Karnataka High Court
Smt. R.R. Nayak vs The State Of Karnataka on 31 January, 2018
Bench: S.Sujatha, John Michael Cunha
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 31st DAY OF JANUARY, 2018
PRESENT
THE HON'BLE MRS. JUSTICE S. SUJATHA
AND
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
WRIT PETITION NO.111587/2017 (S-KAT)
BETWEEN:
1. SMT. R.R. NAYAK
W/O SANJAY NAYAK
D/O RAMACHANDRA NAYAK,
AGED ABOUT 45 YEARS,
OCC:WORKING AS PROGRAM ASSISTANT,
OFFICE OF DISTRICT ADULT EDUCATION OFFICE,
CHIKKODI, BELAGAVI DISTRICT,
R/AT MAHAVEER NAGAR, NEAR SHIVAJI GARDEN,
CHIKKODI, DIST:BELAGAVI
...PETITIONER
(BY SRI. MRUTYUNJAY TATA BANGI, ADV.)
AND:
1. THE STATE OF KARNATAKA
REP BY ITS SECRETARY,
EDUCATION DEPARTMENT,
M.S.BUILDING,
BENGALURU-560001.
2. THE COMMISSIONER FOR PUBLIC INSTRUCTIONS,
DHARWAD DISTRICT,
DHARWAD-590003.
3. THE COMMISSIONER FOR PUBLIC INSTRUCTIONS,
:2:
NRUPATUNGA ROAD,
BENGALURU-560001.
4. THE DIRECTOR OF MASS EDUCATION,
MALLESHWARAM,
BENGALURU-560001.
5. THE CHIEF EXECUTIVE OFFICER,
BELAGAVI ZILLA PANCHAYAT,
BELAGAVI-590002
6. THE ADULT EDUCATION OFFICER (INCHARGE),
CHIKKODI, BELAGAVI DISTRICT, 590002
7. THE ADULT EDUCATION OFFICER
BELAGAVI DISTRICT, BELAGAVI
8. SRI PRABHAKAR P BADIGER,
WORKING AS INCHARGE ADULT EDUCATION
OFFICER, CHIKKODI, BELAGAVI 590002.
... RESPONDENTS
(BY SRI. ANTHONY RODRIGEUS, AGA FOR R1, 4 & 7)
(R2, 3 & 5-SERVED)
THIS WRIT PETITON IS FILED PRAYING TO SET
ASIDE THE ORDER PASSED BY THE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL AT BENGALURU,
DATED:26.10.2017 IN APPLICATION NO.6648 OF 2016
COPY AS PER ANNEXURE-A AND ALLOW THE
APPLICATION NO.6648 OF 2016 BY ALLOWING THE
PRESENT WRIT PETITION.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, S.SUJATHA J., DELIVERED THE
FOLLOWING:
:3:
ORDER
The petitioner has challenged the order passed by the Karnataka State Administrative Tribunal (for short, 'the Tribunal) at Bengaluru, dated 26.10.2017 in Application No.6648/2016, whereby the application filed by the petitioner has been rejected with an observation that if the petitioner has not yet reported for duty as per the repatriation order at Annexure-A17, it is for the 3rd respondent to take appropriate course of action against her in accordance with law.
2. The petitioner presented an application before the Tribunal calling in question the order passed by 4th respondent dated 6.7.2016 and the consequential order passed by the 6th respondent. It was submitted that the petitioner entered the service in 1998 as Assistant Teacher and passed the necessary examination to hold the post of Education Coordinator, which is an equivalent post to the Assistant Teacher and subsequently in the year 2000, she was given posting as Program Assistant in the office of the Adult :4: Education Officer, Belagavi. She was transferred from Belagavi to Chikkodi on 23.4.2010. The office of Chikkodi comes under the control of the Directorate of Mass Education, Bengaluru, which is a wing under the Education Department coming under the direct control of the State. The implementation of the program is supervised by the Zilla Panchayat and the Zilla Panchayat has no control over the officials coming under the Directorate of Mass Education. For the purposes of administration control over the officials under the Directorate of the Mass Education, the Commissionerate of Education at Dharwad would be the controlling authority and any order pertaining to officials of the Mass Education has to be passed by the Commissioner of Public Instructions, Dharwad and no other authority has any powers to pass such orders.
3. It was the grievance of the petitioner that the Chief Executive Officer of Zilla Panchayat, Belagavi, alleging that a report is secured from the Incharge Adult Education Officer, ordered for repatriation of the :5: petitioner to the parent department and placed services under the disposal by the Commissioner for Public Instructions at Bengaluru. It was contended that the Director of Mass Education, Bengaluru and the Chief Executive Officer-respondent No.5 has no control over the petitioner and hence, the order of repatriation passed by the 5th respondent is without jurisdiction. It is the case of the petitioner that 8th respondent against whom the allegations of sexual harassment were made, had filed the objections contending that the Mass Education does not come under the control of 4th respondent-Commissioner for Public Instructions, Dharwad, The Chief Executive Officer has got all the financial and administrative powers to pass the orders and defended the orders of the 5th respondent. The petitioner filed a rejoinder to the objection. The Tribunal after considering the arguments advanced by the learned counsel for the parties dismissed the application. Hence, this writ petition. :6:
4. Learned counsel Sri. Mrutyunjay Tata Bangi, appearing for the petitioner would contend that the 5th respondent has no jurisdiction to pass repatriation order dated 6.7.2016 and said order has been issued at the instance of the 8th respondent against whom, the petitioner had leveled the allegations of sexual harassment. According to the learned counsel, the 2nd respondent is the competent authority to pass any administrative order. The Tribunal failed to appreciate the same and erroneously dismissed the application.
5. In support of his contentions, learned counsel placed reliance on the judgment of this Court in the case of Miss. Seema H. Vs. The State of Karnataka & Others (DD 16.09.2016) in WP No.48499/2016(S-KAT).
6. Learned AGA, Sri. Anthony Rodrigeus appearing for the respondents 1, 4 and 7 supporting the impugned order submitted that the 5th respondent has passed an order of repatriation as per the guidelines :7: issued by the Directorate of Karnataka Lok Shikshana Samiti, which contemplates that those officers who have completed 5 years in the scheme, were ordered to be relieved and repatriated. Admittedly, parent department of the petitioner is the Department of Education. The petitioner was borrowed from her parental department on 23.4.2010 as Program Assistant in the office of Adult Education, Chikkodi. In terms of Annexure-R3, the guidelines issued by 4th respondent to the teachers, who were working in the scheme and those who have completed five years are to be relieved to the parental department, these guidelines were issued in the interest of administration, based on the same, 5th respondent has passed repatriation order. It was submitted that Rule 15(1) of the Karnataka Civil Services (CCA) Rules, 1957, provides, where the services of a Government Servant are lent to the Central Government, any State Government or to a local or other authority, the Borrowing Authority shall have the powers of the Appointing Authority for the purpose of placing the :8: government servant under suspension and of the Disciplinary Authority for the purpose of taking a disciplinary proceeding against him. It was submitted that the petitioner is repatriated to the parental department and no disciplinary proceedings has been initiated against the petitioner.
7. We have heard the learned counsel for the respective parties and perused the material on record.
8. Indisputably, in terms of the order dated 23.4.2010, the petitioner was deputed to Mass Education Department from the department of Education, the parent department. It is also not in dispute that she has completed more than five years on deputation, while working at Belagavi and Chikkodi. It is clear from Annexure-R2, a direction issued by the Directorate of Karnataka Lok Shikshana Samiti, Bengaluru that 5th respondent is competent to repatriate its staff to their parent department working in Adult Education office. In view of the said directions :9: issued, the guidelines are also prescribed as per Annexure-R3, which empowers the 5th respondent to pass repatriation order. Hence, the argument of the learned counsel for the petitioner do not merit any consideration and deserves to be negated.
9. The judgment relied upon by the learned counsel for the petitioner was rendered by the co- ordinate bench of this Court, while dealing with the transfer order. The petitioner therein was transferred from the post of Assistant Conservator of Forest, without there being clear posting order to a particular post. In that context, it was held that unless the petitioner is lifted from one place and posted at another place, it cannot be said that any vacancy has arisen and as such, exercise of the power cannot be appreciated, even if one keeps in mind the administrative circumstances for the public interest as the case may be. However, in the present set of facts, no transfer order is passed by 5th respondent, but repatriation order, repatriating the petitioner to the parental : 10 : department. Hence, the said judgment is not applicable to the facts of the present case.
10. However, considering the parental department of the petitioner, we modify the order of the Tribunal with the observation that if the petitioner has not yet reported for duty as per the repatriation order, it is for the 2nd respondent to take appropriate course of action against her in accordance with law.
With the above modification, petition stands disposed of.
In view of disposal of the petition, all the pending IAs are consigned to file.
Sd/-
JUDGE Sd/-
JUDGE JTR