Karnataka High Court
Smt. B. Gayathri vs The State Of Karnataka on 20 March, 2024
Author: K.Somashekar
Bench: K.Somashekar
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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 RAJESH RAI K
WRIT PETITION NO.28708 OF 2023 (S-KSAT)
BETWEEN
SMT. B. GAYATHRI,
W/O DODDASWAMY K,
AGED ABOUT 41 YEARS,
UNDER AN ORDER OF POSTING AS FINANCIAL
ADVISIOR,
KARNATAKA STATE POLICE HOUSING AND
INFRASTRUCTURE,
DEVELOPMENT CORPORATION LIMITED NO.59,
RICHMOND ROAD, BANGALORE-560 025.
...PETITIONER
(BY SRI. SATISH.K, ADVOCATE)
AND
1. THE STATE OF KARNATAKA,
DEPARTMENT OF FINANCE,
REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY,
VIDHANA SOUDHA, BANGALORE-560 001.
2. THE STATE OF KARNATAKA,
DEPARTMENT OF HOME,
REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY,
VIDHANA SOUDHA, BANGALORE-560 001.
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3. KARNATAKA STAE POLICE HOUSING AND
INFRASTRUCTURE DEVELOPMENT
CORPORATION LIMITED
REPRESENTED BY ITS CHAIRMAN
AND MANAGING DIRECTOR,
NO.59, RICHMOND ROAD (GENERAL K.S THIMMAYYA
ROAD) BANGALORE-560 025.
4. SRI. DEVARAJ KUMBAR,
S/O LATE SHARANAPPA KUMBAR,
AGED ABOUT 36 YEARS,
WORKING AS FINANCIAL ADVISOR,
KARNATAKA STATE POLICE HOUSING AND
INFRASTRUCTURE DEVELOPMENT CORPORATION
LIMITED,
NO.59, RICHMOND ROAD (GENERAL K.S THIMMAYYA
ROAD) BANGALORE-560 025.
...RESPONDENTS
(BY SRI. VIKAS ROJIPURA, AGA FOR R1 & R2;
SRI. D.R.RAVISHANKAR, SENIOR COUNSEL FOR
SRI. PRAKASH G PAWAR, ADVOCATE FOR R3;
SRI. G.PAPIREDDY, SENIOR COUNSEL FOR
SRI. K.PRASAD HEGDE, ADVOCATE FOR C/R4)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO a)CALL FOR
RECORDS FROM THE HONBLE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL, BANGALORE IN RESPECT OF
THE IMPUGNED ORDER DATED 15/12/2023 PASSED IN
APPLICATION NO.4600/2023 (ANNEXURE-A).
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 13.03.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, RAJESH RAI.K, J., MADE THE
FOLLOWING:
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ORDER
The petitioner, in this writ petition, has challenged the legality and correctness of the order passed on the Application No.4600/2023 dated 15.12.2023 by the Karnataka State Administrative Tribunal, Bengaluru (for short 'Tribunal'), wherein the Tribunal has allowed the application filed by respondent No.4 and set aside the order bearing No.AaE/348/RaLePa/2023 dated 17.10.2023 issued by respondent No.1. Further, the Tribunal remitted the matter to respondent No.1 to take a decision afresh in the matter in the light of the observations made in the said order so also directed that respondent No.4 shall continue in the present place, till the decision taken by respondent No.1.
2. The facts that are apposite from the record, which are necessary for disposal of this writ petition, are as under:
Respondent No.4 herein was initially appointed as an Assistant controller on 01.03.2018 and subsequently, he was promoted as Deputy Controller vide order dated 26.07.2021 and posted as a Deputy Finance Officer, BBMP South Zone.
Respondent No.3-Karnataka State Police Housing and Infrastructure Development Corporation Limited is having a 4 separate C & R Rules 1995 and as per the said Rules, there is no sanctioned post of Chief Accounts Officer or Financial Advisor. As such, respondent No.3 has obtained a sanction of one Financial Advisor's post vide order dated 20.02.2002.
Thereafter, a post of Chief Accounts Officer was also sanctioned to respondent No.3 on 23.01.2003. However, provision is not made regarding mode of filling the said post.
There is no separate scale fixed to the said post. Therefore, whoever posted to the said post, they have to draw their own pay scale. Things stood thus, respondent No.4 was initially transferred as a Financial Advisor to respondent No.3 on 16.10.2021 and subsequently, the order was modified on 04.11.2021 by giving designation to him as Chief Accounts Officer in respondent No.3. Pursuant to the said order, a consequential order was passed on 19.11.2021 and respondent No.4 has taken charge as Financial Advisor on 20.11.2021.
3. Since several posts, which were temporarily sanctioned by the Government, is not incorporated in the C & R Rules, 1995 of respondent No.3, as such, respondent No.3 had sent a proposal to the Government for incorporating 5 those posts including Financial Advisor and Chief Accounts Officer for Proposed Amendment to the Schedule of the Existing Cadre and Recruitment Rules of Karnataka State Police Housing and Infrastructure Development Corporation Limited for the year 2021. The said proposal is yet to be approved. As per the proposed C & R Rules, the post of Financial Advisor is to be filled up by deputation from the State/Central Government Group-A services. As per the new proposal, minimum qualification is also prescribed, which is as under:
"A) Must be a Fellow Member of
(i) Institute of Chartered Accountants of India (ICAI) or
(ii) Institute of Cost Accountants of India (ICAI) erstwhile (ICWAI) or
(iii) Institute of Company Secretary of India (ICSI) AND Minimum 10 years of post qualification experience OR B) Full time Master of Business Administration (MBA) in Finance C) Minimum 20 years of experience"
Though this proposed amendment is not yet approved, respondent No.4 possess all the minimum qualification 6 prescribed therein and accordingly, holding the post of Financial Advisor in respondent No.3.
4. Such being the scenario, the petitioner herein, who was transferred as a Chief Financial Advisor to the Commissionerate of Rural Development MGNAREGA on 14.08.2023, is transferred to the place of respondent No.4 by order dated 17.10.2023. Respondent No.4 is in the cadre of Deputy Controller and the petitioner is in the cadre of Joint Controller. Both are Group-A government servants entitled to continue in the same place for a minimum period of two years. Respondent No.3 has written a letter to respondent Nos.1 and 2 on 06.09.2023 to continue the service of respondent No.4 for one more year.
5. Aggrieved by the notification dated 17.10.2023, respondent No.4 challenged the same before the Tribunal in Application No.4600/2023 and the Tribunal, after assessment of the documents placed before it so also after hearing both the parties to the lis, passed the impugned order dated 15.12.2023 by allowing the application as stated supra. Hence, the petitioner is before this Court. 7
6. We have heard Sri K.Satish learned counsel for the petitioner so also learned Senior counsel Sri D.R.Ravishankar for respondent No.3, learned Senior counsel Sri G.Papireddy for respondent No.4 and Sri Vikas Rojipura, learned AGA for respondent Nos.1 & 2 and perused the material on record.
7. Learned counsel for the petitioner would vehemently contend that the Tribunal erred while passing the impugned order in Application No.4600/2023 by holding that the petitioner is posted prematurely to the post of respondent No.4 in spite of respondent No.3 seeking extension of tenure of respondent No.4 for one more year. According to the learned counsel, respondent No.4 is in the cadre of Deputy Controller and is a Group-A officer. Therefore, the minimum tenure prescribed under the Transfer Guidelines dated 07.06.2013 for Group-A officer is two years. Respondent No.4 has taken charge as Financial Advisor in respondent No.3 on 20.11.2021. Such being the case, he has already been completed his tenure. Despite that, the Tribunal strangely allowed the application filed by respondent No.4. Learned counsel would further submit, by emphasising Annexure-A7 to 8 this writ petition, that mere sending a proposal by respondent No.3 to the Government for proposed amendment to the schedule for minimum qualification of Financial Advisor, designation to be changed as Executive Director Finance, would itself not give a right to respondent No.3 to claim that the Government has to post such qualified persons to the said post without there being any approval by the Government for the said proposed amendment and without implementing any Rules to that effect. He would further vehemence his argument that he had filed a memo dated 08.11.2023 before the Tribunal during the pendency of the application for disposal of the application on the ground that, respondent No.4 has been posted as a Deputy Controller, Office of the Director General, Karnataka State Audit and Accounts Department, Bengaluru and no challenge has been laid to the said order by respondent No.4. In such circumstances, the application filed by respondent N.4 becomes infructuous. However, the Tribunal lost sight on the said memo and passed the impugned order and thereby, committed irregularity.
8. In order to buttress his arguments, learned counsel for the petitioner relied on the decision rendered by 9 the Co-ordinate Bench of this Court in W.P.No.226457/2020 dated 11.11.2020 and argued that in similar circumstances, the Co-ordinate Bench of this Court held that by virtue of order of transfer, defective in posting to any post cannot be said that legal grievance regarding defective posting is sufficient to challenge the order of transfer. Further, he also relied on the law laid down by the Hon'ble Apex Court in the case of U.O.I. Through Govt. of Pondicherry and another vs. V.Ramakrishnan and others reported in AIR 2005 SC 4295, wherein it has held that though draft rules could not form the basis for grant of promotion, when Rules to the contrary is holding the field. Accordingly, he prays to allow the writ petition.
9. Refuting the above submissions made by the learned counsel for the petitioner, the learned Senior counsel Sri G.Papireddy for respondent No.4, by supporting the impugned order, would submit that the Tribunal passed the well reasoned order by setting aside the impugned order passed by respondent No.1 dated 17.10.2023 and thereby, remitted the matter to respondent No.1 to take a decision afresh in the matter in the light of the observations made in 10 the order. By enunciating his submission, he contends that respondent No.3 being satisfied with the functions discharged by respondent No.4, forwarded a letter dated 06.09.2023 to respondent No.1 to continue respondent No.4 in the said post for a period of one more year in the interest of the Institution. Moreover, respondent No.4 had not completed the maximum tenure and the petitioner has no eligibility to hold the post in respondent No.3 as per the minimum qualification fixed by them. In such circumstances, the Tribunal has rightly passed the impugned order, which does not call for any interference.
10. Learned Senior counsel Sri D.R.Ravishankar for respondent No.3 would vehemently contend that though the Proposed Amendment to the Schedule of the Existing Cadre and Recruitment Rules of Karnataka State Police Housing and Infrastructure Development Corporation Limited for the year 2021 is not yet approved by the Government, the same has already been sent to the Government by prescribing the minimum qualification to hold the post of Financial Advisor, designation to be changed as Executive Director Finance. He further submits that respondent No.4 possess all those minimum qualifications and in the same time, the petitioner 11 does not possess those qualifications prescribed therein. Such being the position, as per the law laid down by the Hon'ble Apex Court in the case of Jantia Hill Truck Owners Association vs. Shailang Area Coal Dealer and Truck Owner Association and Others reported in (2009) 8 SCC 492, even the Draft rules may be followed where no rules in accordance with the statutory provisions have been framed. He would also relied on the judgment rendered by the Hon'ble Apex Court in the case of Vimal Kumari vs. State of Haryana and Others reported in (1998) 4 SCC 114, wherein the Hon'ble Apex Court in paragraphs 6 and 8 held as under:
"6. The Draft Rules were prepared in 1983 and since then they have not been enforced. It is, no doubt, open to the Government to regulate the service conditions of the employees for whom the Rules are made by those Rules even in their "draft stage" provided there is clear intention on the part of the Government to enforce those Rules in the near future. Recourse to such Draft Rules is permissible only for the interregnum to meet any emergent situation. But if the intention was not to enforce or notify the Rules at all, as is evident in the instant case, recourse to "Draft Rules" cannot 12 be taken. Such Draft Rules cannot be treated to be Rules made under Article 309 of the Constitution and cannot legally exclude the operation of any existing executive or administrative instruction on the subjects covered by the Draft Rules nor can such Draft Rules exclude the jurisdiction of the Government, or for that matter, any other authority, including the appointing authority, from issuing the executive instructions for regulating the conditions of service of the employees working under them.
8. In the absence of any decision of the State Government that so long as the Draft Rules were not notified, the service conditions of the appellant or the respondent and their other colleagues would be regulated by the "Draft Rules" prepared in 1983, it was not open either to the Government or to any other authority, nor was it open to the High Court, while disposing of the writ petition, to invoke any of the provisions of those Rules particularly as the Government has not come out with any explanation why the Rules, though prepared in 1983, have not been notified for the long period of more than a decade. The delay, or rather inaction, is startling."
11. Learned Senior counsel for respondent No.3 also emphasised on the letter addressed by respondent No.3 to 13 the Government dated 06.09.2023 seeking extension of deputation of respondent No.4 for atleast one more year from 06.09.2023 to complete the ongoing schemes/projects in the Corporation in a time bond manner. The same was not considered by the Government and passed the impugned Transfer Notification dated 17.10.2023, which is not in accordance with law. He would further contend that the petitioner being posted to the Corporation on deputation basis, without consulting respondent No.3 i.e., the borrowing authority, caused great inconvenience to complete the ongoing projects due to lack of minimum qualification by the petitioner for the said post.
12. Additionally, he submits that as per the order passed by the Tribunal, respondent No.1 has to take a decision afresh in the matter of deputing any person to the post in respondent No.3 who possess the minimum qualification prescribed in the proposed amendment. In such circumstances, there is no infirmity forthcoming in the impugned order passed by the Tribunal. Accordingly, he prays to dismiss the writ petition by confirming the order passed by the Tribunal.
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13. Having heard the learned counsel for respective parties so also having perused the documents made available before us, the only point that would arise for our consideration is:
"Whether the order passed by the Tribunal requires any interference by this Court?"
14. On careful perusal of the proposal sent to the Government by respondent No.3 with the Proposed Amendment to the Schedule of the Existing Cadre and Recruitment Rules of Karnataka State Police Housing and Infrastructure Development Corporation Limited for the year 2021, the same depicts that in order to hold the post of Financial Advisor, one must possess the prescribed minimum qualification as stated supra. Admittedly, the petitioner herein does not possess such qualification. The same is not seriously disputed by the learned counsel for the petitioner. On the other hand, respondent No.4 has possessed the same. Though the said proposed amendment is not yet approved by the Government, as rightly contended by the learned Senior counsel for respondent No.3, as per the laid down by the Honb'bl Apex Court in Jantia Hill Truck Owners 15 Association's case supra, the Hon'ble Apex Court held that even the Draft rules may be followed where no rules in accordance with the statutory provisions have been framed. Nevertheless, respondent No.3 has forwarded the request letter to the Government as per Annexure-A11 requesting to continue respondent No.4 in the said post for atleast one more year to complete the ongoing scheme since he possess minimum qualification. In such circumstances, the endeavour of respondent No.3 could be gathered that the post of Executive Director Finance must be held by a person having minimum qualification.
15. As fairly submitted by the learned Senior counsel appearing for respondent No.3, the Corporation does not insist the Government to post any particular candidate to the said post. Per contra, they are ready to welcome any person who having the prescribed minimum qualification. Admittedly, the petitioner herein does not possess such qualification, their grievance is that the ongoing project cannot be completed and there will be much hindrance for the same if the petitioner is posted there.
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16. Learned counsel for the petitioner argued that the respondent No.4 being Group-A employee has already completed his tenure of two years and he has no right to continue in the said post and as such, the Government has rightly appointed the petitioner to the said post does not hold much water for the reason that the Tribunal, while allowing the application, remitted the matter to respondent No.1 to take a decision afresh after considering the say of respondent No.3 and also considering the letter forwarded by respondent No.3 to the Government dated 06.09.2023. After such consultation, if the Government comes to the conclusion that the petitioner is eligible candidate to hold the post, then the Government is at liberty to depute him to the said post.
17. Further, on perusal of the law laid down by the Hon'ble Apex Court in the case of U.O.I. Through Govt. of Pondhicherry's case supra, the same does not attracts to the facts and circumstances of the case on hand for the reason that, in the said case, the Hon'ble Apex Court held that draft rules could not form the basis for grant of promotion. Whereas, in the case on hand, the contention of respondent No.3 is that when the proposed amendment is placed before 17 the Government by prescribing minimum qualification to hold the post in question and admittedly, the petitioner does not possess such qualification, in such circumstances, we are of the view that the judgment relied by the learned counsel for the petitioner no way helpful to his case.
18. Learned Additional Government Advocate would submit that in view of the interim order passed by this Court, the Government has issued fresh notification dated 06.02.2024 and deputed the petitioner to the post of Additional Director to respondent No.3 and as such, respondent No.4 has to challenge the said notification since the same give rise to fresh cause of action. The said contention of learned AGA does not hold good for the reason that the said order was passed pursuant to the interim order passed by this Court during the pendency of this writ petition.
19. In view of the above discussion, we are of the view that the order passed by the Tribunal does not call for any interference and accordingly, we answer the point raised above in the negative and proceed to pass the following: 18
ORDER
i) The writ petition, being devoid of merits, is dismissed.
ii) It is needless to mention that the order dated 06.02.2024 passed by respondent No.2, in pursuance of the interim passed by this Court is set aside and the matter is remitted back to respondent No.1 to take a decision afresh, as directed by the Tribunal.
Sd/-
JUDGE Sd/-
JUDGE VM