Karnataka High Court
Smt Rekha S vs State Of Karnataka on 28 December, 2023
-1-
NC: 2023:KHC:47045-DB
WP No. 29150 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR. JUSTICE R. NATARAJ
AND
THE HON'BLE MR. JUSTICE K. V. ARAVIND
WRIT PETITION No. 29150 OF 2023 (S-KSAT)
BETWEEN:
1. SMT. REKHA S.,
W/O SRI MANJUNATH K. V.,
AGED ABOUT 43 YEARS,
WORKING AS ASSISTANT EXECUTIVE ENGINEER,
MINOR IRRIGATION QUALITY CONTROL
SUB DIVISION,
SHIMOGA 577201.
(NOW ASKED TO REPORT THE
Digitally GOVERNMENT SEEKING POSTING)
signed by ...PETITIONER
SUMA
Location: (BY SRI NAGARAJ D., ADVOCATE)
HIGH
COURT OF AND:
KARNATAKA
1. STATE OF KARNATAKA,
BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF MINOR IRRIGATION AND
UNDERGROUND WATER DEVELOPMENT (SERVICES),
VIKASA SOUDHA,
DR. B. R. AMBEDKAR ROAD,
BANGALORE 560001.
-2-
NC: 2023:KHC:47045-DB
WP No. 29150 of 2023
2. SRI BHASKARA BABU,
S/O NOT KNOWN,
WORKING AS ASSISTANT EXECUTIVE ENGINEER,
MINOR IRRIGATION AND UNDERGROUND
WATER QUALITY CONTROL SUB DIVISION,
MYSORE 570001.
NOW ON TRANSFER TO THE POST OF ASSISTANT
EXECUTIVE ENGINEER,
MINOR IRRIGATION QUALITY CONTROL
SUB- DIVISION,
SHIMOGA 577201.
...RESPONDENTS
(BY SRI DEEPAK K. BAJANTRI, ADVOCATE FOR
SRI VIJAY KUMAR, ADVOCATE FOR C/R2;
SRI NAVEEN CHANDRASHEKAR, AGA FOR R1)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
A WRIT, ORDER OR DIRECTION IN THE NATURE OF
CERTIORARI OR ANY OTHER APPROPRIATE WRIT AS THIS
HON'BLE COURT DEEMS FIT SETTING ASIDE THE IMPUGNED
ORDER DATED 13/12/2023 PASSED BY THE LEARNED
KARNATAKA STATE ADMINISTRATIVE TRIBUNAL AT
BENGALURU IN APPLICATION No.4071/2023 VIDE ANNEXURE-
A.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, R. NATARAJ J., MADE THE FOLLOWING:
ORDER
The petitioner has challenged an order dated
13.12.2023 passed by the Karnataka State Administrative
Tribunal, Bengaluru in application No.4071/2023, by which
it refused to accept the challenge of her transfer and her
NC: 2023:KHC:47045-DB
services being placed at the disposal of the State
Government.
2. The facts in brief are as under:
The petitioner was transferred as an Assistant
Executive Engineer, Minor Irrigation Quality Control Sub-
Division, Shimogga in terms of an order of transfer dated
05.08.2021. After she completed her tenure of two years
in the same post, the respondent No.1 invoked Rule 32 of
the Karnataka Civil Services Rules (hereinafter referred to
as 'the KCSR Rules' for short) and posted the respondent
No.2 herein in place of the petitioner and placed the
services of the petitioner at the disposal of the State
Government. Being aggrieved by the same, the petitioner
approached the Tribunal.
3. It was contended before the Tribunal that the
petitioner could not be displaced by another Officer under
Rule 32 of the KCSR Rules. The Tribunal considering the
contentions urged, held that the petitioner had completed
NC: 2023:KHC:47045-DB
her tenure and therefore, she had no right to be continued
in the same place and that the respondent No.1 was
entitled to post any Officer to be in charge of the post
occupied by the petitioner.
4. Nonetheless, having regard to the fact that the
petitioner was not provided with a posting, it directed the
respondent No.1 to provide a posting to the petitioner
within two weeks from the date of receipt of copy of the
order. Until then, it directed the respondent No.1 to
continue the services of the petitioner at the same post.
Being aggrieved by the same, petitioner is before this
Court.
5. Learned counsel for the petitioner submits that
the petitioner was holding a substantive post and
therefore, even after her tenure in the post expired, the
respondent No.1 could not have invoked Rule 32 of the
KCSR Rules to post the respondent No.2. He relied upon
the judgment of the Division Bench of this Court in the
NC: 2023:KHC:47045-DB
case of Shri. Bhoja Raja Vs. Shri. Hombalaoaj and
Others and connected writ petitions where, the co-
ordinate bench of this Court at paragraph No.8 held that:
8. Note - 3 set out above states that the period
for which the incharge arrangements can be made
depending upon the nature of the posts. The period
prescribed is the maximum period, for which a person
can be posted under this Rule. It is because, when a
post becomes vacant, a suitable person for the said post
is to be found and posted. It takes some time. In the
meanwhile, Administration should not suffer. A person,
who is working in the said department, who possess
the requisite qualification, to be promoted to the said
post, is appointed for a temporary period. This object is
behind this Rule. But unfortunately, we see this
provision is breached by the authority with impunity
and contrary to the spirit of this Rule. The persons are
placed incharge under this Rule by way of transfer to a
post, which is not vacant and to accommodate these
persons incumbent holding the post is transferred. The
time-schedule prescribed in Rule III is to be adhered to.
In exceptional cases, the said period could be extended
beyond six months. But, that does not mean that these
persons could be continued in the post by way of
incharge arrangement for years. This is not
contemplated under this Rule. If such procedure is
NC: 2023:KHC:47045-DB
resorted to, then it amounts to abuse of these
provisions. It will have no legal foundation. Therefore,
on 30.04.2012 when Bhoja Raja was working at
Gowribidanur as Incharge Sub-Registrar under Rule 32
of the Rules and when respondent No.1 was working as
a Senior Sub-Registrar at Vijayanagar, Bangalore, the
transfer of the petitioner to the post held by respondent
No.1 is contrary to Rule 32, because the post of a Sub-
Registrar was not vacant at Vijayanagar. A vacancy
cannot be created by transferring the incumbent
persons to another office and incharge Sub-Registrar
cannot be placed in his place to be there again as an
incharge Sub-Registrar. In other words, when a person
is posted as an incharge arrangement, he should be at
the place where he was working in the earlier office.
Therefore, the said order insofar as the petitioner is
concerned, is illegal, and requires to be set aside and
accordingly, it is set aside. Consequently, the order
dated 10.5.2012 transferring Sri.Hombalaiah to the
head office is also quashed. However, it is made clear
that Hombalaiah has completed two years of service in
Vijayanagar. If the authorities choose to transfer him
due to exigency of service, they are at liberty to do so
and this order would not come in their way.
6. He therefore contends that the impugned order
transferring the petitioner out of the post and posting the
NC: 2023:KHC:47045-DB
respondent No.2 in exercise of power under Rule 32 of the
KCSR Rules is illegal and warrants interference.
7. Per contra, learned counsel for the respondent
No.2/caveator submits that the petitioner had already
completed her tenure in the post and therefore, she has
no right to continue in the same post beyond the period of
two years. He submitted that once she completed the
tenure, she could be transferred at the discretion of the
respondent No.1 and the respondent No.1 in its wisdom
had deemed it appropriate to post the respondent No.2 in
the place of the petitioner. He contends that there is no
prohibition in law for the respondent No.1 to exercise
power under Rule 32 of the KCSR Rules to post any
suitable officer in the place of the person whose tenure is
completed. He relied upon the judgment of the co-
ordinate bench of this Court in the case of B. Madesh Vs.
State of Karnataka and Others.1
(W.P. No.44916/2014 (S-KAT)
NC: 2023:KHC:47045-DB
8. Learned counsel for the petitioner further
contended that the husband of the petitioner is posted at
Sringeri and there are attempts by the respondent No.1 to
transfer the petitioner to a post in Koppal, which can
hamper the education of the children of the petitioner, as
the order of transfer is passed during middle of the
academic year. In this regard, he relied upon the
judgment of the Hon'ble Apex Court in the case of
Director of School Education, Madras and Others Vs.
O. Karuppa Thevan and Another2. He further
contended that it is incumbent upon the respondent No.1
to provide a posting to the petitioner and she cannot be
left in the lurch.
9. The learned AGA submitted that the Tribunal
has directed the respondent No.1 to give a posting and
until then not to disturb the petitioner. He submits that the
petitioner would be given a posting. Alternatively, the
petitioner may submit a representation seeking for a
1994 Supp (2) SCC 666
NC: 2023:KHC:47045-DB
posting to a place which is vacant and that the respondent
No.1 would consider posting the petitioner at such place.
10. After considering the submissions made by the
learned counsel for the petitioner as well as learned
counsel for respondent No.2, it is undisputed that the
petitioner had served as an Assistant Executive Engineer,
Minor Irrigation Quality Control Sub-Division, Shimogga
for more than two years and therefore, the respondent
No.1 could consider transferring the petitioner. The
petitioner did not have any right to challenge the authority
of the respondent No.1 and claim that she was entitled to
be continued in the same post. The respondent No.1 was
always entitled to transfer out the petitioner and due to
exigencies within its wisdom, it could exercise jurisdiction
under Rule 32 of the KCSR Rules to appoint a suitable
person in the place of the petitioner. In the case on hand,
the respondent No.2 was equally qualified and therefore,
was eligible to be placed in charge of the post occupied
with petitioner. Nonetheless, the respondent No.1 could
- 10 -
NC: 2023:KHC:47045-DB
not have placed the services of the petitioner at its
disposal without even indicating a place of posting. The
services of the petitioner cannot be left in suspended
animation but there should be some certainty to the place
where the petitioner would be posted. This is also the law
declared by the Division Bench of this Court in the case of
Seema H. Vs. The State of Karnataka and Others.3
11. The Tribunal after considering the same, has
rightly directed the respondent No.1 to provide a posting
to the petitioner within a period of two weeks from the
date of receipt of copy of the order and till then, her
services at the present post were ordered to be continued.
Now the learned AGA has made a submission that having
regard to the fact that the petitioner's husband is working
at Sringeri, the petitioner may file an appropriate
representation before the respondent No.1 to transfer the
petitioner to a place near to her husband's place of work
and that the said representation would be considered
LAWS(KAR)-2016-9-106, W.P. No.48499/2016 (S-KAT)
- 11 -
NC: 2023:KHC:47045-DB
expeditiously and till then, the services of the petitioner
would be continued at the same post.
12. Hence, this writ petition is disposed off
directing the petitioner to file a representation on the
aforesaid terms within one week and if such
representation is filed, the respondent No.1 shall consider
the same in accordance with law at any rate within a
period of fifteen days from the date of filing of the
representation. Till then, the services of the petitioner
shall be continued in the same place. The respondent
No.1 shall thereafter issue appropriate orders filling up the
post that may be vacated by the petitioner.
Sd/-
JUDGE
Sd/-
JUDGE
VBS
