Sri R v Jathanna Vs State of Karnataka

SRI. R.V. JATHANNA, S/O LATE V.D. JATHANNA, AGED ABOUT 64 YEARS, RETIRED PLANNING DIRECTOR DISTRICT URBAN DEVELOPMENT CELL UTTAR KANNADA, KARWAR. NOW R/AT # 76, BADAGABETTU, BAILURU, TANTHRI NAGAR, 1^ST CROSS, UDUPI - 576 101. NOTE: SENIOR CITIZEN BENEFIT NOT CLAIMED …PETITIONER

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Digitally signed by CHETAN B C Location: HIGH COURT OF KARNATAKA

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(BY SRI. SUBRAMANYA BHAT M.,ADVOCATE)

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AND:

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STATE OF KARNATAKA, REPRESENTED BY THE UNDER SECRETARY, DEPARTMENT OF URBAN DEVELOPMENT, M S BUILDING, BENGALURU – 01.

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THE DIRECTOR, DIRECTORATE OF MUNICIPAL ADMINISTRATION, VIKASA SOUDHA, BENGALURU – 01.

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…RESPONDENTS

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(BY SRI.B.J. ESWARAPPA,AGA)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT, ORDER OR DIRECTION, MODIFYING THE ORDER DATED 19.07.2022 PASSED IN A.NO-64/2022 (ANNEXURE-B) BY ISSUING POSITIVE DIRECTIONS TO THE RESPONDENTS TO OPEN THE SEALED COVER AND GRANT PROMOTION TO THE PETITIONER W.E.F 26.06.2016 THE DATE ON WHICH HIS IMMEDIATE JUNIOR WAS PROMOTED AS MUNICIPAL COMMISSIONER GRADE-1 TO MEET THE ENDS OF JUSTICE.

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THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE KRISHNA S DIXIT AND HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

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ORAL ORDER

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(PER: HON'BLE MR JUSTICE KRISHNA S DIXIT)

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Petitioner, a retired Civil Servant is grieving before

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the Writ Court against the order of the Karnataka State Administrative Tribunal’s order dated 19.07.2022 whereby,

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his Application No.64/2022 having been partly favoured, the following relief has been accorded:

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“(i) The application is allowed.

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(ii) The respondents are directed to consider the representations of the applicant dated 18.5.2017, 18.6.2018 and 20.5.2019 seeking retrospective promotion from the date of promotion of his juniors, in accordance with law

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or issue appropriate endorsement to the applicant.

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(iii) Time for compliance: THREE months from the date of receipt of a certified copy of this order.”

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Learned counsel appearing for the petitioner

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vehemently submits that the Tribunal had specifically allowed Application as is apparent from the first line of the operative portion of the order, it simply could not have directed the consideration per se without anything more of petitioner’s grievance in the representation when material facts availed on record. He submits that the Tribunal ought to have directed grant of retrospective promotion in the admitted fact matrix and this having not been done, the same constitutes error apparent on the face of the record.

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Learned counsel further submits that in the disciplinary enquiry, petitioner having come out clean, sealed cover has been opened and he has been accorded retrospective promotion w.e.f. 22.6.2016 vide Notification dated 23.11.2023. He adds that much of the grievance having been redressed, now what remains to be done is a

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direction to the respondents to pay all service benefits consequent to such promotion, since petitioner has already retired from service on superannuation.

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Learned AGA appearing for the respondents vehement contends that since the petitioner has already retired from service, the subject Notification should be treated as granting notional promotion and therefore, monetary benefits cannot be claimed by the petitioner. IN support of this submission, he presses into service the Apex Court decision in UNION OF INDIA vs. K.V. JANKIRAMAN¹ . He further submits that if a reasonable time is granted, the authority would consider claim of the petitioner for the benefits within the legal framework.

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Having heard the learned counsel for the parties and having perused the Petition Papers, we are inclined to grant indulgence in the matter as under and for the following reasons:

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1 (1991) 4 SCC 109

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5.1 As rightly submitted by counsel for the petitioner, the

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Notification dated 23.11.2023 has directed grant of retrospective promotion w.e.f. 22.6.2016 i.e., the date on which his immediate juniors were promoted, keeping DPC recommendation in sealed cover. Now that the petitioner has emerged flawless in the subject disciplinary enquiry,

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the sealed cover has been opened and retrospective promotion has been accorded. The said Notification reads as under:

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¸ÀASÉå:£ÀCE 99 EJA¹ 2015 PÀ£ÁðlPÀ ¸ÀPÁðgÀzÀ ¸ÀaªÁ®AiÀÄ,

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«PÁ¸À¸ËzsÀ,

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¨ÉAUÀ¼ÀÆgÀÄ, ¢£ÁAPÀ:23-11-2023.

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C¢ü¸ÀÆZÀ£É

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PÀ£ÁðlPÀ ¥ËgÁqÀ½vÀ ¸ÉÃªÉAiÀÄ C¢üPÁjAiÀiÁzÀ ²æÃ Dgï. «. dvÀÛtÚ, ºÁ° ¤ªÀÈwÛ EªÀjUÉ PÉ.JA.J.J¸ï. ¥ËgÁAiÀÄÄPÀÛgÀÄ ±ÉæÃtÂ-2 (eÉÃµÀ×vÁ PÀæªÀÄ ¸ÀASÉå:179) (ªÉÃvÀ£À ±ÉæÃtÂ jÃ.2810050100) ªÀÈAzÀ¢AzÀ ¥ËgÁAiÀÄÄPÀÛgÀÄ ±ÉæÃtÂ-1 (ªÉÃvÀ£À ±ÉæÃtÂ gÀÆ.40050-56550) ªÀÈAzÀPÉÌ PÀ£ÁðlPÀ £ÁUÀjPÀ ¸ÉÃªÁ (ªÀÄÄA§rÛ, ªÉÃvÀ£À ªÀÄvÀÄÛ ¦AZÀtÂ PÀæªÀÄ§zÀÝvÉ) ¤AiÀÄªÀÄUÀ¼ÀÄ, 1978gÀ ¤AiÀÄªÀÄ 2(1)(J) gÀ£ÀéAiÀÄ, EªÀjVAvÀ eÉÃµÀ×vÉAiÀÄ°è QgÀAiÀÄgÁzÀ ²æÃ gÀ«ÃAzÀæ ªÀÄ¯Áè¥ÀÄgÀ (eÉÃµÀ×vÁ PÀæªÀÄ ¸ÀASÉå:180), ¥ËgÁAiÀÄÄPÀÛgÀÄ ±ÉæÃtÂ-2 ªÀÈAzÀPÉÌ ªÀÄÄA§rÛ ¤ÃrzÀ ¢£ÁAPÀ: 22.06.2016 jAzÀ¯ÉÃ C£ÀéAiÀÄªÁUÀÄªÀAvÉ ¥ÀÆªÁð£ÀéAiÀÄªÁV eÁjUÉ §gÀÄªÀAvÉ ¸ÉÃªÁ ¸Ë®¨sÀåUÀ¼ÉÆA¢UÉ ¸ÁÜ£À¥À£Àß ªÀÄÄA§rÛ ¤Ãr DzÉÃ²¸À¯ÁVzÉ.

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PÀ£ÁðlPÀ gÁdå¥Á®gÀ DeÁÕ£ÀÄ¸ÁgÀ ªÀÄvÀÄÛ CªÀgÀ ºÉ¸Àj£À°è

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(n. ªÀÄAdÄ£ÁxÀ) ¸ÀPÁðgÀzÀ C¢üÃ£À PÁAiÀÄðzÀ²ð, £ÀUÀgÁ©üªÀÈ¢Ý E¯ÁSÉ.”

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5.2 The text & context of the above Notification does not

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leave a millimeter scope for the argument that it envisages notional promotion and denies financial benefits.

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It refers to i.e., Rule 2(1)(a) of Karnataka State Civil

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Services (Regulation of Promotion, Pay and Pension) Rules, 1978. There is absolutely no indication that what is granted is notional promotion. Even otherwise, it cannot be notional because in so many words, it says that the petitioner is entitled to all service benefits. Therefore, all monetary benefits also have to be released to the petitioner, as a consequence of retrospective promotion.

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5.3 Learned AGA vehemently submits that in Jankiraman

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supra, the Apex Court has given discretion to the government of the kind to decide whether financial benefits need to be granted when the employee who was

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facing disciplinary proceedings was away from service. To

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a great extent true it is going by what has been observed in para 26 of the said decision. However, such a decision to deny benefits has not been taken by the government in the subject Notification. Far from that the Notification accords service benefits, since petitioner has already retired from service. Secondly, it is not a case of an employee remaining away from service but he being kept away from serving because of pendency of disciplinary proceedings. In such a circumstance, ‘no work no pay’ principle is not applicable as has been observed by the Apex Court at para 25 of the very same decision which reads as under:

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“We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases.”

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5.4 It hardly needs to be stated that existence of power

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is one thing and its exercise is another. Government has power to deny benefits of promotion when the employee remained away from the service for a particular period, as already observed above. Ordinarily, when promotion is notional, the service benefits do not accrue. However, that is not the case here. Secondly, the government has not decided to deny benefits of promotion. Had it been otherwise, it would have mentioned the same in the very same Notification. Non-mentioning cannot make us readily to jump to the conclusion that there is a decision to deny benefits.

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In the above circumstances, this petition is disposed off with following directions:

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[i] The respondents shall quantify & release all monetary benefits of promotion to the petitioner with retrospective effect from 22.6.2016, within a period of eight weeks.

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[ii] Should delay be brooked in complying with the above direction, the monetary benefit shall carry interest

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at the rate of 1 % per mensem for the first one month and 2 % for the period next following. The interest component may be recovered from the erring officials personally.

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[iii] The respondents shall file Compliance Report with the Registrar General of this Court within two months.

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Now, no costs.

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Sd/(KRISHNA S DIXIT) JUDGE

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Sd/(RAMACHANDRA D. HUDDAR) JUDGE

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cbc List No.: 1 Sl No.: 21

Sri R v. Jathanna v State of Karnataka

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Sri R v. Jathanna v State of Karnataka

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