Karnataka High Court
Sri. Apsar Pasha vs The State Of Karnataka on 16 December, 2024
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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WP No. 30070 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE S SUNIL DUTT YADAV
WRIT PETITION NO. 30070 OF 2024 (S-RES)
BETWEEN:
1. SRI. APSAR PASHA
S/O. LATE BASHU SAB,
AGED ABOUT 59 YEARS,
MUNICIPAL COUNCILOR,
WARD NO. 29, CITY MUNICIPAL COUNCIL,
SIDLAGHATTA,
CHIKKABALLAPURA DISTRICT-562 105.
2. SRI. MOULA
S/O. ABDUL SAMAD,
AGED ABOUT 48 YEARS,
MUNICIPAL COUNCILOR,
Digitally signed WARD NO. 12, GANDHINAGAR,
by VIDYA G R
Location: HIGH
CITY MUNICIPAL COUNCIL,
COURT OF
KARNATAKA SIDLAGHATTA,
CHIKKABALLAPURA DISTRICT-562 105.
... PETITIONERS
(BY SRI. SATISH K., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS
PRINCIPAL SECRETARY,
DEPARTMENT OF URBAN DEVELOPMENT,
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WP No. 30070 of 2024
VIKASA SOUDHA,
BANGALORE-560 001.
2. THE DIRECTOR OF MUNICIPAL ADMINISTRATION
VISHWESHWARAIAH TOWER, 9TH FLOOR,
DR. B. R. AMBEDKAR VEEDHI,
BANGALORE-560 001.
3. SRI. MANJUNATH
S/O. LATE V. NARAYANARAJU,
AGED ABOUT 56 YEARS,
WORKING AS CHIEF OFFICER, GRADE-1,
PRESENTLY POSTED AS
MUNICIPAL COMMISSIONER,
CITY MUNICIPAL COUNCIL,
SIDLAGHATTA,
CHIKKABALLAPURA DISTRICT-562 105.
... RESPONDENTS
(BY SRI. G.S. ARUNA, HCGP FOR R1 & R2;
SRI MOHAN REDDY H SAWKAR, ADVOCATE FOR R3)
THIS W.P. IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS
PERTAINING TO THE IMPUGNED ORDER DATED 01.11.2023
(ANENXURE-C) ISSUED BY THE R-1 AND ISSUE WRIT OF QUO-
WARRANTO OUSTING THE R-3 FROM THE POST OF MUNICIPAL
COMMISSIONER, CITY MUNICIPAL COUNCIL, SIDALGHATTA,
CHIKKABALLAPURA PURSUANT TO THE IMPUGNED ORDER
DATED 01.11.2023 BEARING NO. NAAAE 337 TME 2023
PASSED BY R-1 (ANNEXURE-C) AND ETC.
THIS PETITION COMING ON FOR ORDERS THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S SUNIL DUTT YADAV
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WP No. 30070 of 2024
ORAL ORDER
The petitioner has sought for issuance of writ of quo warranto to oust respondent No.3 from the post of Municipal Commissioner, City Municipal Council, Shidlaghatta, Chikkaballapura and has also sought for a declaration that respondent No.3 is ineligible to hold the post of Municipal Commissioner, City Municipal Council, Sidlaghatta, Chikkaballapura.
2. It is the case of the petitioner that respondent No.3 was appointed as Commissioner, City Municipal Council, Sidlaghatta by order dated 01.11.2023. It is further submitted that admittedly, the respondent No.3, is a Chief Officer-Grade-1, which has come out from the reading of Annexure-'C' dated 01.11.2023 itself.
3. It is the case of the petitioner that in terms of Karnataka Municipal Administrative Service (Cadre and Recruitment) Rules, 2022 ['C & R' Rules' for short], the Office of Municipal Commissioner, Grade-2 is to be filled by promotion from the cadre of Chief Officer, Grade-1. -4-
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4. It is further submitted that insofar as City Municipal Council, the same is to be headed by the Municipal Commissioner in terms of C & R Rules and could be filled up by promotion from Chief Officer, Grade-1. It is pointed out that in terms of Schedule-II of sub- rule(2)(c), 'Municipal Commissioner, Grade-II' is the appropriate description of the Officer who is to hold the post heading the City Municipal Council, in contra- distinction to Town Municipal Council or Town Panchayath, where a Chief Officer could hold an analogous post. Insofar as Chief Officer, the qualification could include Chief Officer, Grade-1 as well as Grade-II, but same would not hold good in case of Municipal Commissioner in terms of C & R Rules.
5. It is submitted that it is not in dispute that the very issue sought to be raised in the present petition was considered by the Coordinate Bench of this Court in W.P.No.2305/2024 and Court, by a detailed order has stipulated that the post of Municipal Commissioner is to be -5- NC: 2024:KHC:52052 WP No. 30070 of 2024 only filled from the post of Chief Officer, Grade-I. Further, the Court in the said Writ Petition had noticed the undertaking of the Government. Accordingly, it is submitted that writ of quo warranto be issued.
6. Learned Additional Government Advocate appearing for the respondents relies on the statement of objections filed. It is submitted that in terms of Rule 16a(ii) of the Karnataka Civil Services (General Recruitment) Rules, 1977, there is a provision to accommodate a person who is next junior to hold the post that he will be eligible to hold, for a period of two years.
7. It is further submitted that there are practical difficulties regarding the availability of Officers to fill the post and accordingly, arrangements of other Officers, including the Chief Officer Grade-1 are being posted to the post of Municipal Commissioner.
8. Heard both sides.
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9. Admittedly, in terms of C & R Rules, there is a definition relating to 'Chief Officer', which refers to Chief Officer Town Municipal Council or Town Panchayath under Rule (2)(b). In the present case, the term 'Municipal Commissioner' is of relevance and is defined under Rule 2(i) which states that Municipal Commissioner means Municipal Commissioner of a City Municipal Council.
10. In terms of the qualification of a Municipal Commissioner, it is clear that Municipal Commissioner is an Officer of Grade-2 referred to under Schedule-III as Municipal Commissioner, Grade-2 and such post is to be filled up from promotion to the post of Chief Officer, Grade-1 and the proviso provides that, if no suitable Officer is available for promotion, then such post of Municipal Commissioner, Grade-2 could be filled by deputation of an Officer of Karnataka Administrative Service (Junior Scale).
11. It is not in dispute that in the present case, the respondent No.3 is a Chief Officer, Grade-1 and -7- NC: 2024:KHC:52052 WP No. 30070 of 2024 accordingly, does not fit within the description of an Officer competent to hold the Office of Municipal Commissioner, Grade-2.
12. Though several contentions have been adverted to in the statement of objections, each of such contentions have been noticed and adjudicated upon by the Coordinate Bench of this Court in the case of Sri S.M.Rafeeq v. State of Karnataka and Others - W.P.No.2305/2024 disposed off on 01.03.2024. Relevant observations that would be of significance are extracted hereinbelow:-
"7. This Court previously adjudicated a matter analogous to the present case in W.P.No.6959/2022, wherein a Chief Officer Grade-II was appointed as Commissioner of the City Municipal Council (CMC), Challakere. The Division Bench of this Court had instructed the Respondent-State to seek instructions regarding the qualifications of the Petitioner to hold the office of Commissioner, CMC Challakere. During the course of proceedings, the State submitted that the petitioner therein was ineligible for the post of Municipal Commissioner......"-8-
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8. Thereafter the Division Bench of this Court, by Order dated 20.10.2022, dismissed the aforementioned Writ Petition, affirming the conclusions of the Tribunal, which had previously determined the petitioner therein to be ineligible for the post in question. The Court concurred with the Tribunal's finding, supported by an affidavit from the Director of Municipal Administration, demonstrating the petitioner's status as another ineligible individual entrusted with duties of a higher position.
9. Therefore, the discernible conclusion is that even in situations where there exists a pool of qualified candidates suitable for the post of Municipal Commissioner, the appointment of an individual holding the rank of Chief Officer Grade-I is untenable due to their lack of eligibility for said position. To expound further on this point, it is crucial to delve into the eligibility criteria meticulously outlined within the purview of the Karnataka Municipal Administrative Service (Cadre and Recruitment) Rules, 2022, which is culled out as under:
Sl Category of Number Method of Minimum No. posts and Scale of Posts Recruitment qualification of pay
3. Municipal 103 By promotion from For Commissioner - the cadre of Chief Promotion:
Grade-II Officer Grade-I: Must have
(Rs.52650- put in a
97100) Provided that, if no service of not
suitable officer is less than five
available for years in the
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promotion, then by cadre of
deputation of an Chief Officer
officer of the Grade-I:
Karnataka
Administrative
Service (Junior Scale)
10. Hence, it is conspicuously apparent from the aforementioned eligibility criteria that an individual holding the position of Chief Officer Grade-I is unequivocally ineligible for the role of Municipal Commissioner Grade-II. What can be inferred is that a Chief Officer Grade-I must fulfill the prerequisite of having accrued at least five years of service within the Chief Officer Grade-I cadre. Moreover, if no eligible candidate meeting this criterion is found, an officer from the Karnataka Administrative Service (Junior Scale) may be considered for appointment.
Given this interpretation of the provision, it becomes evident that respondent No.3 does not possess the requisite eligibility for the position in question, as he does not fulfill the stipulated requirement for having served for a minimum of five years within the Chief Officer Grade-I cadre.
11. The contention put forth by the learned Senior Counsel regarding the appointment of respondent No.3 as per Rule 32 of the Karnataka Service Rules as an in-charge, and the application of the second proviso to Rule 16 of the Karnataka Civil Services (General Recruitment) Rules, 1977,
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NC: 2024:KHC:52052 WP No. 30070 of 2024 suggesting deputation, cannot be acceded to upon closer examination. It would be useful for this Court to cull out Rule 32 (Note 1) and second proviso to Rule 16 of the said Rules, which reads as under:
"Note 1.-A Government servant can be appointed under this Rule to be in-charge of the current duties of a vacant post only if he is eligible to be promoted to officiate in that post according to the Cadre and Recruitment Rules applicable to that post or if he is holding a post in an equivalent or higher grade.
Second proviso to Rule 16 of the Karnataka Civil Service (General Recruitment) Rules, 1977 reads as under:
[Provided further that where it is necessary in public interest to appoint an officer belonging to a service where has no equivalent grade, an officer holding a post in the next lower grade in such service may be appointed by deputation for a period not exceeding two years. Provided also that no such appointment shall be to a post which is equivalent to or higher than the next promotional post to such officer in such other service.]"
12. Rule 32, Note 1 explicitly stipulates that a government servant may be appointed as an in- charge of the duties of a vacant post only if they
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NC: 2024:KHC:52052 WP No. 30070 of 2024 meet the eligibility criteria for promotion to officiate in that post as per the Cadre and Recruitment Rules applicable to the said post, or if they hold a post in an equivalent or higher grade. The second proviso to Rule 16 allows for the deputation of an officer to a post not exceeding two years in cases where it is necessary in the public interest, provided that the officer holds a post in the next lower grade in their service.
13. However, in the present case, the impugned order indicates a transfer with the same pay scale, and it does not explicitly state that the respondent No.3 is being deputed as an in-charge. Therefore, the contention put forth by the learned Senior Counsel is factually incorrect. The order does not align with the provisions of Rule 32 or the second proviso to Rule 16 as cited by the counsel. Therefore, the contention that a writ of quo warranto cannot be invoked for an in-charge arrangement is also misconceived and cannot be acceded to.
14. According to the stipulations outlined within the Karnataka Municipal Administrative Service (Cadre and Recruitment) Rules, 2022, a Chief Officer is defined as the paramount officer of a Town Municipal Council or a Town Panchayath. In stark contrast, a Municipal Commissioner is
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NC: 2024:KHC:52052 WP No. 30070 of 2024 specifically defined as the Municipal Commissioner of a City Municipal Council. A Chief Officer, as defined within the ambit of the rules, is entrusted with the administration of a town-level municipal entity, characterized by its comparatively smaller geographic and administrative scope. Conversely, the role of a Municipal Commissioner encompasses the management and oversight of a City Municipal Council, which inherently entails a significantly larger administrative jurisdiction, encompassing the complexities and demands of urban governance. The role of a Municipal Commissioner necessitates the ability to effectively manage and govern an entire city, a task for which an individual eligible solely to manage a town-level entity lacks the requisite qualifications and capabilities.
15. The term "quo warranto" is Latin for "by what authority" or "by what warrant." At its core, a writ of quo warranto aims to ensure that individuals holding public offices or exercising public functions do so with proper legal authority and qualifications. It serves as a mechanism to address situations where there are doubts or disputes regarding the validity of a claim to a public position or authority.
16. The literal meaning of quo warranto is "by what authority." This writ enables the questioning of a person who occupies or usurps an
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NC: 2024:KHC:52052 WP No. 30070 of 2024 independent substantive office, asking them to justify the authority under which they claim the position. According to Halsbury, "An information in the nature of quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to inquire by what authority he supported his claim, in order that the right to the office or franchise might be determined."
18. The Division Bench of this Court directed the respondent No.2 to initiate action forthwith to ensure that ineligible officers are not posted at responsible post of Commissioner and only officers who are eligible to hold the post are placed therein. The Division Bench also directed that respondent No.2 shall ensure compliance with the above order and file affidavit reporting compliance within a period of two weeks as is evident from the order which is culled out supra.
13. Insofar as the contention of learned Additional Government Advocate that Rule 16a(ii) of the Karnataka Civil Services (General Recruitment) Rules, 1977 provides for relaxation of Rules regarding appointment and qualification and further reliance to second proviso is that
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NC: 2024:KHC:52052 WP No. 30070 of 2024 the Government could upon relaxation of Rules where it finds necessary in public interest to appoint an Officer belonging to the service which has no equivalent Grade, Officer holding lower Grade in such service by way of deputation and accordingly, it is asserted that the present case is to be construed date of appointment made by invoking power of relaxation under Rule 16.
14. It must be noticed that the said contention has been adverted to by the Coordinate Bench in its order dated 01.03.2024 passed in W.P.No.2305/2024 which is extracted above.
15. It is thus clear that it is the recording of Coordinate Bench specifically that second proviso to Rule 16 cannot be invoked and has rejected the contention that such incharge arrangement would be permissible.
16. Accordingly, the observations of Coordinate Bench cannot be differed with. Unless reference is made to the larger Bench, and as no such occasion arises, as
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NC: 2024:KHC:52052 WP No. 30070 of 2024 Rule 16, which provides for relaxation requires relaxation to be resorted to only where "for reasons to be recorded in writing". It is thus clear that the pre-condition for resort to Rule 16 is by reasons to be recorded in writing. The impugned order at Annexure-'C' does not refer to Rule 16 or that conditions as envisaged under second proviso to Rule 16 have been taken note of.
17. It is also to be noticed that second proviso to Rule 16 is an additional rider for exercise of power and when such power is sought to be exercised, the reasons to be recorded in writing as mandated under the opening sentence in Rule 16 is to be further supported by circumstances contemplated under the second proviso. If that were to be so, the relaxation could be resorted to only after recording that it is in public interest that case is made out for appointing an the Officer holding a post in the next lower Grade by way of deputation for a fixed period.
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18. Taking note of the order at Annexure-'C', neither the first part of Rule 16 has been complied with, as there are no reasons to be recorded in writing found in the order justifying such relaxation nor is there is any reference to the circumstances necessitating invocation of proviso for which specific observation is required to be recorded that conditions under proviso exist requiring in public interest to resort to relaxation. The second proviso further constricts the power and must be used sparingly being an exception to the main Rule and cannot be used as if it is an additional power is conferred to relax the Rules.
19. Noticed the direction issued in W.P.No.6959/2022, wherein the Division Bench has issued a direction regarding posting of Officers to the post of Commissioners/Chief Officers of City Municipal Councils only by those who are eligible to hold the post with further direction that there has to be compliance. In light of such
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NC: 2024:KHC:52052 WP No. 30070 of 2024 direction, the State was obliged to post only those who are eligible to hold the post.
20. Though it is submitted that there are administrative reasons for not posting competent Officers to hold the post of Municipal Commissioner, in light of the direction passed in W.P.No.2305/2024, there could be no concession for not adhering to the direction of this Court.
21. It must also be noticed that even if Municipal Commissioner, Grade-II is not available, in terms of C & R Rules, the said post could be filled by Officers of Karnataka Administrative Service, (Junior Scale). There is no reason for the State for not resorting of what is provided for under the proviso, if suitable candidates are not available. However, learned counsel for the petitioner would assert that there are eligible qualified candidates and it is for the Government to take necessary steps for filling up of the posts by the competent Authorities.
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22. Accordingly, the petition is allowed. It is declared that the respondent No.3 is ineligible to hold the post of Municipal Commissioner, City Municipal Council, Sidlaghatta, Chikkaballapura District and the Office is to be declared vacant consequent to the issuance of this writ. In light of the same, the order of posting of respondent No.3 dated 01.11.2023 is liable to be set aside and is accordingly set aside.
23. Copy of the order is to be sent to the Chief Secretary for appropriate action, as learned counsel for respondent No.3 in the previous hearings had submitted that there are other posts of Municipal Commissioner being held by incompetent Officers just as the position as made out in the present petition.
Sd/-
(S SUNIL DUTT YADAV) JUDGE VGR