Karnataka High Court
Shri Jyothi S Girish S/O J ... vs The State Of Karnataka on 10 June, 2022
Bench: Pradeep Singh Bypsyj
1
IN THE HIGH COUR T OF K ARNATAKA
DHAR WAD BENCH
DATED THIS TH E 10 T H DAY O F JUNE, 2022
BEFO RE
THE H ON'BLE MR. JUSTICE PRADEE P SINGH YE R UR
W RIT PE TITION NO.101823/2022 (S-TR )
BETW EE N:
SHRI JYOTHI S. GIRISH
S/O J. SHARANAPPA,
AGE. 41 YEAR S,
OCC. E NVIRO NMENT E NGINEER ,
NOW WORKING AS CO MMISSIONER
CITY MUNICIPAL COUNIL, JAMKHAND I,
DIST. BAGALKOT, PIN-587301.
...PETITIONER
(BY SH RI R.K .KULK ARNI., ADVOCATE)
AND :
1. THE STATE OF K ARNATAK A
RE PR ESE NTED BY
UND ER SECRETARY TO TH E
DEPAR TME NT OF URBAN
AND RURAL DE VELO PME NT,
VIK AS SOUDHA, AMBEDKAR VEE DHI,
BE NG ALURU-560001.
2. THE COMMISSIONER
FOR MUNICIPAL ADMINISTRATION
9TH FLO OR , VISHWAVESH WARAYYA
TOWE R , AMBE DK AR VEEDHI,
BE NG ALURU-560001.
3. THE D EPUTY COMMISSIONER
FOR BAGALKOT DISTR ICT,
DISTRICT: BAGALKOT,
PIN CO DE-587103.
2
4. SMT. LAX MI ASTAGI
AG E: MAJOR,
OCC:CHIE F OFFICE R GRADE-1,
R/O . H .NO.449, AT K ALK HAMB(POST),
MUCHCHANDI, DISTR ICT: BELAG AVI,
PIN CO DE. 590016.
...RESPOND ENTS
(BY SH RI SWE THA K RISHNAPPA, AD DL. GOVERNME NT
ADVOCATE FO R R1 TO R 3;
BY SH RI B.D.NARASAGOND, ADVOCATE FO R C/R4;
BY SH RI RAVINDRANAIK K. &
SHRI VINAY HEGDE., ADVO CATE S FOR R4)
THIS WR IT PETITION IS FILED UNDE R AR TICLE
226 AND 227 OF THE CO NSTITUTION OF INDIA,
PR AYING TO ;
A) ISSUE AN ORDER OR WRIT OR DIRECTION IN
TH E NATUR E OF CER TIOR ARI QUASHING THE
IMPUGNED ORDER PASSE D BY THE RESPONDENT
NO.1 ON 12.05.2022, VIDE ANNEXURE -D, SO FOR AS
IT RE LATE S TO THE PE TITIO NE R IS CO NCER NED, AT
SL.NO.10 IN THE IMPUGNED OR DER, IN THE
INTER ESTS O F JUSTICE AND EQUITY.
THIS PETI TION C OMING ON FOR HE ARING -
INTER LOCUTO RY APPLICATION TH IS DAY, THE COUR T
PASSE D THE FOLLOWING :
ORDER
Heard learned counsel for the petitioner,
learned Addl. Government Advocate for
respondent Nos.1 to 3 and learned counsel
Shri. Ravindranaik K, for respondent No.4.
2. Petitioner is working as Commissioner
in City Municipal Council, Jamakhandi, Dist:
Bagalkot from 28.05.2021, as per the order of
respondent No.1. Vide order dated 12.05.2022,
the 4 t h respondent belonging to the cadre of KMAS
Commissioner has been posted to the post of
petitioner even before completion of one year of
service of petitioner at Jamakhandi as
Commissioner of City Municipal Council.
Admittedly, the petitioner was appointed as
Environmental Engineer on 15.10.2005 by the 2 n d
respondent and she joined the duty as
Environmental Engineer at the office of City
Municipal Council, Mudhol vide order dated
28.5.2021. As per the order passed by respondent
No.1, the petitioner was transferred as
Commissioner, CMC, Jamkhandi. It is the case of
petitioner that she has put in nearly one year
service in the present place as Commissioner by
the order of respondent No.1. The 4 t h respondent
is now posted in the place of petitioner without
showing any place of work to the petitioner, as
per the impugned order. The petitioner is
aggrieved by the said posting of 4 t h respondent in
her place as Commissioner, CMC and also on the
ground that she has been not provided any place
of posting or any place of work, she has filed the
present petition.
3. It is contended by learned counsel for
the petitioner that she is posted in the present
place of Commissioner, CMC, Jamkhandi and has
completed one year of service. According to
Annexure-A, she fits into the category and she is
rightfully entitled to continue in the place.
Whereas the posting of 4 t h respondent in the place
of petitioner without providing any place of
posting to the petitioner violates the principles of
natural justice and so also of the rules and
regulations where when no place of posting is
assigned to the petitioner, the same stinks of
legal malafides. Therefore, he has canvassed his
argument that the posting of respondent No.4 to
the place of petitioner requires to be set-aside on
these grounds.
4. Per contra, learned counsel
Shri Ravindranaik K, appearing on behalf of 4 t h
respondent has filed statement of objections and
contends that the 4th respondent has passed
Karnataka Public Service Commission exam in the
year 2011 for the post of Commissioner, Grade-I,
Group-B and was issued the joining order dated
22.3.2022. As per the order at Annexure-R1, the
4th respondent joined the Head Office i.e.,
Directorate of Municipal Administration, V.V
Tower at Bengaluru on 22.03.2022. On
12.05.2022, the 1 s t respondent had transferred
the 4 t h respondent as Commissioner, C.M.C, at
Jamkhandi, which is impugned herein. It is his
vehement contention that pursuant to the order
dated 12.5.2022 passed by respondent No.1, the
4 t h respondent took charge on 16.5.2022, which is
evidenced by production vide Annexure-R4. It is
also contended by learned counsel for respondent
No.4 that pursuant to taking charge on
16.5.2022, he had filed a caveat petition
No.21516/2022 before this Court to be heard
before any order is passed. In reply to the said
contention of respondent No.4, learned counsel
for the petitioner contends that the present writ
petition came to be filed on 16.5.2022 and he was
not aware of any caveat petition having been filed
and neither was put up before the Court when the
matter came up before the Court. When the
matter came up before this Court on 17.5.2022 an
interim order came to be passed by this Court
granting stay insofar as Sl.No.10 of Annexure-D
till next date of hearing. Pursuant to which, the
statement of objections were filed along with
annexures by respondent No.4.
5. It is the contention of learned counsel
for respondent No.4 that the petitioner is not fit
person to occupy the post of Commissioner, as
she is not qualified as KMAS Officer, Grade-II and
she is holding the qualification of Environmental
Engineer. It is also the contention of learned
counsel that the petitioner has misrepresented
and misguided this Court and obtained an interim
order despite respondent No.4 having taken
charge on 16.5.2022, as per Annexure-R4. He
further contends that the present petition would
not survive for consideration in view of the fact
that the respondent had already taken charge
prior to the passing of interim order by this Court
on 17.5.2022. Therefore, he contends that the
posting of respondent No.4 to the post of
Commissioner, CMC, Jamkhandi is perfectly in
order and does not suffer from any legal malafides
as alleged by the petitioner. Hence, the petition
deserves to be dismissed with cost.
6. Learned Addl.Government Advocate
Smt. Swetha Krishnappa vehemently contends
that the post of Commissioner, CMC, Jamkhandi
is to be provided necessarily to the following
persons, as mentioned in Annexure-A(1), dated
25.05.2021 and it clearly specifies that it is a
temporary posting of the person stipulated
therein. She further contends that as per Class-II
of Annexure-A, if there is a posting of any KMAS
qualified officer, then the person, who is
occupying the post of Commissioner would have
to be relieved and post would have to be vacated
for the KMAS Officer to take charge. She
vehemently contends that admittedly in the
present case on hand, the petitioner not being the
KMAS Officer and neither being a Chief Officer,
Grade-I, is not entitled to sit, squat and cling on
to the post of Commissioner, CMC, Jamkhandi
and will have to necessarily be relieved and more
so as she was on deputation to the present post of
Commissioner. She also contends that the
petitioner is not a KMAS officer. Therefore, she
would not have a inherent right to cling on to the
said post. It is also contended by learned Addl.
Government Advocate that the petitioner is a
technically qualified person and being on
deputation to the post of Commissioner would not
have an inherent right to claim authority over the
said post. She further contends that transfer of
an employee is not only an incidence of service
but is inherent in the terms of appointment, but
it is also implicit as an essential condition of
service. Therefore, in the present case, she
contends that there are no legal malafides and
petitioner cannot take umbrage under the ground
of legal malafides for squatting on the post of
Commissioner. Learned Addl. Government
Advocate relies on the judgment of Hon'ble Apex
Court in the case of State Of U.P. And Ors. Vs
Gobardhan Lal reported in AIR 2004 SC 2165.
7. Having considered the submissions and
arguments of learned counsel for the petitioner,
respondent No.4 and also the learned Addl.
Government Advocate, it is seen that the post of
Commissioner is reserved and it is to be provided
to the persons as stipulated in Annexure-A,
Class-I. As per Class-II it specifies that if the
KMAS Officer is posted then the person, who is
deputed on deputation or who is sitting in the
post of Commissioner will have to give way and be
relieved from the said post providing the
opportunity to the authorized KMAS Officer to
take charge. In the present case on hand as
stated by learned counsel for respondent No.4
and by learned Addl.Government Advocate, it is to
be seen that as on 16.5.2022, the 4 t h respondent
has assumed and taken charge vide Annexure-R4.
However, the petitioner has approached this
Court by filing the present writ petition on
16.5.2022 and has obtained an interim order of
stay of the transfer/posting of respondent No.4 on
17.5.2022 without bringing to the notice of this
Court that vide order dated 16.5.2022, as per
Annexure-4, the 4th respondent has already
assumed the charge.
8. It is to be seen that in the matters of
transfer, the transferee, who has been ordered to
move out to a different place by way of transfer
cannot cling on and squat in the position, as a
matter of right. In the normal circumstances, the
Court should not interfere in the matters of
transfer as it is an incidence of service condition
and the transfer policies have to be left to be
decided by the Executive. In several orders passed
by this Court and the Hon'ble Apex Court, it is
clearly held that an order of transfers made in
exigencies of Administration guidelines cannot be
interfered with, as they do not provide any legally
enforceable right unless it is vitiated by
malafides. Though learned counsel for the
petitioner has seriously canvassed legal malafides
in the present case, it is not forthcoming what are
the legal malafides and considering Annexure-R4,
which is evident that as on 16.05.2022, the 4 t h
respondent has assumed charge and taken charge
for the post of Commissioner, CMC, Jamkhandi. It
is also to be noted that the present case on hand
though petitioner was aware of the fact that as on
16.5.2022 vide Annexure-R4, the 4 t h respondent
has assumed charge, the same was not brought to
the notice of this Court, which aspect is not
appreciated and the same is deprecated. That is
why it is stated by Hon'ble Apex Court that in the
matters of transfer, the High Court should refrain
itself from granting any interim orders as soon as
the aggrieved person approaches the Court.
9. Even otherwise in the present facts and
circumstances of the case, it is not in dispute
that the petitioner is not a KMAS Officer. So also,
the petitioner is not from the cadre of Chief
Officer, Grade-I. Admittedly, the petitioner has
been put on deputation to the post of
Commissioner. Therefore, now when the 4th
respondent, who is the eligible person belonging
to KMAS qualification is posted, I do not find any
legal malafides arising out of such posting to the
post of Commissioner, CMC, Jamkhandi.
10. In view of the above discussions, I do
not find any legal malafides being attributed in
the posting of respondent No.4 to the post of
Commissioner, CMC, Jamkhandi, as against the
petitioner.
11. Hence, under these circumstances the
present petition is devoid of merits and the same
deserves to be dismissed. Accordingly, it is
dismissed.
SD
JUDGE
am/-
