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2014 DIGILAW 834 (KAR)

J. Giri v. State of Karnataka

2014-09-19

A.V.CHANDRASHEKARA, K.L.MANJUNATH

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JUDGMENT : A.V. Chandrashekara, J. 1. Interim order passed on 10.09.2014 in Application No. 7354/2014 by the Karnataka Administrative Tribunal, Bangalore has been called in question by the petitioner under Articles 226 and 227 of the Constitution of India before this Court. 2. On an application filed by Sri T.R. Jayasimha, the second respondent herein, the order of posting this petitioner vide order dated 01.09.2014 as Deputy Commissioner of Excise, Bangalore North, has been stayed and further order has been passed permitting Mr. Jayasimha the second respondent herein to be continued as Deputy Commissioner of Excise, Bangalore North. It is also made clear that if Sri Jayasimha has assumed charge of that post, he shall handover charge. If the writ petitioner Mr. Giri, has assumed charge of the post to which he has been posted, he has to handover the charge to Mr. Jayasimha and shall either go back to the earlier post if it is vacant or may seek an alternative posting. It is this order which is called in question on various grounds. 3. We have heard the learned counsel appearing for the petitioner and respondents 1 and 2. We have perused the impugned order and the documents produced. 4. Writ petitioner was working as the Deputy Superintendent of Excise and an order has been passed on 01.09.2014 posting him as Deputy Commissioner of Excise, Bangalore North under Rule 32 of KCSR in the place of Mr. Jayasimha, who is transferred to Coorg as Deputy Commissioner of Excise. The order is dated 01.09.2014 passed by the Government of Karnataka, in AE 1 EPS 2013. 5. What is argued before this Court by the learned counsel for the second respondent is that Sri Giri is not promoted to the cadre of Deputy Commissioner of Excise and that he is only kept in charge as Deputy Commissioner of Excise under Rule 32 of Karnataka Civil Services Rules (hereinafter referred to as K.C.S. Rs for short) and therefore, he cannot be posted as the Deputy Commissioner of Excise, Bangalore North, since he is still working and that the said post is not vacant. 6. Learned counsel for the second respondent has relied upon a decision of this Court rendered in the case of Shri Raghurama Shetty Vs. The State of Karnataka in W.P. No. 14393/2012 (S-KAT) decided on 07.06.2012. 6. Learned counsel for the second respondent has relied upon a decision of this Court rendered in the case of Shri Raghurama Shetty Vs. The State of Karnataka in W.P. No. 14393/2012 (S-KAT) decided on 07.06.2012. Rule 32 of KCSR has been referred to in the said decision and it is held that an official cannot be posted to a place under Rule 32 of KCSRs unless it is actually vacant. It is further argued that no writ petition is maintainable against an interim order and therefore, he has requested the Court to dismiss the petition. 7. Per contra, the learned counsel for the petitioner has argued that the second respondent herein has not challenged his transfer and that he has already completed three years of service in the present post and therefore, he cannot question the Government's decision to post the petitioner as Deputy Commissioner of Excise, Bangalore North. Further, such posting is one under Rule 32 of KCSRs. 8. It is to be seen that on 14.05.2014 the Government of Karnataka has issued transfer guidelines. Admittedly, Mr. Jayasimha is a Group 'A' Officer being a regular Deputy; Commissioner of Excise. As per the transfer guidelines dated 14.05.2014 any Officer in the cadre of Group 'B' or above is liable to be transferred if he or she has completed one year of stay. 9. Admittedly, Sri Jayasimha the second respondent herein has already completed more than one year as Deputy Commissioner of Excise, Bangalore Urban North. Therefore, he cannot question the Government's decision to transfer him to Coorg as premature. He is questioning the Government's decision to post Sri Giri, the petitioner herein as Deputy Commissioner of Excise, Bangalore North. 10. The point involved in this case is already considered by us today in detail in WP No. 44916/2014 in the case of B. Madesh's which case has also arisen out of the same notification of transfer and posting. For the reasons stated in the aforesaid writ petition, we have to allow this writ petition. Accordingly, the order of the tribunal has to be set aside. 11. In order to avoid any controversy, the Government has not taken any risk in posting Sri Giri and 17 others as Deputy Commissioner of Excise. In a Departmental Promotion Committee, not only the eligibility even the suitability will also be considered. Accordingly, the order of the tribunal has to be set aside. 11. In order to avoid any controversy, the Government has not taken any risk in posting Sri Giri and 17 others as Deputy Commissioner of Excise. In a Departmental Promotion Committee, not only the eligibility even the suitability will also be considered. The posting so given, though under Rule 32 of KCRs, is not merely based on seniority. The performance report, vigilance reports and annual confidential reports have been taken into consideration by the Departmental Promotion Committee. Before setting up the Departmental Promotion Committee to consider the aspect of filling up these 17 posts. The Government has also prepared a seniority list and Sri Giri is No. 2 in his seniority and that is evident from the order of posting dated 01.09.2014. 12. The posting of Sri Jayasimha is found at Sl. No. 4 in Part-II of the transfer order dated 01.09.2014 and the name of Sri Giri-petitioner is found at Sl. No. 2 in Part-1 of the transfer order dated 01.09.2014. The whole controversy could have been avoided if the name of Sri Jayasimha had been mentioned in Part-1 and if name of Sri Giri had been mentioned in Part-2. Anyhow, the entire transfer order will have to be read as a whole and one portion cannot be taken out of context to be interpreted in favour of the second respondent herein. 13. Suffice to state that the moment Sri Jayasimha, who has already completed three years of stay as Deputy Commissioner of Excise in Bangalore North Taluk, is posted to Coorg as Deputy Commissioner of Excise, his post has automatically become vacant. Sri Jayasimha, cannot have grievance against his transfer since he has already completed three years of service as Deputy Commissioner of Excise, Bangalore, which is more than the period prescribed in the transfer guidelines issued in May 2014. 14. The facts in Raghurama Shetty's case are distinguishable from the facts of the present case. In Raghurama Shetty's case not only the person was placed incharge under Rule 32 KCSR against the non-vacant post, but also a incompetent authority had passed an order of transfer. 15 In an identical case in the case of B. Madesh's case in W.P. No. 44916/2014 (S-KAT), we have taken a similar decision and quashed the interim order. In Raghurama Shetty's case not only the person was placed incharge under Rule 32 KCSR against the non-vacant post, but also a incompetent authority had passed an order of transfer. 15 In an identical case in the case of B. Madesh's case in W.P. No. 44916/2014 (S-KAT), we have taken a similar decision and quashed the interim order. The facts in Madesh's case and in the present case are identical in all aspects. 16. In this view of the matter, the Tribunal has adopted a wrong approach to the real state of affairs. It has proceeded on a wrong assumption that Jayasimha's case post will not become vacant and that posting of Sri Giri to the place of Sri Jayasimha is against a non-vacant post. Therefore, we are inclined to interfere with the order in question, though it is an interim order. Even on that ground also, the present petition is to be allowed. Hence, the appeal will have to be allowed and the impugned order passed by the Tribunal will have to be set aside. Error is apparent on the face of the record inviting the interference of this Court. ORDER Writ petition filed under Articles 226 and 227 of the Constitution of India challenging the interim order dated 01.09.2014 in Application No. 7354/2014 pending on the file of the Karnataka Administrative Tribunal, Bangalore, is allowed and consequently, the impugned order dated 10.09.2014 passed by the KAT in Application No. 7354/2014 is quashed. Parties to bear their own costs.