Partly allowed

Sri S v. Ramesh v Bangalore Water Supply and Sewerage Board

Karnataka HC6 Dec 2021WP/7205/2021

Case brief

AI extract

What is this about?

The High Court of Karnataka quashed a Board order granting retrospective promotions to respondents as it violated statutory requirements for independent charge of the post. The matter was remanded to re-consider cases for promotion after a valid seniority list is drawn up from the first cadre.

What did the court decide?

The impugned order dated 16-04-2020 was quashed. The matter was remanded to the Board to reconsider cases for promotion after drawing a valid seniority list. Service conditions of parties remain unalt

Sri S v Ramesh Vs Bangalore Water Supply… — Pension and Retirement Benefits | Karnataka HC (2021)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 06^TH DAY OF DECEMBER, 2021

¶4

BEFORE

¶5

THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

¶6

WRIT PETITION No.7205 OF 2021 (S-PRO)

¶7

BETWEEN:

¶8

SRI S.V.RAMESH S/O P.VENKATACHALAIAH AGED ABOUT 58 YEARS WORKING AS IN CHARGE CHIEF ENGINEER CAUVERY ZONE BANGLAORE WATER SUPPLY AND SEWERAGE BOARD CAUVERY BHAVAN BENGALURU – 560 009.

¶9

... PETITIONER

¶10

(BY SRI M.S.BHAGWAT, ADVOCATE (PHYSICAL HEARING))

¶11

AND:

¶12

BANGALORE WATER SUPPLY AND SEWERAGE BOARD REPRESENTED BY ITS CHIEF ADMINISTRATIVE OFFICER CUM SECRETARY, 1^ST FLOOR, CAUVERY BHAVAN BENGALURU – 560 009.

¶13

SRI S.V.VENKATESH MAJOR

¶14

¶15

WORKING AS ADDITIONAL CHIEF ENGINEER (MAINTENANCE) 6^TH FLOOR, CAUVERY BHAVAN BANGLAORE WATER SUPPLY AND SEWERAGE BOARD BENGALURU – 560 009.

¶16

SRI B.SURESH MAJOR WORKING AS ADDITIONAL CHIEF ENGINEER WASTE WATER MANAGEMENT-1 4^TH FLOOR, CAUVERY BHAVAN BANGALORE WATER SUPPLY AND SEWERAGE BOARD BENGALURU – 560 009.

¶17

.. RESPONDENTS

¶18

(BY SRI B.L.SANJEEV, ADVOCATE FOR R1 (VIDEO CONFERENCING); SRI NISHANTH A.V., ADVOCATE FOR R2 & R3 (PHYSICAL HEARING)

¶19

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS FROM THE R-1 IN RESPECT OF THE IMPUGNED ORDER DTD 16.04.2020 VIDE ANNX-A; DIRECT THE R-1 TO CONSIDER THE CASE OF THE PETITIONER FOR PROMOTION TO THE POST OF CHIEF ENGINEER AND PROMOTE HIM TO THE SAID POST OF CHIEF ENGINEER WITH EFFECT FROM 30.06.2018, BASED ON THE REVISED SENIORITY LIST DTD 14.08.2019 VIDE ANNX-N AND GRANT ALL CONSEQUENTIAL BENEFITS AND ETC.,

¶20

THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-

¶21

¶22

ORDER

¶23

The petitioner in the subject writ petition calls in question an order dated 16-04-2020, passed by the 1^st respondent/ Bangalore Water Supply and Sewerage Board (‘the Board’ for short) insofar as it relates to grant of retrospective promotions to respondent Nos.2 and 3, to the cadre of Additional Chief Engineer and seeks a direction by issuance of a writ the nature of mandamus to consider his case for promotion to the cadre of Chief Engineer with effect from 30-06-2018.

¶24

Heard Sri M.S.Bhagwat, learned counsel for

¶25

the petitioner, Sri B.L.Sanjeev, learned counsel for respondent No.1 and Sri A.V. Nishanth, learned counsel for respondent Nos.2 and 3.

¶26

Sans unnecessary details, facts in brief

¶27

germane for consideration of the issue in the lis , are as follows:-

¶28

¶29

On 16-06-1997, the Board invited applications from eligible candidates for the post of Assistant Engineer by direct recruitment and the petitioner, respondent Nos.2 and 3 and others applied to the said post. The petitioner along with respondent Nos.2 and 3 were found to be eligible to be appointed to the post of Assistant Engineer and a select list was notified on 01-08-1998. In the said select list, the name of the petitioner was at Sl.No.6 and that of respondent Nos.2 and 3 at Sl.Nos.14 and 11 respectively. On 03-101998, in furtherance of the select list, the petitioner and respondent Nos.2 and 3 were appointed into the services of the Board as Assistant Engineers.

¶30

It appears that on 08-03-2006, the 3^rd respondent was promoted as Assistant Executive Engineer as he was a candidate belonging to Scheduled Caste. On 27-10-2007, both the petitioner and the 2^nd respondent are promoted to the cadre of

¶31

¶32

Assistant Executive Engineer. On 10-06-2009, a seniority list of Assistant Executive Engineers as obtaining on 01-04-2007, was notified by the Board. It is the claim of the petitioner that in the said seniority list, the representation of Scheduled Caste or Scheduled Tribe as the case would be was what was permissible in law. The process went on, and on 01-03-2016, the petitioner was further promoted to the post of Executive Engineer.

¶33

The Apex Court by its judgment in the case of B.K. PAVITRA-I rendered on 09-02-2017 , directed re-

¶34

drawing of seniority lists in accordance with the judgment. In tune with the judgment rendered in the B.K.PAVITRA-I, a provisional seniority list of Assistant Executive Engineer dated 23.12.2017, was drawn in which the petitioner is shown at Sl.No.195 and respondent Nos.2 and 3 are shown at Sl.Nos.204 and 201 respectively. The said seniority list was finalized

¶35

¶36

on 28.12.2017, after considering all the objections to the provisional seniority list. In the said final seniority list, the rank of the petitioner was at Sl.No.151 and ranks of respondents 2 and 3 were at Sl.Nos.160 and 158 respectively. In terms of the said seniority list, the petitioner was further promoted as Additional Chief Engineer with effect from 13-04-2018 and with effect from 30-06-2018, the petitioner was also placed on independent charge in the cadre of Chief Engineer under Rule 32 of the Karnataka Civil Service Rules.

¶37

The Apex Court rendered its judgment in the case of B.K. PAVITRA-II on 10-05-2019, upholding the validating Act notified by the State Government on 23-06-2018 and restoring the status quo ante as obtaining prior to the judgment rendered by the Apex Court in B.K.PAVITRA-I . In terms of the judgment in the case of B.K.PAVITRA-II , a revised provisional seniority list was notified by the Board on 19-06-2019,

¶38

¶39

right from the cadre of Assistant Engineer in which again the name of the petitioner was shown at Sl.No.194 and that of respondent Nos.2 and 3 at Sl.Nos.203 and 200. After objections were filed, two revised provisional seniority lists were notified by the Board in the cadre of Assistant Executive Engineer and Executive Engineer. In the cadre of Assistant Executive Engineer, the name of the petitioner is figured at Sl.No.152 and that of respondent Nos.2 and 3 at Sl.Nos.156 and 144 respectively, in the provisional seniority list dated 20-06-2019.

¶40

In the provisional seniority list of Executive Engineer, the name of the petitioner was brought below the names of respondent Nos.2 and 3. The petitioner was placed at Sl.No.148 and respondent Nos.2 and 3 were placed at Sl.Nos.144 and 141 respectively, dated 20.06.2019. When it came to the provisional seniority list in the cadre of Additional

¶41

¶42

Chief Engineer, the rank of the petitioner was at Sl.No.88 and the names of respondent Nos.2 and 3 did not find place in the said seniority list as they were not eligible to be placed in the seniority list of Additional Chief Engineer. To the aforesaid provisional seniority list, the petitioner claims to have filed his objections on 02-07-2019, pursuant to which, a final revised seniority list is notified on 13-08-2019, wherein the rank of the petitioner was fixed at Sl.No.194 and that of respondent Nos.2 and 3 at Sl.Nos.203 and 200 in the cadre of Assistant Engineer (Graduate and nonGraduate).

¶43

On 13.08.2019, a final revised seniority list in the cadre of Assistant Executive Engineer (Graduate and Non- Graduate) was notified wherein, the rank of the petitioner was at Sl.No.153 and the ranks of respondent Nos.2 and 3 were at Sl.Nos.147 and 144. On 14.08.2019, a final revised seniority list in the

¶44

¶45

cadre of Executive Engineer was notified wherein, the rank of the petitioner was at Sl.No.148 and ranks of respondent Nos.2 and 3 were at 144 and 141 and on the same day, a final revised seniority list in the cadre of Additional Chief Engineer is also notified, wherein, the rank of the petitioner is at Sl.No.88 and the names of respondent Nos.2 and 3 did not figure in the list. It appears that the petitioner along with others had filed Writ Petition No.50265 of 2019 seeking to quash the rankings assigned to the petitioner and the private respondents in the seniority list dated 13.08.2019 and 14.08.2019. The said writ petition is pending consideration. In the meantime, the first respondent/Board passes a resolution on 16.04.2020, resolving to promote respondent Nos.2 and 3 to the posts of Additional Chief Engineer with retrospective effect from 13-04-2018. It is at that juncture, the present petition is preferred by the petitioner seeking to challenge the said order of promotion.

¶46

¶47

The learned counsel appearing for the petitioner would contend that the order granting retrospective promotion to respondent Nos.2 and 3 with effect from 13-04-2018, is contrary to Rule 2 of the Karnataka State Civil Services (Regulation of Promotion, Pay and Pension) Rules, 1978 (‘the Rules’ for short). It is his further submission that respondent Nos.2 and 3 did not get the date of eligibility in the revised seniority list in the cadre of Additional Chief Engineer, when it was notified on 14-08-2019, in terms of the judgment in the case of B.K. PAVITRA-II and notwithstanding no date of eligibility, the retrospective promotion is granted contrary to law.

¶48

On the other hand, the learned counsel appearing for respondent Nos.2 and 3 would contend that the petitioner was privy to the grant of promotion to respondent Nos.2 and 3 as he was also a Member of the Board that resolved to promote respondent Nos.2

¶49

¶50

and 3 with retrospective effect from 16.04.2020 to the cadre of Additional Chief Engineer. Having participated in the resolution, the petitioner cannot turn around and challenge the said action. He would further contend that in terms of law respondent Nos.2 and 3 were entitled to be promoted to the cadre of Additional Chief Engineer.

¶51

I have given my anxious consideration to the submissions made by the respective learned counsel and perused and material on record.

¶52

Before embarking upon the journey of consideration of the issue in the lis , the indisputable development that has taken place during the pendency of this writ petition is that, certain writ petitions were filed calling in question the notification of seniority list issued by the Board right from the cadre of Assistant Engineer in Writ Petition No.41266 of 2019. The said writ petition was disposed of by this Court by its order

¶53

¶54

dated 16.07.2021, wherein considering the entire spectrum of facts obtaining in the case therein this Court has held as follows:

¶55

“22. Primarily, no material has been placed before this Court by the Board to demonstrate that any opportunity was afforded to the petitioners or that the petitioners, whose names were found in the higher ranks of the provisional list were notified before it was sought to be overturned. That apart, there is not even a plea by the Board that the petitioners were either put on notice about the objections to their rankings in the seniority list nor has the Board furnished copies of the objections submitted by some of the respondents to the rankings assigned to the petitioners in the seniority list. No piece of paper is placed to demonstrate that either the petitioners were put on notice or that the copies of the objections have been forwarded or furnished to the petitioners. On that short ground alone, the impugned order warrants interference.

¶56

28. Thus, even in the understanding of the respondents, the seniority can be reckoned only from the date on which they entered service and cannot be reckoned from a date they were not born in service. Despite the same, a contention o the contrary is sought to be canvassed by the respondents. What is perplexing is that, despite objectors having clearly stated the position in law, before the Committee, the Committee has contrived to find a way to push the petitioners down the rankings for reasons best known to it. It is even inconceivable as to how the petitioners, who are direct appointees, could have even been considered for appointment against posts in the promotional quota. Any such decision would have had its

¶57

¶58

ramification and certainly, resulting in litigation by aspiring and eligible candidates, who are entitled to occupy the promotional quota. It is not the case of the Board that petitioners are not direct appointees. Hence, the twin grounds canvassed by respondents are contrary to settled law. What is even more perplexing is that the objectors had directly attacked the rankings of the petitioners and in fact at internal page No.18, they have specifically sought that they be placed above the petitioners. Despite the specific plea of the objectors, the Board did not deem it fit to either put the petitioners on notice or much less furnish a copy of the objections inviting reply or comments of the petitioners. The only inference that can be drawn from the said action of the Board is that the Board intended to present a fait accompli and it cannot be far from truth if this Court were to infer that the Board intended to take shelter under the litigation, which was very much expected by the Board. The action of the Board is absolutely without any justification. The contention on behalf of the Board that the petitioners ought to be slotted against the promotional quota to state the least is not only contrary to law but en against its own understanding and its own Rules and Regulations. In that view of the matter also, this Court is constrained to infer adversely against the Board. It is not that the Board is short of advice or is not in the know of the law. The Board, being the master of its own Rules and Regulations, cannot be pleading ignorance and innocence and the Board is required to and is responsible for its actions and it goes without saying that the Board is required to ensure that its actions are in compliance with the Rules and Regulations framed by it. It would also not be too farfetched, if this Court had to infer that the impugned action of the Board is not entirely bona fide.

¶59

¶60

29. Be that as it may. In view of the foregoing discussions, this Court is of the considered opinion that the instant writ petition requires to be allowed and is accordingly allowed."

¶61

Therefore, the situation that emerges today is that, the

¶62

seniority list that was called in question in the aforesaid writ petition, which was the seniority list notified by the Board in all the cadres right from Assistant Engineer upwards having been set aside on the grounds urged in the said writ petition, as extracted hereinabove, the same would render this Court unnecessary to delve deeper into the matter with regard to consideration of rankings in the seniority list. What remains to be considered is, whether respondent Nos.2 and 3 could be granted retrospective promotion to the cadre of Additional Chief Engineer from a retrospective date i.e., 13-04-2018, in terms of the impugned order dated 16.04.2020?

¶63

What is to be noticed is that, the order dated 16-04-2020, was issued after drawing up the seniority

¶64

¶65

list in terms of judgment in the case of B.K. PAVITRA-

¶66

II . Even in the seniority list drawn in the cadre of Additional Chief Engineer, the names of respondent Nos.2 and 3 did not figure. Retrospective promotion can be granted to an employee of the Board only in terms of Karnataka State civil Services (Regulation of Promotion, Pay and Pension) Act, 1973 and the Rules framed thereunder, which clearly mandate that a Government servant can be granted retrospective promotion only in the event of him holding the said post on independent basis under the KCSR's. It is not in dispute that respondent Nos.2 and 3 did not hold the post of Additional Chief Engineer at any point in time for the Board to grant them retrospective promotion. Section 3 of the Act reads as follows:

¶67

" Section 3 :- Promotions, etc., of civil servants :-

¶68

(1) No civil servant shall,-

¶69

¶70

(a) be entitled to promotion to any post or office with effect from a retrospective date, except and to the extent specified in the rules made under this Act.

¶71

(b) only on the ground of his seniority in a seniority list, be promoted to any post or office unless the authority competent to promote determines his eligibility and promotes him by a written order to officiate in such post or office; and no such civil servant shall, save as provided in section 9, be entitled to continue in such promoted post or office unless the said authority assesses the work of such civil servant in such post or office and declares by a written order that he had satisfactorily completed his officiation ;

¶72

(c) when promoted to officiate in any post or office save as provided in section 9, be entitled to be considered for promotion to the next higher post or office unless he is declared to have satisfactorily completed his officiation in the first promoted post or office.

¶73

(2) In matters not specified in subsection (1), the provisions contained in sections 4, 5, 6, 7 and 8 shall mutatis mutandis, be applicable."

¶74

¶75

In terms of the powers conferred under Section 3(1)(a) of the Act, the State Government has formulated Rules namely, Karnataka State Civil Services (Regulation of Promotion, Pay and Pension) Rules, 1978.

¶76

Rule 2 of the aforesaid Rules, reads as follows:

¶77

“ Rule 2 :- Promotion. – Promotion of a civil servant may be made with effect from a retrospective date. –

¶78

(1) if his claim for promotion, -

¶79

(a) was withheld on account of disciplinary proceeding or criminal prosecution of both pending against him and he is exonerated or acquitted subsequently, or

¶80

(b) was not considered on the ground that he was working in some other department on deputation or otherwise; or

¶81

(c) was not considered on the ground that he was wrongly or incorrectly described in the provisional or final inter-State Seniority List or gradation list;

¶82

¶83

(d) was passed over on account of adverse remarks in his Confidential Reports which were expunged subsequently.

¶84

(2) If, while operating the gradation list or the provisional inter-State Seniority List or any other inter-State Seniority List not being a final one, he was not considered for promotion for no justifiable reason; or

¶85

(3) If, while being eligible according to his seniority in the list that was in force and otherwise fit for promotion according to Cadre and Recruitment Rules he had only been placed in independent charge of the post by the Competent Authority and has discharged the duties of the said post:

¶86

Provided that if a civil servant on deputation to some other department and placed in independent charge of a post in the parent Department was prevented from discharging the duties of the post on the ground that his services on deputation are essential in public interest, he shall also be considered under this sub-rule from the date his junior is considered for promotion."

¶87

(Emphasis supplied)

¶88

¶89

In terms of the aforesaid Rules, as stated hereinabove, it is only when the employee holds the post on independent charge under the KCSR, he can be promoted to that post with retrospective effect. This is admittedly not the situation in the case at hand as respondent Nos.2 and 3 did not hold the said post on any basis either in-charge or independent charge. Therefore, the order granting promotion to respondent Nos.2 and 3 is contrary to law.

¶90

The issue emerges now is, the petitioner being a Member of the Board which resolved promotion of respondent Nos.2 and 3 could turn around and challenge the promotions that are given after participating in the said Board proceedings. The grant of promotion to respondent Nos.2 and 3 is admittedly contrary to the aforesaid Rules. The petitioner was not the only Member of the Board which resolved the promotion. He had participated in the

¶91

¶92

proceedings in the capacity of being the Chief Engineer as an ex-officio Member of the Board. Therefore, the promotion granted to respondent Nos.2 and 3 being contrary to law, will not preclude the petitioner from raising a challenge to the said promotions. Therefore, the contention of the learned counsel appearing for the respondent Nos.2 and 3 that the petitioner having participated in the said proceedings cannot turn around and challenge, is rejected.

¶93

As indicated hereinabove, the situation that has now emerged is that, there is no foundational seniority list that is available in the Board and the process in terms of the judgment rendered in the order passed by this Court by the Co-ordinate Bench (supra) is that, the seniority list will have to be redone from the cadre of Assistant Engineer itself, after issuing notice and considering the objections of the respective stake holders as is directed by the Co-ordinate Bench.

¶94

¶95

This would have an effect on the seniority in the cadre of Additional Chief Engineer as well. Therefore, for a complete resolution of the impending dispute, I deem it appropriate to direct the Board to consider the case of the parties to the lis afresh for promotion to the cadre of Additional Chief Engineer and its aftermath, once the Board would complete the process of drawing up the seniority list. Till such time, since administrative functions of the Board should carry on, the present arrangement of placement of the petitioner or respondent Nos.2 and 3 should not be disturbed or even adhoc promotions could be taken recourse to.

¶96

For the aforesaid reasons, I pass the following:

¶97

¶98

O R D E R

¶99

(i) Writ Petition is allowed in part.

¶100

(ii) The impugned order dated 16-04-2020, is rendered unsustainable and is accordingly quashed.

¶101

(iii) The matter is remitted back to the hands of the Bangalore Water Supply and Sewerage Board/respondent No.1 to re-consider cases of the petitioner and respondent Nos.2 and 3 for promotion to the cadres of Chief Engineer and Additional Chief Engineer as the case would be, once the Board complies with the order passed in W.P.No.41266 of 2019 (decided on 16^th July, 2021) of drawing up of a final seniority list right from the cadre of Assistant Engineer.

¶102

¶103

depend on the outcome of the seniority list to be notified by the Board.

¶104

(v) Till such time, the service conditions of the petitioner, respondent Nos.2 and 3, shall not be altered.

¶105

In view of disposal of the petition, I.A.Nos.1/2021, I.A.No.2/2021 and I.A.No.3/2021 do

¶106

not survive for consideration. Accordingly, stand disposed.

¶107

Sd/JUDGE

¶108