Karnataka High Court
Shri. T. Thimme Gowda vs The State Of Karnataka on 17 February, 2014
Author: B.S.Patil
Bench: B.S.Patil
WP 59321/2013
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF FEBRUARY, 2014
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.No.59321/2013 (S-TR)
BETWEEN:
Shri T.Thimme Gowda,
S/o Sri Thimme Gowda,
Aged about 58 years,
Chief Engineer (South),
Karnataka Urban Water Supply
and Drainage Board,
Jalbhavan, No.6, 1st Stage,
1st Phase, BTM Layout,
Bannerghatta Road,
Bangalore - 560 029. ... PETITIONER
(By Sri Madhusudhan R.Naik, Sr. Counsel for
Sri B.B.Bajentri, Adv.)
AND:
1. The State of Karnataka,
Represented by its Principal Secretary,
Urban Development Department,
Vikas Soudha,
Bangalore - 560 001.
2. The Managing Director,
Karnataka Urban Water Supply
and Drainage Board,
Jalbhavan, No.6, 1st Stage,
1st Phase, BTM Layout,
Bannerghatta Road,
Bangalore - 560 029.
WP 59321/2013
2
3. Sri M.Rangadhamaiah,
Major,
Executive Engineer (Selection Grade),
Under order of appointment as
incharge Chief Engineer
(Rule 32 of the KCSRs)
Karnataka Urban Water Supply
and Drainage Board,
Jalbhavan, No.6, 1st Stage,
1st Phase, BTM Layout,
Bannerghatta Road,
Bangalore - 560 029. ... RESPONDENTS
(By Sri T.L.Kiran Kumar, AGA for R-1;
Sri S.G.Pandit, Adv. for R-2;
Sri P.S.Rajagopal, Sr. Counsel for
Sri Naga Prasanna.M., Adv. for C/R-3)
This writ petition is filed under Articles 226 & 227 of the
Constitution of India, praying to quash the proceedings dated
26.12.2013 issued by the 1st respondent vide Annexure-D.
This petition having been heard and reserved for orders
on 23.01.2014, coming on for 'Pronouncement of Order' this
day, the Court made the following:
ORDER
1. Petitioner is working as Chief Engineer in the Karnataka Urban Water Supply and Drainage Board, Bangalore (for short, 'the Board'), having been appointed as such on 09.12.2013. In this writ petition, he is questioning the legality and correctness of the order dated 26.12.2013 issued by the State Government, by which he is transferred from the post in which he was working as Chief Engineer (South), Bangalore, with a direction to report to the Managing Director of the 2nd respondent-Board WP 59321/2013 3 until further orders for his posting. In his place, the 3rd respondent - M.Rangadhamaiah working as Chief Engineer, Karnataka Urban Water Supply and Drainage Board, Gulbarga, on independent charge is transferred and posted with immediate effect. This order dated 26.12.2013 which is produced at Annexure-D is called in question in this writ petition.
2. Facts, briefly stated, reveal that the petitioner was appointed as Assistant Engineer in the 2nd respondent-Board. He was promoted to the cadre of Assistant Executive Engineer and later on as Executive Engineer and thereafter, as Chief Engineer. In fact, the promotion of the petitioner as Chief Engineer is evidenced by Annexure-A - order dated 09.12.2013. As is clear from Annexure-A, another person by name G.M.Madegowda was also promoted as Chief Engineer and posted as Chief Engineer (North), Dharwad, whereas the petitioner was promoted as Chief Engineer (South), Bangalore. The 3rd respondent - M.Rangadhamaiah was also working as Executive Engineer in the 2nd respondent-Board along with the other two persons who are now promoted as Chief Engineers. He was placed in charge of the post of Chief Engineer, WP 59321/2013 4 Gulbarga, on independent charge under Rule 32 of the Karnataka Civil Service Rules (for short, 'KSCR').
3. It is thus clear that while the petitioner and his other colleague G.M.Madegowda were appointed on promotion as Chief Engineers, the 3rd respondent - M.Rangadhamaiah was placed in charge of the post of Chief Engineer under Rule 32 of the KCSR. It is not in dispute that this promotion was effected pursuant to the recommendation made by the Departmental Promotion Committee (for short, 'DPC'). The 3rd respondent has been placed in independent charge of the post of Chief Engineer under Rule 32 of the KCSR in view of the pendency of the request of one Krishnamurthy for consideration. The said Krishnamurthy has sought for retrospective promotion towards backlog vacancies, as is evident from the recommendation of DPC, which is placed before the Court along with a memo filed by the petitioner.
4. On 08.01.2014, the Managing Director of the 2nd respondent-Board has passed an order fixing the payscale in the promoted post of the promotees. It is also evident from this order passed by the Managing Director that the petitioner and his colleague G.M.Madegowda reported to duty on 10.12.2013 WP 59321/2013 5 as Chief Engineers and therefore, it was necessary to fix their payscale in the promoted post. This order dated 08.01.2014 is also produced along with a memo dated 16.01.2014 by the petitioner.
5. The problem has arisen leading to the filing of this writ petition due to the subsequent development that has taken place on 26.12.2013 by which the State Government has displaced the petitioner from the post of Chief Engineer (South) to which he was posted on promotion on 09.12.2013 and reported on 10.12.2013. This displacement of the petitioner was brought about barely within 15 days from the date of his posting, so as to accommodate the 3rd respondent to the post of Chief Engineer (South), Bangalore, held by the petitioner. It is in this background the petitioner has come up with the allegations against the 3rd respondent stating that he managed with the Government and got the posting as Chief Engineer (South), Bangalore, displacing the petitioner.
6. The main contention urged by Mr. M.R.Naik, learned Senior Counsel appearing for the petitioner is, that the appointment of 3rd respondent being under Rule 32 of KCSR, it has to be in respect of a vacant post. He was appointed against WP 59321/2013 6 a vacant post at Gulbarga. The impugned order now passed posting the 3rd respondent in the place of the petitioner who is duly promoted and has been discharging his duties as Chief Engineer (South), Bangalore was contrary to Rule 32 of KCSR. In support of this contention he has placed reliance on the decision of the Division Bench of this Court in the case of RAGHURAM SHETTY VS THE STATE & OTHERS -
W.P.No.14393/2012 disposed of 07.06.2012. It is further contended by him that the 3rd respondent who has been appointed to hold independent charge as Chief Engineer at Gulbarga under Rule 32 of KCSR has disobeyed the said order by not reporting to duty there. In such circumstance, the State Government, instead of taking action against the 3rd respondent for violating the order passed by the Government, has rewarded him with a posting to the place of his choice by displacing the petitioner, which is patently arbitrary. It is also urged by him that the impugned order has been passed to accommodate the 3rd respondent and not due to administrative reasons or in the interest of public. He has urged that original records pertaining to the transfer maintained by the 1st respondent, if perused, will clearly disclose that the impugned transfer was effected only to WP 59321/2013 7 favour the 3rd respondent who has exerted pressure on the authorities and hence it suffers from legal mala fides.
7. Mr. P.S.Rajagopal, learned Senior Counsel representing the 3rd respondent contends that no mala fides are alleged in the writ petition by impleading any particular person in his individual capacity. He refers to the scheme of the Karnataka Urban Water Supply & Drainage Board Act, 1973 (Act No.25 of 1974) (for short, 'the Act'), to contend that the State Government has acted without jurisdiction in making appointments by promotion of the petitioner and another person by name G.M.Madegowda and as also the 3rd respondent on independent charge under Rule 32 of KCSR to the posts of Chief Engineers. He urges that as per Section 9 of the said Act, it is the Board which is competent to appoint any person to the post of Chief Engineer with the previous approval of the Government. He therefore contends that the State Government has acted without authority in making the appointments. Hence, the order of appointment produced at Annexure-A, itself is void and unenforceable. He also refers to the regulations known as Karnataka Urban Water Supply and Drainage Board Service (Cadre & Recruitment) Regulations, WP 59321/2013 8 1985 (for short, 'the Regulations), particularly to Regulation No.11(iii) to contend that the Managing Director shall be the appointing authority for Group A & B Posts. As per Regulation No.29(v), the Government is entitled to constitute a Departmental Promotion Committee for promotion of the Board officers. It is his submission that although the State Government is entitled to constitute the DPC, once DPC recommends appointment of an officer to the post of Chief Engineer, the matter has to go to the Board and it is the Board which has to appoint the officer concerned as Chief Engineer by obtaining prior approval of the State Government. Thus, he contends that the entire exercise done by the State Government is without jurisdiction and hence, the first order produced at Annexure-A itself is without jurisdiction. If that is so, it is urged by Mr. Rajagopal that the second order which is based on the first order cannot alone be set aside, as otherwise, it will result in this Court enforcing a void order passed without jurisdiction as per Annexure-A. In support of this contention, he has placed reliance on the following judgments:
(i) ILR 1999 KAR 517 - VENKATESH PILLAI VS STATE OF KARNATAKA & OTHERS;WP 59321/2013 9
(ii) (2003)7 SCC 403 - STATE OF RAJASTHAN & OTHERS VS ANAND PRAKASH SOLANKI.
8. He has further placed reliance on the judgment in the case of RHONE-POULENC (INDIA) LTD. VS STATE OF U.P. & OTHERS - (2000)7 SCC 675, to contend that an invalid order cannot be validated by subsequent acquiescence. Reliance is also placed on the judgment in the case of RAJ KUMAR SONI & ANOTHER VS STATE OF U.P. & ANOTHER - (2007)10 SCC 635, to urge that an administrative order will not be set aside by this Court merely because there was breach of natural justice, especially if the same had the effect of reviving an illegal or void order. Reliance is also placed by him on the judgment in the case of SUSHIL KUMAR MEHTA VS GOBIND RAM BOHRA (DEAD) THROUGH HIS LRS - (1990)1 SCC 193, to contend that as held by the Apex Court, it is a well established principle that a decree passed by the Court without jurisdiction is a nullity and the plea can be set up whenever and wherever the decree is sought to be enforced or relied upon, and even at the stage of execution or any collateral proceedings. Such defect of jurisdiction strikes at the authority of the Court to pass a decree which cannot be cured by consent or waiver of the party. He has also placed reliance on the judgment in the case of WP 59321/2013 10 KENDRIYA VIDYALAYA SANGATHAN & OTHERS VS AJAY KUMAR DAS & OTHERS - (2002)4 SCC 503, to urge that where appointments of candidates had been made by an officer who was terminated from service after holding inquiry and such appointments being a nullity, question of observing principles of natural justice would not arise. Reliance is also placed on the judgment in the case of ASHOK KUMAR SAHU VS UNION OF INDIA & OTHERS - (2006)6 SCC 704, to contend that an order passed by the authority without jurisdiction would be non-est in the eye of law. Mr. Rajagopal, therefore, submits that as Annexure-A is a void order, a subsequent order impugned in this writ petition produced at Annexure-D is also illegal. Hence, both the orders deserve to be quashed and the competent authority, viz., the Board will have to exercise its powers based on the recommendation made by the DPC for making appointments, of course with the prior approval of the State Government.
9. In reply, Mr. M.R.Naik strongly submits that nobody has challenged the orders of appointment by promotion effected vide Annexure-A by the State Government. There is no finding recorded by any authority that Annexure-A order is a void WP 59321/2013 11 order, nor the petitioner is enforcing Annexure-A order because nobody denied him the benefit of promotion as per Annexure-A. He therefore submits that the 3rd respondent cannot request the Court to quash the orders of promotion given to the petitioner. He urges that the order at Annexure-A is not void and even if there is some irregularity, this Court cannot embark upon an inquiry into the legality or correctness of the order which is not challenged. He also submits that the 3rd respondent has already filed a writ petition challenging Annexure-A - order and it is open to him to pursue the said remedy. He further urges that a void order also binds unless it is set aside by a competent court or authority. In this regard, he has placed reliance on the following judgments.
(i) KRISHNADEVI MALCHAND KAMATHIA & OTHERS -
(2011)3 SCC 363;
(ii) STATE OF KERALA VS M.K.KUNHIKANNAN
NAMBIAR MANJERI MANIKOTH, NADUVIL (DEAD) &
OTHERS - (1996)1 SCC 435;
(iii) TAYABBHAI M.BAGASARWALLA & ANOTHER VS
HIND RUBBER INDUSTRIES PVT. LTD. & OTHERS -
(1997)3 SCC 443;
(iv) SNEH GUPTA VS DEVI SARUP & OTHERS - (2009)6
SCC 194;
WP 59321/2013
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(v) MEENAKSHI & OTHERS VS METADIN AGARWAL -
(2006)7 SCC 470.
10. He also contends that a party if aggrieved by the invalidity of an order, has to approach the Court for the relief of declaration that the order against him is inoperative and therefore not binding upon him. Reliance is placed by him in this regard on the judgment of the Apex Court in the case of STATE OF PUNJAB & OTHERS VS GURDEV SINGH - 1991(4) SCC
1. Reliance is also placed on the judgment of the Apex Court in the case of SULTAN SADIK VS SANJAY RAJ SUBBA - AIR 2004 SC 1377, to contend that once an order is declared as non-est by the Court, only then the judgment of nullity will operate in respect thereof. He has further contended that the Managing Director has re-fixed the payscale of the petitioner, which disclosed that he has acted on the basis of the appointments made. He points out that as per the Board resolution dated 20.02.2010, power to appoint by way of promotion to Group A posts is delegated to the Managing Director and hence, the action of the Managing Director in fixation of payscale of the petitioner in the promoted post shows that the appointing authority has accepted the petitioner as duly promoted, even WP 59321/2013 13 assuming but not conceding that the State Government had no authority to make the appointment.
11. Having heard the learned Counsel for the parties and on perusal of the entire materials on record, it is evident from the facts that the 3rd respondent was appointed as Chief Engineer under Rule 32 placing him in charge of the said post and was posted to the vacant post at Gulbarga. In terms of Rule 32 of the KCSRs, the condition precedent for appointing a Government servant under the said Rule is that the post must be vacant. In fact while interpreting the said Rule, a Division Bench of this Court in W.P.No.14393/2012 disposed of on 07.06.2012 and W.P.No.17097/2012 c/w other cases disposed of on 05.09.2012 has held that if there is no vacancy, the Government cannot create a vacancy by transferring the incumbent, in as much as, appointment under Rule 32 postulates that a person is put in charge of a vacant post as he possesses the requisite qualification to be promoted to the said post. In paragraph 7 of the second of the judgments referred to above, the Division Bench has clearly observed that there is no power vested in an authority to appoint a person under Rule 32 by transferring him to another post held by another official. It is WP 59321/2013 14 further held in the said judgment that a vacancy cannot be created by transferring the incumbent to another office so as to place the Rule 32 appointee in charge of the said post.
12. In the instant case, there is no dispute about the fact that the petitioner was promoted as Chief Engineer on 09.12.2013 along with another person by name M.Madegowda and he was posted as Chief Engineer (South), Bangalore. The 3rd respondent was placed in charge of the post of Chief Engineer, Gulbarga, under Rule 32, which was apparently vacant. He did not join the post at Gulbarga, whereas the other two promotees on officiating basis joined their posts at Bangalore and Dharwad, respectively, on 10.12.2013 as is evident from Annexure-B.
13. Strangely, by the impugned notification dated 26.12.2013, the 1st respondent - State Government transfers the petitioner from his post as Chief Engineer (South), Bangalore, to report to the Managing Director, Karnataka Urban Water Supply and Drainage, Bangalore, and await posting, only to create a vacancy for the 3rd respondent to be posted there, by way of transfer from Gulbarga to Bangalore. Therefore, what could not be achieved while making the initial WP 59321/2013 15 appointment under Rule 32 is sought to be done by issuing the impugned notification within two weeks from the date of the appointment of the 3rd respondent. This action is apparently arbitrary and is in violation of Rule 32 of KCSRs.
14. Indeed, the only reason to effect such transfer is the note sent by the Chief Minister to the Principal Secretary, Department of Urban Development, which is found in the original records made available. Why such recourse was necessary is not forthcoming from the said note as well. At any rate, such a transfer is impermissible in terms of Rule 32 as understood and interpreted by the Division Bench in the two judgments referred to above. Therefore, on this ground alone, the impugned notification deserves to be set aside.
15. However, the learned Senior Counsel appearing for the 3rd respondent has raised a question urging that the initial order of promotion itself was without jurisdiction and therefore, this Court should not interfere with the impugned notification as otherwise it will result in resurrecting an order passed without jurisdiction.
WP 59321/201316
16. Admittedly, the 3rd respondent has filed another writ petition challenging the order of promotion promoting petitioner herein and one Madegowda as Chief Engineers and placing the 3rd respondent as in charge of the post of Chief Engineer under Rule 32. The other promotee - Madegowda is not a party to this writ petition. Any order to be passed with regard to the validity of the promotion given vide Annexure-A - notification dated 09.12.2013 will have to be after hearing the said promotee - Madegowda. This Court cannot embark upon the question regarding the validity of Annexure-A - order in the absence of Madegowda who is also the beneficiary under the said order.
17. This writ petition is confined to the consideration of the validity of Annexure-D - order. It will be open to the 3rd respondent to pursue his writ petition, wherein he has laid a proper challenge to the promotions given to the petitioner and the said Madegowda.
18. The main reason why the learned Counsel for the respondent requests the Court not to interfere with the impugned order is, that if such a course is adopted, the order of promotion which itself is passed without jurisdiction would get revived and resurrected and such a recourse is not permissible WP 59321/2013 17 in view of the judgment of the Apex Court in the case of RAJ KUMAR SONI & ANOTHER VS STATE OF U.P. & ANOTHER - (2007)10 SCC 635. In the facts of the present case, it is evident that the order of promotion has been given effect to and all the three persons who are promoted have received the benefit. Therefore, there is no question of this Court resurrecting the order promoting the petitioner and Madegowda as Chief Engineers and placing the respondent in independent charge under Rule 32. Therefore, the principles enunciated in Raj Kumar Soni's case have no application to the present case.
19. As regards the ratio in SUSHIL KUMAR MEHTA VS GOBIND RAM BOHRA (DEAD) THROUGH HIS LRS - (1990)1 SCC 193, the proposition of law laid down therein is, that if a decree is passed without jurisdiction, then it is a nullity and such a plea can be set up whenever and wherever the decree is sought to be enforced, even at the stage of execution or in collateral proceedings as well. As already observed by me above, the question whether the order of appointment is a nullity having been passed by the authority without jurisdiction, is not the matter to be examined in this proceeding as nobody has challenged it. The 3rd respondent was not happy with the WP 59321/2013 18 appointment given to him as per Rule 32 when he was posted to a vacancy at Gulbarga. Therefore, he did not go and report there. But when the petitioner was displaced from his post as Chief Engineer (South), Bangalore, and in his place the 3rd respondent was posted where he reported to duty, which discloses that if he is posted at Bangalore, it is alright for him though it was an appointment under Rule 32. This conduct of the 3rd respondent shows that he did not report at Gulbarga where he was posted earlier and was waiting to secure posting at Bangalore by displacing the incumbent of the post/petitioner herein, apparently by using his resources and influence. In such circumstance, I do not find it just and appropriate to undertake an inquiry in this case regarding the validity of the appointment order, which is not called in question before me. The ratio laid down in Sushil Kumar Mehta's case has no application to the facts of the case.
20. Similarly, the other judgments on which reliance is placed by Mr. Rajgopal are also of no assistance to him as this Court is not examining the validity of the order of promotion. The question regarding the validity is admittedly raised in another writ petition and the matter is seized by this Court. WP 59321/2013 19 Therefore, in this proceeding the examination of the question has to be confined only to the legality and correctness of the order of transfer.
21. As already held by me, the impugned order is passed in violation of Rule 32 and the action is apparently arbitrary as it is intended only to circumvent the provision contained under Rule 32 of KCSR and to accommodate the 3rd respondent in the place of the petitioner by displacing him barely within 15 days from the date of his posting there.
22. Hence this writ petition is allowed. The impugned order is set aside.
Sd/-
JUDGE KK