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2019 Supreme(Kar) 982

IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
G. Narendar and Bellunke A.S., JJ.
N. Mohammed Zubair - Appellant
Vs.
State of Karnataka - Respondent
Writ Petition No. 107015 of 2018
Decided On : 14-06-2019

Advocates Appeared:
Jagadish Patil, Adv., Suresh S.S., Adv., Ravi Hosamani, Adv., Nanjund Reddy, Adv.

Headnote:

Constitution Of India,1950 -Government servants - Appointment as the Joint Managing - Election - Tribunal was pleased to grant an interim order of stay staying operation thereby disabling respondent from occupying post in which post petitioner is working and discharging his duties - Thereafter matter was heard and by order - Tribunal construing impugned order as an order transferring petitioner proceeded to hold that if no posting is shown petitioner ought to have reported before department of Personnel and Administrative Reforms- It further that transfer of petitioner was an Election Transfer Assembly Elections and elections having been completed petitioner ought to have reported back to his previous posting as an officer on special duty with Honble Speaker Legislative Assembly- Holding thus Tribunal was pleased to reject application –Held, Court have also perused statement of objections preferred by respondents - Apart from narrating sequence of events - Court do not find any clarifications with regard to lacunas as pointed out by this Court vide order - Though various arguments are addressed with regard to deemed transfer and alleged subsequent transfer order court are not convinced with legitimacy and efficacy of said order case is required to be done only an order of transfer it cannot be gainfully argued that order of transfer respondent ought to be construed as deemed transfer of petitioner- He would further contend that Courts cannot legislate what legislature has designedly omitted- He would place reliance on ruling of Honble Apex Court reported Cooperative Marketing-cum-processing Service Society Limited and Anothercontend that legislation is beyond scope of jurisdiction of courts- Court are of opinion that matter be remitted back to Tribunal to render a finding on merits after adverting - It is made clear that while so remitting matter finding of Tribunal that transfer of petitioner to office of Assistant Commissioner Sub-Division as an election transfer is set aside and said issue is not left open- As certain other issues have been pointed out by this Court more particularly with regard to aspect of deemed transfer we deem it fit to remit same to Tribunal for reconsideration of application on merits - Order accordingly

JUDGMENT :

G. Narendar, J.

Heard Sri Ananth Mandgi, learned Senior Counsel along with Sri Jagadish Patil, learned counsel for the petitioner and Sri Nanjund Reddy, learned Senior Counsel along with Sri K.L.Patil, learned counsel for respondent No.4 and the learned Additional Government Advocate on behalf of respondents 1 to 3.

2. The instant petition has a checkered history. The petitioner had approached the Karnataka Administrative Tribunal (for short 'the Tribunal') calling in question the transfer order bearing No. SiAaSuE 107 AaSeVa 2018 dated 18.08.2018 produced as Annexure- A7 to the application registered as Application No.6623/2018.

3. Initially the Tribunal was pleased to grant an the interim order of stay staying the operation thereby disabling the 4th respondent from occupying the post in which post the petitioner is working and discharging his duties. Thereafter, the matter was heard and by order 11.10.2018, the Tribunal construing the impugned order as an order transferring the petitioner proceeded to hold that if no posting is shown, the petitioner ought to have reported before the department of Personnel and Administrative Reforms. It further held that the transfer of the petitioner was an Election Transfer (Assembly Elections of 2018) and the elections having been completed, the petitioner ought to have reported back to his previous posting as an officer on special duty with the Hon'ble Speaker, the Legislative Assembly. Holding thus, the Tribunal was pleased to reject the application. Aggrieved, by the same, the petitioner is before this Court in the instant writ petition.

4. This Court by considered order dated 02.11.2018 was pleased to grant interim relief by staying the operation of the impugned order dated 18.08.2018 in so far as it related to the petitioner. Further, this Court was further pleased to direct respondents 1 to 3 to give a posting to the 4th respondent. Aggrieved by the interim relief granted by this Court, the 4th respondent approached the Hon'ble Apex Court by way of SLA (C) No.31854/2018. The Hon'ble Apex Court after taking note of the fact that the appeal was directed against an interim order, deemed it appropriate to request this Court to dispose of the pending writ petition expeditiously and preferably within three weeks from the date of receipt of a copy of the said order. The Hon'ble Apex Court further reiterated that part of the interim order directing that the 4th respondent herein and the petitioner being assigned a posting by observing that public interest demands that an official should not be without any posting and also permitted the State to pass such orders in the nature of pro ten arrangement till the petition is disposed of. The Hon'ble Apex Court observed that it is not expressing any opinion on merits and demerits on the arguments advanced by the counsel and further proceeded to adjourn the proceedings to 15.03.2019.

5. Thereafter, the copy of the interim order of the Hon'ble Apex Court was placed before a bench comprising of BVNJ and BASJ on 27.02.2019. After perusing the same, the petition was directed to be listed on 08.03.2019. On account of change of roster, the matter was listed before this bench on 08.03.2019 for the first time. This Court after adverting to the orders of the Hon'ble Apex Court directed to list the matter on 12.03.2019. On 12.03.2019, the Court after hearing the learned Senior Counsel on behalf of the petitioner and the learned counsel for the 4th respondent and the learned Additional Government Advocate had ordered and passed a detailed order as below:

    "During the course of hearing and on perusal of the order of transfer impugned at Annexure-A7 dated 18.08.2018, the notification reads as under:

XXX

    On a reading and understanding of the above, what one can gather is that the officers whose names are found in the list have been transferred to the place or post detailed against their names. On perusal, it is seen that the name of the 4th respondent is found a

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