Allowed

Smt v. Neetha v the State of Karnataka

Karnataka HC16 Mar 2021WP/2906/2016

Case brief

AI extract

What is this about?

High Court of Karnataka allowed a writ petition against an Administrative Tribunal order. The Court set aside the rejection of the petitioners' challenge to a seniority list and promotion of staff, directing fresh seniority fixation after finding violation of recruitment quota rules for direct recruits.

What did the court decide?

Impugned order of Tribunal set aside; promotion order of private respondents and seniority list set aside; direction to re-fix seniority.

Smt v Neetha Vs the State of Karnataka — Pension and Retirement Benefits | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF MARCH, 2021

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PRESENT

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THE HON’BLE MRS.JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE P.N.DESAI

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WRIT PETITION No.2906/2016 (S – KAT)

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BETWEEN :

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SMT.V.NEETHA W/O B.R. BHANUMURTHY AGED ABOUT 44 YEARS, WORKING AS SENIOR ASSISTANT, UNDER ORDERS OF PROMOTION TO THE POST OF SECTION OFFICER, KARNATAKA PUBLIC SERVICE COMMISSION, UDYOGA SOUDHA, BANGALORE-560 001.

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SMT. H.N.SUJATHA W/O K S PRASANNA KUMAR AGED ABOUT 42 YEARS WORKING AS SENIOR ASSISTANT, UNDER ORDERS OF PROMOTION TO THE POST SECTION OFFICER KARNATAKA PUBLIC SERVICE COMMISSION, UDYOGA SOUDHA, BANGALORE-560 001.

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SRI. R.KRISHNA S/O LATE RAMASETTY AGED ABOUT 46 YEARS WORKING AS SENIOR ASSISTANT, UNDER ORDERS OF PROMOTION TO THE POST OF SECTION OFFICER KARNATAKA PUBLIC SERVICE COMMISSION,

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UDYOGA SOUDHA, BANGALORE-560 001.

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SRI.SUBHASH T LAMANI S/O THAVARAPPA, AGED ABOUT 44 YEARS WORKING AS SENIOR ASSISTANTS, KARNATAKA PUBLIC SERVICE COMMISSION, UDYOG SOUDHA, BANGALORE-560 001.

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SMT. B.ALUVELAMMA W/O DR. C.CHANDRAPPA AGED ABOUT 42 YEARS WORKING AS SENIOR ASSISTANTS, KARNATAKA PUBLIC SERVICE COMMISSION, UDYOG SOUDHA, BANGALORE-560 001. ...PETITIONERS

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(BY SRI VIJAYA KUMAR, ADV.)

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AND :

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THE STATE OF KARNATAKA REP. BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS (SERVICES), VIDHANA SOUDHA, DR. B.R.AMBEDKAR VEEDHI, BANGALORE-560 001.

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THE KARNATAKA PUBLIC SERVICE COMMISSION REP BY ITS SECRETARY UDYOG SOUDHA, PARK HOUSE ROAD, BANGALORE-560001

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SRI.ERAPPAJI RETIRED SR. ASSISTANT KARNATAKA PUBLIC SERVICE COMMISISON, UDYOGA SOUDHA, BANGALORE-560001

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SRI. R.S.VENKATAIAH WORKING AS SR. ASSISTANT UNDER ORDERS OF PROMOTION TO

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THE POST OF SECTION OFFICER, KARNATAKA PUBLIC SERVICE COMMISSION, UDYOGA SOUDHA, BANGALORE-560001

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SRI T.PRAKASH WORKING AS SENIOR ASSISTANT UNDER OREDERS OF PROMOTION TO THE POST OF SECTIN OFFICER, KARNATAKA PUBLIC SERVICE COMMISSION, UDYOGA SOUDHA, BANGALORE 560001

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SRI GOKAR HUSSAIN WORKING AS SENIOR ASSISTANT, KARNTAKA PUBLIC SERVICE COMMISSION, UDYOGA SOUDHA, BANGALORE-560001

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SRI T.NEELAKANTAPPA WORKING AS SENIOR ASSISTANT UNDER ORDERS OF PROMOTION TO THE POST OF SECTION OFFICER KARNATAKA PUBLIC SERVICE COMMISSION UDYOGA SOUDHA, BANGALORE-560001

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SRI M.HUCHAIAH WORKING AS SENIOR ASSISTANT UNDER ORDERS OF PROMOTION TO THE POST OF SECTION OFFICER, KARNATAKA PUBLIC SERVICE COMMISSION, UDYOG SOUDHA, BANGALORE-560001.

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SMT.PUTTALAKSHMAMMA WORKING AS SENIOR ASSISTANT UNDER ORDERS OF PROMOTION TO THE POST OF SECTION OFFICER, KARNATAKA PUBLIC SERVICE COMMISSION, UDYOG SOUDHA, BANGALORE-560001.

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SRI SIDDAIAH RETIRED SENIOR ASSISTANT, KANRATAKA PUBLIC SERVICE COMMISISON, UDYOGA SOUDHA, BANGALORE-560001.

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SRI S.G.ADI RETIRED AS SENIOR ASSISTANT,

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KARNATAKA PUBLIC SERVICE COMMISSION, UDYOGA SOUDHA, BANGALORE-560001.

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SRI K.S.KUBERAIAH S/O LATE M.SANNAMARAPPA AGED ABOUT 46 YEARS SENIOR ASSISTANT KARNATAKA PUBLIC SERVICE COMMISION UDYOG SOUDHA, BANGALORE-560001. …RESPONDENTS

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(BY SRI LAXMINARAYAN, AGA FOR R-1; SRI REUBEN JACOB, ADV. FOR R-2; JAVID HUSSAIN, ADV. FOR R-3 TO R-12.)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 20.10.2015 PASSED BY THE HON’BLE KARNATAKA ADMINISTRATIVE TRIBUNAL IN APPLICATION No.793-798/2013 AT ANNEXURE-A AND ALLOW THE APPLICATIONS AS PRAYED.

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THIS PETITION HAVING BEEN HEARD AND RESERVED ON 05.03.2021, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY, S. SUJATHA, J ., PASSED THE FOLLOWING:

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O R D E R

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The petitioners have called in question the order dated 20.10.2015 passed in Application Nos.793/798/2013 C/w. Application Nos.301-

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309/2013 by the Karnataka State Administrative Tribunal at Bengaluru ['Tribunal' for short] whereby the said applications filed by them challenging the order dated 08.02.2010 passed by the second respondent

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granting promotions to private respondents to the cadre of Senior Assistants and also seniority list dated 07.03.2011 in the cadre of Assistants issued by the second respondent have been rejected.

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It transpires that the petitioners were all appointed as Assistants with the second respondent – Commission by the direct recruitment in terms of the procedure prescribed under the Karnataka Public Service Commission [Condition of Service] Regulations, 1957. As per the said Rules, the posts of Assistant to be filled up by Direct Recruitment and Promotion was in the ratio of 50:50.

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It is averred by the petitioners that the proposal regarding filling up of 9 posts of Assistants by direct recruitment was forwarded by the Appointing Authority to the Selecting Authority on 16.10.1995 which culminated in the selection and appointment of the petitioners on 07.06.1999. That during the pendency of

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selection process on proposals submitted by the second respondent seeking up-gradation of 25 posts of Junior Assistants to that of Assistant, the first respondent by an order dated 10.02.1999 granted approval for upgradation as one time measure subject to filling up of these upgraded posts in terms of the C & R Rules.

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The second respondent on the basis of the order dated 10.02.1999, proceeded to fill up the upgraded posts of Assistant by promotion from Junior Assistant temporarily, subject to amendment of C & R Rules and review of their promotions. In the meantime, the proposal was also submitted to the first respondent, requesting to amend the C & R Rules suitably to accommodate promotion to all the 25 up-graded posts of Assistants which was rejected by the first respondent on the ground that it adversely affects the seniority of the directly recruited persons. On the basis of the said rejection of the proposal, the petitioners submitted a representation requesting to promote them to the post

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of Senior Assistants from the date when the private respondents were promoted and ranking assigned to them in the notification dated 07.03.2011 on the ground that their up-gradation itself to the post of Assistant being contrary to C & R Rules, they could not have been placed above the petitioners in the seniority list of Assistants. The second respondent promoted the private respondents as Senior Assistants on 08.02.2010. The petitioners filed application Nos.793-798/2013 challenging the order dated 08.02.2010 and Seniority List dated 07.03.2011 before the Tribunal. The private respondents had approached the Tribunal in Application Nos.301-309/2013 to delete the condition No.1 prescribed in the Government Order dated 10.02.1999. However, the first respondent finally rejected the proposal submitted by the second respondent requesting to delete the condition No.1 prescribed in the Government Order dated 10.02.1999 and also the proposal to amend the C & R Rules retrospectively.

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It is the grievance of the petitioners that the

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Tribunal without considering these developments that have taken place during the pendency of the

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applications before the Tribunal, proceeded to reject the applications on the ground that they have no locus to challenge the promotion and seniority assigned to the private respondents and also on the ground of delay. Hence, the present writ petition.

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Learned counsel for the petitioners

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submitted that the Tribunal mainly rejected the applications filed by the petitioners firstly on the ground that the grant of seniority to private respondents in the seniority list dated 07.03.2011 and their promotions as Senior Assistants being pursuant to the promotion order dated 06.03.1999, the challenge made to the seniority list without challenging the promotion order dated 06.03.1999 is untenable. Secondly, the delay and laches in challenging the seniority list dated 07.03.2011 and the promotion order dated 08.02.2010 would

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disentitle the petitioners for the reliefs claimed. Thirdly, all the 25 candidates who were promoted as Senior Assistants were not arrayed as parties to the proceedings. Elaborating the arguments on these points, learned counsel submitted that the Tribunal has condoned the delay in filing the applications on extensive analysis of the limitation in para 4 of the judgment, having condoned the delay, there was no occasion for the Tribunal again to adjudicate upon the issue of delay in considering the main relief sought for.

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Learned counsel further contended that in terms of the C & R Rules, the promotion from the post of Junior Assistant to Assistant was in the ratio of 50:50. The second respondent on the basis of the order dated 10.02.1999, proceeded to fill up the up-graded post of Assistant by promotion from Junior Assistant temporarily subject to amendment of C & R Rules and review of their promotions. In view of the amendment of C & R Rules sought by the second respondent being

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rejected by the Government Order dated 06.03.1999, promoting the private respondents is invalid. Though this aspect has been accepted by the Tribunal observing that there is sufficient force in the contention advanced on behalf of the applicants in Application Nos.793798/2013 that the promotions given to the respondent Nos.3 to 11 [private respondents] as per the order dated 06.03.1999 is in violation of Rules, proceeded to reject the applications on the ground that the petitioners are not entitled to the reliefs sought for the reason that, the applicant in application No.794/2013 was appointed in 2004 whereas the other applicants were appointed on 07.06.1999, i.e., subsequent to the order of promotion dated 06.03.1999.

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Learned counsel further submitted that the grievance of the petitioners being, breach of quota prescribed under the C & R Rules, they are not aggrieved by 50% of the 25 posts up-graded and promoted temporarily. Hence, they have arrayed the

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remaining 12 as parties to the proceedings. The Tribunal failed to consider these material aspects while dismissing their applications. The private respondents having challenged the order dated 10.02.1999 insofar as the first condition prescribed therein, the same having been being dismissed, neither the private respondents nor the official respondents can take the defence of upgradation of posts, thereby breaking the Rule of quota much less in the present proceedings.

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In support of his contentions, learned

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counsel for the petitioners has placed reliance on the following judgments:

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Gonal Bihimappa V/s. State of Karnataka and Others¹

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2. Rupa Rani Rakshit and Others V/s. Jharkand Gramin Bank and Others²

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3. Ashok Pal Singh and Others V/s. Uttar Pradesh Judicial Services Association and Others³

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1 1987 [Supp] SCC 207

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2 2010 [1] SCC 345

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3 2010 [12] SCC 635

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4. S.Rangaswamy Naik and Another V/s. B.R.Ravikanthe Gowda and Others⁴ .

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Learned counsel for the KPSC – respondent

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No.2 argued that the petitioners have no locus to challenge the promotion of the private respondents made by the order dated 06.03.1999 since they were not born in the cadre at that relevant point of time. The petitioners are strictly required to adhere to the Karnataka Administrative Tribunal’s Act and Rules while filing the application. It was submitted that Section 21 of the Karnataka State Administrative Tribunal’s Act has prescribed Limitation of one year whereas the petitioners have approached the Tribunal seeking for the reliefs after 12 years. On these grounds alone, the claim of the petitioners requires to be rejected and accordingly, the Tribunal has done so. Placing reliance on the judgment of the Hon'ble Apex Court in the case of Bishan Sarup Gupta⁵ , it was argued that on up-gradation of posts there

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4 [W.P.Nos.26731 to 26742/2009 & Connected Matters, D.D. 19.04.2013]

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are two contingencies [1] occupied incumbent; and [2] not occupied incumbent. It was argued that on up-gradation of posts, quota rules do not exists. Prior to seniority list dated 07.03.2011, final list of seniority list was published on 23.03.2002, no grievance was raised by the petitioners at that time. Similarly, in the year 2007, second seniority list was published, even then, the petitioners had not raised their voice. In the third gradation list dated 07.03.2011, ranking was shown. At that time, the petitioners have sought for the reliefs which are not entertainable. In support of his contentions, learned counsel has placed reliance on the following judgments:

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1. Bishan Sarup Gupta V/s. Union of India and Others⁵

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2. Amarjeet Singh and Others V/s. Devi Ratan and Others⁶

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3. Shiba Shankar Mohapatra and Others V/s. State of Orissa and Others⁷

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5 (1973) 3 SCC 1] 6

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(2010) 1 SCC 417

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7 (2010) 12 SCC 471

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4. P.S.Sadasivaswamy V/s. State of Tamil Nadu⁸ .

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Learned counsel appearing for the private respondents supporting the arguments of the learned counsel for the respondent No.2, argued that the petitioners are estopped from claiming the reliefs at this distance of time. The learned counsel has also relied on the judgment of the Hon'ble Apex Court in Bishan Sarup Gupta supra.

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Learned Additional Government Advocate appearing for the respondent No.1 adopted the arguments of the learned counsel for the respondent Nos.2 and 3 to 12.

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Adverting to the arguments advanced by the learned counsel appearing for the parties and perusing the material on record, the points that arise for our consideration are:

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8 (1975) 1 SCC 152

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1. Whether the petitioners’ ranking has to be above the private respondent Nos.3 to 11 as claimed?

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2. Whether the Tribunal was justified in dismissing the applications filed by the petitioners?

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14. In the case of P.S.Sadasivaswamy supra, the

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Hon'ble Apex Court has held that a person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion; It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward

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stale claims and try to unsettle settled matters. It clogs the work of the Court and impedes the work of the Court in considering the legitimate grievances as also its normal work.

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In Bishan Sarup Gupta , the Hon'ble Apex Court has held that with the upgrading of the large number of posts and the appointments to them of promotees, the quota rule collapsed and with that the seniority rule also.

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In Amarjeet Singh and Others supra, the Hon'ble Apex Court has referred to the judgment in Chithanja Menon V/s. A. Balakrishnan⁹ wherein the Hon'ble Apex Court while dealing with the promotions made by two different DPCs where such promotions were made under different Rules and different criteria with retrospective effect, with different dates notionally, held that in the challenge made, the promotion of the appellants therein had not been challenged the seniority

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9 [1997] 3 SCC 255

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which is consequential to the promotions could not be challenged without challenging the promotions i.e., challenging the consequential order without challenging the basic order is not permissible.

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In the light of the said judgments, it is thus clear that no seniority list can be challenged sans challenging the promotion. The Courts cannot entertain the stale claims when the aggrieved party has not challenged the promotion/seniority list at the relevant time/first available opportunity. No quota rule would be applicable with the up-grading of posts and appointments to the promotes.

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The arguments of the learned counsel for the appellants that the delay and laches, if any, caused in approaching the Tribunal having already been condoned

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by allowing the application [I.A.No.II] cannot be re-agitated appears to have some force in the facts and circumstances of the case as discussed infra.

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It is not in dispute that the promotion was

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granted to the private respondents on 06.03.1999. The

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approval for up-gradation of 25 posts of Junior Assistants to the posts of Assistants was accorded by the Government by order dated 10.02.1999 which was subject to certain conditions mentioned therein. The first condition stipulated that the upgraded posts should be filled in accordance with the Cadre and Recruitment Rules. The challenge made to the said condition in the Government order dated 10.02.1999 by the private respondents in application No.301309/2019 has been dismissed by the Tribunal holding that the promotions given to the private respondents as per order dated 06.03.1999 is in violation of the C & R Rules. On several representations made by the private respondents to amend the C & R Rules also has been rejected by the Government and the final order was passed on 27.05.2014. The up-gradation to the post of Assistant being contrary to C & R Rules as held by the

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Tribunal, the relief claimed by the petitioners ought not to have been dismissed merely for the reason that the petitioners have not challenged the promotion order dated 06.03.1999 which itself was temporary and continues to be the same without any confirmation. In the official memorandum dated 23.02.2002, wherein the seniority list is published, serial Nos.47 to 54 and 63 to 67 and 68 clearly stated to be subject to amendment of C & R Rules by the Government in the note mentioned therein. Seniority list of the year 2007 is also provisional. It is only on 07.03.2011, final seniority list has been published which has been challenged by the petitioners. Hence, it cannot be held that the petitioners had no locus to challenge the seniority list without the challenge to the promotion made vide order dated 06.03.1999.

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Learned counsel for the petitioners has

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relied on the judgment of the Hon'ble Apex Court in the

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case of Shri V.B.Badami V/s. State of Karnataka¹⁰ ,

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wherein it is held thus:

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“[4] Direct recruitment is possible only by competitive examination which is the prescribed procedure under the rules In promotional vacancies the Promotion is either by selection or on the principle of senioritycum merit. A promotion could be made in respect of a temporary post or for a specified period, but direct recruitment has generally to be made only in respect of a clear permanent vacancy, either existing or anticipated to raise at or about the period of probation is expected lo be completed;

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[5] If promotions are made to vacancies in excess of the promotional quota, the promotions may, not be totally illegal but would be irregular. the promotees cannot claim any right to hold promotional posts unless the vacancies fall within their quota. If the promotees occupy any vacancies which are within the quota of direct recruits, when the direct recruitment takes place, the direct

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10 1980 AIR 1561

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recruits will occupy the vacancies within their quota. Promotees who are occupying the vacancies within the quota of direct recruits will either be reverted or they will be absorbed in the vacancies within their quota if available.”

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In Gonal Bihimappa supra, it is held by

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the Hon'ble Apex Court that where recruitment is from two sources to a service, a quota rule can be applied fixing the limits of recruitment from the two sources. Though as observed by the Hon'ble Apex Court in Bishan Sarup Gupta supra, on upgradation of posts, quota rule collapses with, having regard to the up-gradation itself being bad in law, the said ruling would be of little assistance to the present case.

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At the cost of repetition, it is observed that

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the promotion order dated 06.03.1999 having been held to be temporary, non-challenge to the said promotion

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would not obliterate the right of the petitioners to challenge the seniority list.

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Another ground for dismissal of the

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application by the Tribunal also requires to be held to be unjustifiable since the petitioners are aggrieved by the ratio of 100% of promotion by the promotees much against the ratio of 50:50 in the total strength of 25. There being no grievance against promotion of 50% of promotees, arraying the remaining 12 persons coming within the next 50% cannot be held to be bad in law. Moreover, the Tribunal having dismissed the appeal filed by the private respondents as to the challenge made to condition No.1 of the Government order dated 10.02.1999 upgrading the 25 posts from Junior Assistants to Assistants and upholding their promotion as invalid ought not to have dismissed the applications filed by the petitioners.

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24. The Co-ordinate bench of this Court in

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S.Rangaswamy Naik supra, has held as under:

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“47. Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made following the procedure prescribed by the Rules for the appointment, the promotees should not be pushed down below the direct recruitees from the other service inducted in the service at a later date. However, in order to do justice to the promotees, it would not be proper to do injustice to the direct recruitees. Excess promotees occupying direct recruitment posts have to be pushed down and adjusted in later vacancies within their quota after due regularization. The result of pushing down the promotees appointed in excess of the quota may workout hardship, but it is unavoidable. No retrospective promotion can be given nor any seniority can be given on retrospective basis from a date when an employee has not been born.”

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This decision certainly comes to the aid of the petitioners.

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For the reasons aforesaid, writ petition is allowed. The impugned order dated 20.10.2015 passed by the Tribunal in application Nos.793-798/2013 is set aside insofar as the petitioners herein are concerned. Consequently, the order dated 08.02.2010 passed by the second respondent granting promotions to the private respondents to the cadre of Senior Assistants and also the seniority list dated 07.03.2011 are set aside. The respondent Nos.1 and 2 are directed to re-fix the seniority of the petitioners and the private respondents in accordance with law.

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Compliance shall be made in an expedite manner.

Sd/-

JUDGE

Sd/JUDGE

NC.

Smt v. Neetha v the State of Karnataka

Case brief

What is this about?

What did the court decide?

Smt v. Neetha v the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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