Karnataka High Court
Sri Palaiah vs The State Of Karnataka on 10 February, 2022
Author: H. T. Narendra Prasad
Bench: H. T. Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
W.P.No.214 OF 2022(S-RES)
BETWEEN:
Sri. Palaiah,
S/o Sri. Sannapapaiah,
Aged about 56 years,
Commissioner,
City Municipal Council,
Challakere, Chitradurga-577522. ... Petitioner
(By Sri.Nagaraj D., Advocate (PH))
AND:
1. The State of Karnataka,
Department of Urban Development,
Represented by its Principal Secretary,
M.S. Building, Dr. Ambedkar Veedhi,
Bangalore-560 001.
2. Smt. Leelavathi,
Chief Officer,
Narasimharajapura Pattana Panchayathi,
Narasimharajapura,
Chikmagalur District-577134. ... Respondents
(By Smt. M.C.Nagashree, AGA. For R1(PH):
Sri. M. Krishnappa, Advocate for R2(PH))
2
This writ petition is filed under Articles 226 & 227 of
the Constitution of India praying to quash the order dated:
03.01.2022 issued by the R1 vide Annexure-G & Grant an
interim order to stay the operation and execution of the
order dated: 03.01.2022 issued by the R1 vide Annexure-
G and all further proceedings pursuant to it and etc.
This writ petition, coming on for orders, this day,
the Court, made the following:
ORDER
This writ petition is filed under Article 226 of the Constitution of India challenging the order dated 3.1.2022 passed by the respondent No.1 vide Annexure-G wherein the respondent No.2 herein has been transferred to the petitioner's post in Challakere City Municipal Council.
2. The brief Facts of the case are that the petitioner is a Community Affairs Officer. By order dated 22.1.2020 vide Annexure-A, the petitioner has been transferred as Municipal Commissioner, Challakere City Municipality, for a temporary period. Later by order dated 14.7.2021 vide Annexure-B, the 3 term of the petitioner has been extended for another period of one year. Thereafter, the impugned order dated 3.1.2022 has been passed and respondent No.2 has been transferred as Municipal Commissioner Grade-II, Challakere City Municipality. Being aggrieved by the same, the petitioner has filed this writ petition.
3. After service of notice, respondent No.2 appeared through counsel and has filed the statement of objections.
4. Mr.K.R.Srinivasa, learned counsel for respondent No.2 has raised preliminary objection stating that the petitioner was holding the post of Municipal Commissioner Grade-II, Challakere City Municipality and to that post, respondent No.2 has been transferred. Since the post of Municipal Commissioner Grade-II, Challakere City Municipality is 4 a civil post, the petitioner has to approach the Karnataka State Administrative Tribunal (for short 'KSAT'). This writ petition filed by the petitioner is not maintainable. In support his contention, he has relied upon the judgment of this Court passed in W.P.Nos.204114-204116/2018 dated 11.4.2019. He further contended that as per the Karnataka Municipal Administrative Service Rules, 1970 (for short '1970 Rules') which is framed in exercise of power under Article 309 of Constitution of India, the Karnataka Municipal Commissioner Grade-II is a civil post coming under the Karnataka Municipal Administrative Service (for short 'KMAS'), the petitioner has to approach the KSAT.
5. Mr.D.Nagaraj, learned counsel for the petitioner has contended that as per Section 365 of Karnataka Municipalities Act, 1964 (for short 'the KMC Act'), only such post which has been specified by the 5 Government under the local authority is to be filled by the KMAS. Since the Municipal Commissioner Grade- II, Challakere Municipality is not specified post under Section 365 of the KMC Act, therefore, the writ petition is maintainable. He further contended that under Section 331 of the KMC Act, notwithstanding anything contained in section 327, the Government may appoint a Municipal Commissioner for any city municipal area. Since it is not a specified post, the Government can appoint Community Affair Officer to the post of Municipal Commissioner. He further contended that the post of Community Affair Officer has been created under Karnataka Municipalities (Recruitment of Officers and Employees) Rules, 2010 (for short, '2010 Rules'). These Rules have been framed by exercising the power under Section 323 of the KMC Act. Since he is a Community Affair Officer, he is an officer coming under the Municipalities. 6 Therefore, the preliminary objection raised by the respondent is not sustainable. The writ petition filed before this Court is maintainable.
He further contended that in W.P.Nos.204114- 204116/2018 is concerned, the petitioner therein holds the post of Chief Officer in Chincholi, TMC. The said post is specified under Section 365 of the KMC Act and it is a KMAS cadre. But the same is not the case of the petitioner.
6. Smt.M.C.Nagashree, learned AGA appearing for the State has submitted that the petitioner is now holding the post of Municipal Commissioner, Grade-II. It is a KMAS post. Since it is a civil post, the petitioner has to approach the KSAT. She has also relied upon the judgment of this Court in W.P.No.204114-204116/2018, wherein, in similar circumstances, this Court has dismissed the writ 7 petitions with liberty to the petitioners to approach the KSAT.
7. Heard the learned counsel for the petitioner, learned AGA and learned counsel for respondent No.2.
8. It is not in dispute that the petitioner is a Community Affair Officer. By order dated 22.01.2020 vide Annexure-A, he has been posted as Municipal Commissioner Grade-II, Challakere City Municipal Council. The preliminary objection raised is that since the post which is held by the petitioner is a civil post under the State, the writ petition is not maintainable. To decide this question, it is better to refer to Section 327 of the KMC Act which deals with appointment of the Chief Officer. The same is extracted hereinbelow:
"327. Appointment of Chief Officer.-
(1) Every municipal council shall have a Chief Officer who shall be appointed by the 8 [Director of Municipal Administration] from among the persons in the cadre of Chief Officers of the [Karnataka Municipal Administrative Service].
(2) A Chief Officer of a [municipal area] shall be transferable from that office by a resolution of the municipal council at a general meeting, passed by a majority of not less than three-fourths of the total number of councillors.
(3) The municipal council may recommend disciplinary action being taken against a Chief Officer for abuse of powers, misconduct or neglect of duty.
(4) When a Chief Officer shall have been appointed, all other officers and servants employed by the municipal council shall, save such as are excepted by order of the Government from time to time, be subordinate to him."9
9. The Municipal Council has been defined under Section 2(14) of the KMC Act. The same is extracted hereinbelow:
"2(14) "Municipal council" means the council of a town or city (municipal area) established under this Act."
10. By reading the above provision, it is very clear that the Town or City Municipal Council shall have an officer who shall be appointed by the Director of Municipal Administration from the person in the cadre of Chief Officer of Karnataka Municipal Administrative Services. Section 331 of the KMC Act reads as hereinbelow:
"(1) Notwithstanding anything contained in section 327, the Government may appoint a Municipal Commissioner for any [city municipal area].
(2) On the appointment of a Municipal Commissioner, the appointment of Chief Officer, if any, shall forthwith terminate. 10 (3) The Government may, at any time, discontinue the appointment of a Municipal Commissioner for any [municipal area] for which such appointment has been made."
11. It is very clear from Section 331 of the KMC Act that notwithstanding anything contained in Section 337 of the KMC Act, Government may appoint a Municipal Commissioner for any City Municipal Area. Section 365 of the said Act deals with Karnataka Municipal Administrative Service. Sub-Section (1) relates to the post specified by the Government which shall be filled by appointment of officers belonging to the Karnataka Municipal Administrative Service.
12. The Government by exercising the power under Article 309 of the Constitution of India framed the Rules called the Karnataka Municipal Administrative Service Rules, 1970. As per Rule 3 11 there shall be a Karnataka Municipal Administrative Service for the State of Karnataka consisting of category of the posts as specified in Column No.2 of Schedule I. In Schedule I, column No.2, the category of posts of Municipal Commissioner Grade-I, Municipal Commissioner Grade II, Chief Officer Grade I and Chief Officer Grade II have been specified. The Government by exercising the power under Section 323(2) (g) of the KMC Act has framed the 2010 Rules. As per Schedule I of 2010 Rules, the cadre strength allocated to the different categories of urban local bodies. For Grade-I CMC, one post of Municipal Commissioner Grade-I, Grade-II CMC, one post of Municipal Commissioner Grade-II, Challakere CMC is a Grade-II CMC. Hence, the post which is held by the petitioner is a Municipal Commissioner Grade-II. It is a civil post which belongs to the Karnataka Municipal Administrative Services, the petitioner has to 12 approach the KSAT. This Court in the case of H.HOMBAIAH vs. ZILLA PARISHAD reported in ILR 1989 Kar 816 has held that it is the grievance of the person who holds the post under the State, whether he is working in connection with the affairs of the State or he is on deputation to a local or other authority under the control of the State Government or of any Corporation under the control of the State Government, that is to be questioned irrespective of who passed the order. If the person affected is a Government servant holding a civil post under the Government, he has to move the Tribunal for relief.
13. Section 3 (q) of the Administrative Tribunals Act, 1985 has defined the 'service matter'. The same is extracted hereinbelow:
"3(q) "service matters", in relation to a person, means all matters relating to the conditions of his service in connection 13 with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or, as the case may be, of any corporation [or society] owned or controlled by the Government, as respects--
(i) remuneration (including allowances), pension and other retirement benefits;
(ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation;
(iii) leave of any kind;
(iv) disciplinary matters; or
(v) any other matter whatsoever"
14. Section 15 is deals with jurisdiction, powers and authority of State Administrative Tribunals. While Sub-Section (1) thereof brings the person holding civil post under the State automatically within the 14 provisions of the Administrative Tribunals Act for adjudication of their service problems by the Administrative Tribunal. Section 28 of the said Act excludes the jurisdiction of the courts except the Supreme Court under Article 136 of the Constitution of India. This has been considered by the Hon'ble Apex Court in the case of L.CHANDRAKUMAR vs. UNION OF INDIA AND OTHERS reported in (1997) 3 SCC 261. The relevant paragraphs at 98 and 99 are extracted hereinbelow:
"98. Since we have analysed the issue of the constitutional validity of Section 5(6) of the Act at length, we may now pronounce our opinion on this aspect. Though the vires of the provision was not in question in Dr. Mahabal Ram's case, we believe that the approach adopted in that case, the relevant portion of which has been extracted in the first part of this judgment, is correct since it harmoniously resolves the manner in which Sections 5(2) 15 and 5(6) can operate together. We wish to make it clear that where a question involving the interpretation of a statutory provision or rule in relation to the Constitution arises for the consideration of a single Member Bench of the Administrative Tribunal, the proviso to Section 5(6) will automatically apply and the Chairman or the Member concerned shall refer the matter to a Bench consisting of at least two Members, one of whom must be a Judicial Member. This will ensure that questions involving the vires of a statutory provision or rule will never arise for adjudication before a single Member Bench or a Bench which does not consist of a Judicial Member. So construed, Section 5(6) will no longer be susceptible to charges of unconstitutionality.
99. In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of 16 the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within 17 whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated."
15. In an identical matter in W.P.No.204114/2018 disposed of on 11.04.2019, the Co-ordinate Bench of this Court has dismissed the writ petition on the ground that the Community Affair Officer was holding a post of Commissioner, which is a part of KMAS. The liberty has been reserved to the petitioner to approach the appropriate legal forum. 18
16. In view of the above, since the petitioner is holding the post of Municipal Commissioner Grade-II which is a civil post, belongs to the KMAS, this petition filed under Article 226 of the Constitution of India is not maintainable.
Reserving liberty to the petitioner to approach the KSAT, the writ petition is dismissed.
Sd/-
JUDGE DM/Cm/-