Full Judgment Text
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 24 DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
WRIT PETITION NO.17670 OF 2023(S-KSAT)
BETWEEN
DR. PRAJNA AMMEMBALA,
D/O PROF. A.V.NAVADA,
AGED ABOUT 46 YEARS,
KAS (SENIOR SCALE),
RESIDING AT NO.7,
ST
1 'A' MAIN ROAD, 2ND CROSS,
SHIVANAGARA, RAJAJINAGAR,
BANGALORE - 560 010.
...PETITIONER
(BY SRI. PRITHVEESH M.K, ADVOCATE)
AND
1 . THE STATE OF KARNATAKA,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE
REFORMS, VIDHANA SOUDHA,
BANGALORE - 560 001.
2 . THE STATE OF KARNATAKA,
REPRESENTED BY ITS PRINCIPAL SECRETARY (ACS),
DEPARTMENT OF FOOD CIVIL SUPPLIES AND CONSUMER
AFFAIRS, NO.8, CUNNINGHAM ROAD,
BANGALORE - 560 052.
3 . SRI. PATHARAJU.V,
S/O VEERAMARAIAH,
AGED ABOUT 49 YEARS,
WORKING AS ADDITIONAL DIRECTOR - 1(IRA),
DEPARTMENT OF FOOD CIVIL SUPPLIES AND CONSUMER
2
AFFAIRS, NO.8, CUNNINGHAM ROAD,
BANGALORE - 560 052.
…RESPONDENTS
(BY SRI. S.P.KULKARNI, SENIOR COUNSEL FOR
SRI. H.M.UMESH FOR C/R3;
SRI. V.SHIVAREDDY AGA FOR R1 & R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO
a) CALL FOR RECORDS PERTAINING TO THE IMPUGNED ORDER
DATED 02/08/2023 PASSED IN APPLICATION No. 2947/2023 BY
THE HON'BLE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL
(ANNEXURE-A) AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 17.11.2023, COMING ON FOR PRONOUNCEMENT
THIS DAY, RAJESH RAI.K, J., MADE THE FOLLOWING:
ORDER
Heard Learned Counsel Sri. Prithveesh M K for the Petitioner
and learned senior counsel Sri. S.P. Kulkarni for Sri. H.M.Umesh for
Respondent No.3 and Learned AGA.
2. This Writ Petition arises out of order passed by the
Karnataka State Administrative Tribunal (for short 'tribunal') in
A.No. 2947/2023 dated 02.08.2023. Wherein the tribunal was
pleased to allow the application by setting aside the impugned
transfer notification bearing No. SiAaSuEi 181 AaSeEi 2023 dated
06.07.2023.
3. The facts in brief that led the petitioner to this court, as
borne out from the pleading are as follows :
Petitioner who is currently a KAS (senior Scale) officer who
was appointed by way of direct recruitment in the year 2006 initially
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as a tahsildar. Further, the Petitioner came to be promoted as
KAS(Junior Scale) officer in the year 2015 and to KAS (Senior
Scale) in the year January, 2021.
4. Pursuant to him being promoted as stated supra, vide
order dated 02.02.2022 he was posted as Deputy Secretary,
department of Social Welfare, Karnataka Government Secretariat.
This posting order came to be questioned before the tribunal and
tribunal upholding his transfer directed the petitioner to report to
the transferred place. Posteriorly, on 27.01.2023 petitioner was
further transferred to the post of Deputy secretary, Department of
Home. Within one month of this order being passed, i.e, on
27.02.2023 petitioner was reverted back to his earlier place of
posting i.e. as Deputy Secretary, Department of Social Welfare. But
one Sri. M.J.Venkateshaiah who was working as Deputy Secretary,
Department of Social Welfare was due to retire in two months. It is
in this background, pursuant to the said order petitioner was
relieved from the post of Deputy Secretary, Department of home on
st
16.03.2023 and reported to 1 respondent head office seeking for
appropriate posting.
5. Posteriorly, on petitioner being without posting since
17.03.2023 respondent No.1 passed transfer notification,
transferring him to the post of Additional Director-I Department of
Food, Civil Supplies and Consumer affairs where respondent No. 3
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was working, vide bearing No.SoAaSiEi 181 AaSeEi 2023 dated
06.07.2023. This came to be challenged by the respondent No.3
herein on it being premature and without prior approval of Chief
Minister. Tribunal examined the rival contentions and proceeded to
set aside the impugned order on the ground that it being premature
and respondent No.3/petitioner herein is ineligible to hold the post
as provided by C and R rules pertaining to the Department of Food,
Civil Supplies and Consumer Affairs. It is in this coveted background
the respondent No.3/petitioner has approached this Hon'ble Court
challenging the order passed by the tribunal supra.
6. It is contended by the petitioner that the original
posting of respondent No.3 to the place in question i.e. Additional
Director-I of Food, Civil Supplies and Consumer Affairs vide order
dated 09.11.2021 is in itself is bad in law. As the post of Additional
Director-I supra is an encadred post and as per government order
dated 18.12.2017 which is produced at page 64 of the writ petition
and hence the said post can only be filled by person who is in the
grade of IAS (Viz. page-74). The said provision also mentions a
rider wherein in the absence of there being no eligible persons from
the cadre of IAS to be posted to the said place, then it shall be filled
by a person who is in the cadre of KAS(super time scale).
7. The petitioner draws the attention of this court to
Annexure A1 to the application before the tribunal and contends
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that the respondent No.3/applicant before tribunal is a KAS (senior
scale) officer and hence as per government order mentioned supra
the respondent No.3 has no eligibility to hold the said post.
8. It is in this background, the learned counsel for the
petitioner contended that the respondent No.3 who has approached
the tribunal has no locus standi to challenge the impugned transfer
notification as his posting is par se flawed and defective. The
petitioner urges this contention by buttressing two decisions passed
by the co-ordinate bench of this Court in Sri.Ravindranath A
Hanchilal Vs State of Karnataka and others in
WP.No.226457/2020 and Dr.K.T.Subhas Chandra Vs. The
Commissioner of Collegiate Education Department and
others. in W.P. No. 47197/2013.
9. Learned counsel for the petitioner also vehemently
submits the respondent No.3 herein belongs to the Department of
Personnel and Administrative Reforms and he was occupying the
said place vide notification dated 09.11.2021 and the said
notification is not a transfer order but an order of deputation passed
in favour of respondent No.3 herein. On this background he would
contend, even appreciating the said position, the tenure of
respondent No.3 to hold the said place in question would come to
th
rest on 9 of November as he would complete the minimum tenure
of two years in the said place.
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10. Per contra, the learned senior counsel for respondent
No.3 contends that he was posted to the place in question vide
order dated 09.11.2021 and he took charge of the said post on
10.11.2021. Hence, displacing him by the impugned order is in the
teeth of transfer guidelines of 07.06.2013 as the same is premature
and without posting. Learned senior counsel to countenance his
Seema H Vs. State of
contentions relies upon the decision of
Karnataka 2016 SCC OnLine Kar 8202.
reported in
11. Learned senior counsel in contra to the submissions
made by the learned counsel for the petitioner with respect to
eligibility criterion of the respondent No.3 to hold the said place is
concerned, relies upon the government order produced at
Annexure-A4 to the application bearing notification No.SiAaSuEi 175
AaSeVa 2022, Bengaluru dated 27.07.2022. Wherein, the state
government has upgraded the post of respondent No.3 from
KAS(senior scale) to KAS (Selection grade) which can be seen at
Sl.No.37 of the order and it is in this background he has been
continued to the place in question. The learned senior counsel also
asserts the finding recorded by the tribunal in paragraph 9 of the
impugned order with respect to the eligibility of the respondent
No.3 to hold the post is concerned and submits that tribunal has
rightly appreciated this position based on materials available on
record.
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12. This Writ petition being heard and disposed on
25.10.2023,was again restored back to file on account of
Respondent No.3 filing R.P.No.521/2023 which came to be allowed
on 09.11.2023 for fresh consideration. Accordingly, heard the
respective parties and perused the entire records made available to
this Court.
13. Respondent No.3 came to be deputed to the place of
Additional Director-I, as KAS (Senior scale) officer on 09.11.2021
and it was on 27.07.2022 by a government order, his cadre was
upgraded to Selection grade and pursuant to which he continued in
the same place. We now find it relevant to refer the government
order dated 27.07.2022 which reads as under-
"¸ÀPÁðgÀzÀ DzÉñÀ ¸ÀASÉå: ¹D¸ÀÄE 175 D¸ÉêÀ 2022,
¨ÉAUÀ¼ÀÆgÀÄ ¢£ÁAPÀ: 27.07.2022
¥Àæ¸ÁÛªÀ£ÉAiÀÄ°è «ªÀj¹gÀĪÀ CA±ÀUÀ¼À »£À߯ÉAiÀÄ°è, C¢ü¸ÀÆZÀ£É ¸ÀASÉå:¹D¸ÀÄE
118 D¸ÉêÀ 2022, ¢£ÁAPÀ: 31/05/2022 gÀ°è PÉ.J.J¸ï(»jAiÀÄ ±ÉæÃtÂ) ªÀÈAzÀ¢AzÀ
PÉ.J.J¸ï(DAiÉÄÌ ±ÉæÃtÂ) ªÀÈAzÀPÉÌ §rÛ ¤Ãr, DqÀ½vÀzÀ »vÀzÀȶ֬ÄAzÀ ªÀÄvÀÄÛ
CªÀ±ÀåPÀvÉPÀÌ£ÀÄUÀÄtªÁV CªÀgÀÄUÀ¼ÀÄ PÀvÀðªÀå ¤ªÀð»¸ÀÄwÛgÀĪÀ ºÀÄzÉÝUÀ¼À°èAiÉÄà £ÉëĹ
ªÀÄÄAzÀĪÀgɸÀĪÀÅzÀjAzÀ F PɼÀPÀAqÀ C¢üPÁjUÀ¼ÀÄ §rÛ ºÉÆA¢ PÀvÀðªÀå ¤ªÀð»¸ÀÄwÛgÀĪÀ
ºÀÄzÉÝUÀ¼À£ÀÄß vÁvÁÌ°PÀªÁV PÉ.J.J¸ï(DAiÉÄÌ ±ÉæÃtÂ) ªÀÈAzÀPÉÌ G£ÀßwÃPÀj¹/¸ÉÃ¥ÀðqÉ ªÀiÁr
DzÉò¹zÉ."
The name of the respondent No.3 finds place at Sl.No.37 of
this order.
14. By close scrutiny of the government order mentioned
supra would indicate that, the state has passed the said order in
terms of Rule 60 of the Karnataka Civil Service Rules upgrading the
cadre of respondent No.3, only for temporary period. Before we
8
speak anything about the nature of upgradation that respondent
No.3 has been conferred with, we find it relevant to refer to the
judgement rendered by the Hon'ble Appex Court in BSNL v. R.
Santhakumari Velusamy , reported in (2011) 9 SCC 510 which reads
as under -
"29. On a careful analysis of the principles relating
to promotion and upgradation in the light of the aforesaid
decisions, the following principles emerge:
( i ) Promotion is an advancement in rank or grade
or both and is a step towards advancement to a higher
position, grade or honour and dignity. Though in the
traditional sense promotion refers to advancement to a
higher post, in its wider sense, promotion may include an
advancement to a higher pay scale without moving to a
different post. But the mere fact that both—that is,
advancement to a higher position and advancement to a
higher pay scale—are described by the common term
“promotion”, does not mean that they are the same. The
two types of promotion are distinct and have different
connotations and consequences.
( ii ) Upgradation merely confers a financial benefit
by raising the scale of pay of the post without there being
movement from a lower position to a higher position. In
an upgradation, the candidate continues to hold the same
post without any change in the duties and responsibilities
but merely gets a higher pay scale.
( iii ) Therefore, when there is an advancement to a
higher pay scale without change of post, it may be
referred to as upgradation or promotion to a higher pay
scale. But there is still difference between the two. Where
the advancement to a higher pay scale without change of
post is available to everyone who satisfies the eligibility
conditions, without undergoing any process of selection, it
will be upgradation. But if the advancement to a higher
pay scale without change of post is as a result of some
process which has elements of selection, then it will be a
promotion to a higher pay scale. In other words,
upgradation by application of a process of selection, as
contrasted from an upgradation simpliciter can be said to
be a promotion in its wider sense, that is, advancement to
a higher pay scale.
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( iv ) Generally, upgradation relates to and applies to
all positions in a category, who have completed a
minimum period of service. Upgradation can also be
restricted to a percentage of posts in a cadre with
reference to seniority (instead of being made available to
all employees in the category) and it will still be an
upgradation simpliciter. But if there is a process of
selection or consideration of comparative merit or
suitability for granting the upgradation or benefit of
advancement to a higher pay scale, it will be a promotion.
A mere screening to eliminate such employees whose
service records may contain adverse entries or who might
have suffered punishment, may not amount to a process
of selection leading to promotion and the elimination may
still be a part of the process of upgradation simpliciter.
Where the upgradation involves a process of selection
criteria similar to those applicable to promotion, then it
will, in effect, be a promotion, though termed as
upgradation.
( v ) Where the process is an upgradation simpliciter,
there is no need to apply the rules of reservation. But
where the upgradation involves a selection process and is
therefore a promotion, the rules of reservation will apply.
( vi ) Where there is a restructuring of some cadres
resulting in creation of additional posts and filling of those
vacancies by those who satisfy the conditions of eligibility
which includes a minimum period of service, will attract
the rules of reservation. On the other hand, where the
restructuring of posts does not involve creation of
additional posts but merely results in some of the existing
posts being placed in a higher grade to provide relief
against stagnation, the said process does not invite
reservation."
( emphasis supplied by me)
When this being the legal position, upgradation order passed
supra in respect of respondent No.3 is passed in order to
temporarily arrange the right personnel eligible to hold the post in
question. But, the order dated 27.07.2022 cannot be interpreted in
a manner that the respondent No.3 is promoted to the cadre of KAS
(Selection grade) as promotion would not only include the increase
10
in pay scale and rank but it also would include advancement in
honour, dignity and grade. (See - Union of India vs Pushpa Rani
and Others reported in (2008) 9 SCC 242 ).
15. Hence, it cannot be stated that the respondent No.3 is
more eligible to hold the post than petitioner herein, as both of
them belong to the same cadre i.e, KAS (Senior Scale) officer.
16. This being the position, now we proceed to examine the
initial posting of the Respondent No.3 vide order dated 09.11.2021
juxtapose the requirement as per the government order
18.12.2017. The government order mentioned supra which declared
the eligibility criteria to hold the post of the Additional Director-I is
concerned, clearly specified that the said post can only be held by
the person in the cadre of I.A.S and no such person being available,
it is only then, a person from the cadre of KAS (Super time scale)
be placed as Additional Director-I. On the other hand, while
respondent No.3 was deputed to the post mentioned supra, he was
KAS (Senior Scale) officer. Hence, we find that the initial posting of
the respondent no. 3 to the post mentioned infra itself is per se bad
in law and liable to be quashed on it being defective. When the
initial posting of respondent No. 3 is malum ni se(wrong in itself),
he questioning the posting given to the Petitioner by way of
impugned order herein has no legs and liable to be struck down at
the inception itself as per law laid down by the co-ordinate bench of
11
this Hon'ble Court in Dr.K.T.Subhas Chandra Vs. The
Commissioner of Collegiate Education Department and
others. in W.P. No. 47197/2013. While this aspect being
queried to the respondent No.3 herein, the learned senior counsel
submits that the petitioner is also not eligible to hold the post
mention Ibid. We are unable to appreciate this contention of the
learned senior counsel, on the sole premises of " Ex injuria jus non
oritur"(illegal acts does not create law). Respondent No.3
having taken the advantages of wrongful posting, cannot
then take advantage of bar of any law to frustrate the lawful
process. Hence, it cannot be said that the respondent No.3 has
locus standi to challenge the veracity of impugned order and also in
so far as posting the petitioner is concerned.
17. The tribunal without appreciating the said factual
position has proceeded to mis-interpret that the Government by its
order dated 27.07.2022 has upgraded the eligibility criteria to hold
the post of Additional Director-I from KAS (Senior scale) to KAS
(selection grade) and has concluded that the respondent No.3
whose cadre is also upgraded by the same order is eligible to hold
the post when compared to the petitioner herein. Even if the
government order dated 27.07.2022 is read otherwise so as to
mean the eligibility of post in question has been upgraded to
Selection grade then such interpretation will be dehors the
12
government order dated 18.12.2017 as it clearly provides that the
eligibility to hold the post is not one of selection grade but of grade
of super time scale. Such being the scenario the manner of
language used in the government order dated 27.07.2022 would
only mean that cadre of respondent No.3 is upgraded, not the
entire post itself.
18. In the second limb of the arguments, the learned senior
counsel would submit before this court that the order impugned is a
premature one and even without showing any posting to him. In
this regard, it would be germane to resort back to the transfer
guidelines dated 07.06.2023, which guards not only the transfer but
also the deputation of the respondent herein, wherein it provides
that the minimum tenure of deputation is two years only and the
respondent has completed the tenure of two years by 09.11.2023
itself. Moreover, it is now well-settled law by various judgement of
Hon'ble Apex Court so also this Court that deputation is a
temporary arrangement and the same cannot be claimed as a
matter of right and the deputationist shall report back to his home
department once the tenure at borrowing department is completed,
unless absorbed or extended by the borrowing department. (See -
Union of India v. V. Ramakrishnan, reported in (2005) 8 SCC
394 and Kunal Nanda v. Union of India, (2000) 5 SCC 362 ,
reported in (2000) 5 SCC 362). Now, when all the knots being
13
untied, we now proceed to carefully examine the terms of the
impugned notification more specifically the last paragraph of the
impugned notification which reads as under-
"DzÉñÀ¢AzÀ ¸ÀܼÀ ¤jÃPÀëuÉUÉ §gÀ°gÀĪÀ C¢üÃPÁjUÀ½UÉ ªÀÄÄA¢£À ¸ÀܼÀ ¤AiÀÄÄQÛUÁV
¹.D.¸ÀÄ.E E¯ÁSÉAiÀÄ°è PÁAiÀÄðªÀgÀ¢ ªÀiÁrPÉƼÀÄîªÀAvÉ ¤zÉÃð±À£À ¤ÃqÀ¯ÁVzÉ"
On conjoint reading, this would clearly indicate that it is not
only the transfer order passed in favour of the petitioner herein but
also the repatriation order passed in favour of the respondent No.3.
Even otherwise, learned AGA for the state submits that, transfer of
petitioner is post Chief Ministers Approval and also submits that said
transfer notification is passed for public and administrative
exigencies. Such being the scenario, the respondent No.3 claiming
that the impugned order is bad in law on it being premature and
without posting is without any basis and hereby rejected.
19. We now place our opinion as to eligibility of the
petitioner to hold the post in question is concerned. It is not in
dispute that the petitioner is an equivalent cadre officer vis-à-vis
the respondent No.3, except for the reason the respondent No.3
cadre has been upgraded. Apart from the reason that respondent
No.3 was initially deputed to the said place and he has now
completed his tenure, further the upgradation was also given only
to meet the eligibility criteria, we find no other ground to say that
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the petitioner is eligible to hold the post and said upgradation, if
required can also be awarded to the Petitioner herein.
20. Be that as it may, the respondent No.3 since inception
is neither eligible to hold nor has locus to challenge any posting
made and furthermore he has worked in the said place for two
years and his minimum tenure is now completed. But, if considered
initial posting of the respondent No.3, then the Petitioner who is
also in the same cadre of KAS (Senior Scale), is very much eligible
to hold the post on deputation if the same benefit of upgradation is
awarded to him and it is in this background we hold this Writ
Petition in favour of the Petitioner.
21. Further, the Hon'ble Apex Court in B. Srinivasa Reddy
v. Karnataka Urban Water Supply & Drainage Board
Employees' Assn ., (2006) 11 SCC 731 (2), in paragraph No. 51
has held that -
"51. It is settled law by a catena of decisions that
the court cannot sit in judgment over the wisdom of the
Government in the choice of the person to be appointed so
long as the person chosen possesses the prescribed
qualification and is otherwise eligible for appointment"
( emphasis laid by me )
Hence, it is settled that this Court cannot sit on perceptivity of
the State Government in posting a person to a particular post is
concerned. But, it is well within the domain of this Court to decide
15
upon the eligibility of a person who has been posted to particular
place. In this legal position, when harped upon the impugned order
herein and on scrutinizing it gingerly, we fail to appreciate the
st
conduct of 1 respondent to pass the impugned order or even the
order dated 09.11.2021 wherein the respondent No.3 was posted to
the place in question. As these orders are very narrow and blanket
as to why a person of a lower cadre is posted to an encadred post
which can only be held by a person of higher cadre. In present case,
person either IAS cadre or KAS(Super time scale) cadre can only be
posted as Additional Director-I. Hence, we are constrained to opine
that, even though such transfer orders bear the chief ministers
signature on it, but such orders cannot be said to be a licit order as
we find absence of reasons to enlighten the Chief Minister as to
non-availability of eligible persons to be posted to said post and as
to why a person of a lower cadre is posted to the said encadred
place. Hence the following
ORDER
a) Writ Petition is Allowed.
b) The impugned order passed by the tribunal in A.No.
2947/2023 dated 02.08.2023 is hereby set aside and thereby
notification bearing No.SiAaSuEi 181 AaSeEi 2023 dated 06.07.2023
issued by respondent No.1 is upheld.
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c) It is made clear that the petitioner shall report to the
place of Additional Director -I Department of Food, Civil Supplies
and Consumer Affairs, Bengaluru, subject to state considering
posting eligible persons to the said post. In the event petitioner
being transferred from said place, the same cannot be considered
as premature. Consequently, the respondent No.3 is directed to
report back to the Head office of respondent No.1 herein and they
shall give him the posting forthwith.
We also direct the state government to issue necessary
d)
guidelines i.e, as to the circumstances under which a lower cadre
person can be posted to higher cadre post and also to make it
mandatory to assign proper reasons when a lower cadre person is
posted to a post designated for higher cadre before getting chief
ministers approval .
No order as to costs.
This court places on record its deep appreciation for the able
research and assistance rendered by Official Law Clerk/Research
Assistant, MR.Shreedhar Ganapati Bidre.
Sd/-
JUDGE
Sd/-
JUDGE
HKV
List No.: 1 Sl No.: 25