Allowed

Sri Pampapathi Virupapura v. the State of Karnataka

Karnataka HC12 Aug 2024WP/10210/2024

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a writ petition challenging an ATS order that set aside a departmental transfer. The Court held that the Tribunal erred by ignoring the 'public interest' exception under Rule 16 of the Karnataka Civil Services (General Recruitment) Rules, 1977, which validates deputation and subsequent transfers despite restrictions in specific cadre rules.

What did the court decide?

The writ petition allowed; the Tribunal's impugned order dated 01.04.2024 set aside; the application before the ATS dismissed.

Sri Pampapathi Virupapura Vs the State of… — Pension and Retirement Benefits | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF AUGUST, 2024

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PRESENT

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THE HON'BLE MRS. JUSTICE ANU SIVARAMAN

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AND

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THE HON'BLE MR. JUSTICE G BASAVARAJA

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WRIT PETITION NO.10210 OF 2024 (S-KSAT)

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BETWEEN:

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SRI. PAMPAPATHI VIRUPAPURA S/O SRI. BASAVARAJ AGED ABOUT 32 YEARS PRESENTLY WORKING AS EXECUTIVE ENGINEER N.H. DIVISION BENGALURU-560 001

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...PETITIONER

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(BY SRI. K.N. PHANEENDRA, SENIOR COUNSEL A/W. SRI. PAVAN G.N, ADVOCATE)

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AND:

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1 . THE STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY PUBLIC WORKS DEPARTMENT 3^RD FLOOR, VIKASA SOUDHA BENGALURU-560 001

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2 . THE CHIEF ENGINEER

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NATIONAL HIGHWAY ZONE (SOUTH) K.R. CIRCLE BENGALURU-560 001

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3 . SRI. PADMANABHA H.R. S/O REVANNA AGED ABOUT 42 YEARS PRESENTLY WORKING AS EXECUTIVE ENGINEER N.H. DIVISION BENGALURU-560 001 R/AT NO.9, 1^ST F CROSS, 2^ND PHASE 4^TH BLOCK, BANASHANKARI III STAGE BENGALURU-560 085

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…RESPONDENTS

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(By SMT. PRATHIMA HONNAPURA, AGA FOR R1 & R2; SRI. SUBRAMANYA R., ADVOCATE & SRI. NARASIMHARAJA, ADVOCATE FOR C/R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO (a) CALL FOR RECORDS FROM THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, BENGALURU IN RESPECT OF THE IMPUGNED ORDER DATED 01.04.2024 PASSED IN APPLICATION No.667/2024 (ANNEXURE-A), (b) ISSUE WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION QUASHING/ SET ASIDE THE ORDER DATED 01.04.2024 MADE IN APPLICATION No.667/2024 PASSED BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, AT BENGALURU VIDE ANNEXURE-A AND ETC.

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 01.08.2024 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, ANU SIVARAMAN J., PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and HON'BLE MR. JUSTICE G BASAVARAJA

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CAV JUDGMENT

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(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN)

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This writ petition is filed challenging the impugned order dated 01.04.2024 in Application No.667/2024 passed

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by the Karnataka State Administrative Tribunal, Bengaluru (hereinafter referred to as "Tribunal" for short).

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The petitioner herein was the third respondent in the application filed before the Tribunal by the third respondent herein. The petitioner was initially appointed as Assistant Executive Engineer on 06.04.2017 in Panchayat Raj and Engineering Department in Group 'A' Junior Scale Post. Thereafter, he was appointed as Executive Engineer by promotion vide Annexure A7 dated 23.07.2021. On 17.01.2024, he was posted on deputation to the Public Works Department (PWD) vide Annexure-R3/1 order. By Annexure-A3, order dated 07.02.2024, he was transferred to the place of the third respondent and he had assumed charge on 08.02.2024.

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The third respondent had approached the Tribunal challenging Annexure-A3, order dated 07.02.2024. It was contended that the third respondent had been prematurely disturbed before he completed his tenure of two years at the present place of posting. It was further contended that there was no provision for appointment to the post of Executive

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Engineer in PWD by deputation and that the petitioner herein, who belongs to Hyderabad-Karnataka Region, could not be posted in the present place. The Tribunal heard both sides and passed an order of status quo and the petitioner accordingly continued in the transferred post since he had assumed charge on 08.02.2024.

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4. The petitioner as well as the official respondents

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filed their statement of objections before the Tribunal contending that the Karnataka Public Works Department Service (Cadre and Recruitment) Rules, 2018, (hereinafter referred to as "C&R Rules" for short) produced at AnnexureA4 indicated that there were 67 posts in the cadre of Executive Engineer in the respondent-Department, which were earmarked to be filled up by way of deputation and there is no restriction as to from which department a deputationist could be drawn. It was further contended that the third respondent herein had completed his tenure at the present place of posting and had only six days to go for the official end of his tenure. It was further contended that the transfer of the third respondent was within Bengaluru itself

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and that the transfer order was issued with approval of the Hon'ble Chief Minister and in accordance with the transfer guidelines dated 07.06.2013. It was further contended, the fact that the petitioner hailed from Hyderabad - Karnataka Region would make no difference since the guidelines with regard to working for 10 years in the local cadre would apply only up to Group 'A' Junior Scale Posts and in the nature of the posts held by the petitioner and the third respondent, the said provision would not be applicable. Further, it was contended that Rule 16 of the Karnataka Civil Services (General Recruitment) Rules, 1977 provided for deputation as against equivalent post and would have overriding effect over the provisions of the Cadre and Recruitment Rules.

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Having considered the contentions advanced, the Tribunal held that it is to depute persons from PWD that 67 posts were created in the C&R Rules, and that the method of recruitment to the post of Executive Engineer was specifically by promotion from the cadre of Assistant Executive Engineer and therefore, there is no provision for deputation of Executive Engineer from other departments.

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Relying on the decision of this Court in Mahiboob Sab v. State of Karnataka and another reported in [2020 (3) AIR Kar, 663] , the Tribunal held that posting of a person to the place of regular holder of the post without there being any provision is illegal. Accordingly, AnnexureA3 was set aside.

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We have heard the learned senior counsel appearing for the petitioner and the learned counsel appearing for the third respondent as well as the learned Additional Government Advocate appearing for the official respondents.

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The learned senior counsel appearing for the petitioner would contend that the finding of the Tribunal was per-se incorrect and the impact of Rule 16 of the Karnataka Civil Services (General Recruitment) Rules, 1977 had not been considered by the Tribunal though it was specifically urged before it. The learned senior counsel has relied on the decision in the case of R.S. Raghunath v. State of Karnataka and Another , reported in (1992) 1 SCC 335.

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The learned counsel appearing for the third respondent in this writ petition, who was the applicant before the Tribunal, contends that it was specifically because the PWD is a specialised Department offering technical services to other departments that the post of Executive Engineers was provided in PWD with an enhanced cadre strength for deputation of Engineers to other departments as well. Drawing our attention to C&R Rules, the learned counsel contends that wherever appointment by deputation from other departments is provided in C&R Rules, it is specifically mentioned so in the method of appointment of the said rules themselves. It is contended that once C&R Rules, are framed, the General Rules which were Rules framed under the proviso to Article 309 of the Constitution of India would be subject to the provisions of the Karnataka Civil Services Act, 1978, and C&R Rules, made there under. It is further contended that in cases, where there is no provision in C&R Rules, there can be no deputation to fill up posts, which are provided for in such Rules. In support of his

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contentions, the learned counsel has placed reliance on the following judgments:-

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Government of NCT of Delhi v. Union of India , reported in (2023) 9 SCC 1 ;

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Dhammkirti v. State of Karnataka , by Order dated 20.01.2020 passed in W.P.No.205950/2019 ; and

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Mahiboob Sab v. The State of Karnataka and Another , by Order dated 31.05.2022 passed in W.P.No.16363/2021 (S-KSAT) .

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The learned Additional Government Advocate appearing for the official respondents, places reliance on Rule 16 of the Karnataka Civil Services (General Recruitment) Rules, 1977 and submits that deputation is provided in public interest to any post. Notwithstanding, anything contained in C&R Rules, it is further submitted that the order of deputation of the petitioner was not under challenge before the Tribunal and that the Tribunal therefore erred in having setting aside an order of transfer, which was also one issued in public interest and obtained the prior permission of the Hon'ble Chief Minister.

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We have considered the contentions advanced on either side. We have also perused the judgments, which are relied on by the learned Counsel as well as the provisions of C&R Rules, and the Karnataka Civil Services (General Recruitment) Rules, 1977. We notice that the decisions relied on by the learned counsel for the third respondent are to the effect that the method of appointment to a post as provided in C&R Rules, have to be considered while deciding how the post is to be filled up. It is contended that in the absence of deputation as a method of appointment provided in C&R Rules, the appointment of a deputationist to the post would be illegal. However, we notice that the provisions of Rule 16 of the Karnataka Civil Services (General Recruitment) Rules, 1977, and its applicability have not been considered by the Tribunal at all. Further, we also notice that the order of appointment of the writ petitioner by deputation as Executive Engineer was not under challenge before the Tribunal. What was being considered by the Tribunal was only an order of transfer of the writ petitioner. The third respondent herein, who was the applicant before

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the Tribunal had already completed one year and 11 months of his tenure in the post to which the petitioner was transferred. The petitioner's transfer had the prior approval of the Hon'ble Chief Minister as well.

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In the above view of the matter, we are of the opinion that the question whether the petitioner could have been appointed by deputation to the post of Executive Engineer in public interest was not a matter which could have been decided by the Tribunal in the application, which challenged only an order of transfer. The applicant before the Tribunal who had almost completed his tenure and was short of such completion by only 6 days, could not be said to be aggrieved by the order of transfer of the petitioner to the post held by him even in terms of the transfer guidelines.

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In such circumstances, we are of the opinion that the Tribunal erred in not taking note of the contention that the petitioner had been posted in the Public Works Department in public interest in terms of Rule 16 of the Karnataka Civil Services (General Recruitment) Rules, 1977.

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We are, therefore, of the opinion that the petitioner is entitled to succeed in this writ petition.

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