Allowed

Smt Apurva a Kulkarni v. State of Karnataka

Karnataka HC29 Oct 2024WP/27920/2024

Case brief

AI extract

What is this about?

A Group-A officer repeatedly transferred in short spells despite Tribunal orders and Supreme Court directions challenged the Tribunal's dismissal of her plea against displacement to accommodate a Hyderabad-Karnataka local cadre officer. The High Court quashed the Tribunal's order and set aside the transfer Government order.

What did the court decide?

Writ of Certiorari quashing the Tribunal's order dated 03.10.2024; Application No.4380/2024 allowed; Government Order dated 02.09.2024 set aside; official respondents directed to give appropriate post

Smt Apurva a Kulkarni Vs State of Karnataka — Service and Employment | Karnataka HC (2024)

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WP No.27920/2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29^TH DAY OF OCTOBER, 2024

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PRESENT

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THE HON'BLE MR JUSTICE KRISHNA S DIXIT

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AND

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THE HON'BLE MR JUSTICE C M JOSHI

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**WRIT PETITION NO. * 27920 OF 2024 (S-KSAT)

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BETWEEN:

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SMT.APURVA A KULKARNI, W/O SRI ARJUN N, AGED ABOUT 34 YEARS, PRESENTLY WORKING AS EXECUTIVE OFFICER, TALUK PANCHAYAT, YELAHANKA, BENGALURU URBAN DISTRICT, R/O FLAT NO.104, SHARADA RESIDENCY, III CROSS, BYRAPPA BLOCK, 234/5, THYAGARAJANAGAR, BASAVANAGUDI, BENGALURU – 560 004.

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…PETITIONER

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(BY SRI. B L SANJEEV., ADVOCATE FOR SRI. B S SHRINIVAS., ADVOCATE)

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AND:

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STATE OF KARNATAKA, REPRESENTED BY ITS PRINCIPAL SECRETARY, RURAL DEVELOPMENT & PANCHAYATH RAJ DEPARTMENT, MULTISTORIED BUILDING, DR.AMBEDKAR VEEDHI, BENGALURU – 560 001.

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THE UNDER SECRETARY TO GOVT., RURAL DEVELOPMENT & PANCHAYATH RAJ DEPARTMENT, MULTISTORIED BUILDING, DR.AMBEDKAR VEEDHI, BENGALURU – 560 001.

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*Corrected vide chamber order dated 04/11/2024.

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SRI.MADHU L, FATHER’S NAME NOT KNOWN TO THE APPLICANT, EXECUTIVE OFFICE, NO.7, 7^TH CROSS, MANJUNATH NAGAR, TUMKUR ROAD, BAGALGUNTE, BENGALURU – 560 073.

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…RESPONDENTS

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(BY SRI. ARUN SHYAM., SENIOR COUNSEL A/W SRI. SRINIVAS A R., ADVOCATES FOR R3; SMT. SARITHA KULKARNI., HCGP FOR R1 & R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, 1950 PRAYING TO I) ISSUE A WRIT IN THE NATURE OF MANDAMUS OR ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION,QUASHING THE ORDER DATED 03.10.2024 PASSED BY THE KARNATAKA ADMINISTRATIVE TRIBUNAL, BENGALURU IN APPLICATION NO.4380/2024, PRODUCED AT ANNEXURE-D AND ETC.,

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THIS WRIT PETITION HAVING BEEN RESERVED FOR ORDER, COMING ON FOR PRONOUNCEMENT THIS DAY, KRISHNA S. DIXIT.J., PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE KRISHNA S DIXIT and

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HON'BLE MR JUSTICE C M JOSHI

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CAV ORDER

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(PER: THE HON'BLE MR. JUSTICE KRISHNA S DIXIT)

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Petitioner, a Group-A Officer is knocking at the doors

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of Writ Court for assailing the State Administrative Tribunal’s order dated 03.10.2024 whereby Application No.4380/2024 filed by her challenging her displacement vide Government order dated 02.09.2024 has been negatived.

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Learned counsel appearing for the Petitioner

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seeks to falter the impugned order of the Tribunal on the ground that the Transfer Guidelines inter alia protecting the retention period are not applicable to civil servants merely because there is no formal declaration of satisfactory completion of probationary period; civil servants also constitute an integral part of the Executive and therefore, any action of the State Government should be just & fair qua them, Government being a constitutional ordained model employer.

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Learned AGA appearing for the official

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Respondents and learned Sr. Advocate appearing for the private Respondent resist the Petition making submission in justification of the impugned order and the reasons on which it has been constructed. Learned Sr. Advocate in support of his contention also submitted that his client i.e., Respondent No.3 belongs to Local Cadre of HyderabadKarnataka region and therefore, is entitled to special protection in the light of a Coordinate Bench decision in

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the case of SIDDESH NAIK v. THE STATE OF

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KARNATAKA & OTHERS¹ .

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Having heard the learned counsel for the parties and having perused the Petition papers, we are inclined to grant indulgence in the matter for the following reasons:

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a) Petitioner came to be appointed as a Group-A Officer in the Department of RDPR vide order dated 22.07.2020. She was on probation for a period of two years. Vide order dated 18.09.2021, she was posted to Bellary. By another order dated 20.01.2022 i.e., within four months, she was transferred from Bellary to Kalagi Taluka Panchayath as Executive Officer. Within less than eleven months i.e., vide order dated 15.12.2022, she came to be transferred to Taluka Panchayath, Yelahanka, wherein the vacancy had occurred on account of suspension of one Mr. Prakasha; same day she took charge of the office and reported it to higher-ups. Prakasha’s challenge to the same in Application No.6209/2022 having been dismissed by the Tribunal on

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1 W.P.NO.10630/2024 (S-KSAT) dd dated 28.06.2024

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09.02.2023, he had filed W.P.No.39351/2023 and a Coordinate Bench of this Court vide ad interim order dated 01.03.2023 had directed the Petitioner to hand over the charge of her office to him.

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b) However, the interim order of the Coordinate

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Bench was taken up by the Petitioner in SLP (Civil) No.8766/2023 and by the State Government as well in SLP (Civil) No.8305/2023. The Apex Court vide interim order dated 01.03.2023 stayed the interim direction of the Coordinate Bench observing that it is for the State Government to give appropriate posting to the Petitioner (later both the SLPs came to be disposed off vide order dated 11.08.2023).

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c) The short & crisp order of the Apex Court finally disposing off both the SLPs is reproduced below:

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“We are informed across the Bar the Writ Petition in which the impugned order has been passed is still pending.

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It will be open for the High Court to decide the Writ Petition in accordance with law.

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Till the disposal of the Writ Petition, the interim order passed by this Court on 24th April, 2022 will continue to operate.

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We, however, make it clear that the Writ Petition will be decided on its own merits without being influenced by grant of interim relief by this Court.

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We also make it clear that if the State Government desires to revoke the order of suspension, it is free to do so in accordance with law.

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As regards the grievance regarding the posting and non-payment of salary made by the petitioner in SLP(Civil)No.8766 of 2023, it is for the petitioner in the said Special Leave Petition to take appropriate remedies in accordance with law.

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By keeping open all the contentions in the pending Writ Petition, we dispose of the Special Leave Petitions with the aforesaid observation.

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It will be open for the contesting respondents to apply to the High Court for giving out of turn priority to the hearing of the Writ Petition.

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Pending applications also stand disposed of.”

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d) In the meanwhile, pursuant to the observations

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made by the Apex Court in its interim order dated 24.04.2023, the Government issued order dated 25.05.2023 transferring & posting the Petitioner as Executive Officer, Taluka Panchayath, Yelahanka. This it did after obtaining legal opinion of the Law Department. Strangely, on the same day, one Mr.Ramesh D.O, who has been working as the Executive Officer of Bangalore North Taluka Panchayath, was directed to take additional charge

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of the office of Executive Officer, Yelahanka Taluka Panchayath, wherein Petitioner had already taken charge of the post w.e.f. 25.05.2023. However, Mr.Ramesh took charge of the post of Petitioner within one day and she was not shown any posting. This grievance she had raised when the SLPs were being finally heard and as already mentioned above, liberty was reserved to her to work out her remedy elsewhere.

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e) A day before the SLPs were disposed off i.e., on 11.08.2023, Petitioner was transferred as Executive Officer, Taluka Panchayath, Afzalpur in Kalaburagi district. Petitioner challenged both the orders dated 25.05.2023 whereby, D.O.Ramesh was given additional charge of E.O. at Yelahanka and her Afzalpur transfer order dated 10.08.2023. The Tribunal in Application No.3660/2023 directed the official respondents to continue the Petitioner at Yelahanka, vide order dated 14.02.2024. When this was the position, the government issued Notification dated 2.9.2024 posting the 3^rd Respondent Mr.Madhu to the place of Petitioner and posting the Petitioner as Executive

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Officer, Kumta Taluka. Aggrieved thereby, Petitioner filed Application No.4380/2024 which came to be dismissed on 03.10.2024.

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f) Learned counsel appearing for the Petitioner is more than justified in the above fact matrix established by the material on record that the official respondents have treated the Petitioner as a ‘football’, to put it metaphorically. No employee whether permanent or otherwise can be unfairly treated by a constitutionally ordained Welfare State. An argument to the contrary would undermine the independence and administrative efficacy of the officials who too are a part of Executive. No explanation has been offered by the official respondents for shifting the Petitioner time & again, that too within too short spells of tenure at each place. Any unfair & unjust treatment meted out to civil servants gives them a cause of action in Service Jurisprudence, for seeking redressal to their grievance.

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g) The vehement submission of learned Sr. Advocate appearing for the private respondents that his

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client belongs to Hyderabad-Karnataka service region and therefore, he enjoys protection under the orders issued under Article 371J of the Constitution, is a poor justification for subjecting the Petitioner to repeated shifting from one place to another though she was given the posting at Yelahanka Taluka Panchayath in the light of observations of the Apex Court, that too after obtaining legal opinion from Law Department of the State. What bewilders this court is: it was the State Government which had moved the Apex Court against the interim order made by the Coordinate Bench directing Mr.Ramesh to continue in the place of Petitioner. The State Government rightly secured stay of the said order. Having done that, it does not stand to reason or logic as to how additional charge of the post could have been given to some other person before the ink of order posting the Petitioner to the said place had dried up. True it is that it is the prerogative of the government to deploy its personnel in its discretion. However, any discretion has to be exercised in accordance

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with rules of reason & justice said Lord Halsbury in SHARP v. WAKEFIELD² .

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h) The last contention of learned AGA appearing for the official respondents that the extant Transfer Guidelines do not come to the protection of a ‘temporary employee’ like the Petitioner as observed by the Tribunal, need not be examined by us. Transfer Guidelines give protection of tenure at a place, is true. In a sense, they give right to the civil servants not to be displaced during the prescribed retention period. However, this does not mean the Executive can subject the temporary employees to arbitrary, unfair & unreasonable treatment by resorting to multiple transfers, with no reason or rhyme. Anything arbitrary is an anathema to Article 14 said the Apex Court E.P.ROYAPPA vs. STATE OF TAMIL NADU³ .

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i) All the above aspects having not been properly considered by the Tribunal, legal infirmities galore in the impugned order, warranting interference of this court for setting the injustice meted out to Petitioner, at naught. A

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2 [1891] AC 173

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3 AIR 1975 SC 555

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Writ Court cannot deny justice to the worthy cause by quoting jurisprudential theories. Justice Oliver Wendell Holmes more than a century ago in DAVIS vs. MILLS⁴ observed:

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“ Constitutions are intended to preserve practical and substantial rights, not to maintain theories… ”

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Before parting with this case, we should record

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our dismay that Petitioner, a civil servant against whom not even a little finger is raised by the higher-ups, has not been granted declaration of satisfactory completion of probationary period though years have lapsed, with spotless service records. The intention of Transfer Guidelines which are held to have statutory force vide Full Bench decision of this Court in GANGADHARAIAH K.A.S. vs. STATE OF KARNATAKA⁵ can be defeated with impunity by simply delaying the grant of such a declaration. This is not a happy thing to happen in a Welfare State. Had the probationary period of Petitioner been declared in regular course, straight away she would have got the protection

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4 194 U.S.451 (1904)

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5 ILR 2015 KAR 1955

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under the extant Transfer Guidelines. More is not necessary to specify.

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In the above circumstances, this petition succeeds; a Writ of Certiorari issues quashing the impugned order of the Tribunal. Petitioner’s Application No.4380/2024 having been favoured, the Government Order dated 02.09.2024 is set aside. Official respondents are directed to give appropriate posting to the 3^rd Respondent, forthwith, keeping his claim for protection under Article 371J of the Constitution of India.

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Costs reluctantly made easy.

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Sd/(KRISHNA S DIXIT) JUDGE

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Sd/(C M JOSHI) JUDGE

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Bsv/cbc

Smt Apurva a Kulkarni v. State of Karnataka

Case brief

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Smt Apurva a Kulkarni v. State of Karnataka

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