Dismissed

Sri. Ramu Meka, v. the State of Karnataka

Karnataka HC5 Jul 2024WP/10956/2024

Case brief

AI extract

What is this about?

Petitioner challenged Karnataka State Administrative Tribunal's order dismissing his application for a transfer. He claimed the post was in his lower cadre because the appointment order omitted his pay scale. The High Court distinguished a governing precedent and allowed the State's executive order filling the post from a higher cadre, dismissing the petition.

What did the court decide?

The writ petition challenging the Tribunal's order was dismissed, and the interim vacating stay was also dismissed.

Sri. Ramu Meka, Vs the State of Karnataka — 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 5^TH DAY OF JULY, 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 ANANT RAMANATH HEGDE

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WRIT PETITION NO. 10956 OF 2024 (S-KSAT)

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BETWEEN:

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SRI. RAMU MEKA S/O NAGESHWAR RAO MEKA AGED ABOUT 34 YEARS WORKING AS GENERAL MANAGER (FINANCE) KARNATAKA STATE MEDICAL SUPPLIES CORPORATION LIMITED SIDDAIAH PURANIC ROAD, KHB COLONY BASAVESHWARANAGAR, BENGALURU-560 079 RESIDING AT HOUSE NO.128, FLAT NO.3 ANANYA, 5^TH MAIN ROAD, 4^TH BLOCK II PHASE, BANASHANKARI III STAGE BENGALURU-560 085

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...PETITIONER

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(By SRI. SATISH K., ADVOCATE)

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AND:

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1 . THE STATE OF KARNATAKA DEPARTMENT OF FINANCE REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY VIDHANA SOUDHA, BENGALURU-560 001

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2 . THE PRINCIPAL DIRECTOR KARNATAKA STATE AUDIT AND ACCOUNTS DEPARTMENT TTMC BUILDING, A BLOCK 3^RD FLOOR, BMTC SHANTINAGAR, BENGALURU-560 027

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3 . SMT. MANATHUR SANDHYARANI W/O M.K. PRABHAKAR AGED ABOUT 52 YEARS WORKING AS FINANCE OFFICER KARNATAKA PANCHAYAT RAJ COMMISSIONERATE BENGALURU-560 001

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…RESPONDENTS

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(BY SRI. B. RAVINDRANATH, AGA FOR R1 & R2 SRI. PRASAD HEGDE., ADVOCATE FOR C/R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS FROM THE HON'BLE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, BENGALURU PERTAINING TO THE IMPUGNED ORDER DATED 02.04.2024 PASSED IN APPLICATION No.619/2024 (ANNEXURE-A) AND ETC.

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 28.06.2024 AND COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, ANU SIVARAMAN J., PRONOUNCED THE FOLLOWING:

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ORDER

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The substantial prayers in this writ petition are as

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follows:-

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"(a) CALL for the records from the Hon'ble Karnataka State Administrative Tribunal, Bengaluru pertaining to the impugned order dated 02.04.2024 passed in Application No.619/2024 (Annexure-A);

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(b) SET ASIDE the impugned Order dated 02.04.2024 passed by the Hon'ble Karnataka State Administrative Tribunal, Bengaluru in Application No.619/2024 (Annexure-A) and

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CONSEQUENTLY ALLOW the said Application No.619/2024 as prayed for by the petitioner before the Hon'ble Tribunal (Annexure-B), in the interest of justice and equity."

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Petitioner, who was an applicant before the Karnataka State Administrative Tribunal, Bengaluru (hereinafter referred to as 'the Tribunal' for short) in Application No.619/2024 was initially appointed as Assistant Controller on 07.02.2018. Thereafter, he was promoted to

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the post of Deputy Controller and posted as Chief Accounts Officer, City Corporation, Bellary on 26.07.2021, he took charge on 21.09.2021. On 11.01.2023, the State Government sanctioned the post of General Manager (Finance), Karnataka State Medical Supplies Corporation Limited, Bangalore (hereinafter referred to as 'the KSMSCL' for short) and Respondent No.1 passed an order dated 26.07.2023 posting the petitioner to the said post. Petitioner was relieved from the earlier post on 01.08.2023 and took charge on 03.08.2023. While the petitioner was working in the said post, he took additional charge of the post of Chief Financial Advisor; Commissionerate for Rural Development

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vide order dated 16.08.2023 and took charge on

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20.09.2023.

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Respondent No. 3 was working as Finance Officer, Accounts Department, Karnataka Panchayath Raj Commissionerate, Bangalore vide order dated 14.08.2023. By impugned order dated 01.02.2024 passed by Respondent No. 1 transferring Respondent No. 3 to the post of petitioner and the petitioner was transferred as Senior Deputy Director (Administration), Head Office, Karnataka State Audit and Accounts Department, Bangalore.

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The petitioner had approached the Tribunal challenging Annexure-A10, order dated 01.02.2024. His specific contention was that the order posting him as General Manager (Finance) of the KSMSCL does not mention that he was posted on his own pay scale. It is further contended that the second respondent had sent a proposal to include the post of General Manager (Finance) of KSMSCL for up-gradation as Joint Controller, which means that the post was included in the cadre of Deputy Controller. It is submitted that since the Government in the Karnataka State

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Audit and Accounts Department had not passed orders upgrading the post to the cadre of Joint Controller, the post continues in the cadre of Deputy Controller and the third respondent would have no claim for being posted against the said post since the third respondent is admittedly working in the cadre of Joint Controller.

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Respondents No.1 and 2 had filed reply statement, specifically stating that the post to which the applicant was posted was in the cadre of Joint Controller and therefore his posting was only temporary in nature and an omission to state so in the order of his posting cannot make any difference to the situation. The third respondent had also placed statement of objections and had produced a Government Order dated 11.01.2023 sanctioning the post of General Manager (Finance) from Karnataka State Audit and Accounts Department and specifically stating that the post of General Manager (Finance) would be in the cadre of Joint Controller. It is further contended that the Government by its Circular - Annexure-R6 dated 12.09.2023 directed that lower cadre Government employees shall not be posted to

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higher cadre post. Annexure-R7 dated 24.06.2021 was also produced to show that on earlier occasions as well, the post was being held by persons in the rank of Joint Controller.

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Having considered the contentions advanced, the Tribunal came to the conclusion that pursuant to the proposals sent by the second respondent for including the post of General Manager (Finance) of the KSMSCL in the cadre of Joint Controller, Annexure-R1, order was passed by the Government sanctioning the said post to be filled up from the cadre of Joint Controller and that the petitioner would not have any vested right to hold the post. On this ground, the application was dismissed against which the petitioner is before us.

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It is submitted by the learned counsel appearing

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for the petitioner that the proposal for up-gradation to the post of General Manager (Finance) was sent by the Government in the State owned Department, which is the Department from which the posts are to be filled up. It is contended that Annexure-R1 Government Order, which is passed by the Health and Family Welfare Department would

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have absolutely no effect since it is for the Government in Audit and Accounts Department to take a call on retention of the post in the cadre of Deputy Director or for up-gradation to the cadre of Joint Director.

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It is the contention of learned counsel appearing for the petitioner on the basis of the Karnataka Government (Allocation of Business) Rules, 1977, that it is only for the Department concerned to pass orders of up-gradation or inclusion of cadre and the order of the Government in the Health and Family Welfare Department liable to be disregarded. It is contended relying on the proposal dated 26.07.2023 that the post was included in the cadre of Deputy Controller and that no orders have been passed by the Government including it in the cadre of Joint Controller.

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The learned counsel appearing for the petitioner also places reliance on the decision of the co-equal bench of this Court in Sri M.V. Dixit and others v. State of Karnataka and others reported in AIR 2004 Kant R 2437. This Court held that creation and abolition of posts specifying different categories of posts in different branches

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of public service, specifying the total number of posts and nature of posts in each category and the scales of pay admissible to each category can only be by way of rules made in the manner prescribed in Section 3(2) of the Karnataka Civil Service Act and not by any executive order issued under Article 162 of the Constitution of India. It was further held that when the State Government issues a Notification sanctioning the establishment of any particular cadre, or creating or abolishing any post or determining the strength of each cadre and character of the post therein, such Notification will have to be considered as rules made by the Government under any law for the time being in force. It is therefore contended by the learned counsel for the petitioner that the Karnataka State Audit and Accounts Department having fixed the cadre strength of Deputy Controllers and Joint Controllers; any variation of such cadre strength would also have to be on orders passed by the same Department.

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Having considered the contentions advanced, we notice that Annexure-R1, Government Order passed by the

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Health and Family Welfare Department, which is admittedly the Administrative Department in respect of KSMSCL specifically provided for filling up the posts under the Corporation from the Karnataka State Audit and Accounts Department. It is on the strength of the said order that the applicant was also posted in the KSMSCL by order dated 26.07.2023. The fact that the second respondent had sent a proposal for including the post of General Manager (Finance) in the cadre of Joint Controller by itself would not support the contention of the petitioner that the post was in the cadre of Deputy Controller. The Government had taken a specific stand that by Annexure-R1, order dated 11.01.2023, the Administrative Department in respect of the KSMSCL had decided that the post of General Manager (Finance) would be in the cadre of Joint Controller. It was also on record that the post of General Manager (Finance) is to be filled up from the cadre of Joint Controller.

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We notice that the judgment relied on by the learned counsel for the petitioner was with regard to the policy of the State Government to have accounts staff of the

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Public Works/Irrigation Department under the independent control of the Karnataka State Audit and Accounts Department. In that case, the recruitment in the post of Public Works Department was regulated by the Karnataka Public Works Engineering Department Service Recruitment Rules, 1988 made in exercise of the powers under Article 309 of the Constitution of India. The Rules provided that the post of Accounts Superintendents in the Public Works Engineering Department would be by deputation of an officer in the cadre of Accounts Superintendents from the Karnataka State Audit and Accounts Department. The said rule was violated by downgrading 13 posts of Accounts Superintendents and filling up of those posts by promoting First Division Assistants/Store Keepers in the Department of Public Works/Irrigation Department. It was in the said circumstances that this Court held that in view of the specific rule framed under Article 309 of the Constitution of India providing for filling up of the post of Accounts Superintendents in the Public Works and Irrigation

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Department, executive orders issued in variance with such rules would be totally incompetent.

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In the instant case, the post concerned is that of General Manager (Finance) in a Corporation under the administrative control of the Health and Family Welfare Department. There are obviously no rules having statutory force providing for recruitment to the said post. Therefore, there would be absolutely no illegality in the State exercising its executive power under Article 162 of the Constitution of India for making provision for filling up of the post from an appropriate cadre. The decision relied on by the learned counsel for the petitioner would therefore have no application in the facts of the instant case.

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In the above factual situation, we are of the opinion that the mere omission to mention that the petitioner was posted as General Manager (Finance) on his own scale of pay will not give rise to a claim that the post itself is that of a Deputy Controller since it is the specific case of the Government that the post is to be filled up by a Joint Controller. Since it is an admitted fact that the writ

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petitioner has never been promoted to the cadre of Joint Controller, we are of the opinion that the contention that the petitioner is entitled to hold the post till the term is over and that the transfer is to be considered as a premature transfer, cannot be accepted. We also notice that the petitioner has been transferred within Bengaluru itself and has not suffered any inconvenience on account of the orders. We are therefore of the opinion that there is no patent illegality in the order of the Tribunal.

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