Karnataka High Court
The State Of Karnataka vs H M Rudresh on 20 March, 2024
Author: K.Somashekar
Bench: K.Somashekar
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NC: 2024:KHC:11552-DB
WP No. 5132 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF MARCH, 2024
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
WRIT PETITION NO. 5132 OF 2023 (S-KSAT)
BETWEEN:
1. THE STATE OF KARNATAKA,
BY ITS CHIEF SECRETARY,
VIDHANA SOUDHA,
DR. AMBEDKAR VEEDHI,
BENGALURU-560 001.
2. THE COMMISSIONER,
DEPARTMENT OF PUBLIC INSTRUCTIONS,
NRUPATHUNGA ROAD,
BENGALURU-560 001.
3. THE PRINCIPAL SECRETARY,
Digitally signed DEPARTMENT OF PRIMARY AND
by D HEMA
Location: SECONDARY EDUCATION,
HIGH COURT M.S. BUILDING, DR. AMBEDKAR VEEDHI,
OF
KARNATAKA BANGALORE-560 001.
4. THE DEPUTY DIRECTOR OF PUBLIC
INSTRUCTIONS,
DEPARTMENT OF PUBLIC INSTRUCTIONS,
HASSAN DISTRICT,
HASSAN-573 201.
5. THE BLOCK EDUCATION OFFICER,
BLOCK EDUCATION OFFICE,
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NC: 2024:KHC:11552-DB
WP No. 5132 of 2023
DEPARTMENT OF PUBLIC INSTRUCTIONS,
CHENNARAYAPATNA TALUK AND TOWN,
HASSAN DISTRICT,
HASSAN-573 116.
...PETITIONERS
(BY SRI V SHIVA REDDY, AGA [PH])
AND:
H M RUDRESH,
S/O MRUTHYANJAYA,
AGED ABOUT 41 YEARS,
WORKING AS BLOCK RESOURCE PERSON,
BLOCK RESOURCE CENTER,
CHENNARAYAPATNA TOWN-573 116.
R/OF HOOVINAHALLI,
BEECHENAHALLI POST,
HOLENARASIPURA TALUK,
HASSAN DISTRICT-573 211.
...RESPONDENT
(BY SRI G K SHIVA PRAKASH, ADVOCATE [PH])
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO i) CALL FOR THE
RECORDS IN APPLICATION NO.1384/2022 DATED 22/08/2022
ON THE FILE OF THE HON'BLE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL, BENGALURU AS PER ANNEXURE-
A ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 14.02.2024, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY,
UMESH M ADIGA J, MADE THE FOLLOWING:
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NC: 2024:KHC:11552-DB
WP No. 5132 of 2023
ORDER
This writ petition is filed by the State directed against orders passed by the Karnataka Administrative Tribunal (for short hereinafter referred to as 'Tribunal') in application No. 1384 of 2022 dated 22.08.2022.
2. I refer the parties as their rank before the Tribunal.
3. It is a case of Applicant that Applicant is working as primary school Teacher and he was made to work as Block Resource Person from 02.05.2016, in the office of Block Resource Centre at Channarayapatna Taluk, Hassan District till 09.02.2022. He was subjected to counselling transfer under spouse category. His request was not considered in the said counselling either to retain him in the same post at Channarayapatna Taluk or transfer him in the same Taluk as a Teacher in Physics, Chemistry and Mathematics, Kannada medium, on the ground that the post relating to Physics, Chemistry and Mathematics, Kannada medium is not available. Wife of -4- NC: 2024:KHC:11552-DB WP No. 5132 of 2023 Applicant is also working as Assistant Teacher at Government High School, Gullen Halli, Channarayapatna Taluk.
4. In the counselling, the Respondents have not considered his case under spouse category, though there is provision to consider the same. The Applicant had filed a request letter dated 30.01.2022 to the 5th respondent. The 5th respondent has forwarded the said representation of the applicant by his letter dated 05.02.2022, to the 2nd respondent for consideration. The applicant attended counselling on 09.02.2022 and 29.03.2022. At both the time, his request on spouse ground was not entertained by the transferring authority. Therefore, he filed application before the Tribunal seeking the relief of direction to the respondents to consider transfer of petitioner and his wife under spouse category.
5. Respondent-State admitted that Applicant was working as Assistant Teacher in Government High School, Singapura, Holenarasipura Taluk of Hassan District. He -5- NC: 2024:KHC:11552-DB WP No. 5132 of 2023 appeared for the examination for specified post, conducted by the department and he opted to work as a Block Resource Person with effect from 02.05.2016. Accordingly, he passed through the said exam and he was posted to Channarayapatna Taluk of Hassan District. The tenure for the said post is minimum 3 years and maximum of 5 years. Applicant after completion of 3 years he applied for transfer, but he could not choose any place of vacancy due to the transfer limit prescribed by the Government. Therefore, Applicant was forced to continue in the very same post till completion of his tenure of 5 years.
6. It is further case of Respondents that the Applicant's wife is also working as primary school Assistant Teacher in Government Higher Primary School, Gullenahalli, Channarayapatna Taluk, Hassan District. The Applicant has requested to consider the application for transfer under spouse category or to retain the Applicant in the same place or to give any place in the same taluk. But, he was not eligible under couple case as the -6- NC: 2024:KHC:11552-DB WP No. 5132 of 2023 Applicant and his wife were working in the same taluk. It was not possible to retain the Applicant in the same post as the present working post is a specified post and its tenure is minimum 3 years and maximum of 5 years.
7. It is further case of respondent that the Applicant's teaching subject is Physics, Chemistry and Mathematics, Kannada medium. He has to opt for the available vacancy in the District during counselling. The Respondents further states that counselling is held on 09.02.2022 and the applicant attended the said counselling. It was observed that the vacancy for the Applicant teaching subject was only one in the entire district of Hassan. There was no vacancy at the time of counselling process and hence it was postponed to 10.05.2022. In the said counselling, Applicant has chosen the post at Government High School Echalabeedu, Sakaleshpura Taluk, Hassan District. It is his place of choice.
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NC: 2024:KHC:11552-DB WP No. 5132 of 2023
8. It is the further case of the Respondent that the applicant has received the orders at the time of counselling and he reported to duty as per the orders to the place of posting, chosen according to his will and wish. The concerned school headmaster has reported about the duty report of the applicant as Assistant Teacher PCM, Kannada at GHS Echalabeedu, Sakaleshpur Taluk, Hassan District. Hence, prayed to dismiss the application.
9. The Tribunal after hearing the parties passed impugned order dated 22.08.2022 and allowed the petition directing the State to consider his case within time limit. Being aggrieved by the same, State has preferred this petition to quash impugned order.
10. Heard the arguments of learned AGA as well as learned counsel appearing for respondent. Learned AGA submits that the petitioner was serving in a specified post i.e. 'Block Resource Person' in Channarayapatna Taluk, Hassan District. Applicant has completed maximum tenure of five years of the said post. The Transfer of Teachers is -8- NC: 2024:KHC:11552-DB WP No. 5132 of 2023 governed by the Karnataka State Civil Services (Regulation of Transfer of Teachers) Act, 2020. As per Rule 10 of the Notification dated 22.07.2020, case of petitioner cannot be considered in spouse category since both the Applicant and wife were serving in the same Taluk of Channarayapatna. This was not considered by the Tribunal. Moreover, Applicant was transferred to the post as per his choice in counselling. Without considering the same, Tribunal has directed the Respondents to accommodate the Applicant in the respective place within a period of three months. The said orders are illegal and arbitrary. Therefore, prayed to set aside the same.
11. Learned counsel appearing for the Applicant has submitted that the Tribunal has considered the case of Applicant properly regarding the spouse ground and directed the Respondents to accommodate the applicant in accordance with Rule, within a period of three months. The applicant has obtained information from the Education Department through RTI stating that there were vacancies -9- NC: 2024:KHC:11552-DB WP No. 5132 of 2023 in the Channarayapatna taluk that was not considered by the Government and even they did not give proper information regarding vacancy of the posts of the Applicant had obtained the information under Right to Information Act and furnished before this Court. This Court can direct the petitioners herein to transfer the Applicant to suitable post on spouse ground, therefore dismissed the writ petition, as there is no ground for interfering in the Tribunal's order.
12. Learned AGA in reply has submitted that as per the Act, which is meant for monitoring the transfer of Teachers serving in Education Department, the transfer shall be made by counselling during General Transfers. The counselling has to be fixed by the Government. The Government cannot hold counselling to transfer one or two person. Without counselling there cannot be any transfers. It is not in dispute that on the date of counselling, list of updated vacancy position was given to Applicant and Applicant opted for present posting, where he has been
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NC: 2024:KHC:11552-DB WP No. 5132 of 2023 working. And on his request, he has been posted to the said place. Now he cannot make any grievance about the said posting. Moreover, the vacancy arose after counselling and hence for the sake of petitioner alone again counselling cannot be held. In the General Transfer of the April/May 2024, Applicant and his spouse may apply and during counselling their case may be considered. The Tribunal sat in the chair of Transferring Authority and directed the Government to transfer the Applicant against Rules which is illegal. Therefore, prayed to set aside the impugned order.
13. It is not in dispute that the petitioner has been serving in Education Department as 'Block Resource Person'. It is also not in dispute that prior to his transfer, he was serving at Channarayapatna Taluk, Hassan District from 02.05.2016, after his appointment in said post. It is also not in dispute that after completing minimum tenure of 3 years, the Applicant opted for transfer, however, there was no vacancy and hence he could not get transfer.
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NC: 2024:KHC:11552-DB WP No. 5132 of 2023 He had to serve in the same post for five years and his tenure was completed during the Annual General Transfer of 2022. It is also not in dispute that he participated in the counselling held on 09.02.2022 and 29.03.2024 claiming spouse category. According to the Applicant, it was not considered. But according to the petitioners herein, his case cannot be considered on spouse category since applicant and his wife were serving in the same taluk.
14. According to the Act, if both spouse are working in the same Taluk, then they cannot claim priority on the basis of spouse ground. Therefore, the contention of the respondent herein that on the ground of spouse, they could have accommodated husband and wife in the same taluk but petitioners did not consider the same is not tenable.
15. The Tribunal though quoted Rule 15 of Karnataka State Civil Services (Regulation of Transfer of Teachers) Rules, 2020 in the impugned order, however, it
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NC: 2024:KHC:11552-DB WP No. 5132 of 2023 did not follow the same. It is not in dispute that respondent herein had already completed five years of service in the same place and same post. Maximum tenure of said post as per Rules is five years and that period is completed. Hence, Applicant could not be continued in the same place.
16. Section 10 of the Act, reads as under:
"10. Exemptions from rationalization, zonal transfers and priority for request transfers.- (1) The exemptions from rationalization, zonal transfers and priority for request transfers are as follows, subject to conditions specified in sub- sections (2) to (5).-
(ii) XXX
(iii) XXX
(iv) XXX
(v) teacher with spouse working with the State or Central Government or aided educational institution;
(vi) XXX
(vii) XXX"
17. The relevant sub-section (5) which reads as under:
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NC: 2024:KHC:11552-DB WP No. 5132 of 2023 "(5) The teachers falling under category
(v) shall be given priority during request transfer. If the teacher is working in a different Taluk as that of the spouse is allowed to seek transfer to the working Taluk of the spouse only. If both are working in the same Taluk then they are not eligible to make application under priority:
Provided that, during rationalization and zonal transfers the excess teacher shall be posted within the working Taluk of the spouse."
18. When such is the case, direction issued by the Tribunal in the impugned order to the Government /petitioner herein to accommodate Applicant on the spouse category, is contrary to above said Act. In this case, both husband and wife were serving in the same zone/Taluka and hence the question of consideration of transfer of application on spousal ground is also not tenable.
19. It appears that the Tribunal has not considered the contentions of the petitioners herein, therefore, directed the petitioner to consider claim of respondent
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NC: 2024:KHC:11552-DB WP No. 5132 of 2023 on spousal ground within a period of three months, which is erroneous.
20. The Tribunal or this Court cannot sit in the chair of Transferring Authority and pass orders. Therefore, the submission of learned counsel for Respondent herein that during pendency of this petition, some vacancies arose, therefore, the Government be directed to post the respondent in such a place, cannot be considered by this Court. As per the Act, holding of counselling is mandatory for transfer of Teachers. This Court cannot direct the Government to hold a fresh counselling to consider of case of the respondent herein alone. Therefore, during the pendency of this petition, even though there might be some vacancy arose, that cannot be ground to direct the petitioners herein to consider the case of the Respondent.
21. It is not in dispute that during counselling of Transfer, considering vacancy status, Respondent herein has opted for the present place of posting and same was given to him. He was not posted to some other place than
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NC: 2024:KHC:11552-DB WP No. 5132 of 2023 his choice. Hence, he cannot make grievance against the same.
22. Learned AGA fairly submits that during Annual General Transfer of Teachers may again start in the month of April/may 2024, wherein counselling will be held and at that time, Respondent herein may apply and the Government may consider the request of Respondent on spouse ground to accommodate him to the nearby place of either of them. The respondent may avail the same.
23. The Tribunal has not considered the Rules of transfer and hence contrary to such Rule, it has directed to consider the request of applicant under spouse category and accommodate the Applicant in respective places within a period of three months, which is completely contrary to Rule 10(iv)(5) and 15 of the Act since applicant has already completed his tenure of five years in the specified post and both husband and wife were working in the same taluk/zone. Therefore, it is just and necessary to quash
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NC: 2024:KHC:11552-DB WP No. 5132 of 2023 the impugned order passed by the Tribunal in application No.1384/2022.
24. For the aforesaid reasons, we pass the following:
ORDER i. The writ petition is allowed.
ii. The impugned order passed by the Tribunal in application No.1384/2022 dated 22.08.2022 is set aside.
Sd/-
JUDGE Sd/-
JUDGE AG Sl No.: 2