Karnataka High Court
Mr Mahaboobsab S/O. Fakrusab Badiger vs The State Of Karnataka on 21 April, 2022
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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WP No. 105255/2021 (S-KAT)
C/W W.P. NO. 105258/2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF APRIL, 2022
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
WRIT PETITION NO. 105255/2021 C/W
WRIT PETITION NO. 105258/2021 (S-KAT)
IN W.P. NO. 105255/2021:
BETWEEN:
MR MAHABOOBSAB S/O. FAKRUSAB BADIGER,
AGED ABOUT 58 YEARS, OCC. TEACHER,
OFFICE ADD: GOVERNMENT HIGHER PRIMARY URDU
GIRLS SCHOOL, NO.2, KHATIB GALLI, TQ. RANEBENNUR,
DIST. HAVERI-581 115, R/O. MAHANTESH NAGAR, GUTTAL,
TQ. GUTTAL, DIST. HAVERI-581 108.
- PETITIONER
(BY SRI SUNIL S. DESAI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA REPRESENTED BY
THE COMMISSIONER, DEPARTMENT OF PUBLIC
INSTRUCTIONS, NEW PUBLIC OFFICES,
NRUPATHUNGA ROAD, BENGALURU-560 001.
2. THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS,
DEPARTMENT OF PUBLIC INSTRUCTIONS,
HAVERI-581 110.
Digitally
signed by
VINAYAKA B
V
3. THE BLOCK EDUCATION OFFICER,
VINAYAKA Location:
BV DHARWAD
Date:
2022.05.05
OFFICE OF THE BLOCK EDUCATION OFFICER,
13:28:38
+0530
DEPARTMENT OF PUBLIC INSTRUCTIONS,
TQ. SHIGGAON, DIST. HAVERI-581 115.
- RESPONDENTS
(BY SRI. PRASHANT V. MOGALI, HCGP)
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WP No. 105255/2021 (S-KAT)
C/W W.P. NO. 105258/2021
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DATED 27.10.2021 PASSED BY THE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL, BELGAUM IN APPLICATION
NO.10981/2021 AS PER ANNEXURE-C & ETC.
IN W.P. NO. 105258/2021:
BETWEEN:
MR. HANAMANTAPPA S/O BHARAMANNA HALEPPANAVAR,
AGED ABOUT 54 YEARS, OCC. TEACHER,
OFFICE ADD: GLPS NO.3, GANDHINAGAR, SHIGGAON,
TQ. SHIGGAON, DIST. HAVERI. R/O. KONANTAMBAGI,
DIST. HAVERI-682 103.
- PETITIONER
(BY SRI SUNIL S. DESAI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY THE COMMISSIONER,
DEPARTMENT OF PUBLIC INSTRUCTIONS,
NEW PUBLIC OFFICES, NRUPATHUNGA ROAD,
BENGALURU-560 001.
2. THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS,
DEPARTMENT OF PUBLIC INSTRUCTIONS,
HAVERI-581 110.
3. THE BLOCK EDUCATION OFFICER,
OFFICE OF THE BLOCK EDUCATION OFFICER,
DEPARTMENT OF PUBLIC INSTRUCTIONS,
TQ. SHIGGAON, DIST. HAVERI-581 115.
- RESPONDENTS
(BY SRI. PRASHANT V. MOGALI, HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DATED 27.10.2021 PASSED BY THE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL, BELGAUM IN APPLICATION
NO.10980/2021 AS PER ANNEXURE-C & ETC.
THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY,
S.SUNIL DUTT YADAV J., MADE THE FOLLOWING:
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WP No. 105255/2021 (S-KAT)
C/W W.P. NO. 105258/2021
ORDER
These writ petitions are taken up together and disposed off by the common order as the orders of the Tribunal are identical, passed on the same day and involve identical factual as well as legal points.
2. The petitioners were the applicants before the Karnataka State Administrative Tribunal, at Belagavi (for short 'Tribunal') and have challenged the order passed by the Tribunal whereby the applications filed by them came to be rejected. The petitioner in W.P.No.105255/2021 was appointed as Assistant Teacher on 22.07.1996 and the petitioner in W.P.No.105258/2021 was appointed as Teacher on 05.06.2003. Both the petitioners appeared for the examination for Cluster Resource Person (for short 'CRP') on 04.08.2015 and were selected. It is the case of the petitioners that they completed minimum tenure of three years as Cluster Resource Persons and such tenure was however extended uniformly for another year and subsequently they were liable to be transferred.
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WP No. 105255/2021 (S-KAT) C/W W.P. NO. 105258/2021
3. The facts made out are, that as per the communication at Annexure-A1 dated 05.07.2019 the petitioner in W.P. No. 105258/2021 came to be transferred to Shiggaon. It is further submitted that Mahaboobsab came to be transferred to Ranebennur. It also comes out from the record that as per Annexure-A6 dated 22.07.2021 Mahaboobsab on his request sought for transfer to Ranebennur and the said endorsement would also reveal that the transfer to Ranebennur had disentitled him to take part and participate in the compulsory transfer in the year 2019-20 in light of himself having opted the selection of Ranebennur. Subsequently, the State Government in order to mitigate difficulties of those who were transferred in the year 2019- 20 introduced The Karnataka State Civil Services (Regulation of Transfer of Teachers) (Amendment) Act, 2021 whereby amendment to Sec. 10 was effected by adding sub clause (6) which reads as hereunder:
"In case of a teacher who was transferred on compulsory transfer, zonal transfer or under rationalization outside the taluk in case of primary school teacher or district in case of high school teacher during the year 2019-20 shall also be provided an opportunity to opt a place of transfer within the taluk or district where they were working during the year 2019-20 as a onetime measure ahead of -5- WP No. 105255/2021 (S-KAT) C/W W.P. NO. 105258/2021 other types of transfers subject to the availability of vacancies so as to give the benefit of posting within the concerned taluk or district in the transfer done immediately after the date of commencement of the Karnataka State Civil Services (Regulation of Transfer of Teachers) (Amendment) Act, 2021 in the manner as may be prescribed."
4. The petitioners claim benefit of the amendment and sought for retention within the same taluk or district in which they were working during the year 2019-20, which benefit was declined by the respondent by issuing endorsement at Annexure-A6 dated 22.07.2021 insofar as petitioner in W.P. No. 105255/2021 is concerned and Annexure-A7 dated 12.07.2021 insofar as the petitioner in W.P. No. 105258/2021 is concerned. The said action came to be challenged before the Tribunal and the applications of both the petitioners came to be rejected by way of identical orders which are called in question in the present writ petitions.
5. It is the contention of the learned counsel for the petitioners that the Tribunal though referred to amendment to Rule 10(6), has not discussed in detail as to why the petitioners were not entitled to claim benefit of the amendment.
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WP No. 105255/2021 (S-KAT) C/W W.P. NO. 105258/2021
6. Learned Govt. Advocate would contend that the conclusion arrived at by the Tribunal is correct and does not call for any interference and further contends that unless the petitioners had completed ten years of service at one place, they were not entitled for benefit of 10(6).
7. We have heard both the sides.
8. The order of the Tribunal has though discusses Rule 10(6), by its reasoning at paragraph no. 8, it has referred to transfer in terms of Sec. 3(a) and as regards to the concept of transfer from Zone-A to Zone-C and disposes of the matter. However, what remains undisputed is that the State while considering the petitions has noted that they had completed three years as a CRP, i.e., Cluster Resource Persons. Upon completion of three years the petitioners were eligible for transfer. In fact, a provisional compulsory transfer list was also published by the State which is enclosed as Annexure-A3 in W.P. No. 105255/2021 and the name of Mahaboobsab is found at Sl. No. 7 and the nature of transfer it is referred as "compulsory transfer" while the name of Hanumanthappa is found at Sl. No. 50 and the nature of previous order of transfer is again referred as "compulsory transfer". -7-
WP No. 105255/2021 (S-KAT) C/W W.P. NO. 105258/2021 Though the said transfer list is stated to have been withdrawn, the stand of the State of stating the transfer of the petitioners as "compulsory transfer" cannot be ignored.
9. Further, even as per Annexure-A1 there is a reference to "compulsory transfer" as regards Hanumanthappa Haleppanavar. The fact that petitioners have worked for ten years from the date of their appointment as Teachers, is not in dispute. Even if the contention of the learned HCGP is to be accepted, the petitioners as on 2019-20 had completed ten years and were liable for compulsory transfer. In order to mitigate their difficulties, the State came up with the amendment of Sec. 10(6). Rule 10(6) confers entitlement to all those who have been transferred on compulsory transfer, zonal transfer or under rationalization outside the taluk in case of primary school teacher or district in case of high school teacher, were provided with an opportunity to opt a place of transfer within a taluk.
10. Though it is the contention of the learned HCGP that the transfer of the petitioners at their request in the year 2019 had resulted in they forfeiting their right to claim benefit under the Act of 27 of 2021, such a contention is liable to be rejected for the simple -8- WP No. 105255/2021 (S-KAT) C/W W.P. NO. 105258/2021 reason that though the amendment to Sec. 10(6) came to be effected on 01.10.2021, clearly it was with retrospective effect that relates to transfer in the year 2019-20. Accordingly, whether the transfer is a compulsory transfer, zonal transfer or under rationalization outside the taluk, all categories of transfer, the employees who were subjected to either of the three categories of transfer for the year 2019-2020 could avail of the benefit. It cannot be said that mere transfer at request of the petitioner Mahaboobsab to Ranebennur and that of Hanumanthappa to Shiggaon in the year 2019-20 has disentitled them from claiming benefit u/S 10(6). If the request transfers were ignored, both the petitioners even otherwise were to be subjected to compulsory transfer as they had already completed ten years and this would be so if the concept of zonal transfer as adverted to by the Tribunal and as contended by the learned HCGP is to be accepted. Accordingly, once the request transfer is ignored, the petitioners were entitled to the benefit of amendment to 10(6) which aspect has not been considered or adverted to by the Tribunal. On this ground itself the basic premise that Hanumanthappa and Mahaboobsab were transferred at their request, upon which logic the Tribunal has proceeded, is completely erroneous. -9-
WP No. 105255/2021 (S-KAT) C/W W.P. NO. 105258/2021
11. Accordingly, we pass the following order :
ORDER Both the writ petitions are allowed. Consequently, the order of the KAT is set aside and the petitioners are entitled for consideration of transfer in terms of Rule 10 (6) which would entitle them to be retained within Haveri taluk as a one time measure.
The respondents are directed to consider request of the petitioners in terms of Rule 10 (6) as regards vacancy available at Haveri taluk.
It is made clear that the order passed in the present writ petitions are passed in the peculiar facts of the case.
SD JUDGE SD JUDGE bvv