that the impugned notification dated 20th September, 2004 suffers from arbitrariness, and is patently illegal. Therefore, the said act cannot be sustained and approved.
14. In my considered view, the analysis of facts leads to only one irresistible conclusion, particularly while examining the impugned action in the present case vis-a-vis, the law noticed hereinabove, with the touch stone of fairness that the State has also failed to en cash the opportunity provided to it vide order dated 5.11.2004 to take corrective steps by posting the applicant to a cadre post at Mysore, particularly when the State had already taken a decision to retain him at Mysore in deference to his representation dated 18.7.2004.
15. In the light of the discussion made hereinabove, I have no hesitation to conclude that the notification dated 20.9.2004 posting the applicant as Registrar, Karnataka State Open University, Mysore not only violates the statutory provisions but also suffers from malice in law. Accordingly, that part of the notification by which the applicant is directed to be posted as Registrar, Karnataka State Open University, Mysore is quashed and set aside with all its consequences. No costs.