Karnataka High Court
Smt. Mohanakumari. H. M vs State Of Karnataka on 6 December, 2022
Bench: G.Narendar, P.N.Desai
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WP No. 24192 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2022
PRESENT
THE HON'BLE MR. JUSTICE G.NARENDAR
AND
THE HON'BLE MR. JUSTICE P.N.DESAI
WRIT PETITION NO. 24192 OF 2022 (S-KSAT)
BETWEEN:
SMT. MOHANAKUMARI. H.M,
W/O SRI. ASHOK KUMAR
Digitally signed AGED ABOUT 49 YEARS,
by NANDINI D R/AT NO.48,
Location: HIGH
COURT OF 2nd MAIN ROAD,
KARNATAKA NIVEDITANAGARA,
MYSURU - 570 023.
...PETITIONER
(BY SRI. RAMESH K R., ADVOCATE)
AND:
1. STATE OF KARNATAKA,
REPRESENTED BY ITS SECRETARY,
RURAL DEVELOPMENT AND
PANCHYATH RAJ DEPARTMENT,
M.S BUILDINGS,
BENGALURU - 560 001
2. THE PRINCIPAL DIRECTOR,
STATE ACCOUNTS AND
AUDIT DEPARTMENT,
SHANTHINAGAR,
BENGALURU - 560 027.
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WP No. 24192 of 2022
3. THE DIRECTOR
RURAL DRINKING WATER AND
SANITATION DEPARTMENT,
II FLOOR 'E' BLOCK,
KHB BUILDING, CAUVERY BHAVAN,
K G ROAD, BENGALURU - 560 009.
4. SRI. RAJENDRA PRASAD M K
S/O LATE M R KRISHNA NAIK
AGED ABOUT 47 YEARS,
RURAL DRINKING WATER AND
SANITATION DEPARTMENT,
TUMAKURU - 572 104.
NOW ON TRANSFER TO THE POST OF
THE ACCOUNT SUPERINTENDENT,
RURAL DRINKING WATER AND
SANITATION DIVISION, MANDYA.
...RESPONDENTS
(BY SRI. H.R.SHOWRI, AGA FOR R1 TO R3,
SRI LAKSHMIKANTH M.DUGE, ADV. FOR R4.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT, ORDER
OR DIRECTION QUASHING THE IMPUGNED ORDER DATED
25.11.2022 PASSED BY THE HON'BLE KSAT BENGALURU IN
A.No-4810/2022 AT ANNEXURE-A AND THE THEREBY SET
ASIDE THE IMPUGNED ORDER DATED 18.10.2022 BEARING
No.Sam.MuEm/GraKuNee AND NaiE/C-
4/29/PraDaLeSa/Mumbadthi/2022/1685 AT ANNEXURE-F
PASSED BY THE 3RD RESPONDENT IN SO FAR AS IT RELATES
TO THE TRANSFER OF THE 4TH RESPONDENT TO THE POST OF
PETITIONER AND RETURNING THE SERVICES OF THE
PETITIONER TO HER PARENT DEPARTMENT/ STATE ACCOUNTS
DEPARTMENT.
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WP No. 24192 of 2022
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, G.NARENDAR J., MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioner and the learned AGA and the learned counsel for the private respondent No.4.
2. The undisputed facts are that the petitioner who was the applicant belongs to the State Accounts Department and is in the cadre of Accounts Superintendent, a Group 'B' post. That she was transferred to the post of Accounts Superintendent, Rural Drinking Water and Sanitation Division, Mandya, by order dated 23.7.2021 which post was admittedly lying vacant on the said date. The said order was passed by the first respondent to meet public exigencies and in the interest of administration and thereafter she reported to duty to the said post on 02.08.2021 after obtaining re-posting order from the Commissioner, Department of Rural Drinking Water and Sanitation, Bengaluru. That the petitioner/applicant being a group B officer is entitled to complete two years, but even before she could complete the said tenure she has been re- -4- WP No. 24192 of 2022 transferred out of the said place on 18.10.2022 and the fourth respondent has been placed in the said post. That the transfer of the fourth respondent is on account of his promotion.
3. It is the case of the petitioner that the post was reserved for officers from the State Accounts Department and later by Order dated 15.07.2017 the earlier order reserving the post to the officers from the State Accounts Department came to be modified and the post came to be reserved for the employees in the cadre of Accounts Superintendent of the Panchayath Raj Engineering Department to be posted there. With the transfer order dated 18.10.2022 the fourth respondent seeks to lay claim to the said post.
4. The petitioner / applicant had contended before the Tribunal that the order is a premature order and the transfer being premature the prior approval of the Chief Minister is mandatory and in the absence of the same the same stands vitiated and it has also been resisted on the ground that it is in the middle of the year and the same has caused serious hardship to the petitioner, who is a lady.
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5. That apart, before this Court it was contended that the order of repatriation is without competence. It is contended that the order of repatriation has been passed by the borrowing authority and that the law in this regard is no more res integra and the authority competent to pass an order of repatriation is the lending authority. Upon such submission being made we had queried the learned AGA to ascertain the factual aspect. Matter is listed today and on a query the learned AGA would fairly submit that the order is indeed passed by the borrowing authority and he would also fairly admit the settled position in law.
6. A coordinate bench while disposing of W.P. No.17492/2011 c/w W.P. No.17493/2011 has been pleased to hold in para 3 as under:
" 3. The facts are not in dispute. By a notification dated 16.07.2007 of the Government, the service of the applicants were placed at the disposal of the Urban Development Department who in turn passed an order placing their services with the petitioner. Thereafter, the petitioner issued an office order dated 2.8.2007 appointing them with effect from 25.05.2007. If the persons -6- WP No. 24192 of 2022 who were on deputation are to be repatriated, it is the authority which gave re-posting orders which has to pass an order repatriating them. As the deputation of these applicants is not made directly by the parental department to the petitioner, the petitioner has no competence to issue repatriation order, by itself. The proper course would be to approach the Urban Development Authority with a request to repatriate their services and then the Urban Development Authority who gave posting order to pass an order of re-posting. In that view of the matter, the impugned order passed by the Tribunal is in accordance with law and do not suffer from any error which calls for interference. No merits. With petitions are dismissed."
7. Per contra, learned counsel for the fourth respondent would contend that he having taken charge and the post having been reserved in favour of the officers of the Panchayatraj and Rural Drinking Water and Sanitation Department, the petitioner is ineligible to hold the post and the Tribunal has also accordingly held that she is ineligible to hold the post. Ineligibility is not on account of her lack of qualification, but -7- WP No. 24192 of 2022 ineligibility is canvassed on the ground of the post having been reserved for officers from within the department itself.
8. Be that as it may, the fallacy of the argument can be tested against the earlier order, deputing the petitioner to the said post. The post is of Accounts Superintendent, to which cadre the petitioner also belongs. In that view the eligibility of the petitioner to occupy the post cannot be seriously disputed. A deputation is not a permanent posting and the fact also remains that officers of the State Accounts Departments are deputed to equivalent posts in various departments as they take care of the integral part of the work that is of supervising the accounts, etc., It is strange to note that the Tribunal has adopted the view canvassed by the petitioner. Merely because the post is reserved for the officers of the department would not deprive the Government to depute a person to the said post. The said fact has been lost sight of by the Tribunal. The other point which renders the finding of the Tribunal fallacious is that there was no objection to her discharging duties in the said post till the order promoting the fourth respondent. It is not that the petitioner had requested for her to be placed in the -8- WP No. 24192 of 2022 said post. Her posting in the said post has been at the instance of the borrowing authority. That being the admitted position, we find it strange that the department and the Tribunal would turn around and hold that the petitioner is ineligible to hold the post even though she is the deputationist and on the short ground that the post is reserved for the officers of the department.
9. It is settled law that any order of posting or any order of deputation or repatriation can be made by the lending authority or the appointing authority. In the instant case admittedly the order impugned is not by the authority competent to pass the order of repatriation.
10. It is settled law that when the law requires a thing to be done in a particular manner, the said action shall be performed in that particular manner or not all. The issue of competency goes to the very root of the matter. The Tribunal could not have casually brushed aside the said aspect.
11. In that view of the matter, we are of the considered opinion that the petition requires to be allowed and is -9- WP No. 24192 of 2022 accordingly allowed. The order of the Tribunal rejecting the Application No.4810/2022 is set aside. Consequently, the order dated 18.10.2022 passed by the third respondent is held to be without competence and consequently the same also requires to be set aside and the same is set aside. Consequently the petitioner shall be forthwith restored to the said post. The writ petitions stands ordered accordingly.
In the peculiar facts and circumstances, there shall be no order as to costs.
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JUDGE Sd/-
JUDGE ykl List No.: 1 Sl No.: 7