Sri Suryakant Kadam Vs the Addl. Chief Secretary to the

SRI SURYAKANT KADAM, S/O MARUTHIRAO KADAM, AGED ABOUT 73 YEARS, R/O H. No.LIG 40, ADARSH NAGAR, 1^ST PHASE, NEAR BRAHMAKUMARI ASHRAM, KALABURGAI 585105.

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…PETITIONER

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(BY SMT. S.A. HEENA, ADVOCATE FOR SRI SHARATH S GOGI, ADVOCATE)

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AND:

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Digitally signe d by VALLI MARIMUTHU Location: HIGH COURT OF KARNATAKA

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THE ADDL. CHIEF SECRETARY TO THE GOVERNMENT OF KARNATAKA, FINANCE DEPARTMENT (EXCISE), VIDHANA SOUDHA, 2^ND FLOOR, BANGALORE 560001.

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THE EXCISE COMMISSIONER IN KARNATAKA, 2^ND FLOOR, TTMC BUILDNG, A WING, SHANTHINAGAR, BENGALURU 560027.

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…RESPONDENTS

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(BY SRI B. RAVINDRANATH, AGA)

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HC-KAR

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 17/02/2023 PASSED BY THE HON'BLE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, BANGALORE IN APPLICATION No.20522/2021 (ANNEXURE-A).

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

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CORAM: HON'BLE MR. JUSTICE S.G.PANDIT and

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HON'BLE MR. JUSTICE K. V. ARAVIND

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ORAL ORDER

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(PER: HON'BLE MR. JUSTICE S.G.PANDIT)

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The petitioner, a retired substantive holder of the

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First Division Assistant post in the Department of Excise, is before this Court aggrieved by the order dated 17.02.2023

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passed in Application No.20522/2021 by the Karnataka State Administrative Tribunal, Bengaluru (for short 'Tribunal'), whereunder his request to quash the endorsement dated 11.12.2019 (Annexure-A.21) rejecting the request for retrospective promotion is dismissed.

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Heard Smt. S.A. Heena, learned counsel for Sri Sharath S. Gogi, learned counsel for the petitioner and Sri B. Ravindranath, learned Additional Government Advocate for the respondents.

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HC-KAR

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The petitioner was initially appointed as a Second

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Division Assistant in respondent No.1-Department and he was promoted to the post of First Division Assistant on 25.01.1996. It is further stated that the petitioner was placed in independent charge of the post of Inspector of Excise under Rule 32 of the Karnataka Civil Services Rules (KCSRs), on 20.08.2003. The petitioner retired from service on attaining the age of superannuation on 28.02.2007. After his retirement, the petitioner is said to have submitted a representation dated 18.10.2011 requesting to consider his case for retrospective promotion from the date on which he was placed in independent

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charge of the post of Inspector of Excise. As the respondents failed to consider the said representation, he approached the Tribunal in Application Nos.22312237/2017, which application was disposed of with a direction to consider the case of the petitioner for retrospective promotion. The respondents, on consideration of the representation, issued an

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HC-KAR

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endorsement dated 11.12.2019 rejecting the request of the petitioner for retrospective promotion. Questioning the said endorsement, the petitioner was before the Tribunal in Application No.20522/2021. The Tribunal under

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order dated 17.02.2023 rejected the request of the petitioner on the ground that none of the juniors of the petitioner were promoted to the post of Inspector of Excise substantively when the petitioner was in service or prior to the retirement of the petitioner or given deemed date of eligibility earlier to that date. Aggrieved by the same, the petitioner is before this Court.

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Learned counsel for the petitioner, in addition to the grounds urged in the petition, would submit that admittedly the petitioner was placed in independent charge of the post of Inspector of Excise on 20.08.2003 and has continued as such till his retirement in the year 2007. Learned counsel would submit that the post to which the petitioner was placed under Rule 32 of KCSRs was meant for promotion to the First Division Assistant, as

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HC-KAR

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such, the petitioner would be entitled to retrospective promotion in terms of Rule 2(3) of the Karnataka State Civil Services (Regulation of Promotion, Pay and Pension) Rules, 1978 [hereinafter referred to as 'KCS (RPPP)

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Rules']. Learned counsel would submit that the representation submitted by the petitioner was not considered and for non-consideration, he had to approach the Tribunal and the Tribunal directed the respondents to consider the case of the petitioner for retrospective promotion, but the respondents failed to consider the same taking note of the fact of placing the petitioner under Rule 32 of KCSRs to the post of Excise Inspector and as on

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the said date, the post of First Division Assistant was available. Thus, learned counsel would pray for allowing the writ petition.

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Per contra , learned Additional Government Advocate would submit that the petitioner is not entitled to retrospective promotion from the date the petitioner was placed under Rule 32 of KCSRs. Learned Additional

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HC-KAR

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Government Advocate submits that none of the juniors to the petitioner were promoted as Excise Inspector substantively before the date of retirement of the petitioner or any of the Excise Inspectors junior to the petitioner are assigned the date of eligibility prior to the date of retirement of the petitioner. Further, learned Additional Government Advocate would submit that the petitioner has failed to establish that the post of the First Division Assistant was available for promotion to the cadre of Excise Inspector as on the date the petitioner was placed under Rule 32 of KCSRs. Thus, prays to dismiss the petition.

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Having heard learned counsel for the parties and on perusal of the entire writ petition papers, we are not inclined to interfere with the impugned order passed by the Tribunal.

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A government servant would be entitled to retrospective promotion under Rule 2(3) of KCS (RPPP) Rules, which reads as follows;

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HC-KAR

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"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:

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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."

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In terms of the above Rule, a civil servant or government servant would be entitled to retrospective promotion under the circumstances stated in sub-rule (1), (2) or (3) of Rule 2 of the KCS (RPPP) Rules. A government servant could be given retrospective promotion, 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, had only been

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HC-KAR

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placed in independent charge of the post by the Competent Authority and had discharged the duties of the said post. The above provision makes it clear that, if a government servant is placed in independent charge of the post under Rule 32 of KCSRs, he could be considered for retrospective promotion. Further, the said retrospective promotion would be subject to the availability of post. In the instant case, a perusal of the endorsement dated 11.12.2019 (Annexure-A.21), which was under challenge before the Tribunal clearly indicates that the petitioner has failed to establish that the respondents have failed to follow the ratio prescribed under the Karnataka Excise Service (Recruitment) Rules, 1996 and that the post was available for substantive promotion of a First Division Assistant to the cadre of Excise Inspector. In the absence of showing the availability of the post of Excise Inspector meant for the cadre of First Division Assistant, the petitioner would not be entitled to retrospective promotion. Moreover, the petitioner retired from service

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HC-KAR

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on attaining the age of superannuation in the year 2007, whereas the petitioner agitated his right for retrospective promotion only after his retirement by filing an application before the Tribunal. The petitioner has failed to exercise

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his right in time. Mere making of a representation would not extend the period of limitation. Moreover no junior of the petitioner is promoted substantively before the retirement of the petitioner or date of eligibility is assigned. Hence, the petitioner would not get right to seek retrospective promotion.

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For the reasons recorded above, we are of the considered opinion that there is no merit in the writ petition and accordingly, the writ petition stands rejected.

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Sd/(S.G.PANDIT) JUDGE

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Sd/(K. V. ARAVIND) JUDGE

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MV, List No.: 1 Sl No.: 31

Sri Suryakant Kadam v. the Addl. Chief Secretary to the

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Sri Suryakant Kadam v. the Addl. Chief Secretary to the

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