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2007 DIGILAW 344 (KAR)

B. T. MANJUNATH v. STATE OF KARNATAKA

2007-06-13

N.K.PATIL

body2007
ORDER In the instant case the petitioner has sought to declare that the post of Deputy Director in the Department of Food and Civil Supplies and Consumer Affairs can be filled up only by way of promotion as per the existing Cadre and Recruitment Rules and further assailing the correctness of the impugned Notification, dated 7-6-2007 as per Annexures-A and B respectively, presented the instant writ petition. 2. The grievance made out by the petitioner in the instant writ petition is that, assailing the correctness of the impugned notification deputing respondent 2 from the Department of Co-operation to the place of the petitioner i.e., to the Department of Food and Civil Supplies since as per the Cadre and Recruitment Rules it does not permit for filling up the said post by way of deputation, has filed the writ petition. The further case of the petitioner is that the Government also cannot invoke the provisions of the Karnataka Civil Services (General Recruitment) Rules, 1977 as the post held by the petitioner and respondent 2 are in different grades and not equivalent. Further, the impugned notification has been issued only at the instance of respondent 2 and for political considerations. This is prima facie seen from the notification which cannot be sustainable and is liable to be quashed and as there is no efficacious and effective remedy except to approach this Court invoking Articles 226 and 227 of the Constitution of India, the petitioner has approached this Court. It is further stated that though the petitioner could have approached the Karnataka Administrative Tribunal (for short, the KAT), since the KAT has become defunct due to the retirement of the Chairman, the Administrative Member who retired on 12-6-2007, there is no Bench to take up the matters for hearing and only the Vice-Chairman being the Acting Chairman cannot take up the matter for hearing because there is no Bench, he is constrained to redress his grievance by way of appropriate relief as stated above. 3. I have heard the learned Counsel for the petitioner and the learned Government Pleader appearing for the respondent 1. 4. The learned Government Pleader appearing for respondent 1 at the outset submitted that, the petition filed by the petitioner has to be rejected on the threshold as not maintainable. 3. I have heard the learned Counsel for the petitioner and the learned Government Pleader appearing for the respondent 1. 4. The learned Government Pleader appearing for respondent 1 at the outset submitted that, the petition filed by the petitioner has to be rejected on the threshold as not maintainable. To substantiate his contention, he was quick to point out the provisions contained in the Karnataka Appellate Tribunals Act, 1985. He places reliance on Section 5(6) and proviso and after thorough verification, submitted that the Tribunal is very much functioning and without exhausting the said remedy available to the petitioner, he being a Government Servant cannot maintain this writ petition and this Court cannot exercise the extraordinary jurisdiction. As such, the petitioner has not made out any case. Further, he was quick to point out and submit that the petitioner has deliberately suppressed the material facts that as on the date of presenting the writ petition i.e., on 11-6-2007, in fact, the Tribunal was functioning and there was a Bench. Another Member has been retired only on 12-6-2007. Further, he submitted that the petitioner has intentionally and deliberately not whispered a word regarding the first relief sought in the writ petition regarding the deputation. In fact, the petitioner being one of the first applicant along with others has presented the Application No. 1967 to 1977 of 2007 before the Karnataka Appellate Tribunal. The said application filed by the petitioner with others are pending adjudication. Therefore, the petitioner has not approached this Court with clean hands nor stated true facts. Hence, he submitted that the writ petition is liable to be dismissed with exemplary costs. 5. Per contra, learned Counsel for the petitioner submitted that the notification issued which has been assailed by the petitioner cannot be gone into by the Acting Chairman who presided over the Tribunal. This matter has to be taken up by the Bench alone because the deputation notification issued deputing respondent 2 to the post of the petitioner which he is holding in the Food and Civil Supplies Department cannot be looked into as it contrary to the Rules. To substantiate his submission, he places reliance on the following judgments of the Apex Court.- (i) T.K. Rangarajan v Government of Tamil Nadu and Others1 (paragraphs 9 and 10); (ii) L. Chandra Kumar v Union of India and Others (paragraph 98). To substantiate his submission, he places reliance on the following judgments of the Apex Court.- (i) T.K. Rangarajan v Government of Tamil Nadu and Others1 (paragraphs 9 and 10); (ii) L. Chandra Kumar v Union of India and Others (paragraph 98). and submitted that he could not get any efficacious remedy before the Tribunal and that is why he was constrained to approach this Court and presented this writ petition. The preliminary objection raised by the Government Pleader is without any basis. The petitioner is very much entitled to redress his grievance before this Court in view of the law laid down by the Apex Court referred to supra. 6. I have heard the learned Counsel for the petitioner and the learned Government Pleader-respondent 1 at considerable length of time. After considering the rival contentions urged by both the sides, the only question that arise for consideration in this petition is, 'whether the writ petition filed by the petitioner is maintainable'? After careful evaluation of the entire material available on records and the submission made by the learned Counsel for the petitioner and the learned Government Pleader, it emerges that the petitioner cannot maintain the writ petition before this Court. Admittedly, the petitioner is a Government employee and he has got the right to redress his grievance before the KAT as envisaged under the relevant provisions of the Act and as rightly pointed out by the learned Government Pleader, the Tribunal is functioning and it cannot take up matters only in respect of two aspects where the statutory provisions have been assigned and regarding the dismissal of employees. But in the instant case, contrary to the rules, deputation order has been passed and the impugned order has been issued. After careful perusal of Section 5(6) of the Act, it reveals that the petitioner has got a right to redress his grievance before the Tribunal but, without exhausting the efficacious remedy the petitioner has rushed before this Court and presented this writ petition. The petitioner cannot maintain this writ petition. Hence, it is liable to be dismissed on this ground alone. Further, it is significant to note as rightly pointed out by the learned Counsel for respondent 1 that the petitioner has not approached this Court with clean hands nor stated the true facts as on the date of presenting this writ petition i.e., on 11-6-2007. Hence, it is liable to be dismissed on this ground alone. Further, it is significant to note as rightly pointed out by the learned Counsel for respondent 1 that the petitioner has not approached this Court with clean hands nor stated the true facts as on the date of presenting this writ petition i.e., on 11-6-2007. It is a fact that the Administrative Tribunal was functioning by the Acting Chairman and one member. The another member has retired only on 12-6-2007 and knowingly fully well the petitioner has presented this writ petition. Another factor should be borne in mind i.e., the petitioner being the first applicant in Application No. 1969 to 1977 of 2007 filed before the Karnataka Appellate Tribunal, wherein he has sought for a declaration to declare the deputations of respondents 2 to 5 as illegal, being opposed to the provisions of the Karnataka Food, Civil Supplies and Consumer Affairs (Recruitment) Rules and etc. This fact has been intentionally and deliberately suppressed by the petitioner. When the petitioner wants to seek some relief in a writ petition, he must approach with clean hands and furnish true facts. Admittedly, these two vital relevant material which is very much available has not been stated. Therefore, on the ground of suppressing of material facts also, the writ petition is liable to be dismissed with costs. Further, regarding the reliance placed by the learned Counsel for the petitioner on the above cited decisions, though there is no dispute regarding the law laid down by the Apex Court, it could not be made applicable to the facts and circumstances of this case. 7. Having regard to the facts and circumstances of the case stated above, writ petition is dismissed with a cost of Rs. 5,000/-. The said cost of Rs. 5,000/- should be paid to the High Court Legal Services Authority within ten days from today. If the said cost is not deposited, the concerned Competent Authority is directed to recover the said amount in accordance with law.