Karnataka High Court
Sri. Umesh Chandra vs The State Of Karnataka on 28 November, 2023
Author: K.Somashekar
Bench: K.Somashekar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
WRIT PETITION NO.21894 OF 2023(S-KSAT)
BETWEEN
SRI. UMESH CHANDRA,
S/O RAMANJINAIAH,
AGED ABOUT 40 YEARS,
PRESENTLY WORKING AS,
SPECIAL LAND ACQUISITION OFFICER,
NH 207,
NATIONAL HIGHWAY AUTHORITY OF INDIA ,
KUNIGAL-572 130.
...PETITIONER
(BY SRI. SATISH DODDAMANI, SENIOR COUNSEL FOR
SRI. SAGAR B.B, ADVOCATE)
AND
1. THE STATE OF KARNATAKA,
PUBLIC WORKS DEPARTMENT,
DPAR (SERVICES-2),
VIDHANA SOUDHA,
REPRESENTED BY ITS SECRETARY.
2. THE PROJECT DIRECTOR,
207,
NATIONAL HIGHWAY AUTHORITY OF INDIA,
HASSAN-573 201.
3. SMT. MANORAMA,
AGED ABOUT MAJOR,
KAS OFFICER (JUNIOR SCALE),
WORKING AS DEPUTY GENERAL MANAGER,
2
KARNATAKA FOOD AND CIVIL SUPPLIES
CORPORATION LIMITED,
BANGALORE-560 001.
...RESPONDENTS
(BY SRI. D.R.RAVISHANKAR, SENIOR COUNSEL FOR
SRI. T.G.RAVI, ADVOCATE AND
SRI. GIRISH KUMAR.R, ADVOCATE FOR C/R-3)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO a)SET ASIDE THE ORDER
DATED 21/09/2023 PASSED IN APPLICATION NO.3553/2023 VIDE
ANNEXURE-C AND CONSEQUENTLY ALLOW APPLICATION
NO.3553/2023 BY QUASHING THE IMPUGNED ORDER DATED
05/08/2023, BEARING NO.CAASUE 276 ASEVA 2023 PASSED BY
THE 1ST RESPONDENT VIDE ANNEXURE-A2.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 22.11.2023, COMING ON FOR PRONOUNCEMENT
THIS DAY, RAJESH RAI.K, J., MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling-in-question the order dated 21.09.2023 passed by Karnataka State Administrative Tribunal (for short 'Tribunal') in A.No. 3553/2023, wherein the Tribunal has disposed of the Application filed by the petitioner herein with the direction to the 1st respondent to provide posting to the petitioner within two weeks.
2. Factual matrix of the case in brief are as follows:-
The petitioner is a Group 'A' officer who came to be appointed by 1st respondent by direct recruitment as Tahsildar Grade II and he was further promoted as Assistant Commissioner [KAS (junior scale) grade] and pursuant to which by a notification dated 12.04.2021, petitioner came to be deputed as Special Land 3 Acquisition Officer - Kunigal, (for short 'SLAO') in the respondent No.2 Department. In pursuance to which, petitioner has reported to the said post and rendered his service for a period of two years. Subsequently, the petitioner was promoted to KAS (Junior Scale) officer to KAS (Senior scale) officer vide Government Notification dated 20.06.2023 and was also posted as Revenue Head, Rajiv Gandhi Housing Corporation.
3. Posteriorly, vide order dated 17.07.2023 within a period of 26 days vis, Annexure-A3 petitioner was again posted as SLAO-Kunigal and he was reported to the said place on 20.03.2023. It is in this background, another notification came to be passed by respondent No.1 on 05.08.2023 displacing the petitioner from the post-in-question and placing respondent No.3 herein, which was challenged by the petitioner before the Tribunal and Tribunal upholding the transfer notification has disposed of the application. Challenge to which, is the lis before this Court.
4. Learned senior counsel for the petitioner submits before this Court that the petitioner is a Group 'A' officer and as per the Transfer Guidelines, 2013, the petitioner is entitled to serve at the transferred place for a period of two years. But, the notification of transfer/deputation passed by the respondent No.1 suffers from perversity as the same is passed within a period of 16 days from the date of his reporting for duty to the post of 4 SLAO-Kunigal, pursuant to notification dated 17.07.2023 and the same is premature and without assigning proper reasons as per the law laid down by this Court in Rajashekar M. v. State of Karnataka, reported in 2018 SCC OnLine Kar 3777. Learned senior counsel further submits that, the impugned order therein also did not disclose anything as to posting the petitioner to other place is concerned and it is only pursuant to passing the impugned order by the Tribunal, the petitioner has been posted as Joint Secretary, Office of the Special Officer and Competent Authority, (I.M.A & Other KPID Cases), Bengaluru.
5. Learned senior counsel in address to the contention of eligibility to hold the post as first raised by the Tribunal is concerned, induces this Court to refer to Annexure-A1 to the application filed before the Tribunal dated 20.06.2023, wherein at Sl.No.8 of the Government notification delineates that the eligibility to hold the post of SLAO- Kunigal is upgraded from KAS (junior scale) to KAS (senior scale) before posting one Dr.N.R Geeta to the said place. Pursuant to the said G.O. there is no any other order downgrading the post is concerned and hence, petitioner who is in the same cadre of Dr.N.R.Geeta is posted to the said place-in-question. This aspect of which, was not considered by the Tribunal and Tribunal erred in considering the memo filed by the respondent state which portrayed the earlier 5 G.O. dated 28.08.2001 which was filed pursuant to matter was heard and reserved on 22.08.2023 i.e, on 28.08.2023, without serving the copy to the petitioner herein. Learned senior counsel further contends that, the Government notification dated 12.04.2021 is an order transferring the petitioner from the place of SLAO- Bengaluru Development Authority ('BDA' for short), Bengaluru to SLAO-Kunigal in 2nd respondent Authority and the same cannot be considered as an order of deputation in terms of paragraph 3 (d) of the Transfer Guidelines supra.
6. Nonetheless, the learned Senior Counsel for respondent No.3 contended that, the petitioner was deputed to the place-in-question earlier in 12.04.2021 and he has served the considerable period of two years in the said place which is neither disputed before the Tribunal nor before this Court and now he is again posted to the said place, which is contrary to Rule 6 (b) (i) of transfer guidelines of 2013 and submits that, he is ineligible to hold the post-in-question for another two years. He succour his reliance on the memo dated 28.08.2023 filed by the respondent state before the Tribunal.
7. Learned Senior counsel further submits that this aspect was not considered while state passing the earlier transfer notification dated 17.07.2023. Hence, state in order to correct the procedural irregularity has passed the current transfer notification 6 which is in accordance with law and prays for dismissal of the Writ petition.
8. Learned AGA supports the contention of the respondent No.3 and submits that, the post-in-question was temporarily designated to the personnel of KAS (senior scale) but it actually belongs to KAS (junior scale) thereby reiterates what is being contended before the Tribunal.
9. Learned panel counsel for respondent No.2 also supports and adapts the contentions of the respondent state.
10. Heard learned Senior counsel Sri. Satish Doddamani for Sri. Sagar B B learned counsel for the petitioner, learned Senior counsel Sri. D.R.Ravishankar for Sri. T. G. Ravi learned counsel for respondent No.3, learned counsel Sri. Shobith Shetty for respondent No.2 and Learned AGA for respondent No.1. Perused the pleadings so also the dossier made available to this Court.
11. Case on hand is one which lays challenge to the transfer notification dated 05.08.2023 passed by the 1 st respondent transferring the respondent No.3 to the place of petitioner herein on the ground of, it being premature and without assigning proper reasons. The primary allegation of respondent No.3 in contra to the contention of the petitioner is that the 7 petitioner was earlier deputed to the said place and hence as per paragraph 6(b)(i) of the Transfer Guidelines, 2013 he is also bound to serve cooling off period in the post other than the post he has served in deputation. To elaborate this position we shall now dwell upon Rule 6 of the Transfer Guidelines, 2013 which reads as under -
"6. Responsibility of Competent Authority :-
The Competent Authority, while effecting transfers/ deputations or giving postings may further ensure that,-
a) ...........................................
b) The maximum period of deputation to a particular post shall be five years at a time.
i. A Government servant shall not be considered for deputation if he has not completed the cooling off period of two years in his parent department after completion of the last deputation, even if he has not completed five years in the earlier deputation. Further, deputation of a Government servant repeatedly to the same post is prohibited."
On perusal of this paragraph it makes it amply clear that, no person who is deputed to a post and transferred pursuant to him completing the tenure be deputed once again to the said place before him completing the cooling off period of two years. This aspect is also further clarified by the order of the Co-ordinate Bench of this Court in Ajithkumar Rao vs state of Karnataka reported in AIROnline 2019 Kar 2501 paragraph 29 of the order reads as under :
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"29. After giving careful consideration to the arguments of learned Counsel Sri A.S.Ponnanna appearing for the petitioner, learned Counsel Sri Shivaprasad Shantagoudar appearing for Ajith Kumar Rai and learned Additional Government Advocate for State, this Court is of the considered opinion that in the instant case, the Government has ignored the transfer guidelines in not giving effect to cooling off period of 2 years to Manjunath as is mandatory in 6(b)(i) of transfer guidelines, referred to supra. This is required whenever an officer completes such deputation, even if he has not completed 5 years in the earlier deputation, which is the clinching issue herein. As already seen, from 2015 Manjunath has not completed five years holding the office of Tahsildar whether in Tiptur or Devanahalli, but he has been sent to his parent department for a period of 13 days when he was given promotion, thereby dividing the earlier period of holding the said Office as one assignment and the subsequent posting as second assignment. In between as per 6(b)(i) of transfer guidelines, there must be compulsorily 2 years cooling off period which is not considered. Therefore, the posting of Manjunath is required to be considered as contrary to the aforesaid transfer guidelines."
In contra to this position learned Senior counsel for the petitioner refutes that, his initial posting was not on deputation. He submits that the transfer notification dated 12.04.2021 an order if transfer as he was transferred to the post of SLAO Kunigal to carry out similar function as that of SLAO, BDA, Bengaluru. In order to clarify this position we find relevant to refer to Rule 3(b) and 3(d) of the Transfer Guidelines supra which reads as under:-
3. Explanation : In this order, unless the context otherwise requires:
a. .....
b. "Deputation" means transfer of Government Servant from a post in one department to an equivalent post in another department and includes deputation to en-cadre posts/ex-9
cadre posts/ local bodies/co-operative societies/ foreign service posts, as the case may be, as per the provisions of Karantaka Civil services (General recruitment) Rules, 1977/ Karantaka Civil Service Rules/ cadre and Recruitment Rules applicable as the case may be to the posts to which the Government servants are to be deputed;
c. ......
d. "Transfer" means the posting of a
Government servant from one headquarters to another headquarters or from one office to another office within the same headquarters, to take up duties of a new post or in consequence of change of headquarters;
Note: Movement of a Government servant within the same office/ unit from one post to another one or desk/compilation to another one under the same head office shall not be treated as transfer."
Conjoint reading of these provisions juxtapose the transfer notification of petitioner dated 12.04.2021, discloses that petitioner at Sl.No.2 of the order is transferred from SLAO, BDA, Bengaluru to SLAO, National Highway Authority of India(NHAI), Kunigal. This order makes it amply clear that, though the post to which the petitioner is being transferred therein is equivalent, but, the department and recruitment rules of the departments are independent. This being the factual position, it cannot be said that, the notification mentioned supra is not a deputation order but is a transfer order and accordingly, the contention urged by the petitioner in this regard is hereby negated.10
12. In the second limb of the argument, the learned Senior counsel for petitioner also contends that the impugned order being passed only after 16 days of passing the transfer notification dated 17.07.2023 is premature and without assigning proper reasons. We are also not inclined to accept the rationale made by the petitioner for the fact that the petitioner's earlier posting as SLAO-Kunigal in the year 2021 and he continuing in the said post for the period of two years is neither disputed before the Tribunal nor before this Court. Moreover, we are not able to appreciate the conduct of the State in posting the petitioner to the place of Revenue Head, Rajiv Gandhi Housing Corporation by order dated 20.06.2023, and then transferring him to the place- in-question prematurely, without reasons, though it is not the question before this Court. When this was queried to the learned AGA and learned Senior counsel for the petitioner both are in a handicapped situation for short of instructions to assist this Court.
13. Be that as it may, we find that, the transfer notification dated 17.07.2023 passed by the 1st Respondent was not in accordance with rule 6 (b)(i) of the Transfer Guidelines supra and hence, when his initial posting itself is bad in law, no right accrues for the petitioner to challenge the subsequent posting to the place where he is wrongly posted as held by this Court in Dr.Prajna Ammembala Vs State of Karnataka & Others in W.P. No. 17670/2023 dated 24.11.2023. 11
Accordingly the following.
ORDER
a) The Writ Petition is Dismissed.
b) Impugned order dated 21.09.2023 passed by the Karnataka State Administrative Tribunal in A.No. 3553/2023 is upheld.
c) Consequently, respondent No.3 shall report to the place in question subject to respondent-State considering posting eligible persons to SLAO-Kunigal.
d) Consequently, the petitioner shall report as Joint Secretary, Office of the Special Officer and Competent Authority, (I.M.A & Other KPID Cases), Bengaluru, as per transfer notification dated 26.09.2023.
Pending IAs, if any, shall stand disposed of. No order as to Costs.
Sd/-
JUDGE Sd/-
JUDGE HKV