Karnataka High Court
C T Muddu Kumar vs The State Of Karnataka on 5 January, 2021
Equivalent citations: AIRONLINE 2021 KAR 1, 2021 (1) AKR 585
Author: R Devdas
Bench: R Devdas
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2021
BEFORE
THE HON' BLE MR.JUSTICE R DEVDAS
WRIT PETITION NO.12800 OF 2020 (S-RES)
C/W
WRIT PETITION NO.12598 OF 2020 (S-RES)
IN W.P. NO.12800/2020
BETWEEN
SRI C T MUDDU KUMAR
S/O LATE THAMMAIAH
AGED ABOUT 51 YEARS,
SECRETARY I, KIADB,
KANIJA BHAVAN,
IV FLOOR, EAST WING,
RACE COURSE ROAD,
BENGALURU-560 001
PRESENTLY R/AT NO.5,
KOTIGEMANE,
22ND CROSS, MALAGALA
NAGARABHAVI II STAGE,
BANGALORE-560 091.
...PETITIONER
(BY SRI ASHOK HARANAHALLI, SENIOR COUNSEL FOR
SRI SANDEEP S PATIL, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
REP BY ITS PRINCIPAL SECRETARY
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TO GOVERNMENT,
COMMERCE AND INDUSTRIES DEPARTMENT,
M.S.BUILDING,
BANGALORE-560 001.
2. KARNATAKA INDUSTRIAL AREA
DEVELOPMENT BOARD
KHANIJA BHAVAN,
REP BY ITS CHIEF EXECUTIVE OFFICER
AND EXECUTIVE MEMBER
RACE COURSE ROAD,
BANGALORE-560 001.
3. SRI.GANGADHARAIAH
S/O LATE K.R.GANGAPPA
AGED ABOUT 56 YEARS,
WORKING AS GENERAL MANAGER, KIADB,
R/AT NO.3, 3RD MAIN ROAD,
KHBCS LAYOUT, 1ST STAGE,
MAHALAKSHMIPURAM POST,
BENGALURU-560 086.
...RESPONDENTS
(BY SRI DHYAN CHINNAPPA, AAG A/W
SMT M C NAGASHREE, AGA FOR R1
SRI UDAYA HOLLA, SENIOR COUNSEL FOR
SRI BASAVARAJ V SABARAD, ADVOCATE FOR R2
SRI P S RAJAGOPAL, SENIOR COUNSEL FOR
SRI K PRASAD HEGDE, ADVOCATE FOR R3 )
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DTD 27.11.2019 ANNEXURE-A ISSUED BY
THE R-1 AND ETC.
IN W.P. NO.12598/2020
BETWEEN
SRI. MAHESHA V H
S/O LATE HONNEGOWDA,
AGED ABOUT 43 YEARS,
WORKING AS SECRETARY- 2,
KARNATAKA INDUSTRIAL AREA
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DEVELOPMENT BOARD,
NO.49, 4TH AND 5TH FLOOR,
EAST WING, KHANIJA BHAVANA,
RACE COURSE ROAD,
BENGALURU-560001
...PETITIONER
(BY SRI K N PUTTE GOWDA, ADVOCATE)
AND
1. THE CHIEF SECRETARY,
GOVT OF KARNATAKA
VIDHANA SOUDHA,
DR.B.R.AMBEDKAR ROAD,
BENGALURU-560001
2. THE ADDITIONAL CHIEF SECRETARY
TO GOVERNEMENT
DEPARTMENT OF PERSONNEL AND
ADMINISTRATIVE REFORMS,
VIDHANA SOUDHA,
DR.B.R.AMBEDKAR ROAD,
BENGALURU 560001
3. THE PRINCIPAL SECRETARY
DEPARTMENT OF COMMERCE AND INDUSTRIES
DR.B.R.AMBEDKAR ROAD,
BENGALURU-560001
4. THE CHEIF EXECUTIVE OFFICER
AND EXECUTIVE MEMBER,
KARNATAKA INDUSTRIAL AREA
DEVELOPMENT BOARD,
NO.49, 4TH AND 5TH FLOOR,
EAST WING, KHANIJA BHAVANA,
RACE COURSE ROAD,
BENGALURU-560001
5. THE PRINCIPAL SECRETARY
DEPARTMENT OF FINANCE,
DR.B.R.AMBEDKAR ROAD,
BENGALURU-560001
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6. SRI GANGADHARAIAH
S/O LATE K.R.GANGAPPA,
AGED ABOUT 56 YEARS,
JOINT DIRECTOR,
INDUSTRIES AND COMMERCE,
DEPUTED AS GENERAL MANAGER,
KARNATAKA INDUSTRIAL AREA
DEVELOPMENT, KHANIJA BHAVAN,
RACE COURSE ROAD,
BENGALURU-560001
7. SRI C T MUDDUKUMAR
S/O LATE THIMMAIAH,
AGED ABOUT 51 YEARS,
SECRETARY I, KIADB,
KHANIJA BHAVAN,
RACE COURSE ROAD,
BENGALURU-560001
...RESPONDENTS
(BY SRI DHYAN CHINNAPPA, AAG A/W
SMT M C NAGASHREE, AGA FOR R1 TO R3 & R5
SRI UDAYA HOLLA, SENIOR COUNSEL FOR
SRI BASAVARAJ V SABARAD, ADVOCATE FOR R4
SRI P S RAJAGOPAL, SENIOR COUNSEL FOR
SRI K PRASAD HEGDE, ADVOCATE FOR R6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DTD 27.11.2019 VIDE ANNEXURE-K ISSUED
BY THE R-3 DEPARTMENT OF COMMERCE AND INDUSTRIES AND
ETC.
THESE WRIT PETITIONS ARE HAVING BEEN HEARD AND
RESERVED ON 14.12.2020 AND COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE THE
FOLLOWING:
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ORDER
Since the contesting parties in these two writ petitions are presently employed with the Karnataka Industrial Area Development Board (hereinafter referred to as 'the KIADB' for short) and the challenge raised in both the writ petitions are common, these writ petitions are heard together and disposed of by this common order.
2. The petitioners in both the writ petitions have challenged the appointment of the respondent-Sri Gangadharaiah as General Manager of the respondent-Board, in terms of the notification dated 27.11.2019 and the office order dated 13.08.2020 reassigning duties and responsibilities amongst the Secretaries and General Manager.
3. Some of the admitted facts are that the petitioner in W.P.No.12800/2020 Sri C.T.Muddu Kumar and the respondent Sri Gangadharaiah who were under the services of the State Government, have been deputed to the KIADB. The petitioner in W.P.No.12598/2020, Sri V.H.Mahesha, was directly recruited to the KIADB by virtue of a competitive examination conducted by the Karnataka Public Service Commission. Sri V.H.Mahesha was -6- promoted from the post of Assistant Secretary to Secretary on 17.08.2019. He was given posting as Secretary-II, on 19.10.2019. Whereas the other petitioner and respondent who were earlier working as Joint Directors in the Department of Commerce and Industries were deputed as Secretary-I and Joint Director (Industrial Infrastructure Projects), KIADB, vide notification dated 23.09.2019.
4. The main contention of the writ petitioners is that though there is no post of General Secretary in the Karnataka Industrial Areas Development Board (Cadre and Recruitments) Regulations, 2019 (hereinafter referred to as 'the C & R Regulations' for short), the respondent has been appointed as General Manager in terms of the impugned notification dated 27.11.2019. After the appointment of the respondent as General Manager, by issuing the office order dated 13.08.2020, the respondent-Board has assigned all the duties and responsibilities which were hitherto vested with Secretary-I, to the General Manager. It is contended that as a consequence, the duties and responsibilities vested with Secretary-II, has been entrusted to Secretary-I and so on. Therefore, the essential challenge is to the power of the Board to create a post not provided for in the C -7- & R Regulations, to appoint any candidate as a General Manager and to assign duties and responsibilities to a person who does not hold a legitimate position in terms of the C & R Regulations.
5. Sri P.S.Rajagopal, learned Senior Counsel, appearing for the respondent raises the question of maintainability of the writ petition on the ground that the petitioner in W.P.No.12800/2020 and the respondent are State Government employees and even if they are on deputation to KIADB, they are required to approach the Karnataka State Administrative Tribunal to redress their grievance. It is submitted that Section 28 of the Administrative Tribunals Act excludes the jurisdiction of this Court and such an exclusion has been upheld by the Constitution Bench of the Apex Court in the case of L.Chandra Kumar Vs. Union of India and others AIR 1997 SC 1125.
6. Sri Ashok Haranahalli, learned Senior Counsel appearing for the petitioner in W.P.No.12800/2020 submits that the question raised in this writ petition is regarding the validity of creation of the post contrary to the C & R Regulations, which would be in the nature of a quo-warranto. It is therefore submitted that a writ petition seeking a writ of quo warranto is maintainable before this Court.
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7. On the question of maintainability of the writ petition, since a second writ petition in W.P.No.12598/2020 has been filed by an employee of the KIADB, in the considered opinion of this Court, the objection raised on behalf of the respondent would pale into insignificance.
8. The respondent-Board has filed statement of objections contending that Section 17 of the Karnataka Industrial Areas Development Act, 1966 (hereinafter referred to as 'the Act', for short) confers power of general superintendence and control on the State Government and the Board is bound to follow the directions of the State Government. Sri Udaya Holla, learned Senior Counsel appearing for the respondent-Board submitted that Section 11(2) of the Act, empowers the Board to appoint such employee subordinate to the executive member, as it considers necessary for the efficient performance of its duties and functions. The terms and conditions of service of the employees of the Board shall be as determined by Regulations made under the Act. It is submitted that in terms of the power vested in the Board under Section 11(2) of the Act, the Board has made the C & R Regulations. It is submitted that at Sl.No.19 of Schedule-I appended to the C & R Regulations, there -9- is a post of Project Officer. It is submitted that the Board considered redesignating the said post in its 291st meeting held on 19.12.2008 and after discussions, the Board resolved to redesignate the post of Project Officer as 'General Manager (Projects and Operations)' in the payscale of Rs.20025-28275/-. Since then the post of General Manager was created by an Office order. It is therefore submitted that the post of Project Officer being redesignated as General Manager vide Board resolution dated 19.12.2008, the petitioners cannot contend that the post of General Manager has been created for the first time in terms of the impugned notification dated 27.11.2019. It is further submitted that the respondent-Board being the appointing authority in terms of Regulation 2(b) of the C & R Regulations, the Board is empowered and competent to issue office orders for allocation of work to its employees. It is submitted that the petitioners cannot contend or insist that they should be assigned a particular work or responsibility, as such a prerogative is vested with the Chief Executive Officer of the Board.
9. The learned Senior Counsels Sri P.S.Rajagopal, appearing for the respondent and Sri Udaya Holla, appearing for the respondent-Board jointly contend that if it is the contention -10- of the petitioner in W.P.No.12800/2020 that appointment or deputation could not be made contrary to the C & R Regulations, he himself would be ousted, since there are only two posts of Secretaries as per the C & R Regulations and admittedly the petitioner is the third person serving as Secretary. It is contended that the petitioner in the other writ petition, Sri V.H.Mahesha and another Sri Vasantha Kumar, who were appointed directly as Assistant Secretaries in KIADB, have been promoted as Secretaries by notification dated 19.10.2019.
10. Sri Ashok Haranahalli, learned Senior Counsel appearing for the petitioner in W.P.No.12800/2020, draws the attention of this Court to a communication dated 24/26.06.2019 made by the Chief Executive Officer of KIADB to the Principal Secretary, Commerce and Industries Department. It is stated therein that in view of the expansion of functions and implementation of new schemes, the Board has felt it necessary to create a post of General Manager in KIADB, for entrustment of duties and responsibilities. The Board therefore requested the State Government to approve creation of one post of General Manager, one post of Senior Project Officer and four Assistant -11- Secretaries. It was submitted that the State Government rejected the proposal made by the Board.
11. This Court directed the learned AGA to produce the original records pertaining to the matter. The learned AGA secured the original records and placed it before the Court. It is seen from the records that the State Government rejected the proposal for creation of the post of General Manager stating that such creation of posts cannot be made only for the purpose of giving promotion. However, subsequently, at the instance of the Hon'ble Minister for Commerce and Industries, the Board was directed to appoint the respondent as General Manager.
12. Learned Counsel Sri K.N.Puttegowda, appearing for the petitioner in W.P.No.12598/2020 submits that in terms of the C & R Regulations there are only two posts in the cadre of Secretary. The method of recruitment to the post of Secretary is by way of promotion from the cadre of Assistant Secretary. It is submitted that the petitioner who was appointed as Assistant Secretary in the year 2014, was later promoted as Secretary on 17.08.2019. The petitioner was posted as Secretary-II, by order dated 19.10.2019. It is submitted that for a person to be appointed as Assistant Secretary, he must have passed Degree -12- in First class, must possess a First class Degree in Law and must possess an experience of minimum three years in a similar post in Government or quasi Government or any other organisation of the State Government. A person in the cadre of Assistant Secretary must have put in not less than four years in the cadre of Assistant Secretary, to be eligible for promotion as Secretary. That being the case, it is submitted that the deputation of the petitioner and respondent in W.P.No.12800/2020 is in total contravention of the C & R Regulations.
13. Heard the learned Counsels and perused the petition papers.
14. A look at the C & R Regulations makes it clear that there is no post in the cadre of General Manager in KIADB. No doubt, the Board is vested with power in terms of Section 11(2) of the Act to appoint such employees subordinate to the executive member. The terms and conditions of service of the said employees shall be such as may be determined by Regulations made under the Act. Therefore, even if it is contended by the Board that it is empowered to determine the terms and conditions of service of its employees, it can do so only in terms of the Regulations. Unless and until a post in the -13- cadre of General Manager is created and provided for in the C & R Regulations, the Board could not have appointed any person as General Manager in KIADB. The question as to whether the Board is required to take prior approval of the State Government for creation of any cadre, is not relevant.
15. The other contention of the respondent that earlier the post of Project Manager was redesignated as General Manager (Projects and Operations) in terms of the Board resolution dated 19.12.2008, does not bear any significance for the purpose of this writ petition. If the Board was of the opinion that a post of General Manager (Projects and Operations) was already created and the respondent is appointed as General Manager (Projects and Operations), things would have been different. It is noticeable that the payscale of Project Officer which was redesignated as General Manager (Projects and Operations), at the relevant point of time i.e., the year 2008-09 was Rs.20,225- 28275/-. In the present Regulations, 2019, the payscale of Project Officer is Rs.52650-97100/-, while the payscale of Secretary is Rs.67550-104600/-. It is therefore clear that redesignation of Project Officer as General Manager (Projects and Operations), has nothing to do with the cadre of General -14- Manager sought to be created under the impugned notification dated 27.11.2019. To a pointed question posed to the learned Senior Counsel representing the respondent as to whether he would accept the appointment under the impugned notification as an appointment made to the post of General Manager (Projects and Operations), the learned Senior Counsel maintained a stoic silence.
16. Having regard to the discussion made hereinabove, this Court is of the considered opinion that the impugned notification dated 27.11.2019 and the consequent office order dated 13.08.2020 cannot be sustained.
17. Consequently, the writ petitions are allowed. The impugned notification dated 27.11.2019 issued by the respondent-State Government and the office order dated 13.08.2020 are hereby quashed and set aside.
It is ordered accordingly.
In view of the above, pending Interlocutory applications do not survive for consideration and accordingly the same stand disposed of.
SD/-
JUDGE JT/-