Allowed

Sri. Lokesh M v. Vs the State of Karnataka

Karnataka HC18 Apr 2024WP/5668/2024

Case brief

AI extract

What is this about?

A Junior Engineer whose dismissal penalty was set aside by a coordinate bench sought retrospective promotion benefits pending with respondent authorities. The court found inaction on representations and directed the Director of Municipal Administration to consider them per Rule 2(1)(a) KCSR Rules 1978 within three months.

What did the court decide?

Mandamus directing respondent No.2 to consider representations dated 05.06.2023 and 12.07.2023 per W.P.No.20866/2017 observations and Rule 2(1)(a) KCSR Rules 1978 within three months.

Sri. Lokesh M v Vs the State of Karnataka — Pension and Retirement Benefits | Karnataka HC (2024)

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NC: 2024:KHC:15233 WP No. 5668 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF APRIL, 2024

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO. 5668 OF 2024 (S-PRO)

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BETWEEN:

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SRI. LOKESH M.V., S/O VENKATESH, AGED ABOUT 46 YEARS, JUNIOR ENGINEER, CITY MUNICIPAL COUNCIL, CHICKKAMANGALURU DISTRICT, CHICKMANGALURU, R/AT C/O VIJAYAKUMAR, BANASHANKARI NILAYA, KUPPENAHALLI, JYOTHINAGAR POST, CHICKKAMAGALURU - 577 101.

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…PETITIONER

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(BY SRI. A.C. NAGARJUNA, ADVOCATE FOR

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Digitally signed by CHAITHRA A Location: HIGH COURT OF KARNATAKA

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SRI. C.M. NAGABUSHANA, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, REPRESENTED BY ITS SECRETARY, URBAN DEVELOPMENT DEPARTMENT, VIKASA SOUDHA, BANGALORE - 560 001.

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THE DIRECTOR OF MUNICIPAL ADMINISTRATION IN KARNATAKA,

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NC: 2024:KHC:15233 WP No. 5668 of 2024

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V.V. MAIN TOWERS, BENGALURU - 560 001.

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…RESPONDENTS

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(BY SMT. SUKANYA BALIGA, AGA)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE THE WRIT IN THE NATURE OF MANDAMUS TO CONSIDER THE REPRESENTATIONS DATED 5.6.2023 AND 12.7.2023 (ANNEXURE-E AND F) RESPECTIVELY, AND EXTEND THE BENEFITS TO THE PETITIONER TO THE CADRE OF ASSISTANT ENGINEER FROM 3.12.2016 TO 30.8.2022 AND FURTHER DIRECT THE RESPONDENTS TO PROMOTE THE PETITIONER RETROSPECTIVELY IN VIEW OF RULE 2(1) (A) OF THE KARNATAKA STATE CIVIL SERVICES (REGULATIONS OF PROMOTION, PAY AND PENSION) RULES, 1978, TO THE CADRE OF ASSISTANT EXECUTIVE ENGINEER FROM 30.8.2022 FROM THE DATE ON WHICH HIS JUNIORS BEING PROMOTED, BY EXTENDING ALL CONSEQUENTIAL BENEFITS ARISING THERETO AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The captioned petition is filed by the petitioner, feeling aggrieved by the inaction on the part of respondent No.2 in not considering the petitioner's representation pursuant to the judgment rendered by the coordinate bench in W.P.No.20866/2017.

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Heard learned counsel for the petitioner and learned AGA.

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3 - NC: 2024:KHC:15233 WP No. 5668 of 2024

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The petitioner's grievance is that he was not

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considered for promotion, seniority and other monetary benefits on the ground that he is facing a departmental enquiry.

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This Court, in W.P.No.20866/2017, set aside

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the penalty of dismissal from service vide order dated 23.08.2022. Paragraphs No.14 and 15 would be relevant and the same are extracted as under:

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"14. In the present case, the order at Annexure-'J' is passed by mere reliance on the recommendation of the Upa Lokayukta. The application of mind by the Government is not evident from the order at Annexure-'J'. The reply to the second show-cause notice of the petitioner regarding finding of the Enquiry Officer as regards non-acceptance of Rs.5,000/- has not been considered and in fact, the order at Annexure-'J' would reflect that the reply made to the second show-cause notice has not been considered while accepting the recommendation of the Upa Lokayukta and proceeding to pass the impugned order of penalty. At this point of time, no useful purpose would be served for remanding the matter for reconsideration afresh in light of the enquiry report.

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In light of the discussion made above, the impugned orders are liable to be set aside as articles of charges are not proved. At the point of repetition, the finding by the enquiring authority regarding misconduct on the ground that the petitioner has accepted a sum of Rs.5,000/- from PW.1 which remains unexplained is clearly a finding on the basis of different article of charge without following the procedure under Rule 11 (23) as pointed out above. If

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4 - NC: 2024:KHC:15233 WP No. 5668 of 2024

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that were to be so, the finding in the enquiry report being favourable to that of the petitioner, the Disciplinary Authority will not be in a position to arrive at any different conclusion to hold the petitioner guilty even on remand. Even the finding of receipt of Rs.5,000/- cannot be linked to the clearance of bills. In the absence of such nexus, proposed fresh article of charge on such aspect upon remand may not stand the test of judicial scrutiny. Accordingly, the order at Annexure-'J' is set aside and the petition is disposed off as calling for no further orders. Consequently, the order imposing penalty is set aside. Needless to state consequent to setting aside of the impugned order, if there is any other adverse service condition inflicted upon the petitioner consequent to the impugned order the same is also is set aside."

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5. On examining the findings recorded by this

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Court while setting aside the order of penalty of dismissal from service, it has further clearly recorded a finding that any adverse conditions inflicted upon the petitioner consequent to the penalty also stand set aside. In the light of the judgment rendered by the coordinate bench, this Court is more than satisfied that there is clear laxness on

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the part of respondent No.2 in not considering the petitioner's representation where a request is made to extend promotion with retrospective effect in terms of Rule 2(1)(a) of the Karnataka Civil Services (Regulation of

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NC: 2024:KHC:15233 WP No. 5668 of 2024

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Promotion, Pay, and Pension) Act, 1978 (for short, 'KCSR Rules 1978').

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Perused the said rule. Rule 2(1)(a) of KCSR Rules 1978 clearly contemplates that the promotion of a civil servant will be made with effect from the retrospective date where promotion is withheld on account of departmental proceedings or criminal prosecution. There is complete inaction on the part of respondent No.2

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in not examining the representation. The petitioner has a legal right to ascertain and claim promotion with retrospective effect by seeking benefit of 2(1)(a) of KCSR Rules 1978. Correspondingly, there is a mandatory obligation cast on respondent No.2 to examine the petitioner's representation and pass appropriate orders. As there is inaction on the part of respondent No.2, a mandamus would lie in the present set of facts.

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For the foregoing reasons, this Court proceeds to pass the following:

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NC: 2024:KHC:15233 WP No. 5668 of 2024

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ORDER

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i. The writ petition is allowed;

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ii. Respondent No.2 is hereby directed to consider the petitioner's representation dated 05.06.2023 and 12.07.2023 as per Annexures-E and F respectively and pass appropriate orders by taking note of the observations made by the coordinate bench in W.PNo.20866/2017 and Rule 2(1)(a) of KCSR Rules 1978;

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iii. This exercise shall be completed within a period of three months from the date of receipt of certified copy of this order.

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HDK CT:SNN

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Sd/JUDGE

Sri. Lokesh M v. Vs the State of Karnataka

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Sri. Lokesh M v. Vs the State of Karnataka

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