Karnataka High Court
Sri. S. M. Rafeeq vs State Of Karnataka on 1 March, 2024
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.2305 OF 2024 (S-TR)
BETWEEN:
SRI. S. M. RAFEEQ
S/O LATE K ABDUL SATTAR,
AGED ABOUT 61 YEARS,
CITY MUNICIPAL COUNCILLOR,
WARD NO. 17,
CHIKKABALLAPURA CITY MUNICIPAL COUNCIL,
R/AT NO.1763 (702/3)
HETTEGARABEEDI KOTE,
CHIKKABALLAPURA-562 101
(BENEFITS OF SENIOR CITIZEN NOT CLAIMED)
...PETITIONER
(BY SRI R.SUBRAMANYA, ADVOCATE FOR
SRI. VINAYAKA B., ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF URBAN DEVELOPMENT,
MS BUILDING,
BANGALORE - 560 001.
2. DIRECTOR OF MUNICIPAL ADMINISTRATION
VISHWESHWARAIAH TOWER,
2
9TH FLOOR, VIDHANA VEEDHI,
BANGALORE - 560 001
3. SRI MANJUNATH AS
AGED ABOUT 45 YEARS,
POSTED AS MUNICIPAL COMMISISONER,
CITY MUNICIPAL COUNCIL,
CHIKKABALLAPURA - 562 101.
...RESPONDENTS
(BY SRI RAVINDRANATH, AGA FOR R1 & R2;
SIR D.R. RAVISHANKAR, SENIOR COUNSEL FOR
SMT. SIRI R., ADVOCATE FOR R3)
THIS WP IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF QUO
WARRANTO OUSTING R-3 FROM THE POST OF MUNICIPAL
COMMISSIONER, CHIKKABALLAPURA, AS HE IS INELIGIBLE TO
HOLD THE SAID POST INASMUCH AS THE POST OF MUNICIPAL
COMMISSIONER IS TO BE FILLED/OCCUPIED BY MUNICIPAL
COMMISSIONER GRADE -II OR GRADE -I AS PER THE
KARNATAKA MUNICIPAL ADMINISTRATIVE SERVICE(CADRE
AND RECRUITMENT) RULES, 2022 AND ETC.,
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 29.02.2024, COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
The captioned writ petition is filed seeking to issue a Writ of Quo Warranto against respondent No.3 as he is ineligible to hold the post of Municipal Commissioner, 3 Chikkaballapura. The petitioner is also seeking a writ of certiorari to quash the Order dated 10.08.2023 passed by respondent No.1 as per Annexure-A, by which respondent No.3 has been posted to work as the Municipal Commissioner of the City Municipal Council in Chikkaballapura.
2. The petitioner who is a Councilor of the City Municipal Council of Chikkaballapura, contends that the State Government/Director of Municipal Administration previously appointed Smt. Pampashree UP, a Chief Officer Grade-1, as Municipal Commissioner through Government Order dated 14.03.2023, despite her ineligibility for the position. Despite assurances for the appointment of an eligible Municipal Commissioner Grade officer, no suitable candidate was appointed. The petitioner asserts that the essential eligibility criteria for the position of Municipal Commissioner Grade-II mandates a minimum service tenure of five years in the capacity of Chief Officer Grade- 4 I. The prescribed recruitment method is through promotion from within the ranks of Chief Officer Grade-I. However, if no suitable candidate is available for promotion, appointment can be made through deputation of an officer from the Karnataka Administrative Service (Junior Scale). Respondent No.3, the current Municipal Commissioner of Chikkaballapura City Municipal Council, who belongs to the Chief Officer Grade-I, lacks necessary qualification and competence to hold the position of Municipal Commissioner Grade-II as per the petitioner's contentions.
3. Per contra, learned Senior Counsel appearing for respondent No.3 contends that the writ petition lacks merit and is misconceived, as the impugned order under challenge dated 10.08.2023 was made in consideration of public and administrative interests, explicitly stating continuation until further orders. He asserts that no fault or illegality can be found in the impugned order. Referring 5 to a previous case, Smt. Leelavathi vs. Sri Palaiah & Ors1, it was admitted that there was a serious shortage of candidates for the critical post of Municipal Commissioner, and steps were being taken to address this issue. He would contend that respondent No.3's appointment, being a prerogative of the Government, was made to meet public and administrative exigencies.
4. Placing reliance on Rule 32 of the Karnataka Civil Services Rules (KCSR), he would contend that, a government servant can be appointed to be in-charge of the duties of a vacant post if eligible according to Cadre and Recruitment Rules or if holding an equivalent or higher-grade post and that even though Rule 32 was not explicitly mentioned in the order, it should be read into it. He would contend that the arrangement made though in the form of a transfer should be read as an in-charge arrangement. Further placing reliance on second proviso 1 W.P.No.6959/2022 6 to Rule 16 of the Karnataka Civil Service (General Recruitment) Rules, 1977, he would contend that where it is necessary in public interest, an officer holding a post in the next lower grade can be appointed. Therefore, he would contend that a writ of quo warranto cannot be invoked for an in-charge arrangement. Additionally, he would criticize the belated nature of the petitioner's challenge, as a City Municipal Councillor should support day-to-day administration rather than filing petitions after a considerable delay.
5. Heard learned counsel appearing for the petitioner and learned Senior Counsel appearing for respondent No.3 and learned AGA.
6. The petitioner has filed the present writ for issuance of a writ of quo warranto. It is a trite law that a writ of quo warranto can be issued when the holder of a 7 public office has been appointed in violation of constitutional or statutory provisions.
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. This Court duly noted the State's submission in its daily order dated 20.07.2022, observing as follows:
"This Court after taking note of the observations of the Tribunal had passed an order on 11.04.2022, which reads as under:
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"On 05/04/2022, this Court called upon the Government Pleader to secure instructions as to how many Chief Officers, Grade-II have been posted and are functioning as Commissioner, City Municipal Council, Grade-II. Today, the learned HCGP, on instructions of one Mr.Somashekar, working as First Division Assistant in the Office of City Municipal Council, Administration submits that it is indeed a fact that the several such persons have been posted and are functioning as Commissioner, City Municipal Council, Grade-II. The finding of the Tribunal is that the officers in the cadre of Chief Officer, Grade-II are ineligible to hold the post as Commissioner, City Municipal Council, is not challenged by the Department implying that the respondent has accepted the finding. On query from this Court, it is justified by the learned HCGP that the postings have been made to meet the Administration exigencies. On query, as to whether there are no officers are available, he would admit the availability of eligible officers. If that be so, it is depressing note that ineligible candidates have been posted despite the availability of eligible candidates. Hence, the Director, Administration, City Municipal Council shall file an affidavit justifying the posting of ineligible candidates despite the availability of eligible candidates by 18/04/2022. List on 18/04/2022.
Pursuant to the same, matter was listed and affidavit was filed by the Director of Municipal Administration Smt. M.S.Archana and it was candidly admitted that several officers who are ineligible to hold the post of Chief Officer as they posted to the said post. Subsequently, a cognate Bench taking note of the earlier interim order, expressed displeasure with the action of the respondents in 9 posting an officer in place of the petitioner and a limited interim order came to be granted. The said order not to take any precipitate action against the petitioner stood lapsed on the next date on account of it not being continued. Despite the passage of several months, we find that the stalemate continues. In that view of the matter, Director of Municipal Administration is directed to initiate action forthwith to ensure that ineligible officers are displaced from the responsible post of Commissioners/Chief officers of CMCs and only officers who are eligible to hold the post are placed therein. The second respondent shall ensure compliance with the above order and file an affidavit reporting compliance within a period of two weeks. It is open to the respondent to reiterate the order made in favour of the 3rd respondent. Carbon copy of this order to be furnished to the learned High Court Government Pleader and also be forwarded to the respondent. List on 10.08.2022."
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 10 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 of Posts Recruitment qualification
Scale of pay
3. Municipal 103 By promotion from For Promotion:
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Commissioner the cadre of Chief Must have put in
- Grade-II Officer Grade-I: a service of not
(Rs.52650- less than five
97100) Provided that, if no years in the
suitable officer is cadre of Chief
available for Officer Grade-I:
promotion, then
by deputation of
an officer of the
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 12 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, 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 13 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 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 14 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 15 Panchayath. In stark contrast, a Municipal Commissioner is 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 16 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 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."17
17. Further the contention of the learned Senior Counsel that there is delay of 5 months and delay cannot be condoned cannot be accepted at this juncture. It is a trite law that any individual has the right to challenge the validity of an appointment to a public office, regardless of whether their fundamental or other legal rights have been infringed. The Apex Court in the case of Kashinath G. Jalmi (Dr.) vs. Speaker2, observed that while examining if a person holds a public office under valid authority or not, the court is not concerned with the technical grounds of delay or motive behind the challenge, since it is necessary to prevent continuance of usurpation of office or perpetuation of an illegality. The motive or conduct of the appellants may be relevant only for denying them the costs even if their claim succeeds but it cannot be a justification to refuse to examine the merits of the question raised therein, since that is a matter of public concern and relates to good governance of the State. 2 (1993) 2 SCC 703 18
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.
19. The authority's failure to adhere to the court orders demonstrates a blatant disregard for the legal process and undermines the authority of the judiciary. Disregarding court orders not only undermines the legitimacy of the judiciary but also erodes public trust in the legal system and undermines the rule of law and ensuring effective functioning of a just and equitable society.
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20. For the reasons stated supra, the following:
ORDER
(i) The writ petition is allowed;
(ii) The order bearing No.NaAaEe 236 TMA 2023 dated 10.08.2023 passed by respondent No.1 as per Annexure-A by which respondent No.3 has been posted to Chikkaballapura City Municipal Council is hereby quashed.
(iii) Respondent No.3 is hereby declared to be ineligible to hold the post of Municipal Commissioner, Chikkaballapura;
(iv) Respondent No.2 shall ensure that eligible persons are posted to the post of Municipal Commissioner within a period of four weeks from the date of receipt of a copy of this order.
(v) The pending interlocutory application, if any, does not survive for consideration and stands disposed of accordingly.
Sd/-
JUDGE CA