Karnataka High Court
Shri P. Dinesh vs The State Of Karnataka on 7 September, 2023
Author: K.Somashekar
Bench: K.Somashekar
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NC: 2023:KHC:32351-DB
WP No. 16080 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
WRIT PETITION NO.16080 OF 2023 (S-KSAT)
BETWEEN:
SHRI P. DINESH
S/O SHRI PUJAPPA
AGED ABOUT 51 YEARS,
TAHSILDAR GRADE 1
BANGALORE SOUTH TALUK
KANDAYA BHAVAN,
K G ROAD,
BANGALORE 560 009.
RESIDING AT NO.3451,
5th CROSS, 10th MAIN,
INDIRANAGAR II STAGE,
BENGALURU - 560 038.
Digitally
signed by D ...PETITIONER
HEMA
(BY SHRI V.LAKSHMINARAYANA, SENIOR COUNSEL FOR
Location:
HIGH COURT SHRI HARISH V. S., ADVOCATE)
OF
KARNATAKA
AND:
1. THE STATE OF KARNATAKA
BY ITS SECRETARY TO GOVERNMENT
REVENUE DEPARTMENT
M.S BUILDING,
BENGALURU - 560 001.
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WP No. 16080 of 2023
2. SHRI SRINIVAS H
TAHSILDAR
KGF TALUK,
KOLAR DISTRICT.
...RESPONDENTS
(BY SHRI VIKRAM A HUILGOL, AAG ALONG WITH
SMT.SHILPA S. GOGI, AGA FOR R1;
SHRI PRITHVEESH M.H., ADVOCATE FOR R2)
THIS WRIT PETITION FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI OR SUCH OTHER WRIT OF APPROPRIATE NATURE AND
SET ASIDE THE IMPUGNED JUDGMENT PASSED BY THE KARNATAKA
STATE ADMINISTRATIVE TRIBUNAL BENGALURU, VIDE ORDER
DATED 20.07.2023 IN APPLICATION No.2354/2023 i.e.,
ANNEXURE-'B' AND CONSEQUENTLY ALLOW THE APPLICATION FILED
BY THE PETITIONER IN AP. No.2354/2023, BEFORE THE KARNATAKA
STATE ADMINISTRATIVE TRIBUNAL BENGALURU AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
ON 08th AUGUST 2023, COMING ON FOR PRONOUNCEMENT OF
ORDERS, THIS DAY, UMESH M ADIGA J, PASSED THE FOLLOWING:
ORDER
Petitioner in Application No.2354/2023 on the file of Karnataka State Administrative Tribunal, Bengaluru (hereinafter for short, referred as KSAT) has filed this writ petition seeking to quash the order passed in the said Application No.2354/2023 dated 20.07.2023. -3-
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2. Writ Petitioner has prayed the following reliefs in the present Writ Petition:
3. Brief facts of the case are that, petitioner is Junior Scale Officer in the Department of Religious and Charitable Endowments, which is equivalent to Tahsildar (Grade-I) in the Revenue Department. The Petitioner was posted as Tahsildar (Grade-I), Anekal Taluk, Bengaluru Urban District on deputation vide a Notification issued by Respondent No.1 bearing No.E-RD 63 ATS 2021 dated 26.02.2021 and the petitioner had reported to duty to the said post on 01.03.2021. Thereafter, petitioner was transferred from Anekal Taluk to Tahsildar (Grade-I), Bengaluru South Taluk vide Notification No.E-RD 146 ATS 2022, dated 13.09.2022. On 16.06.2023, Respondent No.1 issued impugned Notification bearing No.E-Kam.E.64 ATS 2023 repatriating the petitioner to his Parent Department and he was asked to report to his Parent Department and in his place, Respondent No.1 was transferred and posted. No posting orders was given to -4- NC: 2023:KHC:32351-DB WP No. 16080 of 2023 petitioners. The said Notification was challenged by the petitioner before the Karnataka State Administrative Tribunal in Application No. 2354/2023, urging various grounds. The KSAT, after hearing the matter, by impugned order dated 20.07.2023 rejected the application of petitioner, that is, challenged in the present writ petition on the grounds stated in the writ petition.
4. Respondent No.1 did not file any response to the petition before KAT. Respondent No.2 in his reply has contended that petitioner had been serving in the Revenue Department on deputation from the year 2017 and had worked in various posts, including post of Tahsildar, Anekal Taluk, Bengaluru Rural District, Bengaluru, Task Force and Tahsildar, Bengaluru South Taluk, Bengaluru. The petitioner has completed maximum tenure on deputation. Hence, he has no right to continue in the post of Tahsildar (Grade-I), Bengaluru South Taluk. The deputationist could be repatriated to their parent cadre at any point of time and they do not get any right to be -5- NC: 2023:KHC:32351-DB WP No. 16080 of 2023 absolve to the deputation post. The petitioner has completed the maximum tenure of two years as per the Transfer Guidelines. He has no right to be continued in the said post.
5. The contention of the petitioner that respondent No.2 is not competent to hold the post of Tahsildar (Grade-I) is not tenable in law. It is the decision of the Government which prevails. He has further contended that the petitioner has not alleged any malafide reasons for his transfer and also any hardship caused to him by the said transfer. Petitioner was not transferred but repatriated to his parent Department and he was ordered to go back to his parent Department. That does not amount to transfer. With these reasons, prayed to dismiss the petition.
6. The Tribunal, has rejected the petition mainly on the ground that he has already completed period of two years on deputation. Therefore, there is no any violation of the Government Order of the year 2013 and petitioner -6- NC: 2023:KHC:32351-DB WP No. 16080 of 2023 has no right to challenge transfer of Respondent No.2 to his position on the ground that he is not of the rank of Tahsildar (Grade-I), because, it is the right of the Government and moreover, the petitioner was serving in the Revenue Department on deputation, has no right to challenge the said orders. With these reasons, the Tribunal has rejected the petition by impugned order dated 20.07.2023.
7. We have heard the arguments of Shri.V.Lakshminarayana, learned Senior Counsel appearing for writ petitioner and Shri.Vikram A Huilgol, learned Additional Advocate General for State on behalf of Respondent No.1 and Shri.Prithveesh.M.H., learned Advocate for Respondent No.2.
8. The learned Senior Counsel Shri.V.Lakshmi- Narayana on behalf of the petitioner, has submitted that the petitioner had worked on in-charge basis from the year 2017 and it was for a very short period of few days. It was in-charge arrangements. During the course of the -7- NC: 2023:KHC:32351-DB WP No. 16080 of 2023 arguments, the learned Senior Counsel submitted that for first time, he was transferred on deputation by order dated 26.02.2021 as per Annexure-A8 and he was deputed as Tahsildar (Grade-I), Anekal Taluk, Bengaluru Urban District. Thereafter, by Annexure-A10, the Government by order dated 13.09.2022 transferred petitioner as Tahsildar (Grade-I), Bengaluru South Taluk, which was vacant post and within a period of about nine months, once again, he has been transferred and repatriated to report to his parent Department. The impugned Notification at Annexure- A12 is contrary to the Guidelines issued by the Government for Transfer and Deputation. Therefore, the said impugned order of transfer is illegal.
9. The learned Senior Counsel for petitioner has further submitted that the Guidelines prescribed in the Transfer Guidelines of the year 2013, were ignored while passing the impugned transfer order. Petitioner worked as Tahsildar (Grade-I), Bengaluru South Taluk only for a period of about nine months and not completed the period -8- NC: 2023:KHC:32351-DB WP No. 16080 of 2023 of two years. This fact was not at all considered by the Tribunal. As per the Transfer Guidelines produced at Annexure-A3, the Government could not have repatriated the petitioner to his parent department within a period of nine months. This point was not properly considered by the Tribunal. On the contrary, the Tribunal, without any basis, has observed that petitioner has completed period of two years on deputation, therefore, he cannot make any grievance about his transfer and repatriation to his parent department. The said finding is incorrect. The learned Senior Counsel has further submitted that Respondent No.2 is of the cadre of Tahsildar (Grade-II) and he has been transferred and posted to the cadre of Tahsildar (Grade-I), which is contrary to the law. He could not be posted to Tahsildar (Grade-I) and he is not competent and eligible to be placed to the said post. It is not the case of Respondent No.1 that the said transfer is under Rule 32 of the Karnataka Civil Services Rules. Therefore, the said transfer is illegal.
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10. The learned Senior Counsel further submits that as per the Deputation Guidelines of the year 1981, before taking any hands from other department, there should be consultation between the Secretaries and thereafter only, any officer belonging to the other department could be taken on deputation and the same procedure has to be followed while repatriating such an officer to the parent department and in this case, no such consultation was made by the concerned departments. Therefore, on this ground also, the said transfer is illegal. In support of his submissions, the learned Senior Counsel has relied on catena of judgments along with the list.
11. The learned Additional Advocate General appearing for the State has submitted that petitioner was taken on deputation and posted to the cadre of Tahsildar (Grade-I). Initially, he was posted to Anekal Taluk and thereafter, by order dated 13.09.2022, he was deputed to the post of Tahsildar (Grade-I), Bengaluru South Taluk,
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NC: 2023:KHC:32351-DB WP No. 16080 of 2023 which was vacant and his service is no more required to the Revenue Department, therefore, by impugned order date 16.06.2023, he was repatriated to parent department. Actually, it does not amount to any transfer.
12. The learned Additional Advocate General further has submitted that admittedly, petitioner is not belonging to Revenue Department and he is belonging to Religious and Endowment Department. He was posted as a Tahsildar (Grade-I), Bengaluru South Taluk on deputation. He has been on deputation as Tahsildar (Grade-I) in Anekal Taluk as well as Bengaluru South Taluk from the year 2021 as per Annexure-A8. He completed the tenure of two years of deputation during the month of February 2023. Thereafter, he has no right to claim protection under the Transfer Guidelines as per Annexure-A3, because his term is already completed. Considering these facts, the Tribunal has rightly rejected his petition and it does not call for any interference.
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NC: 2023:KHC:32351-DB WP No. 16080 of 2023 The learned Additional Advocate General further submits that the Tribunal has not wrongly calculated the period of deputation, on the contrary, in the impugned Judgment/Order passed by the SKAT, it is specifically mentioned that the period of in-charge arrangements made by the Government placing petitioner for a short period were not at all considered. Therefore, the submission of the learned Senior Counsel in this regard, contrary to the fact, is incorrect.
13. The learned Additional Advocate General has further submitted that petitioner is in the Revenue Department on deputation, therefore, he has no right or he cannot refuse to go back to his parent department when he is repatriated. Therefore, on this count, the petition itself is not maintainable. He has no right to challenge transfer of Respondent No.2 to his position. The learned Additional Advocate General has further submitted that undisputedly, the Secretary of the Revenue Department is also Secretary of Religious and Endowment
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NC: 2023:KHC:32351-DB WP No. 16080 of 2023 Department. Therefore, sending of requisition to Endowment Department, consultation of the secretary of the said Department and thereafter, posting the petitioner on deputation to the Revenue Department does not arise and hence, the petitioner cannot take shelter under the Transfer Guidelines of the year 1981 and contend that the repatriation order of petitioner to his parent department, is without consultation of concerned Secretary, does not hold any water.
14. The learned Additional Advocate General has further submitted that the impugned order of transfer and repatriation of petitioner to his parent department is in accordance with law. Transfer or cancellation of deputation is incidental to the appointment of any Government servant. Therefore, prayed to reject the contention of the learned Advocate for the petitioner. The learned Additional Advocate General has also submitted copy of the file pertaining to transfer orders passed dated 16.06.2023.
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15. The learned Advocate appearing for Respondent No.2 has submitted that petitioner is not belonging to Revenue Department and he is a lent hand from Religious and Charitable Endowments Department. Earlier, he was placed in-charge of Tahsildar (Grade-I), Benglauru South Taluk and Anekal Taluk. He has suppressed the said facts. He was deputed as Tahsildar (Grade-I) of Anekal Taluk by order dated 26.02.2021. Thereafter, he was deputed as Tahsildar (Grade-I), Benglauru South Taluk by order dated 13.09.2022 and by the impugned order, he is repatriated to his parent department. In the impugned order at Annexure- A12, he has not been transferred to any place and it is the parent department which has to give the posting to him in accordance with the Rule. In the impugned order passed by the KSAT, direction was issued to the Government to give him postings within a period of three weeks. Accordingly, the Government has issued Notification bearing No.Kom.E.102. Mu.Se.Vi.2023 dated 03.08.2023 posting him as Assistant Commissioner in the Religious and
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NC: 2023:KHC:32351-DB WP No. 16080 of 2023 Charitable Endowments Department, Office of the Deputy Commissioner, Benglauru Rural District. In view of the changed circumstances, petitioner has no right to challenge the impugned order.
16. The learned Advocate for Respondent No.2 has further submitted that as per Rule 8 of the Transfer Guidelines of 2013, maximum period of deputation shall be two years and the petitioner had completed the period of two years in February, 2023. Therefore, he cannot make any grievance against the repatriation order dated 16.06.2023. The learned Advocate for Respondent No.3 has also relied on the judgments rendered by this Court in support of his contentions and prays to dismiss the writ petition.
17. The learned counsel on both the sides relied on the judgments rendered by the Hon'ble Apex Court as well as the Co-ordinate Bench of this Court regarding transfer policy or sanctity of the Transfer Rules of 2013. In the impugned order, the KAT has relied on the judgment of
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NC: 2023:KHC:32351-DB WP No. 16080 of 2023 this Court rendered in the case of RABINDRANATH A HANCHINAL VS. STATE OF KARNATAKA AND OTHERS1 and K.T.SUBHAS CHANDRA Vs. THE COMMISSIONER OF COLLEGIATE EDUCATION DEPARTMENT AND OTHERS2. The Tribunal has not considered the said judgment on the ground that is not applicable to the facts of the case.
18. In the case of SRI PREM SINGH Vs. THE STATE OF KARNATAKA AND ANOTHER3 rendered by the Co-ordinate Bench of this Court, it is held that the Transfer Guidelines of the year 2013 has statutory force and violation of the said Guidelines amounts to violation of law and such transfers are illegal and should be interfered.
19. The judgment rendered by the Hon'ble Apex Court in the case of TEJSHREE GHAG AND OTHERS Vs. PRAKASH PARASHURAM PATIL AND OTHERS4 pertaining to transfer from one post to another non-equivalent post resulting in loss of pay and held that such transfers are 1 W.P.No.22647/2020 dated 11.11.2020 2 W.P.No.47197/2013 dated 17.12.2013 3 W.P.No.212920/2020 dated 28.02.2020 4 (2007) 6 SCC 220
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NC: 2023:KHC:32351-DB WP No. 16080 of 2023 contrary to law. The law laid down in the said judgment is not applicable to the facts of the present case. The learned Advocate for the petitioner has relied it to contend that transfer of Respondent No.2, who is in the cadre of Tahsildar (Grade-II), to the post of Tahsildar (Grade-I) as illegal and invalid. The said contention in the present petition is not tenable; because, the petitioner is not belonging to Revenue Department and he is lent hand from Religious and Charitable Endowments Department. The officer belonging to Revenue Department who is of Tahsildar (Grade-I), if replaced by Tahsildar (Grade-II), then, he may question such transfers. In the present case, the petitioner has been repatriated to his parent department for seeking posting. Therefore, the law laid down in the said judgment does not help him.
20. The petitioner has relied on the judgment rendered by the Hon'ble Apex Court in the case of SARVESH KUMAR AWASTHI Vs. U.P.JAL NIGAM AND
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NC: 2023:KHC:32351-DB WP No. 16080 of 2023 OTHERS5. In the said case, due to political pressure, the officer was transferred and repatriated to his parent department. Hence not relevant to facts of present case. Similarly, in the case of SRI RAJASHEKAR.M. Vs. THE STATE OF KARNATAKA AND OTHERS6, the Co-ordinate Bench of this Court has held that Transfer Guidelines has statutory force and shall be followed. In this case, repatriation of petitioner is not premature. Hence it does not help the petitioner.
21. In the case of SRI SHIVAPPA H LAMANI Vs. THE STATE OF KARNATAKA7 before the Karnataka State Administrative Tribunal, Benglauru, it is held that Tahsildar (Grade-I) cannot be replaced by Tahsildar (Grade-II). Posting of Tahsildar (Grade-II) to the post of Tahsildar (Grade-I) is not permissible.
22. In the case of SMT.P.V.POORNIMA VS. STATE OF KARNATAKA AND OTHERS8, the Co-ordinate Bench of 5 (2003) 11 SCC 740 6 W.P.No.45916 dated 13.11.2018 7 Application No.6146 of 2021 dated 24.01.2022 8 W.P.No.2661/2020 dated 29.07.2020
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NC: 2023:KHC:32351-DB WP No. 16080 of 2023 this Court held that transfers and postings frequently as per whims and fancies of executive head due to political pressure or other consideration and not in the public interest without any reasons are not tenable. That needs interference by the Courts.
23. In the case of SHRI KANTEPPA VS. THE STATE OF KARNATAKA AND OTHERS9, the Co-ordinate Bench of this Court has held that pre-mature transfer without assigning any valid reasons is impermissible.
24. In the case of SRI V G HITTALAMANI Vs. THE STATE OF KARNATAKA AND OTHERS10, the Co-ordinate Bench of this Court has held that the transfers of Government servants without postings are malafide or in blatant violation of the Guidelines of 07.06.2013 and are impermissible and such transfers are invalid and the Court has to interfere in such circumstances. 9 W.P.No.204826/2019 dated 29.05.2020 10 W.P.No.43919/2016
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NC: 2023:KHC:32351-DB WP No. 16080 of 2023 The above judgments are relied on by the learned counsel for the petitioner in support of his contentions.
25. In the case of KUNAL NANDA Vs. UNION OF INDIA AND ANOTHER11, the Hon'ble Apex Court has held that a deputationist cannot assert and succeed in his claim for permanent absorption in the department where he works on deputation, unless his claim is based upon a statutory rule, regulation or order having the force of law.
26. In the case of M.N.PUTTARAJU Vs. THE STATE OF KARNATAKA AND OTHERS12, the Co-ordinate Bench of this Court by relying on the judgment in the case of Kunal Nanda Vs. Union of India and another (referred supra) has held that the deputationist has no vested right and even if deputation is for a fixed period, the deputationist can be repatriated for reasons to be recorded and after affording an opportunity.
11
(2000) 5 SCC 362 12 W.P.No.26048/2022
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27. In the case of H.S.CHANDRASHEKAR VS. THE STATE OF KARNATAKA AND OTHERS13, the Co-ordinate Bench of this Court has held that when the order of deputation would specifically indicate that deputation of deputationist was "until further orders", in other words, deputation was not for any fixed term or period, no right is crystallized in favour of deputationist under the said order of deputation to contend that he is entitled to continue for a period of two years.
28. In the case of SRI M KEMPEGOWDA AND OTHERS Vs. THE STATE OF KARNATAKA AND ANOTHER14, the Co-ordinate Bench of this Court relying on the judgment of Kunal Nanda Vs. Union of India (referred supra), has held that deputationist has no vested right to continue for long on deputation or get absorbed in the department to which he had gone on deputation. 13
W.P.No.12528/2020 dated 24.11.2020 14 W.P.Nos.2783-2788/2018 dated 23.10.2018
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29. In the case of T.M.SHASHIKUMAR Vs. STATE OF KARNATAKA AND OTHERS15, the Co-ordinate Bench of this Court has held that the deputationist has assailed the order of repatriation on the ground that it was pre-mature and the said contention was rejected by this Court.
30. In the case of SRI RAVINDRANATH A HANCHINAL Vs. THE STATE OF KARNATAKA AND ANOTHER16, the Co-ordinate Bench of this Court with regard to posting of a lower cadre officer to the posting to higher cadre officer has held to be valid if the transfer is not made with a malafide intention and no materials are placed on record to demonstrate any malice in such posting.
31. In the case of Dr.K.T.SUBHAS CHANDRA Vs. THE COMMISSIONER OF COLLEGIATE EDUCATION DEPARTMENT AND OTHERS17, the Co-ordinate Bench of this Court has held that if there is no malice in transfer of a Government servant and transfers were made in the 15 W.P.No.26253/2019 dated 24.06.2019 16 W.P.No.226457/2020 dated 11.11.2020 17 W.P.No.47197/2013 and connected matters dated 17.12.2013
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NC: 2023:KHC:32351-DB WP No. 16080 of 2023 public interest, cannot be a ground for nullifying the transfer orders.
32. Similarly, Respondent No.2 has relied on the following judgments wherein it is held that deputationist has no right to seek for absorption or transfer of officers of the Government in the public interest:
1) B.B.M.P. Vs. State of Karnataka and others (W.P.No.5324/2023 and connected matters) decided on 31.03.2023;
2) Mahiboobsab Sab Vs. State of Karnataka and others (W.P.No.201907/2022) decided on 14.03.2023;
3) Y.A.Kale Vs. State of Karnataka and others (W.P.No.105079/2022) decided on 17.11.2022;
4) Sri M.B.Raju Vs. State of Karnataka and others (W.P.No.14286/2021) decided on 16.08.2022;
5) Sri Nagesh M.D. Vs. State of Karnataka and others (W.P.No.19132/2021) decided on 08.02.2022;
6) A.C.Rajanna Vs. State of Karnataka and others (W.P.No.17729/2021) decided on 09.11.2021;
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7) Shivaling Kondaguli Vs. State of Karnataka and others (W.P.No.26294/2012) decided on 03.08.2012;
8) Sri Venugopala M. Vs. State of Karnataka and others (W.P.No.26294/2012) decided on 03.08.2012;
9) Mohd.Masood Ahmad Vs. State of Uttar Pradesh and others reported in (2007) 8 SCC 150.
33. Let us consider the facts of the present case and application of the above said law to the facts of the present case. It is not in dispute that petitioner is a Group A of Junior Scale officer serving in the Religious and Charitable Endowments Department. His rank is equivalent to Tahsildar (Grade-I) of the Revenue Department. It is also not in dispute that while he was serving as Group-A officer in the Religious and Charitable Endowments Department, he was given additional charge of Tahsildar (Grade-I) of Bengaluru South Taluk from 25.07.2017 to 03.08.2017 and in another interval, he was again placed in-charge of the said post from 20.08.2017 to 06.10.2017;
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NC: 2023:KHC:32351-DB WP No. 16080 of 2023 he was again placed in-charge of Tahsildar, Anekal Taluk from 29.11.2017 to 31.08.2018; Again, he was placed in additional charge of Tahsildar, Anekal Taluk from 17.03.2018 to 23.06.2018.
34. Transfer and posting of petitioner on deputation vide Notification bearing No.E-RD 63 ATS 2021 dated 26.02.2021 is produced at Annexure-A8. According to the said Notification, he was deputed to the post of Shri.C.Mahadevaiah, Tahsildar (Grade-I), who was retiring, in Anekal Taluk of Bengaluru Urban District due to superannuation. The said deputation was from the date of Notification till further orders. It is the not the case of petitioner that while deputing the petitioner to the said post, there was any consultation between the Secretaries of Revenue Department as well as the Religious and Charitable Endowments Department. It is also pertinent to note that no specific period was mentioned to post him on deputation. Reading of Annexure-A8, indicates that since Tahsildar of said Taluk has retired and there was no
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NC: 2023:KHC:32351-DB WP No. 16080 of 2023 hands to post immediately and hence in the interest of public, he was deputed to the said position. It appears, without any grievance, petitioner occupied the said position and served as Tahsildar (Grade-I), Anekal Taluk of Bengaluru Urban District.
35. The government has issued another Notification bearing No.E-RD 146 ATS 2022 dated 13.09.2022. By the said Notification, the petitioner was transferred from the post of Tahsildar (Grade-I), Anekal Taluk of Bengaluru Urban District to the vacant post of Tahsildar (Grade-I), Bengaluru South Taluk. The learned Senior Counsel for the petitioner submits that posting of petitioner to Tahsildar (Grade-I) of Bengaluru South Taluk is a transfer and not deputation. The said submission is not acceptable for simple reason that admittedly, he was not belonging to Revenue Department in the cadre of Tahsildar (Grade-I). On the contrary, he was a Group-A officer serving in Religious and Charitable Endowments Department; It appears that the Authority who issued Annexure-A10 did
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NC: 2023:KHC:32351-DB WP No. 16080 of 2023 not mention that it was a "deputation". Only due to absence of such word "deputation" cannot be reason to hold that it was transfer and not deputation.
36. It is also pertinent to note that even though the petitioner was transferred within a period of one year and six months, he had no grievance about the said transfer from one place to another place, which was not in accordance with the Transfer Guidelines of the year 2013. The deputation/transfer order of the petitioner vide Annexure-A10, was not with consultation of Secretaries of Religious and Charitable Endowments Department and Revenue Department. The petitioner has not produced any proceedings in this regard.
37. By the impugned Notification at Annexure-A12 dated 16.06.2023, the Respondent No.2 is transferred to the post of Tahsildar (Grade-I), Bengaluru South Taluk in place of petitioner and petitioner was repatriated to his parent department. The said Notification was issued by the under Secretary, Revenue Department (Services-III).
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38. It appears during the interregnum period, the Government had issued Karnataka Civil Services (General Recruitment) (amendment) Rules, 2021 vide Notification bearing No.DPAR 179 SRR 2020 dated 30.07.2021, wherein an amendment was made to the Rules, stating that the officer belonging to the other Department cannot be posted as Tahsildar (Grade-I) and Tahsildar (Grade-II) of Revenue Department. The said Notification was challenged by the petitioner herein along with some others, before the KSAT in Application Nos.3733, 3734, 3728, 3731 and 4005 of 2021. The KSAT after hearing both the sides, by the order dated 27.11.2021 held that the said amendment would be prospective, that is, would come into effect from the date of Notification and not applicable to the deputation orders passed prior to the said Notification. It appears that in view of the said orders, the deputation of petitioner herein was continued.
39. The main contention of the learned Senior Counsel for the petitioner is that the repatriation order
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NC: 2023:KHC:32351-DB WP No. 16080 of 2023 passed by the Government as per Annexure-A12 is contrary to the provisions of Circular bearing No.DCA 16 ARB 81 dated 18.11.1981 issued by the Government of Karnataka. According to which, before posting of an officer on deputation belonging to one department (lending department) to another department (borrowing department), heads of both departments shall be consulted and posting order shall be made. Similarly, before repatriation of officers on deputation to his home department. There shall be prior consultation and agreement between both departments. In this case, said rule is not followed. Therefore, the said repatriation order passed by Revenue Department is without consultation of the Secretary of the Religious and Charitable Endowments Department and hence is void and illegal.
40. It is the contention of the respondents that as on the date of issue of Annexure-A12, the Secretary of the Revenue Department as well as the Secretary of the Religious and Charitable Endowments Department is one
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NC: 2023:KHC:32351-DB WP No. 16080 of 2023 and the same person. Therefore, separate consultation was not required. Even at the time of initial deputation of petitioner to the Revenue Department, no such consultation was made and he had not aggrieved by the same. Therefore, now, he cannot make any grievance on the ground that there was no consultation between the two departments before repatriating him to the parent department. Moreover, he had not shown any prejudice in this regard. Hence, question of posting of repatriation order against rules does not arise. The submission of the learned Advocate for the respondents and the learned Additional Advocate General is tenable. When the Secretary of both the Departments are the one and the same person; the question of consultation do not arise and said Secretary had passed the impugned transfer orders, repatriating the petitioner to his parent department. The Government has not violated the said Circular dated 18.11.1981. Therefore, on this count, Annexure-A12 cannot be held to be invalid.
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NC: 2023:KHC:32351-DB WP No. 16080 of 2023
41. It is a submission of the learned Senior Counsel for petitioner that petitioner was deputed by Notification dated 26.02.2021 to the post of Tahsildar (Grade-I), Anekal Taluk, Bengaluru Urban District. Thereafter, he was transferred to Bengaluru South Taluk by Notification dated 13.09.2022 and by impugned Notification dated 16.06.2023 he was repatriated to parent department within period of two years from Annexure-A10. Therefore, it is pre-mature transfer.
42. The learned Additional Advocate General and the learned counsel for Respondent No.2 have submitted that petitioner was transferred on deputation by Notification dated 26.02.2021 and for a short period, he worked as a Tahsildar (Grade-I) of Anekal Taluk and thereafter, he was deputed to the post of Tahsildar (Grade-I), Bengaluru South Taluk. The said period of deputation commences from dated 26.02.2021 and hence, as on the date of impugned Notification dated 16.06.2023 as per Annexure-A12, he had completed period of two
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NC: 2023:KHC:32351-DB WP No. 16080 of 2023 years and four months, the same fact was discussed in the impugned order by the KSAT. Petitioner had completed period of two years of deputation. Therefore, he cannot make any grievance against his repatriation to the parent department.
43. The submission of the learned Additional Advocate General is tenable. Annexure- A8, by which, petitioner was deputed as Grade-I Tahsildar of Anekal Taluk, Bengaluru Urban District, due to retirement of Tahsildar (Grade-I) of Anekal Taluk. It appears, he worked in the said post till 13.09.2022. He worked as Tahsildar (Grade-I), Anekal Taluk for a period of about one year and six months. And by Annexure-A10, he was transferred as Tahsildar (Grade-I), Bengaluru South Taluk, wherein he had worked till his transfer as per Annexure-A12 dated 16.06.2023, that is for a period of nearly about 8 to 9 months. Therefore, petitioner was on deputation as Tahsildar (Grade-I) from 26.02.2021 to 16.06.2023. In all, he has completed a period of more than two years on
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NC: 2023:KHC:32351-DB WP No. 16080 of 2023 deputation though it consist of two places in the same District. Considering the same, the KSAT has held that petitioner has completed tenure of two years on deputation and hence, not interfered in the order of transfer. We do not find any error in the said findings.
44. In Annexure-A3 i.e., transfer policy dated 10.06.2013, Rule 6B says that the maximum period of deputation to a particular post shall be five years at a time. It is submitted by the learned counsels for both side that the said period of five years has been reduced to two years, in case of Government servants belonging to Group-A. In terms of the said Rule, the petitioner has already completed period of two years on deputation, as Tahsildar (Grade-I), though it may be in the two places. It is also pertinent to note that in the previous posting as Tahsildar (Grade-I) of Anekal Taluk, he had worked only for a period of 1½ years and he was transferred on deputation to the post of Tahsildar (Grade-I), Bengaluru South Taluk, before completion of period two years. The
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NC: 2023:KHC:32351-DB WP No. 16080 of 2023 petitioner had no grievance about the said transfer and he did not challenge the same. It appears, petitioner did not like his repatriation to his home department, therefore, he did challenge the same. Petitioner has not approached the Court with clean hands. When the transfers or deputation orders were in his favour or he got favourable places, he did not challenge it, though the said transfers/deputation were in-contravention of the provision of transfer orders dated 10.06.2013.
45. In Annexure-A3 dated 10.06.2013 Rule 6(B)-II reads as under: (We quote) "Unless suitable person is not available to fill up a particular post in a department as per the Cadre and Recruitment Rules of that department, no government servant shall be deputed to such posts from other departments. Such deputation made if any, shall be reviewed every year and the deputationist shall be repatriated to the parent department soon after the availability of suitable departmental officers to hold that post."
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NC: 2023:KHC:32351-DB WP No. 16080 of 2023 The above said Rule is rider to the Rule 6(B) i.e., regarding maximum period of deputation. The above said Rule clearly indicates that a person who was transferred or posted on deputation, cannot claim any right to hold that post to a particular period; if an officer is available in the concerned department, such offices shall be posted to such places/posts.
By the impugned Notification Respondent No.2, who is belonging to Revenue Department, has been posted to the place of petitioner and petitioner is repatriated to his parent department. The said transfer is not against Transfer Guidelines of 2013.
45. The next main contention of the learned Advocate for petitioner is that Respondent No.2 is in the cadre of Tahsildar (Grade-II) and the cadre of petitioner is Tahsildar (Grade-I). As per the Government orders, a lower cadre officer cannot be transferred to a post of higher cadre officer. Therefore, posting of Tahsildar (Grade-II) in the place of Tahsildar (Grade-I) is illegal. In
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NC: 2023:KHC:32351-DB WP No. 16080 of 2023 the view of the same, the impugned transfer Notification is against the law. Hence, needs to be quashed.
46. The learned Additional Advocate General has submitted that petitioner is deputationist and his cadre is equivalent to Tahsildar (Grade-I). He is not belonging to Revenue department. Therefore, he cannot make any grievance about competence of Respondent No.2 to be transferred to the place of petitioner. It is further submitted that the Government or the affected officers by the said posting may challenge the same. Petitioner is repatriated and posted to his parent department, who has to give posting to the petitioner. During pendency of the petition before the SKAT, posting order was given by the Government to the petitioner and posted him to the office of the Deputy Commissioner, Bengaluru Urban District and said posting order appears to be given, in view of the directions given by the SKAT by the impugned order and hence, the order of cancellation of deputation or
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NC: 2023:KHC:32351-DB WP No. 16080 of 2023 repatriation of the petitioner to his parent's department cannot be invalid.
47. The submission of learned Additional Advocate General is acceptable. Petitioner was serving in Revenue Department on deputation. He has no right to continue in the said cadre, according to his whims and fancies. It is desire of the Government; moreover, he cannot question the competence of Respondent No.2 to hold the post of Tahsildar (Grade-I). The affected officer belonging to Revenue Department may challenge the posting of a lower cadre officer to the higher post, when it was not under Section 32 of Karnataka Civil Service Rules. On the basis of the said contention, the impugned order cannot be held illegal. Similarly, finding of the SKAT in this regard by the impugned order, does not call for any interference.
48. Under Article 227 of the Indian Constitution, this Court has got supervisory power on the Tribunals. This Court can interfere in the findings of the Tribunal only if it is perverse, arbitrary, illegal and against the provisions of
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NC: 2023:KHC:32351-DB WP No. 16080 of 2023 the law. But the Tribunal has considered the facts in issue and contention of both the parties and rightly held that there is no illegality or arbitrariness in the impugned transfer order, as per Annexure -A12. Petitioner appears to be deputed under Annexure-A8 due to compelling reasons of retirement of the Tahsildar during the month of February 2021. Thereafter, he was transferred on deputation to the post of Tahsildar (Grade-I), Bengaluru South Taluk and petitioner has not contended any malice or malafide reasons for his transfer from one post to another post. It is not his case that due to political pressure, Respondent No.2 was transferred to his place. Even he did not refer about his difficulties due to the said transfer. It is not his case that due to the issuing of such order as per Annexure-A12, his personal life and family life has been seriously affected. Under these circumstances, the Government under the sovereign power and also for proper administration of the departments and in the public interest has cancelled his deputation and repatriated him to his parent department. We cannot find fault with the
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NC: 2023:KHC:32351-DB WP No. 16080 of 2023 said reasons to interfere in the said findings of the SKAT, in the Petition No.2354 of 2023 dated 20.07.2023. Moreover, during pendency of the petition, posting is given to petitioner by his Parent Department and he appears to be reposted to duty. Hence, cause of action may not survive. Accordingly, we pass the following:
ORDER I. Writ Petition is dismissed.
II. The impugned order passed by the Karnataka State Administrative Tribunal in Petition No.2354 of 2023 dated 20.07.2023 is confirmed.
Sd/-
JUDGE Sd/-
JUDGE DH