Disposed

Sri.Prakash S/O Tammanna Kandagal v. the State of Karnataka

Karnataka HC9 Jul 2020WP/116707/2019

Case brief

AI extract

What is this about?

This High Court writ petition challenged the Karnataka State Administrative Tribunal's rejection of an application for promotion. The Court held that since the charge memo was issued after the promotion committee proceedings, the petitioner was entitled to consideration. Consequently, the writ petition was disposed of by setting aside the orders and directing the respondent to consider the petitio

What did the court decide?

Orders of KSAT set aside. Respondent No. 2 directed to consider petitioner's representation dated 16.04.2018 and pass appropriate order within three months.

Sri.Prakash S/O Tammanna Kandagal Vs the… — Pension and Retirement Benefits | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 9^TH DAY OF JULY 2020

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PRESENT

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THE HON’BLE MR. JUSTICE S.G. PANDIT

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AND

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THE HON’BLE MR. JUSTICE V. SRISHANANDA

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WP NO.116707/2019(S-KAT)

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BETWEEN:

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SRI.PRAKASH S/O TAMMANNA KANDAGAL AGE: 44 YEARS, OCC: FIRST DIVISION ASSISTANT, AT OFFICE OF THE ASSISTANT COMMISSIONER JAMAKHANDI, NOW WORKING ON DEPUTATION AT THE OFFICE OF THE TAHASILDAR BILAGI, TQ: BILAGI, DIST: BAGALKOTE. R/O:VIVEKA NAGAR, JAI SANTHOSIMATA ROAD, VIJAYAPURA-586101.

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... PETITIONER

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(BY SRI. H M DHARIGOND, ADV.)

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AND:

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THE STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY, REVENUE DEPARTMENT, M.S. BUILDING, BENGALURU-560001.

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THE REGIONAL COMMISSIONER BELAGAVI DIVISION, BELAGAVI-590002.

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THE DEPUTY COMMISSIONER BAGALKOTE DISTRICT, BAGALKOTE-587103.

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THE ASSISTANT COMMISSIONER JAMAKHANDI, DIST: BAGALKOTE-587103.

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SRI.L.V. SIRABADAGI AGE: MAJOR, OCC: FIRST DIVISION ASSISTANT OFFICE OF TAHASILDAR, RON, DIST: GADAG-582209.

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... RESPONDENTS

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(BY SRI.: G.K. HIREGOUDAR, GOVT.ADV. FOR R1-R4 R5-NOTICE HELD SUFFICIENT)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO WRIT IN THE NATURE OF CERTIORARI TO QUASH THE IMPUGNED ORDER DATED 29.08.2019 PASSED IN APLICATION NO.4817/2018 AND ORDER DATED 18.10.2019 PASSED IN REVIEW APPLICATION NO.54/2019 PASSED BY THE KARNATAKA ADMINISTRATIVE TRIBUNAL BENGALURU VIDE ANNEXURE-C AND ANNEXURE-E AND ALLOW THE APPLICATION FILED BY THE PETITIONER VIDE ANNEXURE-A.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, S.G. PANDIT, J., MADE THE FOLLOWING:

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ORDER

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The petitioner is before this Court in this petition under Article 226 of the Constitution of India assailing the order dated 29.08.2019 passed in Application No.4817/2018 and order dated 18.10.2019 in Review Application No.54/2019 on the file of Karnataka State Administrative Tribunal, Bengaluru (for short KSAT).

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The brief facts of the case are that, the petitioner filed an application under Section 19 of the Administrative Tribunals Act before the KSAT with a prayer for issuance of writ of mandamus directing respondent Nos.1 to 4 to consider the applicant for promotion to the post of Shirastedar by considering the representation as per Annexures-A7 to A9 dated 16.04.2018.

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The petitioner claims that at present he is

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working as First Division Assistant in the office of the Tahasildar, Bilagi, Vijayapur District. The applicant belongs to Revenue department. It is his case that he is eligible for promotion to the post of Shirastedar and he is at serial No.2075 in the seniority list of First Division Assistants.

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The learned counsel for the petitioner submits that ignoring the case of the petitioner, the respondents have considered the case of fifth respondent, who is junior to him for promotion to the post of Shirastedar.

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It is the case of the applicant that the DPC

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had taken place on 16.04.2018. As on the date of DPC he was eligible for promotion for the post of Shirastedar and there was no impediment to consider his case for promotion for the next higher cadre and there was no departmental enquiry or other proceedings against the

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petitioner and as such, the respondents were duty bound to consider of his case. He made representations vide Annexures-A7 to A9 dated 16.04.2018. The fourth respondent failed to consider those representations. The petitioner submits that he approached KSAT by filing Application No.4817/2018 dated 04.06.2018 praying for consideration of his representations seeking promotion for the post of Sheristedar. The KSAT under impugned order dated 29.08.2019 rejected the applicant’s request only on the ground that the petitioner had not produced any material before the tribunal. Against which the petitioner filed Review Application No.54/2019. The said review application came to be dismissed by order dated 18.10.2019 on the ground that the petitioner had produced charge memo issued to him on 18.05.2019 along with the review application and the same was not produced before the tribunal, as on the date of consideration of original application. The tribunal noting that the petitioner has

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failed to point out any error, apparent on the record, dismissed the review application. The petitioner challenging both the orders passed on the original application as well as order passed on review application, is before this court in this writ petition.

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Heard the learned counsel for the petitioner and learned Government Advocate for respondents.

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The learned counsel for the petitioner would submit that the respondent ought to have considered his case for promotion, ignoring his case his junior fifth respondent has already been promoted as Shirastedar by order dated 17.04.2018. As on the date of DPC, the petitioner was fully eligible and there was no impediment for the respondent to consider his case for promotion. Non consideration of his case for promotion has affected for his service condition. Further it is submitted that as on the date of DPC no charge memo was issued nor any departmental enquiry was initiated.

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But subsequent to DPC on 18.05.2018 a charge memo was issued. The learned counsel relies on the decision of Hon’ble Apex Court in the case of Union of India and Others V/s. K.V. Jankiraman and Others , reported in ( 1991) 4 SCC 109 , to contend that if there is no charge memo issued as on the date of DPC the person is to be considered for promotion. Thus, prays for allowing the writ petition.

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Advocate submits that the petitioner is not entitled for promotion as Shirastedar since charge memo was issued on 18.05.2018 and enquiry proceedings are going on against the petitioner. As such, he justifies the action of the respondents.

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It is not in dispute that the petitioner is

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working as First Division Assistant in the Revenue department in the office of Tahasildar, Bilagi. The petitioner is at serial number 2075 in the seniority list

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of FDAs. Whereas, respondent No.5 is at serial number 2153 in the seniority list of FDAs, which is at Annexure-

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A1 at page No.32 of the writ petition papers. Admittedly, the departmental promotion committee proceedings has taken place on 16.04.2018. The charge memo is issued with regard to departmental enquiry to the petitioner on 18.05.2018, which is subsequent to the conduct of DPC. The Hon’ble Apex Court in the case of K.V. Janakiram supra is held as under :

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“16. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the

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charge-memo/charge–sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge–sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc., does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any chargememo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and

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finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions Nos.1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows: (ATC p.196, para 39)

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“(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official

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(4) the sealed cover procedure can be resorted to only after a charge memo is served on the concerned official or the charge-sheet filed before the criminal court and not before,”

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10. In the light of the above decision if a person

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who is in the zone of consideration for promotion to the next higher cadre, if there is no charge memo issued as on the date of DPC, the said government servant would be entitled for consideration of his case for promotion. In that regard the petitioner had submitted representation to the 2^nd respondent, which the 2^nd respondent has failed to consider the said representation. When the case of the petitioner’s case is not considered for promotion or his case is put in sealed cover and whereby he states that his service condition has been affected, the respondents have an obligation or duty cast on them to at least consider his representation and reply. In that circumstances and in the light of the above said decision, we are of the view that the petitioner would be entitled for a direction for consideration of his representation as at Annexure-A7 dated 16.04.2018.

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Accordingly, the order dated 29.08.2019 in Application No.4817/2018 and order dated 18.10.2019 in Review Application No.54/2019 passed by KSAT are set aside. Consequently, the respondent No.2 is directed to consider the representation at Annexure-7 dated 16.04.2018 and pass appropriate order in accordance with law particularly in the light of the principles laid down by the Hon’ble Apex Court in the case of K.V. Jankiraman supra extracted above within a period of three months from the date of receipt of copy of this order.

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Accordingly, writ petition is disposed of.

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Sd/JUDGE

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Sd/JUDGE

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MNS/

Sri.Prakash S/O Tammanna Kandagal v. the State of Karnataka

Case brief

What is this about?

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Sri.Prakash S/O Tammanna Kandagal v. the State of Karnataka

Case brief

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