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Judgment
A.N. Venugopala Gowda, J.—The controversy in this writ petition is to a decision of the Managing Director, Karnataka State Road Transport Corporation (KSRTC), transferring the Petitioner from the post of Chief Accounts Officer and Financial Advisor (CAO and FA), Bangalore Metropolitan Transport Corporation (BMTC), to the post of CAO and FA, North West Karnataka Road Transport Corporation (NWKRTC), Hubli.
The short resume of the case, relevant for the purpose of determination of the controversy may be stated thus:
The State Government in exercise of the power conferred u/s 3 of Road Transport Corporation Act, 1950 (for short ''the Act'') by issuing a Notification established the KSRTC with effect from 1.8.1961. The State Government established BMTC, NWKRTC and NEKRTC, with effect from 15.08.1997, 11.11.1997 and 15.08.2000 respectively. In terms of Section 14, each of the Corporations has a MD and a CAO and FA appointed by the State Government. Section 17A(2)(d) provides that, subsidiary Corporation shall have a MD, CAO and FA or a CAO-cum-FA, and such Officers shall be appointed by the State Government. Section 15(1) provides that, the MD shall be the executive head of the Corporation and all other Officers and employees of the Corporation shall be subordinate to him. Section 15(2) provides that, MD shall obtain the views of CAO and FA or CAO-cum-FA as the case may be, on every proposal involving revenues, or expenditures from the fund of the Corporation and shall cause such views to be placed before the Board for its consideration.
The Petitioner, who held the post of Divisional Controller in the KSRTC was promoted and posted as CAO of NWKRTC on 26.10.2004. The State Government by issuing a Notification dated 05.08.2009, transferred and posted the Petitioner as CAO and FA of BMTC. The said post, which was a Selection Grade post was upgraded pursuant to Resolution No. 1170 dated 26.08.2009 of KSRTC, to that of Suppertime Scale. The State Government by issuing a Notification dated 06.01.2010, promoted and continued the Petitioner in the upgraded post. The MD, KSRTC, on 18.01.2011, ordered the transfer of Petitioner to the post of CAO and FA, NWKRTC, Hubli. The 5th Respondent who was working as CAO and FA of NWKRTC, was transferred to the post, which the Petitioner held in BMTC. Aggrieved, the Petitioner has filed this writ petition.
Learned Counsel appearing for the Petitioner contended that, having regard to the order passed by the State Government on 05.08.2009 appointing the Petitioner to the post of CAO and FA of BMTC and the Notification dated 06.01.2010 promoting and continuing the Petitioner in the upgraded post and the provisions under Sections 15(1) and 17A(2)(d) of the Act, it must be held that, the appointment to the post of CAO and FA or CAO-cum-FA, shall be by the State Government and it is the State Government alone which has the power to transfer CAO and FA or CAO-cum-FA of a Corporation and it is the State Government which has been exercising the said power since the establishment of the four Corporations and hence, the impugned action/order of the MD of KSRTC is illegal. Learned Counsel contends that, the MD of KSRTC has usurped the power of State Government, in purported exercise of the power u/s 15(1) of the Act or the directions issued u/s 34 of the Act, which are only for limited purposes.
Smt. Shwetha Anand, learned Counsel appearing for KSRTC, on the other hand contended that, the MD has the necessary administrative control over the CAO and FA having regard to the provisions u/s 15(1) of the Act and also the directions issued by the State Government in exercise of the power u/s 34 of the Act, vesting powers in the MD of KSRTC, till the Cadre and Recruitment Regulations of the newly established three RTCs are framed. She submitted that, KSRTC (Cadre and Recruitment) Regulations, 1982 apply to all the RTCs, since they have not framed their own Cadre and Recruitment Regulations. Learned Counsel submitted that, the Petitioner has only been deputed to work as CAO and FA, NWKRTC and hence, no interference in the matter is called for.
Sri Puttige R. Ramesh, learned Counsel appearing for the 5th Respondent contended that, the Officers working in the cadre of CAO and FA in the four RTCs in the State are inter-changeable. Merely because the Petitioner has been promoted to Suppertime Scale, there is no prohibition to post him as CAO and FA, NWKRTC. He submitted that, there will not be any reduction in the pay and emoluments of the Petitioner on account of his posting as CAO and FA, NWKRTC. Learned Counsel adopted the stand taken by Smt. Shwetha Anand with regard to the competency of the MD, KSRTC, in the matter of transfer and posting of the Petitioner and the 5th Respondent. Learned Counsel submitted that, in pursuance of the impugned order the 5th Respondent has reported to duty and hence the writ petition has become in fructuous.
Sri Jagadish Mundargi, learned Addl. Government Advocate, appearing for the State Government contended that, so far as the appointment to the posts of MD and CAO and FA, of the Corporation(s) are concerned, it is the State Government which has the power and authority by virtue of Section 14 of the Act. He pointed out that, even the KSRTC (Cadre and Recruitment) Regulations, 1982 also make it abundantly clear that the appointment to the post of CAO and FA is in terms of Section 14 of the Act. Learned Counsel pointed out that, it is the State Government which appointed the Petitioner to the post of CAO and FA of BMTC by issuing Notification dated 05.08.2009 and when the post was upgraded to Suppertime Scale, it is again the State Government, by issue of Notification dated 06.01.2010, promoted and continued the Petitioner as CAO and FA (Suppertime Scale) of BMTC. Learned Counsel submitted that, the MD, KSRTC has no power to transfer or depute the CAO and FA to the RTCs in the State.
In view of the rival contentions and the record of the writ petition, the question, which arise for decision in this writ petition is:
Whether the MD appointed u/s 14 of the Act can transfer a CAO and FA or a CAO-cum-FA?
Indisputably, the Petitioner was a Divisional Controller of KSRTC. On 05.08.2009, the State Government by issuing a Notification u/s 14(1) of the. Act appointed the Petitioner as CAO and FA and posted him to BMTC. When the said post was upgraded to Suppertime Scale, the State Government by issuing a Notification dated 06.01.2010, promoted and continued the Petitioner in the post of CAO and FA, BMTC. The MD, KSRTC took the decision on 18.01.2011, to transfer the Petitioner to the post of CAO and FA, NWKRTC, Hubli, wherein the 5th Respondent was working and the 5th Respondent was transferred and posted to the place of Petitioner, in pursuance of which decision the impugned order was issued. The main ground raised and urged is that, a person appointed as CAO and FA in an RTC, cannot be transferred by the MD of a Corporation and the order passed against the Petitioner is illegal.
It is trite that, the Court should not interfere with the transfer order made in public interest and for administrative reasons unless the transfer order was made in violation of any mandatory statutory rule or on the grounds of mala fides. The scope of judicial review in the matter of transfer to an equivalent post without any adverse consequence on the service or career prospects is very limited, being confined only to the grounds of mala fides and violation of any specific provision.
The State Government has established the KSRTC, BMTC, NWKRTC and NEKRTC, in exercise of the power u/s 3 of the Act. The Corporations are being managed by their respective Board of Directors. The State Government has appointed MD, CAO and FA, to each of the RTCs in the State. After the establishment of BMTC, NWKRTC and NEKRTC, State Government issued the orders dated 22.10.1997 and 05.08.2000, in exercise of the power u/s 34 of the Act. The primal question, therefore, which arises for consideration is, whether the MD, KSRTC can be said to have the power of transferring and posting of CAO and FA of the Corporation.
Ordinarily, the power of transfer vests in the employer. Such power, however, would be subject to the statutory provisions operating in the field. The scheme of the Act plays an important role. In the instant case, having regard to the provisions contained u/s 14(1), I am of the opinion that, the MD, KSRTC has no power of transferring and posting an Officer as CAO and FA. The statute expressly confers the power on the State Government to appoint the MD, CAO and FA or CAO-cum-FA, after the establishment of Road Transport Corporations. The Act was amended with effect from 13.11.1982, inserting Chapter IIA i.e., Section 17A, which provided for establishment of subsidiary Corporation, in which event also, MD and CAO and FA or CAO-cum-FA, can be appointed only by the State Government.
The State Government in exercise of the power u/s 14(1) appointed the Petitioner as CAO and FA of BMTC. The MD, as the executive head of the Corporation and all other Officers and employees of the Corporation being subordinate to him, in terms of Sub-section (1) of Section 15 of the Act, is purported to have taken the decision to transfer the Petitioner and the impugned order was issued. Even by exercise of power u/s 34 of the Act, the State Government cannot confer on the MD of a Corporation, the statutory power of appointment of a CAO and FA of the Road Transport Corporation or a subsidiary Corporation. Section 34 does not provide for such delegation. It is trite that, the statutory power can be exercised only in the manner provided by the statute and not otherwise.
The resultant position is that, the Managing Director appointed by the State Government has no authority to transfer/depute an Officer appointed as CAO and FA in a Corporation. The impugned decision/order having been taken/issued by an authority not vested with the power and in violation of statutory provisions noticed supra is illegal and null and void.
For the foregoing reasons, the writ petition is allowed and the impugned order is quashed.
In the circumstances of the case, parties are directed to bear their respective costs.