Karnataka High Court
Sri. P. Shivaprasad vs The State Of Karnataka on 25 September, 2020
Author: S.G.Pandit
Bench: S.G.Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION NO.8534 OF 2020 (S-RES)
BETWEEN:
SRI.P.SHIVAPRASAD,
S/O LATE T.PUTTARAJU,
AGED ABOUT 57 YEARS,
COMMISSIONER,
CITY MUNICIPAL COUNCIL,
HIRIYUR, HIRIYUR TALUK,
CHITRADURGA DISTRICT - 577 598.
... PETITIONER
(BY SRI. A.NAGARAJAPPA, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
DEPARTMENT OF URBAN DEVELOPMENT,
KARNATAKA GOVERNMENT SECRETARIAT,
VIKAS SOUDHA,
DR.AMBEDKAR VEEDHI
BANGALORE - 560 001.
REPRESENTED BY ITS
PRINCIPAL SECRETARY.
2. THE STATE OF KARNATAKA,
DEPARTMENT OF URBAN DEVELOPMENT,
KARNATAKA GOVERNMENT SECRETARIAT,
VIKAS SOUDHA,
DR.AMBEDKAR VEEDHI,
BANGALORE - 560 001.
2
REPRESENTED BY ITS
UNDER SECRETARY.
3. THE DIRECTOR OF
MUNICIPAL ADMINISTRATION,
IX FLOOR,
DR.VISVESVARAIAH TOWER,
DR.AMBEDKAR VEEDHI,
BANGALORE - 560 001.
4. SMT.T.LEELAVATHI,
W/O THAMMANNA,
AGED ABOUT 48 YEARS,
WORKING AS REVENUE INSPECTOR,
CITY MUNICIPAL COUNCIL,
HIRIYUR,
CHITRADURGA DISTRICT - 577 598.
... RESPONDENTS
(BY SRI. SRIDHAR N HEGDE, HCGP FOR R1 TO R3;
SRI.K.R.SRINIVASA, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE ORDER DATED 09.06.2020 MARKED AT
ANNEXURE - F PASSED BY THE R-2 AT SL.NO.4 IN SO FAR
AS IT RELATES TO THE PETITIONER AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS
THIS DAY, THROUGH VIDEO CONFERENCE, THE COURT
MADE THE FOLLOWING:
3
ORDER
Even though the matter is listed for orders, with the consent of the learned counsels appearing for the parties, the writ petition is taken up for final disposal.
2. The petitioner is before this Court under Article 226 of the Constitution of India, assailing the order dated 09.06.2020 bearing No.£ÀCE 55 nJAE 2020 passed by respondent No.2, by which the petitioner was transferred from Hiriyuru, Chitradurga District to Challakere, Chitradurga District.
3. The petitioner is a Community Development Officer belonging to the Department of Municipal Administration. He was posted to work as Commissioner, City Municipal Council, Hiriyuru, Chitradurga District, under notification dated 31.10.2019 (Annexure-A). It is stated that the petitioner took charge of the post of Commissioner, 4 City Municipal Council, Hiriyuru on 04.11.2019. Subsequently, by notification dated 09.06.2020 at Annexure-F, the petitioner who was working as Commissioner, City Municipal Council, Hiriyuru, Chitradurga District was transferred as Community Development Officer, City Municipal Council, Challakere, Chitradurga District. Aggrieved by the said order of transfer and posting respondent No.4- Smt. T.Leelavathi as Commissioner, City Municipal Council, Hiriyuru, Chitradurga District, the petitioner is before this Court in this writ petition.
4. The Government has not filed any objection even though sufficient opportunity is given. Respondent No.4 has filed objections contending that the petitioner is holding the post of Community Development Officer and he is not in the cadre of Chief Officer. Only KMAS Officers could be posted as Chief Officer. Referring to Section 365 of the 5 Karnataka Municipalities Act, 1964 (for short 'the Act'), the Government has thought fit to replace a Community Development Officer by KMAS Officer by complying the above provision which cannot be found fault with.
5. Learned counsel for the petitioner would submit that the Government by notification dated 31.10.2019 posted the petitioner to work as Commissioner, City Municipal Council, Hiriyuru and he had taken charge of the said post only on 04.11.2019. Even before completion of minimum period of two years at Hiriyuru, the Government by notification dated 09.06.2020 transferred the petitioner from the post of Commissioner, City Municipal Council, Hiriyuru to Challakere as Community Development Officer. The said transfer is wholly premature and oppose to Government order dated 10.06.2013, which provides for minimum stay 2 years at a place. Further, the 6 learned counsel for the petitioner would submit that as per Government Order dated 10.06.2013, before posting the KMAS Officer as Chief Officer-Grade II, there should be consultation between the Director of Municipal Administration and Government. As there is no consultation, the transfer notification is wholly illegal insofar as the petitioner and respondent No.4 is concerned.
6. Per contra, Sri. Sridhar.N.Hegde, learned High Court Government Pleader justifies the order of transfer and submits that the notification at Annexure-A by which the petitioner was posted as Commissioner, City Municipal Council, Hiriyuru clearly indicates that the transfer guidelines would not be applicable to a person who is not in the cadre of KMAS. Further he submits the petitioner being in the cadre of Community Development Officer has no right to continue in the post of Chief Officer. 7
7. Learned counsel for respondent No.4 would submit that respondent No.4 is KMAS Officer and the petitioner is replaced by KMAS Officer in view of the provision contained in Section 365 of the Act. Further learned counsel also submits that transfer guidelines would not be applicable to non-KMAS Officers when they are posted as Chief Officer, Town Municipal Council. Thus, prays for dismissal of the writ petition.
8. The petitioner and respondent No.4 both belong to Municipal Administration Department. The petitioner is in the cadre of Community Development Officer, whereas respondent No.4 is in the cadre of Chief Officer, Grade-II, which is evident from Annexure-C notification, dated 13.04.2020. The petitioner in this writ petition has challenged the order of transfer from Hiriyur to Challakere. Transfer is not a condition of service; transfer is only incident of service. As such, as a matter of right, the petitioner 8 cannot challenge the order of transfer. Transfer could be challenged when it is made in violation of statutory guidelines or on the ground of malafides.
9. Section 365 of the Act requires appointment of Officers to the local Authority or Municipality by an Officer belonging to Karnataka Municipal Administrative Service (KMAS). As such, the Government is justified in replacing the petitioner who is not KMAS Officer by respondent No.4 who is KMAS Officer as evident from Annexure-C. A Co-ordinate Bench of this Hon'ble Court in an identical circumstance in W.P.No.34611/2017 disposed of on 03.08.2017 at paragraph Nos.9 and 10 has held as follows:
9. A bare perusal of Section 365 (1) of the Act, clearly reveals that the provision begins with a non-obstante clause, "Notwithstanding anything contained in this Act, or in any other law for the time being in force". The said provision also 9 imposes a legal duty on the Government to appoint the Officers to the local authorities from the persons belonging to the KMAS. Once a mandatory, and legal duty has been imposed upon the State, the State is required to fulfill the same. Therefore, in the light of Section 365 (1) of the Act, the Transfer Policy cannot stand in the way.
10. Admittedly, the petitioner belong to a non-
KMAS cadre, whereas, the respondent No.4 does belong to the KMAS cadre. Therefore, the State is justified in replacing the petitioner with the respondent No.4.
In the present case also the petitioner is not a KMAS Officer. He is in the cadre of Community Development Officer. The respondent No.4 is KMAS Officer, who is posted in place of petitioner which cannot be found fault with.
10. The order/notification by which the petitioner was posted as Commissioner, Hiriyuru makes it clear that when non-KMAS Officer is posted to work as Chief 10 Officer, the transfer guidelines would not be applicable.
11. Moreover, the above decision further observes that transfer policy cannot dilute Section - 365(1) of the Act. Hence, the contention that transfer is opposed to transfer guidelines fails. Thus, I find no merit in the writ petition and accordingly, writ petition stands dismissed.
Sd/-
JUDGE SMJ