Back
2020 Supreme(Kar) 11
IN THE HIGH COURT OF KARNATAKA AT KALABURAGI BENCH
G. NARENDAR, M. NAGAPRASANNA, JJ.
Sri. Dhammkirti S/o Eknathrao Waghmare – Petitioner
Versus
The State of Karnataka Rep. by its Principal Secretary Department of Public Works, Ports Inland and Water Transport – Respondent
Writ Petition No. 205950 of 2019
Decided On : 20-01-2020
Advocate Appeared:
For the Petitioner: Sri. Mahesh Patil.
For the Respondents: Sri. Liyaqat Fareed Ustad, Sri. Javed Hussain, Sri. K.M. Ghate.
Headnote:
Karnataka Public Works Engineering Department Service (Recruitment) (Amendment) Rules - Petitioner who is an employee of Public Works Department Ports Inland and Water Transport at having joined as First Division Assistant was promoted to post of Accounts Superintendent on - While in cadre of Accounts Superintendent by an order was transferred and posted as Audit Officer on his Own Pay Scale in vacancy that was created due to superannuation of one Audit Officer by name Sri Upend - Petitioner was transferred from Planning Division to Public Works Department – Held, Terms of afore extracted Clause it becomes unmistakably clear that Senior Staff for accounting and audit functions must be sourced exclusively from State Accounts Departments - Notwithstanding Cadre and Recruitment Rules and Government order petitioner was posted as Audit Officer which is blatantly contrary to aforementioned statute and order stating that petitioner is not an Audit Officer and is not an employee of Karnataka State Accounts and Audit Department but is an employee of Public Works Department – Thus posting of petitioner being contrary to law cannot have any right whatsoever to continue in post - Even on examination of this Clause qua transfer order impugned order being premature or otherwise would not arise - Tribunal has considered matter in great detail and has concluded that petitioner has no right to hold post - Order of Tribunal does not warrant any interference in this writ petition – Petition dismissed
ORDER :
1. The petitioner who is an employee of the Public Works Department Ports, Inland and Water Transport at Bidar having joined as First Division Assistant was promoted to the post of Accounts Superintendent on 25.04.2016. While in the cadre of Accounts Superintendent by an order dated 04.07.2019 was transferred and posted as Audit Officer on his “Own Pay Scale” in the vacancy that was created due to superannuation of one Audit Officer by name Sri Upendra S.B. The petitioner was transferred from Planning Division, Bidar to Public Works Department, Bidar.
2. It transpires that the movement order, to report to duties, was issued to the petitioner on 06.09.2019, to report to the office of Public Works Department Division Bidar. Accordingly, the petitioner reports to duties on 31.10.2019 as Audit Officer in the office of Public Works Department Division, Bidar.
3. After about 28 days of his functioning, another notification was issued by the Government effecting transfer of several personnel in the Public Works Department in which the 6th respondent herein was shown to be posted to the place of the petitioner and the petitioner was not shown any posting.
4. The petitioner filed an application before the Karnataka State Administrative Tribunal (hereinafter referred to as ‘the Tribunal’ for short) in application No. 20283/2019 challenging the said order. The Tribunal by its order dated 20.12.2019, dismissed the application on the ground that in terms of the Cadre and Recruitment Rules, the petitioner was ineligible to hold the post of Audit Officer as he was only an Accounts Superintendent. Challenging the said order of the Tribunal, the petitioner has filed the instant writ petition.
5. We have heard the learned counsel for the parties and perused the records.
6. The primary contention of the petitioner is that he had reported to duty pursuant to his order of transfer on 31.10.2019 and barely after 28 days of functioning as Audit Officer of the Public works Department, Bidar, he is disturbed by the posting of 6th respondent to the place of the petitioner without showing any posting to the petitioner. It is the contention of the petitioner that the said order of transfer of the 6th respondent to the place of the petitioner is premature and contrary to the guidelines as the posting of the petitioner is disturbed within 28 days of his reporting to the duties.
7. It is the further contention of the petitioner that in the light of the fact that no posting is shown to the petitioner and the impugned notification of transfer is passed as if the place is remaining vacant on the superannuation of Sri Upendra S.B. who was earlier working as an Audit Officer, is mala-fide.
8. Per contra, the State Government and the counsel for 6th respondent, who is the present occupant to the posting of the petitioner, would contend that the petitioner is ineligible to hold the post of Audit Officer as he is only an Accounts Superintendent and his posting itself as an Audit Officer was contrary to the Cadre and Recruitment Rules and submits that the writ petition be dismissed.
9. The order of transfer of the petitioner though was on 04.07.2019 as an Audit Officer in the office of Public Works Department, Bidar, he reported to duty on 31.10.2019. The order of transfer dated 04.07.2019 clearly depicts that the petitioner is being posted on his “own pay scale” which would clearly mean that he is not in the cadre of Audit Officer. He is only directed to hold charge of the duties. In the first blush the contentions of the petitioner appears that order of transfer is premature but what is required to be seen is whether the petitioner was eligible to hold the post of Audit Officer only after him being found eligible, the question whether the order is premature or otherwise or being contrary to the guidelines will have to be considered.
10. The counsel for 6th respo
