Karnataka High Court
Sri B Madesh vs The State Of Karnataka on 19 September, 2014
Bench: K.L.Manjunath, A.V.Chandrashekara
WP. NO.44916/2014
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19TH DAY OF SEPTEMBER, 2014
PRESENT
THE HON'BLE MR. JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
W.P.NO.44916/2014(S-KAT)
BETWEEN:
SRI B MADESH
S/O M BASAVEGOWDA,
AGED ABOUT 46 YEARS,
DEPUTY COMMISSIONER OF EXCISE
BANGALORE URBAN (WEST)
BANGALORE.
R/AT NO.128,DHOBI STREET,
CHAMARAJ MOHALLA,
MYSORE-570 024
... PETITIONER
(By Sri: NAGARJUN C. REDDY SR. COUNSEL FOR
SRI: DESHRAJ P. CHANGALARAYA REDDY, ADV. )
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF FINANCE (EXCISE)
VIDHANA SOUDHA,
WP. NO.44916/2014
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BANGALORE-560 001
2. THE COMMISSIONER OF EXCISE
VOKKALIGARA BHAVAN,
HUDSON CIRCLE,
BANGALORE-560 009
3. SRI SOMASHEKARAPPA
MAJOR,
DEPUTY COMMISSIONER OF EXCISE (WEST)
BANGALORE,(UNDER TRANSFER)
NO.22,POORNIMA BUILDING,
1ST CROSS,J C ROAD,
BANGALORE-560 037.
R/AT GBI HAYES HALL APARTMENT,
HAYES ROAD,SHANTALANGAR,
BANGALORE-560 025
... RESPONDENTS
(By Sri: P.S. RAJAGOPAL, SR. COUNSEL FOR
S G PANDIT, ADV. FOR C/R3
SRI: K.A. ARIGA, AGA, FOR R1 & 2)
THIS PETITION IS FILED UNDER ARTICLE 226 AND
227 OF THE CONSTITUTION OF THE INDIA PRAYING TO
QUASH THE ORDER DATED 10.9.2014 PASSED BY THE
HON'BLE TRIBUNAL IN APPLICATION IN 7337/2014 DATED
10.9.2014 VIDE ANN-E AND SET ASIDE THE SAID
IMPUGNED ORDER AND ALSO DIRECT THE R-1 AND R-2
TO ALLOW THE PETITIONER TO CONTINUE IN THE
PRESENT PLACE OF WORK AS DEPUTY COMMISSIONER
OF EXCISE, BANGALORE [WEST] WITH ALL
COSNEQUENTIAL BENEFITS ARISING THERETO AND ETC.
WP. NO.44916/2014
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THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 16.09.2014 COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY,
A.V.CHANDRASHEKARA, J., DELIVERED THE FOLLOWING:
ORDER
Interim order dated 10.9.2014 passed by the Karnataka Administrative Tribunal, Bangalore (for short "KAT") in Application No.7337/2014 is called in question before this Court under Articles 226 and 227 of the Constitution of India.
2. The facts leading to filing of the application before the KAT under Section 19 of the Administrative Tribunals Act 1985 on 2.9.2014 are as follows:
The writ petitioner was appointed as Deputy Superintendent of Excise and joined service on 4.5.2006. It is the case of the petitioner that later he was promoted as Superintendent of Excise. Further, WP. NO.44916/2014 4 he is stated to have been promoted to the cadre of Deputy Commissioner of Excise vide notification dated 1.9.2014 after recommendations made by the Departmental Proceedings Committee meeting held on 21.3.2014. Respondent No.1-State of Karnataka has issued notification posting the petitioner and 17 others as Deputy Commissioners of Excise.
3. Respondent No.3 Somashekarappa herein is posted to Shimoga and petitioner-B.Madesh is stated to have reported to duty as Deputy Commissioner of Excise, Bangalore West. The said order of his posting as Deputy Commissioner of Excise, Bangalore West is stayed by the KAT, Bangalore on an application filed by the respondent No.3 herein in application No.7337/2014. Therefore, the transfer of Somashekarappa to Shimoga and posting of this applicant as Deputy WP. NO.44916/2014 5 Commissioner of Excise Bangalore West has been stayed for a period of 2 months or until further orders whichever is less. Further, direction has been given by the KAT that applicant before the Tribunal shall be continued as Deputy Commissioner of Excise, Bangalore West. Further, it has also been made clear that if Somashekarappa has assumed charge in Shimoga, he shall hand over charge to the applicant and go back to his earlier place, if it is vacant, if not, he may seek an alternative posting.
4. We have heard the learned counsel for the parties and perused the records.
5. The learned counsel for the petitioner has vehemently argued that consequent upon the transfer of respondent No.3 to Shimoga, the place WP. NO.44916/2014 6 held by respondent No.3 in the capacity of Deputy Commissioner of Excise, Bangalore West has been vacant and therefore the posting of the petitioner as Deputy Commissioner of Excise, Bangalore West is legal and proper. It is further argued that respondent No.3 has already put in 3 years of service as Deputy Commissioner of Excise, Bangalore West and that he is a Group-A officer and therefore, he cannot have any grievance about his transfer as the same is in accordance with the guidelines stipulated by the State of Karnataka vide Government Order dated 20.5.2014. It is further argued that though the impugned order is an interim order passed by the Tribunal, the Tribunal has misapplied the decision of this Court in the case of Raghurama Shetty v. State of Karnataka and another rendered in W.P.14393/2012 (S-KAT) WP. NO.44916/2014 7 and therefore, the Tribunal has adopted wrong approach to the real state of affairs.
6. Per contra, the learned counsel for the respondent No.3 has supported the impugned order contending that the posting of the petitioner as Deputy Commissioner of Excise, Bangalore West is under Rule 32 of Karnataka Civil Service Rules (for short "KCSR") and the said posting is not against the vacant post and therefore the decision rendered in Raghurama Shetty's case by the Tribunal is aptly applicable to the facts of the present case. He has further argued that no writ petition is maintainable against the order passed on an interlocutory application by the Tribunal and therefore, the writ petition is liable to be dismissed.
WP. NO.44916/20148
7. Admittedly, respondent No.3- Somashekarappa is a Group-A officer and he has completed 2 years of service as Deputy Commissioner of Excise, Bangalore West from which place he has been posted to Shimoga. As per the transfer guidelines stipulated by the State Government in May 2014, normally the tenure for the officer of the rank Group-B and above at one place is one year only. Respondent No.3 has completed more than a year of service as Deputy Commissioner of Excise, Bangalore West and he has not challenged his transfer from the said place and he cannot challenge the same also since it is in accordance with the transfer guidelines.
8. What is argued before this Court is that the post of Deputy Commissioner of Excise, Bangalore West is not a vacant post and therefore, WP. NO.44916/2014 9 the posting of the petitioner as Deputy Commissioner of Excise, Bangalore West is bad in law.
9. We have perused the decision rendered by the Division Bench of this Court in the case of Shri Raghurama Shetty v. The State of Karnataka in W.P.14393/2012 (S-KAT) decided on 7.6.2012. Rule 32 of KCSR has been referred to in paragraph-5 of page-7 of the said decision rendered in Raghurama Shetty's case. It is true that reading of Rule 32 of KSCR makes it clear that if an appointment is made under Rule 32 of KCSR, it should be only against a vacant post and such person would be in-charge of the current duties.
10. In the present case, the posting of the petitioner-Madesh as Deputy Commissioner of WP. NO.44916/2014 10 Excise, Bangalore West in the place of Somashekarappa, who is transferred to Shimoga is under Rule 32 of KCSR, is with an independent charge until further orders with effect from 1.9.2014 vide transfer order No.AaEe-01-IEPS-2013. His posting is not mere posting to the said post with independent charge, but it is based on the recommendation of the Departmental Promotion Committee constituted by the State Government.
11. It is true that on plain reading of order dated 1.9.2014 found in ink page-20, it is not mere posting under Rule 32 of KCSR but the government has taken all precautions to see that only suitable candidates are posted as Deputy Commissioners of Excise, with independent charge to 18 posts of Deputy Commissioners of Excise, which are vacant. WP. NO.44916/2014 11 The name of the petitioner is found in Sl.No.1 of transfer order dated 1.9.2014.
12. What is argued by the learned counsel for the respondent No.3 before this Court is that name of the petitioner is found Sl.No.1 of the transfer order dated 1.9.2014 as Deputy Commissioner of Excise, Bangalore West in the place of Somashekarappa and as on the date of said transfer order, the post was not vacant. Further, it is contended that the name of Somashekarappa is at Sl.No.5 of Part II of the said transfer order and his name is shown as transferred to Deputy Commissioner of Excise, Shimoga.
13. According to us, the transfer order dated 1.9.2014 cannot be read in part and the same has to be read as a whole. If the name of Somashekarappa, whose name finds place at WP. NO.44916/2014 12 Sl.No.5 of part II of 1.9.2014 had been mentioned in part I of the transfer order, there would not have been any scope for controversy/confusion. Just because the name of Somashekarappa is found at Sl.No.5 of Part-II of the transfer order, it will not alter the case of the petitioner herein in any manner. Since respondent No.3 has already put in more than 2 years service as Deputy Commissioner of Excise, Bangalore West and since his transfer is in accordance with the transfer guidelines dated 20.5.2014 of the Government of Karnataka, the post of Deputy Commissioner of Excise, Bangalore West is deemed to have become vacant for all practical purpose.
14. Notification dated 1.9.2014 contains two parts. Part-I concerning the postings of the officers under Rule-32 and Part-II contains the order of WP. NO.44916/2014 13 transfer of regular Deputy Commissioners who have completed their tenure of service as per the transfer guide-lines and such transfer is in the public interest. The contention of R-3 is that when petitioner was posted to the place of contesting respondent, said post was not vacant since he was discharging his duties. We are unable to accept the aforesaid contention since the entire notification has to be read as a whole. It is not the case of the respondent that his order of transfer is premature or contrary to the transfer guide-lines or effected with a malafide intention. Contesting respondent is not challenging his order of transfer. What he is challenging before the tribunal is giving posting to the petitioner to his place under Rule-32 relying upon Raghurama Shetty's case. The facts involved in Raghurama Shetty's case are entire different. WP. NO.44916/2014 14
15. In the present case, after holding Departmental Promotional Committee meeting, Government was of the view that petitioner and others were eligible for promotion and till they were regularly promoted, they have been given posting under Rule-32 with independent charge.
16. Therefore, in strict sense posting the petitioner as Deputy Commissioner cannot be treated as a mere posting under Rule-32 but virtually it has to be considered as promotion. Be that as it may, so far as the present case is concerned, viewed from any angle, we cannot hold that petitioner has been posted to the non-vacant post because in the same notification respondent has been transferred as per the transfer guidelines since he was not eligible to continue in the said post. In other words, Respondent No.3, without WP. NO.44916/2014 15 challenging his order of transfer, has in an ingenuous way sought to question the posting of the petitioner by relying upon Raghurama Shetty's case. Therefore, we are of the view that tribunal has not applied its mind and did not consider the case in a proper perspective. Accordingly, we hold that there is an error committed by the tribunal.
17. It is true that the posting of the petitioner as Deputy Commissioner of Excise, Bangalore West vide transfer order 1.9.2104 is under Rule 32 of KCSR but the said posting is done after assessing not only the eligibility of petitioner but also the suitability, by the Departmental Promotion Committee constituted by the Government. Though transfer order dated 1.9.2014 cannot be considered as an order of promotion, it can be certainly said that Government has taken into consideration all WP. NO.44916/2014 16 relevant criteria before posting eligible officers found in the seniority list with independent charge of the post of Deputy Commissioners of Excise. If respondent No.3 had not completed one year of service as Deputy Commissioner of Excise, Bangalore West, it would have been certainly contrary to guidelines. His posting is on the basis of his completion of more than one year service as Deputy Commissioner of Excise, Bangalore West and therefore, his transfer is in accordance with the guidelines framed by the Government vide order dated 20.5.2014.
18. The facts in Raghurama Shetty's case are distinguishable vis-à-vis facts of the present case. The Tribunal has misapplied the decision rendered in Raghurama Shetty's case to the facts of the present case. It has proceeded on a wrong WP. NO.44916/2014 17 assumption that the petitioner's posting is purely under Rule 32 of KCSR that too against the post which is not vacant. Hence, we are inclined to interfere with the order passed by the KAT.
19. As per the facts in Raghurama Shetty's case, apart from posting under Rule 32 of KCSR against the post which was not vacant, authority which had passed the order of transfer was not competent to pass the order of transfer. Both these aspects had not been considered by the Tribunal and the Tribunal had proceeded on the assumption that the petitioner was on deputation and the petitioner had completed 3 years and he had no substantive right. Since the Tribunal has proceeded on a wrong assumption in the present case, the order passed by the Tribunal is illegal and is liable to be set aside.
WP. NO.44916/201418
20. As already said, the facts of the present case are distinct from the facts of the Raghurama Shetty's case. As such the case on hand is not displacing the officer who has not completed one year of service. The posting of respondent No.3 to Shimoga is in the nature of displacing him by way of a regular transfer, which is based on proper transfer guidelines, more particularly, in view of his stay being more than a year as Deputy Commissioner of Excise, Bangalore West. Since he has put in more than two years of service, the moment the order of transfer is issued, his place has become automatically vacant and hence posting the petitioner as Deputy Commissioner of Excise, Bangalore West with independent charge under Rule 32 of KCSR by virtue of transfer order does not vitiate in any manner. The error so committed by WP. NO.44916/2014 19 the tribunal is apparent on the face of the record inviting the interference of this Court.
ORDER In this view of the matter, the writ petition is allowed. The impugned order passed by the Karnataka Administrative Tribunal, Bangalore on 1.9.2014 in application No.7337/2014 is quashed.
There is no order as to costs.
Sd/-
JUDGE Sd/-
JUDGE DM/-