- 1 - NC: 2025:KHC:6089 WP No. 2790 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE S.G.PANDIT WRIT PETITION NO. 2790 OF 2024 (S-RES) BETWEEN: SMT. BHANDARI RAJESHWARI W/O SHRI.AMAR MANJUNATH, AGED ABOUT 37 YEARS, WORKING AS ASSISTANT EXECUTIVE ENGINEER, KARNATAKA HOUSING BOARD, 3RD AND 4TH FLOOR, CAUVERY BHAVAN, K.G.ROAD, BENGALURU-560009 R/AT NO.17, 19TH CROSS, I BLOCK, RAJAJINAGAR, BENGALURU-560010. …PETITIONER (BY SRI. VIJAYA KUMAR, ADV. (VC)) AND: 1. THE STATE OF KARNATAKA REP. BY ITS PRINCIPAL SECRETARY, HOUSING DEPARTMENT VIKASA SOUDHA, BENGALURU-560001. 2. THE COMMISSIONER KARNATAKA HOUSING BOARD, 3RD AND 4TH FLOOR, CAUVERY BHAVAN, K.G.ROAD, BENGALURU-560009. …RESPONDENTS (BY SRI. SHIVAPRABHU HIREMATH, AGA FOR R1 SMT. SUMANA BALIGA, ADV. FOR R2) Digitally signed by MARIGANGAIAH PREMAKUMARI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:6089 WP No. 2790 of 2024 THIS PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO I) TO CALL FOR THE RECORDS RELATING TO ISSUE OF THE IMPUGNED OFFICIAL MEMORANDUM BEARING NO. KA GRA MA/ADALITHA/SHI SHA. 22/2023-24 DATED 19/01/2024 ISSUED BY THE R2 (VIDE ANNEXURE-K) AND AFTER PERUSAL SET ASIDE THE SAME AND ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.G.PANDIT ORAL ORDER The petitioner, an Assistant Executive Engineer of the second respondent-Karnataka Housing Board (for short “Board”) is before this Court under Article 226 of the Constitution of India, questioning the O.M. bearing No.PÀUÀȪÀÄA/DqÀ½vÀ/¹.±Á./22/2023-24 dated 19.01.2024 by which, change of cadre of petitioner from Assistant Executive Engineer to that of Assistant Director of Town Planning is effected. 2. The brief facts of the case are that the petitioner was appointed as Assistant Engineer (Civil) on 29.06.2010. The petitioner submitted a representation dated - 3 - NC: 2025:KHC:6089 WP No. 2790 of 2024 02.08.2017 (Annexure-A) requesting the second respondent to depute her for higher studies i.e., to acquire qualification of Master of Urban and Regional Planning. Considering the request of the petitioner under resolution dated 23.03.2018 (Annexure-B), the petitioner was deputed for higher studies in terms of Appendix-II A of Karnataka Civil Service Rules, 1957 (for short “KCSRs”) since she fulfilled all the conditions of deputation for higher studies. The petitioner completed her higher studies and reported back to the second respondent-Board and thereafter the petitioner was promoted as Assistant Executive Engineer on 01.07.2021. Taking note of the fact that the petitioner has acquired qualification of Master of Urban and Regional Planning, under impugned O.M. dated 19.01.2024, the second respondent-Board changed the cadre of petitioner from Assistant Executive Engineer to that of Assistant Director of Town Planning in the second respondent-Board. Questioning the said O.M. changing the cadre, the petitioner is before this Court in this writ petition. - 4 - NC: 2025:KHC:6089 WP No. 2790 of 2024 3. Heard learned counsel Sri.Vijaya Kumar Bajentri through video conference and Smt.Sumana Baliga, learned counsel for respondent No.2 as well as learned Additional Government Advocate for respondent No.1. Perused the entire writ petition papers. 4. Learned counsel for the petitioner Sri.Vijaya Kumar referring to Annexure-E/Karnataka Housing Board (Recruitment and Conditions of Service) (Amendment) Rules, 2005 (for short “2005 Rules”) would submit that the post of Assistant Director of Town Planning is to be filled by promotion from the cadre of Assistant Engineer or by transfer of in-service Assistant Executive Engineer with prescribed qualification i.e. degree in Civil Engineer and Master Degree in Urban and Town Planning/Regional Planning. Learned counsel would also invite attention of this Court to Karnataka Housing Board (Recruitment and Conditions of Service) (Amendment) Rules 2022 (for short “2022 Rules”) and submits that the post of Assistant Director of Town Planning is to be filled up by transfer - 5 - NC: 2025:KHC:6089 WP No. 2790 of 2024 from the cadre of Assistant Executive Engineer (Civil) or by promotion from the cadre of Assistant Engineer (Civil) with Master Degree in Town Planning or equivalent. Learned counsel would further submit that note to the said method of recruitment states that irrevocable option shall be obtained by the concerned officer before such promotion/transfer. It is his specific contention that the petitioner never submitted any representation for change of cadre or submitted any option as required under the Cadre and Recruitment Rules for change of cadre from Assistant Executive Engineer to that of Assistant Director of Town Planning. Learned counsel would submit that when the petitioner has not submitted any application or representation for change of cadre as well as irrevocable option, the respondent-Board had no jurisdiction to change the cadre of petitioner from Assistant Executive Engineer to that of Assistant Director of Town Planning. Learned counsel would also submit that merely because, she has acquired higher qualification of Master Degree in Urban and Regional Planning cannot be a reason to change the - 6 - NC: 2025:KHC:6089 WP No. 2790 of 2024 cadre of the petitioner. It is also contended that no condition was imposed while sending the petitioner to higher studies to serve or to change cadre of the petitioner from Assistant Executive Engineer to that of Assistant Director of Town Planning. Learned counsel referring to Appendix-II A of KCSRs which permits deputation of a Government Servant to higher studies, submits that there is no compulsion on acquiring higher qualification to serve in that particular post. Thus, learned counsel would submit that the action of the respondents in passing impugned O.M., changing the cadre of the petitioner from Assistant Executive Engineer to that of Assistant Director of Town Planning is contrary to 2022 Cadre and Recruitment Rules and the same is wholly arbitrary and unreasonable. 5. Per contra, learned counsel Smt.Sumana Baliga for respondent No.2 would submit that the purpose of sending the petitioner for higher studies was to utilize the service of the petitioner in the post of Assistant Director of Town - 7 - NC: 2025:KHC:6089 WP No. 2790 of 2024 Planning which required Master Degree in Urban and Regional Planning. On acquisition of the Master Degree, the petitioner was granted change of cadre which according to the learned counsel is in accordance with law and in terms of Appendix II-A of KCSRs. Learned counsel Smt.Sumana Baliga referring to Appendix II-A of KCSRs would submit that an employee of Housing Board could be deputed to acquire higher degree or specialized training in professional or technical subject, having a direct and close connection with the sphere of his duty at a recognized institution within the State or outside the State. Taking note of the need to fill up the post of Assistant Director of Town Planning, the petitioner was deputed for acquiring higher qualification, so as to give her change of cadre on acquiring such Master Degree. Further, learned counsel would submit that the petitioner was working as Assistant Engineer in the Town Planning Department itself, when she made an application to send her for higher studies. Thus, it is submitted that taking note of the public interest, the petitioner was sent for higher studies. On the - 8 - NC: 2025:KHC:6089 WP No. 2790 of 2024 petitioner acquiring Master Degree, the second respondent granted change of cadre to the petitioner. Thus, learned counsel would pray for dismissal of the writ petition. 6. Having heard the learned counsel for the parties and on perusal of the entire writ petition, the only point which falls for consideration is as to whether the impugned O.M. changing the cadre of the petitioner from Assistant Executive Engineer to that of Assistant Director of Town Planning requires interference at the hands of this Court? 7. Answer to the above point would be in the affirmative for the following reasons: The petitioner was initially appointed as Assistant Engineer in the year 2010 and while she was working as such, she made an application in terms of Annexure-A requesting to depute her for higher studies of Master of Urban and Regional Planning. Considering the request of the petitioner, in terms of Annexure-B/proceedings dated 23.03.2018, the petitioner was deputed to acquire Master of Urban and Regional Planning, in terms of Appendix II-A - 9 - NC: 2025:KHC:6089 WP No. 2790 of 2024 of KCSRs, since she fulfilled all the criteria required for deputing an employee for higher studies. Subsequently, the petitioner was promoted as Assistant Executive Engineer in the second respondent-Board on 01.07.2021. 8. 2022 Rules insofar as filling up of the post of Assistant Director of Town Planning reads as follows: Assistant Director Of Town Planning (1) By Transfer from the cadre of Assistant Executive Engineer (civil) of the Karnataka Housing Board. or (2) By Promotion from the cadre of Assistant Engineer (civil) with Master Degree in Town Planning or equivalent; Provided that if no suitable officer is available for Transfer or Promotion then by deputation of an Assistant Director of Town Planning from the Department of Town and Country Planning. For Transfer and promotion.- (1) Must be holder of a Bachelor Degree in Civil Engineering and Master Degree in Town Planning or equivalent qualification from a University established by law; and (2) Must have put in a service of not less than five years in the cadre of Assistant Engineer (Civil) Note: The irrevocable option shall be obtained from concerned officer before such promotion/transfer. For deputation.- Must possess Master Degree in Town Planning or equivalent qualification from a University established by Law. A reading of the above rule makes it clear that the post of Assistant Director of Town Planning could be filled up by transfer from the cadre of Assistant Executive Engineer (Civil) or by promotion from the cadre of Assistant - 10 - NC: 2025:KHC:6089 WP No. 2790 of 2024 Engineer (Civil) from persons possessing qualification of Master Degree in Town Planning or equivalent. If no suitable candidate is available for Transfer or Promotion, then the post is to be filled by deputation of an Assistant Director of Town Planning from the Department of Town and Country Planning. The qualification prescribed for transfer and promotion is that one must be the holder of a Bachelor Degree in Civil Engineering and Master Degree in Town Planning or equivalent qualification from a University established by law; and must have put in service of not less than 5 years in the cadre of Assistant Engineer (Civil). Most importantly, for promotion or transfer, the Authority shall obtain irrevocable option from the concerned Officer before such promotion or transfer. 9. Under impugned O.M. dated 19.01.2024, contrary to the Cadre and Recruitment Rules, the cadre of the petitioner was changed from Assistant Executive Engineer to that of Assistant Director of Town Planning. Admittedly, there is no request from petitioner for change of - 11 - NC: 2025:KHC:6089 WP No. 2790 of 2024 cadre/transfer and no irrevocable option from the petitioner was obtained before such change of cadre or transfer. Change of cadre could take place only in terms of the Cadre and Recruitment Rules and not otherwise. A thing which is to be done, could be done only in accordance with law or by following the prescribed procedure and not otherwise. 10. The contention of learned counsel for respondent No.2 is that the petitioner was deputed for higher studies only with a view to utilize her services in the post of Assistant Director of Town Planning, cannot be accepted since the resolution at Annexure-B resolving to depute the petitioner for higher studies or undertaking at Annexure-R2 obtained from the petitioner at the time of sending her to higher studies would not indicate such intention or condition that on acquisition of higher degree, the petitioner shall serve in the Town Planning department. Thus, action of the respondent in changing the cadre of petitioner from Assistant Executive Engineer - 12 - NC: 2025:KHC:6089 WP No. 2790 of 2024 to that of Assistant Director of Town Planning is contrary to 2022 Cadre and Recruitment Rules and the same is wholly arbitrary and unreasonable. 11. In the light of the above, the following order: The writ petition is allowed. The impugned O.M. bearing No.PÀUÀȪÀÄA/DqÀ½vÀ/¹.±Á./22/2023-24 dated 19.01.2024 is quashed. Consequently, the petitioner shall be continued as Assistant Executive Engineer (Civil). In view of disposal of the writ petition, all pending I.As stand disposed of. Sd/- (S.G.PANDIT) JUDGE MPK CT:bms List No.: 1 Sl No.: 19