Allowed

The Karnataka Power Transmission Corporation Limited v. Sri Naveen Kumar S

Karnataka HC12 Sept 2024WA/894/2023

Case brief

AI extract

What is this about?

In this Writ Appeal, the High Court of Karnataka set aside the Single Judge's order that directed the Corporation to promote plaintiffs transfer to Tungur circle. The Court held that employees who voluntarily transfer request transfer, are placed in a new seniority list in the new cadre based on the transfer date. The age of entry in service in the transferred circle preclude them from drawing on

What did the court decide?

Impugned Order allowing the Petition under Section 4 say be set aside. The writ Appeal is allowed.

The Karnataka Power Transmission… — Pension and Retirement Benefits | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12^TH DAY OF SEPTEMBER, 2024

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PRESENT

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THE HON’BLE MR. N.V. ANJARIA, CHIEF JUSTICE

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AND

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THE HON'BLE MR JUSTICE K V ARAVIND

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WRIT APPEAL NO.894 OF 2023 (S-RES)

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BETWEEN:

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1 . THE KARNATAKA POWER TRANSMISSION CORPORATION LIMITED REPRESENTED BY ITS MANAGING DIRECTOR CAUVERY BHAVAN, K.G.ROAD BENGALURU - 560 009

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2 . THE DIRECTOR (ADMINISTRATION AND HUMAN RESOURSES) REPRESENTED BY ITS MANAGING DIRECTOR CAUVERY BHAVAN K.G.ROAD BENGALURU - 560 009

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3 . THE SUPERINTENDING ENGINEER (ELECTRICAL) BENGALURU ELECTRICITY SUPPLY COMPANY LIMITED SIDDAGANGA COMPLEX B.H. ROAD TUMAKURU - 572 102

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4 . THE SUPERINTENDING ENGINEER (ELECTRICAL) CHAMUNDESHWARI ELECTRICITY SUPPLY COMPANY PRASARANA BHAVANA 3^RD FLOOR

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SANTHEPET B.M.ROAD HASSAN - 573 201

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... APPELLANTS

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(BY SRI CHANDRACHUD A, ADVOCATE)

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AND:

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1 . SRI NAVEEN KUMAR S. S/O SRI SHANKARAPPA AGED ABOUT 40 YEARS WORKING AS MECHANIC GRDE-II BENGALURU ELECTRICITY SUPPLY COMPANY LIMITED KYATHSANDRA SECTION TUMKUR - 572 201

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2 . SRI PRADEEP S/O SRI PRABHANNA K.N. AGED ABOUT 36 YEARS WORKING AS MECHANIC GRADE-II THE KARNATAKA POWER TRANSMISSION CORPORATION LIMITED TLM SECTION, SIRA TUMKUR - 572 137

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3 . SRI MALLIKARJUNAIAH S.B. S/O SRI BHADRAIAH AGED ABOUT 40 YEARS WORKING AS MECHANIC GRADE-II O & M-1, BENGALURU ELECTRICITY SUPPLY COMPANY LIMITED HULIYAR, C.N. HALLI TUMKUR - 572 218

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4 . SRI NIRANJANA K.S. S/O LATE SIDDAGANGAPPA AGED ABOUT 43 YEARS WORKING AS MECHANIC GRADE-II M.T. SECTION BENGLAURU ELECTRICITY SUPPLY COMPANY LIMITED MADHUGIRI, TUMKUR - 572 132

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5 . SRI MOHANAKUMAR K.B. S/O SRI BASAVARAJU K.V. AGED ABOUT 42 YEARS

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WORKING AS MECHANIC GRADE-I 66/11, K V MVSS HASSAN - 573 201

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6 . SRI GANESHA N.P. S/O PUTTARAJEGOWDA AGED ABOUT 37 YEARS R/O K.R.S. AGRAHARA BEHIND IDBI BANK KUNIGAL ALSO WORKING AT: SAG-I, 66/11, KV M.U.S.S. KUNIGAL TUMKURU

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7 . SRI UPENDRAKUMAR A.S. S/O SHESHAGIRI A.V. AGED ABOUT 39 YEARS R/O NRUPATUNGA EXTENSION 3^RD MAIN, 5^TH CROSS TUMKUR ALSO WORKING AT: STATION MECHANIC GRADE-I 66/11, KV M.U.S.S.KUNIGAL TUMKURU

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... RESPONDENTS

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(SRI M.S. BHAGAWAT, SENIOR ADVOCATE A/W SRI SATISH K., ADVCOATE FOR RESPONDENT NOS.1 TO 5 SRI M.R. RAJAGOPAL, SENIOR ADVOCATE A/W SRI NARASIMHARAJU, ADVOCATE FOR RESPONDENT NOS.6 & 7)

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO ALLOW THE WRIT APPEAL AND SET ASIDE THE FINAL ORDER DATED 21/03/2023, PASSED BY THE LEARNED SINGLE JUDGE OF THIS HON’BLE COURT IN W.P. No. 20991/2022 AND ETC.

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THIS WRIT APPEAL HAVING BEEN RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, CHIEF JUSTICE PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE THE CHIEF JUSTICE MR. JUSTICE N. V. ANJARIA

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and

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HON'BLE MR. JUSTICE K. V. ARAVIND

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C.A.V. JUDGMENT

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(PER: HON'BLE THE CHIEF JUSTICE MR. JUSTICE N. V. ANJARIA)

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In the present appeal under Section 4 of the Karnataka

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high Court Act, 1961, the appellant-Karnataka Power Transmission Corporation Limited has challenged judgment and order dated 21^st March 2023 of learned Single Judge, whereby the writ petition filed by the respondent-petitioners, five in numbers, came to be allowed.

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The prayers made in the writ petition were to set aside resolution dated 20^th September 2022, passed by the appellantCorporation, as well as to set aside the consequential Circular dated 14^th October 2022 issued by the Corporation.

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2.1 It was next prayed to direct respondent Nos.3 and 4-the Superintending Engineer (Electrical), Tumukuru and Hassan circles respectively, to consider the case of the petitioners for promotion to the post of Junior Engineer and to promote them on the post as per the Karnataka Electricity Board Recruitment and Promotion (Amendment and Regulations) 2020 and Circular dated 12^th June 2020.

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2.2 In the impugned resolution dated 20^th September 2022 passed by the Board of Directors at its 132^nd meeting dated 4^th August 2022, the Board considered the issue of clarification in respect of giving promotion to the Junior Engineer (Electrical) under Regulation 12B(i) of Karnataka Electricity Board Recruitment and Promotion (Amendment and Regulations) 2020, Employees Probation Regulation and Employees Seniority Regulation.

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2.3 The aforementioned Resolution dealt with the transfer policy. Under the policy, it was resolved inter alia that the employees who opt for inter-circle transfer on their request, will have to forego their seniority for the purpose of promotion. According to the Board, this was necessary for protecting the interests of the parent circle employees. It was provided that the services rendered in one circle by an employee transferred to other circle upon request, shall not be liable to be considered for promotion to the cadre of Junior Engineer (Electrical), and that for the purpose of promotion, the seniority shall be reckoned from the date of their transfer to the transferred circle.

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2.4 It was provided in the Resolution that the employee seeking transfer to another circle shall have to furnish an

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undertaking regarding foregoing of seniority and that until completion of minimum ten years of service in the transferred circle, the employee shall not be treated as eligible for promotion. Circular dated 14^th October 2022, which was issued with reference to the said Resolution, was clarificatory about operating Regulation No.12B(i) of the aforesaid Regulation.

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Petitioner No.1, initially appointed as Assistant Lineman in Mandya circle on 23^rd November 2005 and subsequently promoted as Lineman, requested for transfer from Mandya circle to Tumakuru circle. He was transferred to Tumakuru circle on 16^th October 2009. He was promoted to the post of Mechanical Grade-II on 26^th July 2018.

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3.1 Petitioner No.2 came to be appointed as Assistant Lineman on 7^th December 2006 in the Udupi Circle. He sought a request transfer to Tumkur Circle. He was transferred on 7^th November 2008, thereafter came to be promoted in the year 2010 on the post of lineman, further promoted as Mechanic, Grade-II in the year 2019.

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3.1.1 The case of the petitioner No.3 is that he was appointed as Assistant Lineman on 22^nd November 2005 in Hassan Circle, and promoted as lineman in the year 2008. He was transferred upon his own request to Tumkur Circle on 16^th November 2010 and

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was promoted to the post of Mechanic, Grade-II in the year 2016. Presently he is working on the said post.

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3.1.2 Having been appointed as Assistant Lineman on 14^th November 2005 in Udupi Circle, petitioner No.4 came to be promoted as Lineman in the year 2008, sought transfer to Tumkur Circle and was upon request transferred to the said Circle on 12^th August 2010. Earning promotion in the year 2020 on the post of Mechanic, Grade-II, the petitioner has been working on the said post.

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3.1.3 In the same way, petitioner No.5 was appointed as Station Attendant, Grade-II in Udupi Circle and came to be promoted as Mechanic, Grade-I on 5^th June 2016. He sought the requesttransfer to Hassan Circle and was transferred on 24^th July 2017. He has been discharging the duties at that place.

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3.2 All the five petitioners had thus opted for the requesttransfer from one circle to another circle. Upon their request, therefore, they came to be transferred to another circle. The petitioner claimed that the length of their services should be counted for the purpose of promotion from the date of their entry in service ever since they served in the previous circle.

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3.2.1 Seeking grant of prayers as above, the case of the petitioners as pleaded is inter alia that the service conditions of the petitioners is governed by the regulations called Karnataka Electricity Board Recruitment and Promotion Regulations. An amendment was brought out therein by Notification dated 7^th May 2020 in relation to the post of Junior Engineer and the promotion thereto. As per the said Notification, 10% of the post of Junior Engineer is to be filled up by promotion from amongst the inservice employees. The recruitment regulations were further amended by notification dated 30^th August 2020 inter alia providing for acquisition of qualification Diploma in Telecommunication and Mechanical Engineering.

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3.3 Regulation 12B(i) as inserted by Notification dated 7^th May 2020 was relied on in order to contend that seniority and qualifying service for the purpose of promotion to the post of Junior Engineer is liable to be reckoned from the date of initial entry into service. The amended Regulation 12B(i) is extracted hereinbelow:

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“PROMOTION:-

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B(i) 10% if the posts to be filed up by way of promotion from among in-service employees working in any lower cadre on the basis of seniority-cum-merit subject to availability of vacancy.

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Note:- Seniority and qualifying service shall be reckoned from the date of initial entry into service.”

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3.3.1 As per the note above, it is provided that the seniority and qualifying service shall be considered for the purpose of promotion from the date of initial entry in service. Circular dated 12^th June 2020 was issued, the Clause 4 of which also contemplated on the similar lines. Thereafter, the impugned resolution in furtherance was issued to provide that in case of transfer of employee to different circle upon employee’s request, it is the date of transfer which shall be counted for the purpose of granting promotion and not the date of initial entry. In other words, it is provided that if the employee is transferred to another circle upon request, he will lose his seniority and for the purpose of promotion to the next higher post of Junior Engineer, the date of transfer would be the relevant material date.

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3.3.2 The petitioners are aggrieved by this provision and contended in their petition before learned Single Judge that even if they had sought transfer upon their request to different circle, their seniority should be counted from the date of initial entry in the previous circle and that the promotional rights should be extended to them accordingly.

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3.4 In the statement of objections-cum-affidavit-in-reply filed by respondents-Karnataka Power Transmission Corporation Ltd., the case of the petitioners was refuted. It was contended that in order to protect the interest of the parent circle employees, especially in respect of their promotional avenues, those employees who opt for inter-circle transfer on their own request, are required to forego their seniority for the purpose of promotion as per the transfer policy in vogue. It is contended that transfer policy with such stipulation is practiced since last thirty years in respect of all the circle cadres and that each circle constitute a different cadre.

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3.4.1 It was contended that service rendered in another circle by an employee who is transferred to another circle as per his request, therefore, cannot be considered for promotion to cadre of Junior Engineer under Regulation 12B(i) of the Regulations. It was stated that an employee who takes the request-transfer, gives an undertaking before transfer, to the effect that he will forego his seniority in the appointed circle. It was contended that such employees cannot claim the period of service rendered in the previous circle and that such employee will be required to complete minimum ten years of service in the transferred circle to become eligible to get the promotion.

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3.4.2 It is stated by the respondents that the seniority list for the Tumkur circle, Hassan circle and other circles were prepared accordingly to effect promotion to the post of Junior Engineer. At that time, some of the aggrieved employees approached this court by filing writ petition No.11892 of 2020 challenging the seniority list. During the pendency of the said writ petition, the impugned circular dated 14^th October 2022 was issued for providing clarification about the counting of period of service in the previous circle.

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3.5 Learned Single Judge took the view while allowing the petition that a reading of method of recruitment and promotion indicated that the seniority and qualifying service shall have to be reckoned from the date of initial entry as stated in Regulation 12B(i) of the Regulations. Learned Single Judge applied the rule that impugned circulars were administrative circulars, which cannot take away the effect of the Regulations. It was therefore reasoned that even if the employee had sought request transfer from one circle to another circle, for the purpose of promotion to the transferred circle, the initial entry in service would remain relevant and that services rendered in the previous circle cannot be obliterated.

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Heard learned advocate Mr. Chandrachud A for the appellants, learned Senior Advocate Mr. M.S. Bhagawat assisted by learned Advocate Mr. Satish K for respondent Nos.1 to 5-original petitioners and learned Senior Advocate Mr. M.R. Rajagopal with learned advocate Mr. Narasimharaju for respondent Nos.6 and 7.

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4.1 Learned advocate for the appellants submitted that circlewise seniority has to be considered. The seniority of the employee would be considered in the parent circle from the date of initial entry, but who has entered afresh in another circle on his own request will forego the seniority which shall be counted from the date of entry in the transferred circle. Resolution dated 20^th May 2020 was justified to submit that it only furthered the existing transfer policy. It was submitted that evenness uniformity in terms of seniority and promotional avenues is required to be maintained in the circle cadre. He referred to relevant clauses in the Regulations which provide for foregoing of seniority by the transferred employee when employee himself opt for another circle. It was submitted that the method of recruitment and method of promotion are the applications in different field.

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4.2 On the other hand, learned advocate for the original petitioners-respondent herein supported the judgment and order

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of learned Single Judge and the view taken therein to vehemently submit that Regulation 12B(i) inserted by Notification dated 7^th May 2020 is to be applied as governing criteria even for the employee who opts for request transfer to another circle. It was submitted that the learned Single Judge rightly rejected the application of impugned circular, treating it not to be in consonance.

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Now, appreciating the controversy in light of aforesaid facts, aspects and contentions, the position is not disputed that the appellant-Corporation has different circles. There are circle cadres known to such circles, such as Assistant, Junior Assistant, Operator, Overseer, Reader, Assistant Store Keeper, Assistant Powerman, Station Attendant Grade-II, etc. The policy of the Corporation is that when the employees are transferred from one circle to another, they are placed as junior-most in the respective cadres and are not given preference in terms of seniority over the parent circle employees.

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5.1 This policy is traceable from the provisions of the Karnataka Electricity Board Employees Seniority Regulations which are framed in exercise of powers under Section 79C of the Electricity (Supply) Act, 1948. Regulation 6 thereof deals with the

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transfer from one group/circle to another. This Regulation reads

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as under,

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“6. The transfer of a person in Board's interest from one group or grade of a service to another group or grade carrying the same pay or scale of pay shall not be treated as first appointment to the latter for purposes seniority; and the seniority of a person so transferred shall be determined with reference to the first appointment to the group or grade from which he/she was transferred.

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Provided that, where the transfer is made at the request of the employee, he/she shall be placed in the seniority list of group or grade of service to which he/she is transferred below all the employees borne to that group or grade of service on or before the date of the transfer.

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Provided further, that the seniority of a person transferred in Board's interest vis-a-vis the person actually holding the post in the group or grade to which he/she is transferred shall be determined on the date of such transfer with reference to his/her first appointment to the group or grade from which he was transferred.

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Explanation: For the purpose of the above proviso, the persons actually holding the post do not include the persons who have before the date of such transfer been promoted, whether in an officiating or substantive capacity to a higher group or grade’’.

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5.1.1 The first Proviso to aforesaid regulation is unequivocal to

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provide that when a transfer is made at the request of the employee, he/she shall be placed in the seniority list of the group/grade of service below all the employees borne in that group/grade before such transfer. Second Proviso says that in

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cases when a person is transferred in Board’s interest, his seniority shall be determined with reference to his/her first appointment to the group/grade from which he/she is transferred. The present controversy concerns the employees who borne in another circle by way of request-transfer from previous circle. The first Proviso will operate for them.

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5.1.2 Regulation 7 says that the cases which cannot be determined by any of the above methods shall be decided by the Board as per Regulation 8(i), the seniority list consisting of names of employees in each cadre shall be prepared and arranged in order of seniority. Sub-Regulation (ii) provides that the seniority list as per Sub-Regulation (i) shall be prepared by the respective promoting authority and shall be biannually published.

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5.2 It necessarily means that if the transferred employee is given seniority in the transferred circle on the basis of his date of birth in the previous circle or date of entry in service in the previous circle, the entire circle-wise seniority will go topsy-turvy and in the realm of service and seniority based promotions in the circles, a chaotic situation would obtain.

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5.3 The fact that the cadre of Junior Engineer is circle-wise is reflected and stands established by virtue of the statement depicting the list of posts, cadre, qualification, promoting

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authority, etc., which is under Chapter V of the aforesaid Regulations. The post of Junior Engineer (Electric)/ Storekeeper Grade-II is shown to be circle-wise. It constitutes a distinct cadre in the circle and promotion to the said post shall have to be treated accordingly. It is indicated in the said tabular details which is part of the Regulation about each category of posts, for instance, the post of Assistant Engineer (Civil) is shown to be state-wide cadre, not the circle cadre, unlike the post of Junior Engineer (Electric) which is a separate cadre in each circle.

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5.4 Reading conjointly the aforesaid aspect that the post of Junior Engineer (Electric) to be the circle-wise cadre with Regulation 6 and its first Proviso, it is manifest that for a transferred person, especially in case of request-transfer, the seniority shall be determined with reference to the date of entry in the transferred cadre and he/she shall have to be placed in the seniority list of the said group/circle where he/she is transferred.

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5.5 The appellant-Corporation issued circular dated 29^th June 1996 clarifying the position with reference to the seniority of Assistants who are eligible to be promoted to the cadre of Senior Assistant. It is clarified that in such cases, services rendered in the other circle by the Assistant transferred from previous circle, shall not be liable to be considered for promotion to the cadre of

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Senior Assistant, but only with reference to the date of entry in the transferred circle. This principle will analogically apply when an issue is addressed about the counting of seniority of the transferred employee to another circle, to be promoted to the post of Junior Engineer in the transferred circle.

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5.6 The further aspect is that, the employee while seeking a request transfer to another circle, gives undertaking foregoing his seniority in the previous circle. A specimen undertaking was made available to the court, which is reproduced hereinbelow. The petitioners have given such individual undertaking,

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“LETTER OF UNDERTAKING/BOND

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I, ___________, Lineman, has been transferred from SAKLESHPURA, to / other circle / to HULIYARU Ο & M Division, Unit-1, Chikkanayakanahalli Sub Division, Tumkuru Circle, as per the Corporation's Order No. K.P.T.C.L/BKC/S.A3/5474/97-98/11, dated 09-062010, accordingly I have been relieved from the services at O & M Division, HANABALU Sakleshpura Sub Division, CESCOM, Hassan Division, I Have reported to duty at HULIYARU O & M Division, Unit- 1, Chikkanayakanahalli Sub Division, Tumkur Circle, and I have agreed to be junior most in the Service Seniority list of LINEMEN in this Circle.

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Place: SAKLESHPURA Yours obediently, Dated: 15-11-2010 ___________, Lineman,

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Sd / Assistant Executive Engineer (El), Chamundeswari Electric Supply Corporation Ltd. Sub Division, SAKLESHPURA’’

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5.7 When an employee while seeking transfer to another circle, voluntarily gives up the seniority claim from being counted from the date of entry in the previous circle, he/she while finding the request-birth in the other circle, is bound by the same. Such employee cannot be permitted to resile from the voluntarily incurred obligation. This is an additional aspect, besides the operation and working of the aforesaid Regulations, that an employee’s seniority in the transferred circle for the purpose of promotion could be counted only with reference to his/her entry in the transferred circle and not on the basis of his date of birth in the previous circle.

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The propositions of law in relation to the issues answered as above, are well settled. In Scientific Adviser to Raksha Mantri v. V.M. Joseph [(1998) 1 SCR 177] , it was held that if the eligibility condition requires certain length of service, service rendered in another organisation before unilateral transfer at own request, cannot be counted for the purpose of seniority, but may be counted in determining eligibility for promotion.

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6.1 In K.P. Sudhakaran v. State of Kerala [(2006) 5 SCC

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386] , the Supreme Court dealt with almost similar controversy. The appellant was recruited as Lower Division Clerk in a particular district. Recruitment was made on the said post of

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Lower Division Clerks in another district and the respondents were transferred to the district of the appellant on their own request which was done at the rank below junior-most local Lower Division Clerk in the district.

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6.1.1 The principle was laid down that the Government servant holding a particular post is transferred to the same post in the same cadre, the transfer will not wipe out his length of service till the date of transfer and the earlier period of service are to be taken into consideration in computing seniority in the transferred post. However, when government servant is transferred on his own request, he will have to forego his seniority till the date of transfer, held the Supreme Court.

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6.1.2 The principles in this realm were enunciated in the following observations,

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“In service jurisprudence, the general rule is that if a Government servant holding a particular post is transferred to the same post in the same cadre, the transfer will not wipe out his length of service in the post till the date of transfer and the period of service in the post before his transfer has to be taken into consideration in computing the seniority in the transferred post”.

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6.1.3 The Court then added,

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“But where a Government servant is so transferred on his own request, the transferred employee will have to forego his seniority till the date of transfer, and will be placed at the bottom

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below the junior-most employee in the category in the new cadre or department.”

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6.1.4 The rationale was explained,

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“This is because a government servant getting transferred to another unit or department for his personal considerations, cannot be permitted to disturb the seniority of the employees in the department to which he is transferred, by claiming that his service in the department from which he has been transferred, should be taken into account.”

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6.1.5 It was succinctly reasoned,

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“This is also because a person appointed to a particular post in a cadre, should know the strength of the cadre and prospects of promotion on the basis of the seniority list prepared for the cadre and any addition from outside would disturb such prospects. The matter is, however, governed by the relevant service Rules.” (para 11)

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6.2 In Union of India v. Deo Narain [(2008) 10 SCC 84] , the

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Supreme Court observed ‘that an employee who is transferred to other collectorate does not lose his/her past service for the purpose of considering his/her eligibility. But, if such transfer is voluntary or unilateral on condition that he/she will be placed at the bottom of the seniority list in the transferee Department, the said condition would bind him/her and he/she cannot claim seniority over the employees in the transferee Department.

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6.3 Reverting back to the present case, an employee who is transferred on his request to another circle and who has given the consent and undertaking for giving up the seniority in the circle where he is transferred, cannot be permitted to march over the seniority positions in the transferred circle cadre. The two cadres are different. The seniority for the purpose of promotion in two circle cadres, therefore cannot be mixed up. This is a clear reading of the regulations aforementioned which are applicable to the petitioners as employees of the appellant-Corporation. They are governed by it. The policy of transfer and the transfer to another circle could be well discerned from the statutory regulations.

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6.4 Learned Single Judge overlooked the above material aspect. He proceeded on a wrong footing to view that the stipulations in the transfer policy were in contradiction to regulation 12B(i). Effectively, the position obtained from the operation of the statutory regulations when read together, is otherwise. The petitioners who got themselves transferred upon their own request to another circle, in light of the regulations and the cadre position, cannot claim seniority over the employees in the transferred cadre for the purpose of promotion. As per their own undertaking also, they had given up such claim.

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6.5 For all the aforesaid reasons and discussion, learned Single Judge misdirected himself both in law and on facts. The petitioners were not entitled to relief. Learned Single Judge committed a manifest error in allowing the petition.

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Resultantly, impugned judgment and order dated 21^st March 2023 of learned Single Judge allowing writ petition No.20991 of 2022 is hereby set aside. The appeal stands allowed.

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Sd/(N.V. ANJARIA) CHIEF JUSTICE

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Sd/(K V ARAVIND) JUDGE

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AHB

The Karnataka Power Transmission Corporation Limited v. Sri Naveen Kumar S

Case brief

What is this about?

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The Karnataka Power Transmission Corporation Limited v. Sri Naveen Kumar S

Case brief

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