Back
2019 Supreme(Kar) 1338
IN THE HIGH COURT OF KARNATAKA, BENGALURU
Krishna S. Dixit, J.
Sri K. M. Vasu S/o. K. N. Manjunatha Rao - Petitioner
Vs.
Bruhat Bengaluru Mahanagara Palike N.R. Square, Bengaluru - Respondent
Writ Petition No. 50212 OF 2019 (STR)
Decided On : 11-12-2019
For the Petitioner: Sri. A. S. Ponnanna, Senior Counsel A/W Smt. Leela P Devadiga, Adv.
For the Respondent: Sri. I. G. Gachchinamath, Adv. Sri. A. Nagarajappa, Adv.
Headnote:
Writ of Certiorari issues – Quash - Karnataka Municipal Corporations Act, 1976 - Section 69 - Petitioner an employee in equivalent cadre of Executive Engineer is on deputation to vide Notification vide Annexure third respondent too is on deputation to is not in dispute once personnel from other employers are lent their deployment and posting are within competence of borrowing organization therefore Commissioner should have exercised statutory discretion in accordance with rules of reason & justice and not whimsically nor instance of high and mighty contra having happened in this case there is error apparent on face of record – Held, Petitioner is transferred from post of Assistant Conservator of Forest there is no clear posting order at particular post of petitioner - Unless petitioner is lifted from one place and posted at another place it cannot be said that any vacancy has arisen petitioner and such an exercise of power cannot be appreciated even if on keeps in mind administrative circumstances for public interest as case may be - It is hardly required to be stated that when is posted in place from one place to another then only there will be vacancy can be posted at place - If is lifted and his posting is kept in lurch is posted vice such practice cannot be appreciated and deserves to be rather deprecated and reason being that officer who is lifted from one place is not certain at which place he has to join duty and unless he joins duty at different place it cannot be said that vacancy in law had arisen at his original place - So long as there is no vacancy at original place question of posting is without any foundation - Hence said transfer order can be said to be with exercise of legal malaise - Contention of Senior Panel Counsel for BBMP that petitioner is now given posting vide Order is poor solace to an aggrieved employee this posting is an afterthought only to liquidate ground which petitioner has taken up for invalidation of impugned orders subsequent posting order does not cure legal defect which infected impugned orders even here too nothing is mentioned about hardship or otherwise which third respondent would suffer if impugned transfer was not made therefore this ground of justification too fails – Order accordingly
ORDER :
Petitioner, an employee on deputation to respondent-BBMP is knocking at the doors of Writ Court for assailing the orders dated 24.10.2019, a copy whereof is at Annexure-E and another dated 28.10.2019, a copy whereof is at Annexure-G both issued by the first respondent whereby he has been transferred premature from the Office of Executive Engineer, Hebbal Division to the consequent vacancy the third respondent herein having been posted, but no place having been shown to the petitioner.
2. After service of notice, the respondent Nos. 1 & 2 have entered appearance through their Senior Panel Counsel Shri I G Gachchinamath; and the third respondent private party has entered Caveat through his counsel Shri A Nagarajappa; the answering respondents have filed a brief Statement of Objections dated 11.11.2019 resisting the writ petition.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court grants indulgence in the matter for the following reasons:
(a) Petitioner, an employee in the equivalent cadre of Executive Engineer is on deputation to the BBMP till 10.03.2020 vide Notification dated 22.02.2019 vide Annexure-D; the third respondent too is on deputation to the BBMP is not in dispute; once the personnel from other employers are lent, their deployment and posting are within the competence of the borrowing organization; therefore, the Commissioner of BBMP should have exercised the statutory discretion in accordance with the rules of reason & justice and not whimsically nor at the instance of high and mighty; the contra having happened in this case, there is error apparent on the face of record;
(b) in the instant case, the documents produced by the petitioner vide Memo dated 04.11.2019 prima facie show that the deployment of services of the petitioner and of the third respondent within the BBMP organization is done at the instance of a Central Minister and the Chief Minister; the Central Minister addresses a letter dated 06.10.2019 to the Chief Minister at Annexure-H and the Chief Minister endorsed the request on the very said letter on 17.10.2019, seeking posting of third respondent to the post of petitioner; this has resulted into the issuance of impugned orders and thus, there is legal mala fide that vitiates them; factual mala fide is not addressed since the said Ministers are not before this Court, eo nomine;
(c) no provision of law is brought to the notice of this Court that these Ministers have any say in the deployment of personnel within the BBMP organization; therefore the power exercised by the Commissioner under Section 69 of the Karnataka Municipal Corporations Act, 1976, whereby impugned transfers are effected is vitiated since the Commissioner has “acted on the dictate of alien authorities” which course the first principle of Administrative Law, shuns; the Apex Court in the case of Purtabpore Company Ltd. Vs. Cane Commissioner of Bihar, (1969) 1 SCC 308, half a century ago castigated the Cane Commissioner observing that he alone should have exercised the power under the Sugarcane (Control) Order and not abdicated his responsibility in favour of the Chief Minister and that it was not proper for the Chief Minister to have interfered with the Commissioner’s function; the ratio laid down in this decision in all fours applies to the case at hands;
(d) in a similar fact matrix, a Coordinate Bench of this Court in the case of B T Mohan Krishna Vs. BBMP, in W.P.No.41458/2013 (STR) vide judgment dated 12.12.2013 strangely, exactly six years ago, has observed as under:
“7. It is rightly stated by the learned counsel appearing for the BBMP that under S.69 of the Karnataka Municipal Corporations Act, 1976(‘the Act’ for short), it is only the Commissioner or his delegate who has power to give internal postings to the employees and Officers of the BBMP. In my opinion, under the Act, neither the Chief Minister nor any Minister has any power to interfere with the statutory power of the Co
