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2020 DIGILAW 1760 (KAR)

M. v. Amaranath VS State Of Karnataka

2020-09-08

P.S.DINESH KUMAR, S.VISHWAJITH SHETTY

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JUDGMENT P.S.Dinesh Kumar, J. - This writ petition is presented by the applicant before the Central Administrative Tribunal (for short the CAT ) challenging the order dated 09.07.2020 in O.A.No.170/00243 of 2020 dismissing his application. 2. Heard Shri Dhananjay Joshi, learned advocate for petitioner, Shri G.K.Hiregoudar, learned Government Advocate for respondents 1 and 2 and Shri Shrikant T.Patil, for respondent No.4. 3. Brief facts of the case are, petitioner, initially a State Forest Service Officer (for short the SFS Officer ) was encadred into Indian Forest Service in 2008. He was transferred as Deputy Conservator of Forest (Territorial ), (Belagavi ) on 04.01.2018. 4. By notification dated 30.04.2020, 4th respondent-Shri Ashok R. Patil, an SFS Officer was transferred from Vi jayapura to petitioner s post and petitioner has been transferred to 4th respondent s post in Vi jayapura. 5. Petitioner challenged his transfer order before the CAT contending inter alia, that the transfer was in violation ofIndian Forest Services (Fixation of Cadre Strength) Regulations, 1966, and Indian Forest Service (Cadre) Rules, 1966 (for short Cadre Rules, 1966). The Tribunal has dismissed petitioner s application by the impugned order. Hence, this writ petition. 6. Shri Dhananjay Joshi, for the petitioner submitted that petitioner s service conditions are governed by Cadre Rules, 1966. As per Rule 8, every cadre post shall be filled by a cadre officer. Rule 9 provides for temporary appointment of noncadre officers to the cadre posts. The 4th respondent is an SFS officer. Therefore, he could not have been posted to the post held by petitioner in Belagavi, which is admittedly a cadre post. 7. Shri Hiregoudar, learned Government Advocate for the State argued supporting the transfer order. He submitted that transfer is an incident of service. No officer has any vested right over a particular post. Fourth respondent s name is found in the select list of the year 2017. Fourth respondent was holding a cadre post in Vi jayapura and therefore, the transfer order does not call for any interference. 8. Shri Shrikant T.Patil, learned counsel for respondent No. 4 also argued in support of the impugned order. He submitted that petitioner was also an SFS Officer. Fourth respondent s name has been included in the list of eligible officers for promotion to Indian Forest Service cadre for the select year 2017. 9. We have carefully considered rival contentions and perused the records. 10. He submitted that petitioner was also an SFS Officer. Fourth respondent s name has been included in the list of eligible officers for promotion to Indian Forest Service cadre for the select year 2017. 9. We have carefully considered rival contentions and perused the records. 10. Undisputed facts of this case are, petitioner is a cadre officer working as Deputy Conservator of Forest, Belagavi. Fourth respondent is an SFS Officer. Rules 8 and 9 of the Cadre Rules, 1966 read as under: "8. Cadre and ex-cadre posts to be filled by cadre officers- (1) Save as otherwise provided in these rules, every cadre post shall be filled by a cadre officer. 8(2) A cadre officer shall not hold an ex-cadre post in excess of the number specified for the concerned State under item 5 of the Schedule to the Indian Forest Service (Fixation of Cadre Strength) Regulations, 1966. 8(3) The State Government may, with the prior approval of the Central Government, appoint a cadre officer to hold an ex-cadre post in excess of the number specified for the concerned State in item 5 of the Schedule to the Indian Forest Service (Fixation of Cadre Strength) Regulations, 1966 and for so long as the approval of the Central Government remains in force, the said ex-cadre post shall be deemed to be an addition to the number specified in item 3 of the said Schedule." 9. Temporary appointment of non-Cadre officers to cadre posts.- 9 (1) A cadre post in a State shall not be filled by a person who is not a cadre officer except in the following cases; namely:- (a) if there is no suitable cadre officer available for filling the vacancy; Provided that when a suitable cadre officer becomes available, the person who is not a cadre officer shall be replaced by the cadre officer: Provided further that ifit is proposed to continue the person, who is not a cadre officer, beyond a period of three months, the State Government shall obtain the prior approval of the Central Government for such continuance; (b) if the vacancy is not likely to last for more than three months; Provided that if the vacancy is likely to exceed a period of three months, the State Government shall obtain the prior approval of the Central Government for continuing the person who is not a cadre officer beyond the period of three months. 9(2) A cadre post shall not be filled by a person who is not a cadre officer except in accordance with the following principles, namely:- (a) if there is a Select List in force, the appointment or appointments shall be made in the order of names of the officers in the Select List; (b) if it is proposed to depart from the order of names appearing in the Select List, the State Government shall forthwith make a proposal to that effect to the Central Government the post and may in the light of the advice given by the Union Public Service Commission give suitable direction to the State Government concerned. 11. Tribunal has recorded in paragraph 14 of its order that the Cadre Rules fell for its consideration in O.A.No.237/2012. While allowing the said application, Tribunal has issued certain directions. Directions No.5 and 6 contained in the said order read as follows: 5) It is the duty of the Government to ensure integrity of the cadre as it is one of the main components of federal structure. 6) As far as possible non-cadre officers shall not be appointed to cadre posts and only in the exceptions and in the method noted above such posts can be filled up by State Government even in case of necessity. This shall be so since the Forest Act and other connected legal matr ix imposes heavy responsibility in the level of DCF and above as they are quasi judicial authorities also under the Act such posts shall not be held by persons selected on the basis of personal whims or other immeasurable criteria. 12. Petitioner has appended the file notings concerning petitioner s transfer obtained under the RTI Act to this writ petition. Adverting to the file notings, Shri Joshi argued that the note made on 22.04.2020 by the Section Officer clearly shows that there is no provision for posting an SFS Officer in place of an IFS Officer. Though, this note is available on file, without any justifiable reason, the transfer has been effected. 13. We have perused the file noting made on 22.04.2020. The Section Officer s note is at Note No.2. The Under Secretary s note is at Note No.3. Though, this note is available on file, without any justifiable reason, the transfer has been effected. 13. We have perused the file noting made on 22.04.2020. The Section Officer s note is at Note No.2. The Under Secretary s note is at Note No.3. The relevant file note is that of the Deputy Secretary and it reads as follows: "Hon'ble Chief Minister has ordered transfer Shri Ashok R.Patil, SFS, Deputy Conservator of Forest, Vijayapura Division, in place of Shri M.V.Amaranath, IFS, Deputy Conservator of Forest, Belgaum, (PDF of column 1). Since Shri Ashok R.Patil, is a SFS officer and there is no provision to post him for IFS cadre post, file may be submitted for reconsideration. 24/04/2020 MULLAI MUTHILAN MP (DEPUTY SECRETARY)" 14. The file has been routed further to the Secretary and the Chief Secretary to the Government. Thereafter, it is recorded at Note 7 that CM Approval was attached and the note has been signed by the Additional Chief Secretary on 29.04.2020. 15. Shri Hiregoudar, submitted that 4th respondent s name is found in the list of State Forest Service Officers who are eligible for consideration for promotion to the IFS in their order of seniority. He relied upon alist appended to the reply statement filed by respondent No.4. We have perused the same. It is a lst of 26 Officers prepared by the Chief Conservator of Forest. Name of petitioner is found at serial number 19. It is mentioned against his name that petitioner has already been promoted to IFS cadre. Name of respondent No.4 is found at serial No.22. This list is prepared by the Head of the Department and it is nothing to do with the select list which is prepared and considered at the time of promotion of SFS Officers to the IFS. Hence, the list relied by the Government Advocate does not lead the case of the State Government any further. 16. As recorded above, Rule 8 mandates that a cadre post shall be filled by a cadre officer. An exception has been carved out for temporary appointment of non-cadre officers to the cadre posts under Rule 9. In paragraph No.9 of their reply statement, the State Government have stated that there are 35 vacant cadre posts to be filled against promotion quota of IFS from SFS. An exception has been carved out for temporary appointment of non-cadre officers to the cadre posts under Rule 9. In paragraph No.9 of their reply statement, the State Government have stated that there are 35 vacant cadre posts to be filled against promotion quota of IFS from SFS. The eligible SFS Officers are being posted against cadre posts based on the select list issued by the Administrative Department prepared on the basis of CAT s order in O.A.No.237/2012 dated 28.06.2013 and accordingly, 4th respondent has been posted as Deputy Conservator of Forests, Belagavi. This stand of the State Government runs counter to the Cadre Rules, 1966. 17. We are conscious that the scope of interference by the Court in a transfer matter is limited. Courts can interfere only in exceptional cases and one such exception is violation of statutory Rules. Cadre Rules, 1966, protect an AllIndia Cadre Officer in consonance with the federal structure. 18. State Government have sought to justify posting of non-cadre officers to the cadre post on the ground that a select list has been prepared by the Administrative Department namely, the Forest, Ecology and Environment Department. Firstly, a list prepared by the Administrative Department is of no consequence as far as appointment of SFS Officers to the IFS. It is settled that such promotions are governed by the Indian Forest Service (Appointment by Promotion) Regulations, 1966. The manner in which the Committee is to be constituted, the preparation of list of suitable candidates, the mode of selection etc., is well established. The select list is prepared under Regulation 7 by a Committee consisting of Chairman of UPSC and other officers. (See M.V.Thimmaiah and others Vs. UPSC and others, (2008) 2 SCC 119 ). 19. Thus, the principal argument made on behalf of State Government that vacant posts are being flled up by the off icers in the list prepared by the Administrative Department is untenable. 20. In the case of T.SUNEEL KUMAR, IPS VS. STATE OF KARNATAKA, REP. BY CHIEF SECRETARY AND OTHERS, (2013) ILR(Kar) 4564 , this Court has held as follows: 51. Thus, the principal argument made on behalf of State Government that vacant posts are being flled up by the off icers in the list prepared by the Administrative Department is untenable. 20. In the case of T.SUNEEL KUMAR, IPS VS. STATE OF KARNATAKA, REP. BY CHIEF SECRETARY AND OTHERS, (2013) ILR(Kar) 4564 , this Court has held as follows: 51. From the aforesaid judgment it is clear that if an order of transfer is made in violation of any statutory provision (Act or Rule) and passed by the authority not competent to do so, then it becomes the duty of the Court to interfere with such order of transfer which is without the authority of law and hence void ab initio. In this case we have set-out how the order passed by the Government ef fecting transfers is contrary to Section 20B of the Act and therefore the power of transfer exercised by the Government is contrary to the said statutory provision, is one without the authority of law and void ab initio. Seen from any angle, the order of transfer passed by the Government in both the cases cannot be sustained. In fact, in the second case even the earlier order of transfer of Dr.Pawar, is also one without the authority of law and is liable to be quashed. Accordingly it is quashed. 52. xxx xxx 53. xxx xxx 54. In the other case the Tribunal has declined to grant the relief to the petitioner on the ground that the second respondent has taken charge. Here we would like to point out that a new service jurisprudence appears to have evolved over the years in this regard. The parties, Advocates and sometimes the Judges also think in terms that if the person transferred goes to the post to which he is transferred and takes charge, then the Court s power to set-aside the order of transfer does not exist. The parties, Advocates and sometimes the Judges also think in terms that if the person transferred goes to the post to which he is transferred and takes charge, then the Court s power to set-aside the order of transfer does not exist. In fact, because of this understanding recently when the Government was indiscriminately passing orders of transfer contrary to statutory provisions, the Karnataka Administrative Tribunal decided not only to stay such orders but also directed that the person who is relieved of his duty should be put back, to send a message to the Government and to the of ficials who have managed to get these transfer orders, that though the transfer has been given effect to, charge is taken, it has no value in the eye of law. Unfortunately, the Central Administrative Tribunal seems to think that once charge is taken it loses its power to set-aside the said order. Taking of charge or not taking of charge has no ef fect whatsoever in deciding the validity of an order of transfer. Once the order of transfer is quashed, the parties have to be relegated to the position as they stood prior to the order of transfer. Therefore, the reasoning of the Tribunalis unsustainable and it is liable to be set-aside. 21. It is relevant to record that in this case the file notings upto the Chief Secretary show that there was no provision to post respondent No.4 who is an SFS Officer to the IFS cadre post. Notwithstanding this note, the transfer order has been passed. This is unfortunate. 22. Shri Shrikant T.Patil, for respondent No.4 also urged that as on date, all posts have been filled up and therefore, this Court should not interfere at this stage. This argument is noted only to be rejected. We say so because, in view of Cadre Rules, 1966, respondent No.4 who is admittedly an SFS Officer cannot stake any claim over a cadre post. 23. The learned CAT while dismissing the application has recorded thus: 16. We cannot ignore the fact that before issuance of the order dated 30.04.2020 (Annexure-A2), the Respondent No.4 was holding an IFS cadre post at Vi jayapura and at that time, throughout his posting at Vi jayapura, nobody had fel t aggrieved. 23. The learned CAT while dismissing the application has recorded thus: 16. We cannot ignore the fact that before issuance of the order dated 30.04.2020 (Annexure-A2), the Respondent No.4 was holding an IFS cadre post at Vi jayapura and at that time, throughout his posting at Vi jayapura, nobody had fel t aggrieved. The State Government in its wisdom opted to post Respondent No.4 against a cadre post at Vijayapura and now when it is found that the said post is being manned by a non-cadre officer since the year 2009, therefore, it is considered appropriate to post there a cadre officer for its better management. The applicant who has been found to be a suitable officer to hold the cadre post at Vijayapura, cannot complain that the order of his transfer is bad because he is now being replaced from Belagavi Division by a non-cadre officer. He cannot question the posting of a non-cadre officer on the post vacated by him. 24. In our considered view, the above reasons recorded by the Tribunal, are unsustainable because, a cadre officer is protected by Cadre Rules, 1966 and if he is sought to be replaced by a non-cadre officer, the same amounts to violation of statutory Rules and therefore merits interference by this Court. 25. In view of above discussion, we pass the following: ORDER i ) Writ petition is allowed, ii) Order dated 09.07.2020 by the CAT in Original Application No.170/00243 of 2020 is set aside, iii) Transfer order dated 30.04.2020 bearing No.DPAR 27 SFP 2020 e-office passed by respondent No.1 is set aside. No costs.