Karnataka High Court
Vikram R N vs The State Of Karnataka on 5 January, 2022
Bench: G.Narendar, Shivashankar Amarannavar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2022
PRESENT
THE HON'BLE Mr. JUSTICE G. NARENDAR
AND
THE HON'BLE Mr. JUSTICE SHIVASHANKAR AMARANNAVAR
WRIT PETITION No. 23653/2021(S KSAT)
BETWEEN :
VIKRAM R N
S/O NAGARAJU
AGED ABOUT 34 YEARS
WORKING AS RANGE FOREST OFFICER
HONNAVAR RANGE, HONNAVAR DIVISION
UTTARA KANNADA DISTRICT - 581 334
R/O VALLABAI ROAD,
SRINIVASPURA TOWN AND TALUK
KOLAR DISTRICT - 563 165. ... PETITIONER
(BY SRI P S RAJAGOPAL, SENIOR COUNSEL
FOR SRI NAGENDRA NAIK R, ADVOCATE -THROUGH V.C)
AND :
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY
DEPARTMENT OF FOREST, ENVIRONMENT
AND ECOLOGY, VIDHANA SOUDHA
BENGALURU - 560 001.
2. THE PRINCIPAL CHIEF CONSERVATOR
OF FORESTS, (HEAD OF FOREST FORCES)
2
FOREST DEPARTMENT
ARANYA BHAVANA
MALLESWARAM
BENGALURU - 560 003.
3. SHARAT B SHETTY
S/O RAJEEV SHETTY
AGED ABOUT 36 YEARS
WORKING AS RANGE FOREST OFFICER
LEGAL AND ICT KHALI PROTECTED
TIGER REGION
DANDELI
UTTARA KANNADA
DISTRICT - 581 334. ... RESPONDENTS
(BY SRI GIRISH JAMBAGI, ADVOCATE FOR
SRI VIDYANAND HARALI, ADVOCATE FOR C/R-3
SMT. SHILPA S GOGI, HCGP FOR R1 & R2-THROUGH V.C.)
---
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
ISSUE A WRIT IN THE NATURE OF CERTIORARI TO QUASH
THE ORDER DATED 14.12.2021 IN APPLICATION
No.5524/2021 PASSED BY THE HON'BLE KARNATAKA
ADMINISTRATIVE TRIBUNAL AS PER ANNEXURE-A AND TO
DISMISS THE APPLICATION No.5524/2021 BEFORE THE
KARNATAKA ADMINISTRATIVE TRIBUNAL AND TO ISSUE
SUCH OTHER RELIEFS AS MAY BE PRAYED FOR AND
WHICH THIS HON'BLE COURT MAY DEEM FIT AND
PROPER TO GRANT IN THE CIRCUMSTANCES OF THE
CASE.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, G. NARENDAR J,
PASSED THE FOLLOWING;
3
ORDER
Heard the learned senior counsel Sri. P.S. Rajagopal along with Sri. Nagendra Naik, the learned counsel for the petitioner, the learned High Court Government Pleader Smt. Shilpa S. Gogi for first and second respondents and Sri. Girish Jambgi, the learned counsel on behalf of the third respondent.
2. The instant writ petition is preferred by the third respondent before the Tribunal. The parties are referred to by their nomenclature before the Tribunal for the sake of convenience.
3. The case of the applicant is that the order of transfer, which came to be impugned before the Tribunal, has been issued without effecting counseling, in accordance with the Karnataka State Civil Services (Regulation of Transfers and Postings of Forest Officers and Other Officials) Act, 2016 (for short hereinafter 4 referred to as `the Act') and hence the same being in violation of the provisions of the Act, 2016 the same warrant interference.
4. The short point involved in the instant writ petition is, whether the applicant and the third respondent, are officers notified under Schedule I and II of the Act, 2016?
5. Before adverting to the arguments, we deem it appropriate to place reliance on relevant provisions in order to dissipate the controversy on hand.
6. Rule 5 of the Karnataka Civil Services (CCA) Rules, 1957 provides for classification of service and the same reads as under:
"(5) "Classification of Services."- (1) The Services of the State of Karnataka shall be classified as follows.-
(i) State Civil Services, Group `A'
(ii) State Civil Services, Group `B'
(iii) State Civil Services, Group `C' and 5
(iv) State Civil Services, Group `D' We now revert to the provisions of Karnataka State Civil Services (Regulation of Transfers and Postings of Forest Officers and Other Officials) Act, 2016. Sub-section (3) of Section 2 of the Act defines category of posts and it reads thus:
"(3) "Category of post" means a class of posts as specified below, namely:-
Categorization of Posts specified in Schedule I- officers and officials.
Category Collateral posts. Posts other
'A' than those
specified in
category 'B'
and 'C',
based on
the cadress
of the
Forest
department
Category Wildlife posts and Posts of
'B' Interstate Wildlife
boundary(territorial) Division
posts. and
Interestate
boundary
(territorial)
Category Territorial posts. Posts
'C' having
statutory
6
powers
under the
Karnataka
Forest Act,
1964 and
Rules
made
there
under.
Categorization of Posts specified in Schedule II- Other officials.
Category 'A' Posts other than those posts specified in category 'B' and 'C' location Category 'B' Posts in Taluk Headqurters Category 'C' Posts in District, Division,Circle or State Headquarters.
Sub-section (8) of Section 2 defines a Forest Officer and the same reads as under:
"(8) "Forest Officer" means an officer appointed to any of the posts specified in Schedule I;
Sub-section (13) of Section 2 defines the words "other officials" and Sub-section (14) of Section 2 defines a "post" and they read as under:
"13. "Other officials" means officials appointed to any of the posts specified in Schedule II;7
14. "Post" means post or an official position duly created by Government under the Department to discharge certain public duties and responsibilities."
The learned counsel for the third respondent would place reliance on Rule 5 and 6 of the Karnataka State Civil Services (Regulation of Transfers of Forest Officers and Other Officals) Rules, 2019 (for short hereinafter referred to as the Rules) framed under the Act of 2016 which read as under:
"5. Liability of forest officers and other officials for transfers and postings.- (1) Subject to rule 4, every forest officer or other official shall be entitled to complete normal tenure as specified in Appendix-I. (2) Any post in which the incumbent has completed the prescribed tenure shall be deemed to be available for others in the cadre to seek their next posting.
(3) Those who completed the tenure shall be transferred compulsorily if not specifically exempted for reasons to be reduced in writing by the concerned Competent Authority.
6. Authorities competent for counseling, transfers and postings.-
(1) There shall be four different authorities for counseling of the forest officers and other officials in the department. The list of 8 authorities and their composition shall be as indicated in Appendix-II.
(2) Jurisdiction of each Authority shall be as specified in Appendix-III.
(3) The Apex Authority shall be competent to counsel, transfer and posting of Group A and B officers to suitable posts across the state.
(4) The State Authority shall be competent to post Group C and D of forest officials to specific posts within the Head Office and to the functional wings located elsewhere in Bengaluru. It shall also be competent to counsel, transfer and post Group C and D forest officials to specific posts across the forest circles.
(5) The circle authorities shall be competent to counsel, transfer and posting of Group C and D officials to specific posts in the circle office and also across all the divisions including functional divisions within the jurisdiction of the territorial forest circle.
(6) Divisional Authorities shall be competent only to territorial and wildlife divisions. They shall be competent to counsel, transfer and posting of Group C and D forest officials within the jurisdiction of their respective divisions."
7. The learned senior counsel would contend that the Tribunal has misread the provisions of the Rules and thereby erred in allowing the application by holding that the counseling is mandatory and that the 9 impugned order of transfer having been made without resorting to counseling has no legs to stand as the same is in the teeth and contra to Rule 5. The learned senior counsel would draw the attention of the Court to the provisions of Sub-section (8) of Section 2 defining a Forest Officer and also invited the attention of the Court to Schedule I. He would contend that the officers occupying the posts notified in Schedule I and II alone are entitled to be counseled and that so long as a post is not notified in Schedule I and II, such of those officers are not entitled for counseling and that the finding of the Tribunal that the officers other than those occupying posts which are not notified under Schedule II also have to be counseled prior to effecting transfer is baseless and contrary to the provisions.
8. Elaborating further, he would submit that the Act and Rules mandate that transfer of certain officers is to be preceded by counseling and that such of those 10 officers, are occupying the posts notified under Schedule I and that under Schedule II it is open for the Government to notify such other posts also. In the instant case there has been no notification notifying the posts of Range Forest Officers under Schedule II. He would submit that it is undisputed, that both the applicant and the third respondent are officers holding the post of Range Forest Officer and in that view of the matter he would submit that the interpretation by the Tribunal is unsustainable and the matter warrants interference at the hand of this Court.
9. Per contra the learned counsel for the applicant would place reliance on the provisions of Rules 5 and 6 and would contend that the provisions of Rule 5 have to be read as mandatory, more particularly he would impress on the provisions of Sub-rule (3) of Rule 5 to contend that transfers of Group A and B Officers shall be preceded by counseling and thereafter they are 11 required to be accommodated in suitable posts across the State.
10. Per contra the learned High Court Government Pleader would contend that the interpretation placed by the Tribunal is erroneous and only that class of officers who are to be counseled or whose transfer is to be preceded by counseling are officers occupying the posts notified under Schedule I and II. It is further clarified by the learned High Court Government Pleader that till date no notification has been issued either under the Rules or under the Act, notifying any other posts under Schedule II and that in the absence of any notification notifying the posts in Schedule II such of those officers occupying the posts outside those notified under Schedule I have no right to demand counseling. 12
11. We have heard the learned counsel for the parties and given our anxious consideration to the various contentions.
12. As contended by the learned senior counsel and on a reading of the finding rendered by the Tribunal more particularly in paragraph Nos. 3, 4 and 5 we are constrained to observe that the Tribunal has misdirected itself on a misreading of the provision. The interpretation the Tribunal has sought to lay on the provisions by referring to and clubbing the phrase `other officials' to mean as officers mentioned in Group A, B, C, D and E, in our considered opinion, is erroneous. The Tribunal ought to have appreciated the mandate of Sub-Section (3) of Section 2 in consonance with Sub-Section (8) of Section 2 and Sub- Section (13) of Section 2 and if the schedules I and II are juxtaposed it would be amply clear, that the petitioners who are Range Forest Officers are not occupying the posts 13 notified under Schedule I or II. Insofar as Schedule II is concerned it is nobody's case much less case of the applicant that the post of Range Forest Officer has also been notified. There is no dispute with regard to this aspect of the matter. In the absence of there being any notification that this is a notification as published in the Official Gazette, the question of bringing any post or any category of post within the ambit of Schedule II of the Act, in our considered opinion is impermissible.
13. A notification as defined by Section 3(24)(b) of the Mysuru General Clauses Act defines notification to mean a notification published in the official gazette. In the instant case there is no notification much less any notification published in the official gazette notifying the post of Range Forest Officer as one of the posts that come within the ambit of Schedule II. In the absence of such notification, notifying the post of Range Forest Officer in Schedule II, in our considered opinion the 14 Tribunal erred in holding that the transfer of such officers has to be preceded by counseling. It is trite law that what is required to be done in a particular manner can be done in that particular manner only and not at all otherwise. Unless and until the Rules or the Act specify the said act to be performed in a particular manner it is not open to the party to complain infraction of the Rules in the absence of any such specification.
14. In the case on hand there is no dispute or ambiguity with regard to the post occupied by the respective parties. Insofar as the finding in paragraph No. 3 that the provisions of Sub-sections (11) and (13) of Section 2 of the Act also includes a cadre or post or it takes within its sweep the cadre or post also is erroneous. The proviso, more particularly, Schedule II refers to "category of post" and Sub-section (3) of Section 2 of the Act defines the category of posts. It is not open for the Tribunal or the Courts to enlarge the 15 definition in the absence of any ambiguity. Infact Sub- section (3) of Section 2 of the Act is necessitated on account of various divisions in the department. Neither Sub-section (3) of Section 2 nor Sub-section (8) or (13) refer to the cadres as defined by Sub-Rule (7) of Rule 8 of the Rules. We are of the considered opinion that the Tribunal could not have enlarged the ambit of the provisions by attempting to bring into the fold of the Act such cadres that are not sanctioned either under the Act or under the Rules.
15. That apart, we find that it is admitted case that the applicant has completed his tenure. If that be the case then in terms of Sub-rules (2) and (3) of Rule 5 of the Rules the occupant is liable to be compulsorily transferred unless he has been specifically exempted for the reasons to be reduced in writing. In the instant case, there are no such reasons reduced to writing and exempting the applicant. If that be the admitted position 16 then in terms of Sub-rules (2) and (3) of Rule 5 of the Rules, the applicant was liable to submit himself to the impugned order.
16. In the light of the above discussion we hold that unless and until a post or category of posts as referred to in Sub-section (3) of Section 2 of the Act is notified by a notification published in the official gazette and included in Schedule II there would be no mandate for the transfer of such officers to be preceded by counseling. We also take note of the fact that though the applicant has already completed his tenure and the Tribunal having noted that the applicant had completed his sanctioned tenure, ought not to have enabled his continuance in the post more so in the light of provisions of Rule 5 of the Rules. It is the underlying object of administration that extended period of stay of a Government servant could lead to his growing roots and developing vested interest in the place of posting 17 and one of the objective of transfer policy is to eliminate the scope of officers developing any vested right in their place of posting. In that view of the matter also the Tribunal ought to have held its hand.
17. Accordingly and for the reasons recorded, the writ petition is allowed. The impugned order dated 14.12.2021 passed by the Karnataka Administrative Tribunal is set aside. The petitioner/third respondent and third respondent/applicant shall forthwith occupy the posts notified against them under the impugned order - Annexure A-3.
The writ petition stands ordered accordingly. There shall be no order as to costs.
Sd/-
JUDGE.
Sd/-
JUDGE.
LRS.
CT-SM