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2020 DIGILAW 765 (KAR)

G. Jagadeesh v. State Of Karnataka And Others

2020-03-19

ALOK ARADHE, MAHESHAN NAGAPRASANNA

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JUDGMENT Alok Aradhe, J. - Mr. A.S. Ponnanna, learned Senior counsel along with Mr. Shivaprasad Shanthagowdar, learned counsel for the petitioner. Mr. S.S. Mahendra, learned Additional Government Advocate for respondent Nos. 1 to 3. Mr. Udaya Holla, learned Senior counsel along with Mr. Vivek Holla, learned counsel for respondent No. 4. Mr. Vijaya Simha Reddy, learned counsel for respondent No. 5. The petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally. 2. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 26.11.2019 passed by the Karnataka State Administrative Tribunal (hereinafter referred to as the Tribunal for short), by which application preferred by the petitioner, in which challenge was made to the order dated 23.10.2019 has been dismissed. In order to appreciate the petitioners challenge to the impugned order, few relevant facts need mention, which are set out hereinafter: 3. The petitioner was initially appointed as Assistant Director in Backward Classes Welfare Department. The petitioner thereafter was promoted as Deputy Director in the year 2010. The petitioner by an order dated 08.03.2017 was further promoted as Joint Director. Thereafter, he was posted as Joint Director/Secretary (Administration) Karnataka State Backward Classes, Bangalore. On 18.08.2017, the respondent No. 4 was promoted as Selection Grade Officer by Government of Karnataka and by an order dated 20.06.2019 was appointed as Managing Director of D. Devraj Urs. Backward Classes Development Corporation Ltd. (hereinafter referred to as the Corporation for short). However, by an order dated 16.10.2019, within a period of four months, the petitioner was posted as Managing Director of Corporation without providing any positing to respondent No. 4. 4. The respondent No. 4 thereupon filed an application viz., application No. 6197/2019 with the Tribunal. The State Government by an order dated 23.10.2019 recalled the order dated 16.10.2019 and respondent No. 4 was again posted as Managing Director of the Corporation and the petitioner was transferred to the post of Joint Director, Backward Classes. The petitioner challenged the aforesaid order in application No. 6270/2019. The Tribunal by an order dated 26.11.2019 dismissed the application preferred by the petitioner on merits and disposed of the application filed by respondent No. 4 as having been rendered infructuous. In the aforesaid factual background, this petition has been filed. 5. The petitioner challenged the aforesaid order in application No. 6270/2019. The Tribunal by an order dated 26.11.2019 dismissed the application preferred by the petitioner on merits and disposed of the application filed by respondent No. 4 as having been rendered infructuous. In the aforesaid factual background, this petition has been filed. 5. Learned Senior counsel for the petitioner submitted that Chapter II, Section 1 of the Karnataka Backward Classes and Minorities Development Corporation Ltd. Service Rules 1978 (hereinafter referred to as the Rules for short) empowers the Board of Directors to classify the posts in the Corporation and empowers the Board with regard to designation cadre, strength, nature of post, scale of pay, method of recruitment and qualification in respect of posts in the Corporation. It is further submitted that Appendix II does not provide any qualification in respect of the post of Managing Director and the contention that the Rules do not apply to the post of Managing Director is misconceived as in the sense that the Rules do not apply, the post of Managing Director would seize to exist in the management. It is further submitted that the Board of Director has passed a resolution in its meeting held on 25.05.2013 and has prescribed the method of recruitment as well as minimum qualification and experience for the post of Managing Director. It is contended that the Tribunal ought to have appreciated that the transfer of the petitioner was premature and was obtained without the prior approval of the Chief Minister and therefore, the same is in contravention of the policy of transfer, which has a statutory force. 6. On the other hand, learned Additional Government Advocate for respondents 1 to 3 has produced the original record and has submitted that before issuing the impugned order dated 16.10.2019, prior approval of the Chief Minister was obtained. Learned Senior counsel appearing on behalf of the respondent No. 4 has submitted that the Corporation is a Government Company as defined under Section 2(45) of the Companies Act, 2013. It is further submitted that the affairs of the company are governed by the Articles of Association of the Company. In this connection, our attention has been invited to Section 5(1) of the Act. It is further submitted that under the Articles of Association and in particular Article 14, the State Government is the competent authority to appoint the Managing Director. In this connection, our attention has been invited to Section 5(1) of the Act. It is further submitted that under the Articles of Association and in particular Article 14, the State Government is the competent authority to appoint the Managing Director. Since, the petitioner was not appointed by the State Government, therefore, his original application has been rightly been dismissed. It is also pointed out that the amendment to the Rules have neither been gazetted nor have been approved and it is trite law that subordinate legislation comes into force from the date of publication in the official gazette. It is also submitted that the transfer of Respondent No. 4 was premature and the same was affected without obtaining the prior approval of the Chief Minister. In support of the aforesaid submission reliance is placed on the decisions of the Supreme Court in S.K. Shukla and Others v. State of U.P. and Others, (2006) 1 SCC 314 , Municipal Corporation of Greater Mumbai, through Commissioner v. Anil Shantaram Khoje and Others, (2016) 15 SCC 726, B.K. Srinivasan and Others v. State of Karnataka and Others, (1987) 1 SCC 658 , A.F. Lawrence & Another v. State of Mysore & Others, (1970) 1 Mys LJ 185, K.G. Jagadeesha v. State of Karnataka and Ors., MANU/KA/2890/2016 (DB) (Para 25), Rajashekar M. v. The State of Karnataka and Ors., MANU/KA/5189/2018 (DB) (Para 6 & 7), Narayanappa v. The State of Karnataka and Ors., MANU/KA/3570/2019 (DB) (Para 10) and N. Muniraju v. The State of Karnataka, Department of Urban Development and Others, ILR 2017 Kar 3956 . 7. We have considered the submissions made on both sides and have perused the records. Section 5(1) of the Companies Act, 2013 provides that the articles of the companies contain regulations for the management of the company. Admittedly, the Corporation is a Government company as defined under Section 2(45) of the Companies Act, 2013. Appendix II to the Rules provides that appointment on the post of Managing Director shall be made by the State Government in terms of Article 14 of the Articles of Association of the Corporation. Admittedly, the Corporation is a Government company as defined under Section 2(45) of the Companies Act, 2013. Appendix II to the Rules provides that appointment on the post of Managing Director shall be made by the State Government in terms of Article 14 of the Articles of Association of the Corporation. Article 14 of the Articles of Association reads as under: 'The Managing Director of the Company shall be appointed by the Government for such period, on such terms and on such remuneration as it may think fit and remove him from office and appoint another in his place provided the Director so appointed shall ipso facto vacate his office as the Managing Director, if he ceases to be a Director of the Company.' 8. Thus, from perusal of Article 14 of the Articles of Association, it is evident that the State Government is the competent authority to appoint he Managing Director of the Corporation. Admittedly, the petitioner was not posted as the Managing Director of the Corporation by the order dated 16.10.2019. The aforesaid order is therefore, per se without jurisdiction as the same was not passed by the competent authority. It is pertinent to mention here that Respondent No. 4 was appointed as the Managing Director of the Corporation by an order dated 20.06.2019 and within a period of four months from the date of appointment of respondent No. 4 by an order dated 16.10.2019; petitioner was posted as Managing Director in place of Respondent No. 4 by an incompetent authority. It is pertinent to mention here that the order dated 26.11.2019, by which the order dated 16.10.2019 was cancelled and Respondent No. 4 was posted in the place of the petitioner vide order dated 23.10.2019, which is evident from the original record produced before us. It is noteworthy that the petitioner by a Notification dated 07.01.2020 has been placed in the additional charge of the post of the Secretary (Administration) of the Commission until further orders. 9. In view of preceding analysis, it is not necessary for us to deal with the various contentions raised by the parties. The order passed by the Tribunal neither suffers from any jurisdictional infirmity nor any error apparent on the face of record warranting interference of this court in exercise of powers under Article 227 of Constitution of India. In the result, we do no find any merit in this petition. The order passed by the Tribunal neither suffers from any jurisdictional infirmity nor any error apparent on the face of record warranting interference of this court in exercise of powers under Article 227 of Constitution of India. In the result, we do no find any merit in this petition. The same fails and is hereby dismissed.