IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09th DAY OF OCTOBER, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE S.R.KRISHNA KUMAR WRIT APPEAL No.3810 OF 2019 (S-RES) BETWEEN:
Sri. Yaduraj N.S. Aged about 54 years, Son of Late Subbalinge Gowda, Residing at No. 30, 21st Cross, Ittamadu Main Road, 3rd Phase, Banashankari, Bengaluru-560085.
(By Sri. G.R.Mohan, Advocate) AND:
1. State of Karnataka Primary and Secondary Education Department M.S.Building, Bengaluru-560001.
By its Principal Secretary 2. The Commissioner, Department of Public Instruction, K.R.Circle, Bengaluru-560001.
3. The Depurty Director, Department of Public Instruction, Bengaluru South District Kalasipalya, Bengaluru-560002.
(By Sri. I.Tharanath Poojary, AGA) ... Appellant … Respondents This Writ Appeal is filed under Section 4 of the Karnataka High Court Act praying to set aside the orders of the learned single Judge passed on 13.09.2019 in WP No.40920/2019 and allow the appeal of the appellant by way of directions to the respondents from transferring the appellant to any other place from the place he is at present working till such time he remain the elected office bearer and executive committee member of the Karnataka State Primary School Teachers Association.
This Appeal coming on for preliminary hearing this day, Chief Justice delivered the following:-
JUDGMENT It is not in dispute that when the writ petition was decided by the learned Single Judge by passing the impugned order, an order of transfer of the appellant to another post was not passed. The entire writ petition is founded on the basis of the proviso to sub-section(1) of Section 3A of the Karnataka Civil Services (Regulation of Transfer of Teachers) Act, 2007 (for short ‘ the said Act of 2007) as amended by Act No. XXIII of 2017.
2. The submission of learned Additional Government Advocate is that by a subsequent order of transfer, the appellant has not been transferred from Zone-A to Zone-C and therefore, sub-section(1) of Section 3A of the said Act of 2007 will have no application.
3. As there is a subsequent order of transfer, the appellant will have to challenge the same substantively. Whether sub-section(1) of Section 3A of the said Act of 2007 is attracted or not is an issue which will have to be gone into in the substantive proceedings which may be filed by the appellant.
4. The other issue which is considered by the learned Single Judge is about the applicability of proviso to sub- section(1) of Section 3A of the said Act of 2007. The learned Single Judge observed that the appellant was nominated as Honorary President which cannot be equated with an elected office bearer of employees’ association.
5. In fact, in our view, there was no occasion for the learned Single Judge to entertain the writ petition filed by the appellant especially when an order of transfer of appellant was not passed when the impugned order was passed.
6. Therefore, notwithstanding the observation made in paragraph-5 of the impugned order, the issue whether the order of transfer of the appellant is covered by sub-section(1) of Section 3A of the said Act of 2007 and the issue whether on the date of passing the order of transfer, the appellant was an office bearer of a recognized Teacher’s Association or not, will remain open to be decided in the substantive proceedings which may be filed by the appellant. Even the issue whether the office bearer as contemplated by proviso to sub-section(1) of Section 3A of the said Act of 2007 should be an elected office bearer is kept open which will be decided in the appropriate proceedings, which may be filed by the appellant.
7. Subject to what is observed above and by keeping open the remedy to challenge the order of transfer, the appeal is disposed of.
Pending application I.A.1/19 does not survive for consideration and the same stands disposed of.
Sd/- CHIEF JUSTICE Sd/- JUDGE Srl.