Karnataka High Court
Siddesh Naik vs The State Of Karnataka on 28 June, 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MRS. JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO. 10630 OF 2024 (S-KSAT)
BETWEEN:
SIDDESH NAIK
S/O LATE KRISHNA NAIK
AGED ABOUT 34 YEARS
WORKING AS INSPECTOR OF EXCISE
KUDLAGI RANGE
VIJAYAPURA DISTRICT-583 135
UNDER AN ORDER OF POSTING AS
INSPECTOR OF EXCISE
MADIHALLI CHECK POST
CHITRADURGA DISTRICT
CHITADURGA-577 527
RESIDING AT NO.23
NEAR PRASANNA GANAPATHY TEMPLE
MUNICIPAL COLONY
CHITRADURGA-577 501
... PETITIONER
(BY SHRI. SUBRAMANYA R., ADVOCATE FOR
SHRI. VINAYAKA S. PANDIT, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP BY ITS ADDL. CHIEF SECRETARY
DEPARTMENT OF FINANCE (EXCISE)
2ND FLOOR, VIDHANA SOUDHA
BENGALURU-560 001
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2. THE COMMISSIONER OF EXCISE
2ND FLOOR, TTMC A BLOCK
BMTC BUILDING, K H ROAD
SHANTINAGAR
BENGALURU-560 027
3. SRI. BASAVARAJU
WORKING AS INSPECTOR OF EXCISE
MADIHALLI CHECK POST
CHITRADURGA DISTRICT
CHITRADURGA-577 527
4. THE DEPUTY COMMISSIONER OF EXCISE
CHITRADURGA DISTRICT
CHITRADURGA-577 501
....RESPONDENTS
(BY SHRI. REUBEN JACOB, AAG A/W
SHRI. VIKAS ROJIPURA, AGA FOR R1, R2 & R4;
SHRI. VIJAYA KUMAR, ADVOCATE FOR C/R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE
IMPUGNED FINAL ORDER DATED 28.03.2024 PASSED IN
APPLICATION No.5354/2023 (ANNEXURE-A) BY THE HON'BLE
KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, IN THE
INTEREST OF JUSTICE AND EQUITY AND CONSEQUENTLY ALLOW
THE APPLICATION No.5354/2023 FILED BY THE PETITIONER
BEFORE THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL
AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 12.06.2024 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, ANU SIVARAMAN J.,
PRONOUNCED THE FOLLOWING:
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ORDER
The substantial prayers in this writ petition are as follows:-
i. "Set-aside the Impugned final Order dated 28.03.2024 passed in Application No.5354/2023 (Annexure-A) by the Hon'ble Karnataka State Administrative Tribunal, in the interest of justice and equity; and consequently allow the Application No.5354/2023 filed by the petitioner before the Karnataka State Administrative Tribunal; and/or;
ii. Pass any other appropriate Order as this Hon'ble Court deems fit in the facts and circumstances of the case, including the cost of this Writ Petition."
2. The petitioner herein was the unsuccessful applicant before the Karnataka State Administrative Tribunal (hereinafter referred to as 'the Tribunal' for short). It is contented that the petitioner and the respondent No.3 were promoted to the post of Inspector of Excise. While issuing the promotion orders, posting orders were also issued by the respondent No.2. Petitioner was posted as Inspector of Excise, Kudligi while the respondent No.3 was posted at Madihalli Check Post, Chitradurga District. When the petitioner went to assume charge at Kudligi, he was
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4 informed that the respondent No.2 had already instructed that the relieving order was cancelled and subsequently, respondent No.4 passed Annexure - A4 Office Memorandum on 04.12.2024 withdrawing the relieving order dated 02.12.2023. Subsequently, the O.M. dated 01.12.2023 was modified posting the petitioner to Madihalli Check Post in Chitradurga District and the respondent No.3 to Kudligi. The petitioner approached the Tribunal contending that the modification amounted to a premature transfer. After hearing the parties, considering the contentions and the pleadings on record, the Tribunal had dismissed the application, which is under challenge herein.
3. Learned counsel for the petitioner contends that the Tribunal erred in accepting the contentions advanced by the State for the official respondents to the effect that it was on account of the implementation of the orders passed to give effect to Article 371-J of the Constitution of India with regard to reservation of posts for local cadre persons that the modified orders of transfer had been issued. It is contented that the fact that writ petitioner is a local cadre
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5 person cannot result in a situation where he is held ineligible for transfer to any other region within the State of Karnataka and that any such provision would fall foul of the requirements of Articles 15 and 16 of the Constitution of India. It is stated that the petitioner's wife is a Government Teacher, who is posted at Kudligi and was to return to duty after maternity leave which was another aspect which should have been considered by the Tribunal while considering the matter at hand. It is submitted that the Tribunal had considered the contentions and had come to the conclusion that the earlier posting of the applicant had been recalled even before he joined duty and that it is permissible for authorities to withdraw earlier postings. It is submitted that this reasoning is not good in law and that the Tribunal ought to have seen that the cancellation of the postings actually amounted to a premature transfer and that no reasons whatsoever were mentioned for recalling the posting orders already granted.
4. The private party respondent entered appearance and submitted that the transfer of the petitioner to a post
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6 outside the Hyderabad-Karnataka region was illegal in view of the fact that he was a person borne on the local cadre of the Hyderabad-Karnataka region. It is submitted that the writ petitioner having been appointed on the basis of the reservation of posts for the Hyderabad-Karnataka region, he would have to continue in the said region for 10 years after his appointment. It is submitted that the circulars issued with regard to the implementation of Article 371-J would clearly indicate that the reservation under Article 371-J in posts available in offices located in Hyderabad-Karnataka region would be 75% in respect of Group-A and B posts and 80% for Group-C posts and 85% for Group-D posts. The said reservation would be applicable for appointment through direct recruitment in respect of all posts. It is submitted that the transfer guidelines also stand modified vide amendment dated 27.04.2015 to state that employees appointed against vacant posts in different cadres within local cadre and residual cadre in offices located in the Hyderabad-Karnataka region shall not be transferred outside the Hyderabad-Karnataka region for a minimum of 10 years
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7 from the date of their appointment. It is further contented that going by the amendment to the notification dated 06.11.2013 only the number of posts in the local cadre and the residual cadre needs to be identified and such identification is now complete. It is contended that the writ petitioner, being a person belonging to the Hyderabad- Karnataka region, who has been appointed to the local cadre cannot contend that he has any right to be posted outside the said region. It is contended that it was without noticing this requirement that the posting order had been passed which had been cancelled taking note of the requirement of law, which cannot be said to be illegal.
5. Learned counsel appearing for the petitioner would contend that any provision which prescribes an embargo on a person belonging to the Hyderabad-Karnataka region from working in posts outside the said region would amount to discrimination on the basis of place of birth. It is further contended that the specific posts forming the local cadre had not been identified and without such identification, the contentions of the official respondents are rendered
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8 unworkable and meaningless. However, we notice that there was no challenge to the Government orders, circulars or the transfer guidelines which provided for time limits within which a person appointed to the local cadre could not be transferred out.
6. The Additional Advocate General appearing for official respondents has brought to our notice the provisions of Article 371-J as well as the Government Orders, circulars as well as the executive directions issued with regard to the creating of the posts and the reservations in the Hyderabad- Karnataka region.
7. Having considered the contentions advanced, we notice that Article 371-J of the Constitution of India which was introduced by the 98th amendment to the Constitution provides for equitable opportunities and facilities for the people belonging to the region in matters of public employment, educational and vocational training. Identification of posts or classes of posts and reservation of a proportion of such posts for persons belonging to the region is provided for. The State of Government (Special
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9 Responsibility of Governor for Hyderabad-Karnataka Region) Order, 2013 was published on 24.10.2013. In pursuance thereto, the Karnataka Public Employment (Reservation in appointment of Hyderabad-Karnataka Region) Order, 2013, was published on 06.11.2013. A local cadre was identified and reservation provided for the specified number of posts. The said order defines local cadre as any local cadre in the State Government or in any local authority or body organised in pursuance of paragraph No.3 thereto. Paragraph No.3 of Chapter 1 of the order reads as follows:-
"3. Organization of Local Cadres.- (1) The Governor shall within a period of three months from the commencement of this Order, by notification identify posts in the civil services or civil posts under the State Government in the Hyderabad-Karnataka Region or posts in Local Authority or body or organization under the control of the State Government in that region into the local cadre to the extent and in the manner, hereinafter provided.
(2) 75% of the posts in the region belonging to Group-A (Junior Scale) and Group-B posts in each department of the State Civil Service or in local Authority or body or organization shall be organized into as local cadres.
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(3) 80% of the posts in the Region belonging to the category of Group-C and 85% percent of the posts in the Group-D in each department of State Civil Service or in local Authority or body or organization shall be organized as local cadres.
Provided that, notwithstanding the expiration of the said period, the Governor may, by order, require the State Government, whenever he considers it expedient to do so, organize any classes of posts in the civil services or under the State or in any Local Authority or body or organization into local cadres in the said region."
8. Paragraph No.4 provides for allotment of persons to the local cadre.
9. Paragraph No.5 reads as under:-
"5. Local cadres and transfer of persons.-
(1) The region for which a local cadre has been organized in respect of any category of posts, shall be a separate unit for purposes of recruitment, appointment, seniority, promotion and transfer and such other matters as may be specified by the State Government in respect of that category of posts.
(2) Nothing in this order shall prevent the State Government from making provision for:-
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(a) the transfer (or deputation) of a person from any local cadre to any other local cadre or to any office or establishment to which this order does not apply, or Vice versa.
(b) the transfer (or deputation) of a person from one local cadre to another cadre where no qualified or suitable person is available in the latter cadre or where such transfer is otherwise considered necessary in the public interest.
(c) the overall joint seniority list in the State (along with the separate local cadre seniority list) for such cadres which ordinarily have state wide cadre.
(d) The Governor may ensure that the persons borne on the local cadre at Gazetted levels are not discriminated against in being posted anywhere in Karnataka."
Paragraph No.9 confers power on the Governor to require the State Government to issue directions necessary to give effect to the order.
10. Thereafter, by the Karnataka Public Employment (Reservation in Appointment for Hyderabad-Karnataka Region) (Amendment) Order, 2013, published on
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12 20.01.2014. Paragraph No.3 of 2013 order was amended as follows:-
3. Amendment of para 3.- In para 3 of the said Order,-
(i) for sub-para (1), the following shall be substituted, namely:-
"(1) Government or any officer or authority authorized by the Government may within a period of three months from the commencement of this Order, identify by notification "the number of posts"
in the civil services or civil posts under the State Government in each cadre in the Hyderabad- Karnataka Region or posts in Local Authority or body or organization under the control of the State Government in that region into the local cadre to the extent and in the manner, hereinafter provided".
11. Thereafter, the Karnataka Public Employment (Reservation in Appointment for Hyderabad-Karnataka Region) (Organisation of Local Cadres, Allotment and Transfer of Persons) Rules, 2013, were published on 29.01.2014. Chapter VI Rule 8 thereof, reads as follows:-
"8. Shifting of Non Local Person from a Local Cadre.- Wherever a non local person is occupying a local cadre post, such non local person shall be shifted to the Residual Parent cadre for
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cadre control purposes. Provided, such non local person may continue to occupy such post in a local cadre as a Deputationist."
12. Further, operational guidelines were also issued on 17.06.2014. The transfer guidelines issued by the Government Order dated 07.06.2013 were also amended on 27.04.2015 providing that "The candidates who are recruited against the vacant posts in the different local cadres and remainder cadres in the Hyderabad Karnataka areas, should not be transferred outside Hyderabad Karnataka area for a minimum period of 10 years."
13. Having considered the contentions advanced, we notice that the Government Orders specifically provide for identification of the number of posts to be assigned to the local cadre as well as the residual cadre in the Hyderabad- Karnataka region. The Government Orders also provide that persons appointed to the reserved posts in the Hyderabad- Karnataka region are to continue in the said region for minimum period of 10 years. In the absence of any challenge made to the provision, we are of the opinion that the question whether such a provision would be
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14 discriminatory cannot be considered in these proceedings. We further notice that the order of posting had been withdrawn before it could be given effect to.
14. Promotions and postings of government employees are a matter of administrative exigencies, where the appointing authority should have a certain amount of freedom to work so that the administrative exigencies of a service are met in larger public interest. The operation of the guidelines relating to transfer have to be applied taking note of administrative exigencies and public interest as well. In a given case, where the Tribunal was approached challenging an order of transfer, posting or withdrawal thereof, the question whether such transfers and postings or even withdrawals thereof were informed by administrative exigencies and effected in public interest or were in the nature of measures on harassment or were punitive in nature or to accommodate specific persons with ulterior motive are matters which the Tribunal would be fully justified in considering. It is therefore clear that the Tribunal, or even this Court, would not be justified in
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15 applying the guidelines by adopting any straightjacket formula. The guidelines as well as the decisions of this Court with regard to their applicability have to be applied keeping in mind the facts of each case. In that view of the matter, and in view of the admitted factual position that the petitioner was a person borne on the local cadre of the Hyderabad Karnataka region and since it is contended by the official respondent that it was without noticing this fact that he was granted a posting outside the region, we are of the opinion that the finding of the Tribunal that the order of transfer was withdrawn on valid grounds before it was given effect to, cannot be faulted.
15. The writ petition fails and the same is accordingly dismissed.
Sd/-
JUDGE Sd/-
JUDGE MH/-