IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY, 2019 PRESENT THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY AND THE HON’BLE MR. JUSTICE R.DEVDAS WRIT PETITION NO.28211/2019 (S-KSAT) BETWEEN:
SRI. H.NAGARAJAPPA S/O.HANUMANTHAPPA AGED ABOUT 59 YEARS SENIOR LABOUR INSPECTOR 48TH CIRCLE, LABOUR DEPARTMENT KARMIKA BHAVANA BANNERGHATTA ROAD BENGALURU – 560 029 R/A NO.49, 6TH CROSS ANNAPOORNESHWARI NAGAR SRIGANDAKAVAL BENGALURU – 560 058 (BY SRI D.R. RAVISHANKAR, ADV.) AND:
1. THE STATE OF KARNATAKA ... PETITIONER REPRESENTED BY THE PRINCIPAL SECRETARY DEPARTMENT OF LABOUR VIKASA SOUDHA BENGALURU – 560 001 2. THE COMMISSIONER DEPARTMENT OF LABOUR KARMIKA BHAVANA BANNERGHATTA ROAD BENGALURU – 560 029 3. ADDITIONAL LABOUR COMMISSIONER LABOUR DEPARTMENT KARMIKA BHAVANA BANNERGHATTA ROAD BENGALURU – 560 029 4. THE DEPUTY LABOUR COMMISSIONER REGION-1 LABOUR DEPARTMENT KARMIKA BHAVANA BANNERGHATTA ROAD BENGALURU – 560 029 5. ASSISTANT LABOUR COMMISSIONER DIVISION-2 LABOUR DEPARTMENT KARMIKA BHAVANA BANNERGHATTA ROAD BENGALURU- 560 029 6. LABOUR OFFICER, SUB DIVISION-2 LABOUR DEPARTMENT KARMIKA BHAVANA BANNERGHATTA ROAD BENGALURU – 560 029 ... RESPONDENTS (BY SMT. N. ANITHA, HCGP) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDERS PASSED BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL IN APPLICATION NO.3578/2019 DATED 19.06.2019, VIDE ANNEXURE-D.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, NARAYANA SWAMY J, MADE THE FOLLOWING:
O R D E R The petitioner made a prayer before the Karnataka Administrative Tribunal to quash the transfer order dated 29th May, 2019 issued by the second respondent, Commissioner, Department of Labour, and further, sought a direction to the respondent to consider the application/representation dated 22nd June, 2018.
2. The learned counsel for the petitioner submits that the petitioner made an application under Rule 4A of Karnataka Civil Services (General Recruitment) Rules, 1977 and Rule 32 of the Karnataka Civil Services Rules and has expressed his unwillingness to accept the promotion post. It is his submission that once an application is made under the said provision, it shall be the duty of the respondent to communicate it to the applicant, in case, if his request is not accepted. The learned counsel submits that as on today he has not been issued with any communication as regards acceptance or rejection of his request. Under the circumstance, the learned counsel submits that the transfer order made under Rule 32 of the Karnataka Civil Services Rules directing him to report to the vacant post shall not be given effect to.
3. The learned High Court Government Pleader supports the order and it is submitted that in case if an application is made for foregoing the promotion under Rule 4A of the General Recruitment Rules and no communication is made upon that, presumption is to be drawn that it has been rejected; and under the circumstance, rightly the case of the petitioner has been rejected by the Tribunal. Hence, she submits to dismiss the petition.
4. Heard the learned counsel for the parties and gone through the reasons assigned by the Tribunal. When a promotion is given to a Government Servant, it is for him to exercise his option as per Rule 4A of the General Recruitment Rules to forego the promotion by assigning reasons as to why he is foregoing the promotion. When such statutory representation is made under Rule 4A of the General Recruitment Rules, it shall be the duty of the respondent to communicate the same under sub-Rule (3) of Rule 4A of the General Recruitment Rules. When such representation is made, till its consideration or disposal the employee shall not be urged or forced to report at the promotion post. Sub-Rule (3) of Rule 4A of the General Recruitment Rules makes it clear that the once the representation made under Rule 4A of the General Recruitment Rules is rejected, the person should go and report at the promotion post, otherwise, it will be a misconduct. When such is the rider, it is inbuilt under Rule 4A(3) of the General Recruitment Rules that it shall be a misconduct, in case, if the person has not reported to duty since his representation has not been considered. It shall be the duty of the respondent to pass appropriate order and to communicate the same to the petitioner. Under the circumstance, we hold that it is appropriate to direct the second respondent to pass orders on the representation made by the petitioner under Section 4A of the General Recruitment Rules within a period of one week from today. In case, if it is accepted, then appropriate order is to be passed and in case of it is rejected, the same shall be communicated to the petitioner. The said exercise shall be done on or before 31st July, 2019. We expect that the second respondent shall communicate the order within the time prescribed hereinabove. Till such communication, it made clear that the petitioner shall continue in the same post.
With above observations petition stands disposed of.
Sd/- JUDGE Sd/- JUDGE lnn