IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 2ND DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ WRIT PETITION NOS.39759-39760 OF 2013 AND WRIT PETITION NOS.39761-39763 OF 2013 (S-KAT) BETWEEN:
1. BASAVARAJA DAVANAKATTI AGED ABOUT 38 YEARS, SON OF SANGAPPA, INSPECTOR OF EXCISE, OFFICE OF THE DY. S.E., HARIHARA SUB DIVISION, HARIHARA, DAVANAGERE DISTRICT.
2. PARAMESHWARAPPA N. H. AGED ABOUT 40 YEARS, SON OF H. N. HANUMANTHAPPA, INSPECTOR OF EXCISE, RANEBENNUR RANGE, RESIDENT OF MRUTHUNJAYA NAGARA, RANEBENNUR, HAVERI DISTRICT.
3. SANTHOSH K. G.
AGED ABOUT 31 YEARS, SON OF BASAVARAJAPPA, INSPECTOR OF EXCISE, OFFICE OF THE DEPUTY SUPERINTENDENT OF EXCISE, HASSAN SUB DIVISION, HASSAN.
4. GIRISH A. V.
AGED ABOUT 37 YEARS, SON OF VENKATESH, INSPECTOR OF EXCISE, PERIYAPATNA RANGE, PERIYAPATNA, MYSURU DISTRICT.
5. JITENDRA H.
AGED ABOUT 38 YEARS, SON OF HALASIDDAPPA G. S., NOW WORKING AS DEPUTY SUPERINTENDENT OF EXCISE, OFFICE OF DEPUTY COMMISSIONER OF EXCISE (WEST), POORNIMA THEATRE COMPLEX, J. C. ROAD, BENGALURU-560 002.
...PETITIONERS (BY SRI S. V. NARASIMHAN, ADVOCATE) AND:
1. H. O. MURALIDHAR AGED ABOUT 36 YEARS, SON OF LATE H. OBALAPPA, WORKING AS INSPECTOR OF EXCISE, STATE EXCISE INTELLIGENCE BUREAU, NEW PUBLIC OFFICE BUILDING, K. R. CIRCLE, BENGALURU-560 001, RESIDING AT NO.750 , KRISHNA TEMPLE ROAD, INDRANAGAR, BENGALURU.
2. SMT. H. S. REKHA AGED ABOUT 38 YEARS, WIFE OF BASAVARAJU, WORKING AS INSPECTOR OF EXCISE, M/S. ORION DISTILLERIES, NO.56, INDUSTRIAL SUBURB, YESHWANTHAPUR, BENGALURU, RESIDING AT NO.38/1, 14TH CROSS, 22ND MAIN, KATHIK NILAYA, OPPOSITE TO KALIKAMBA TEMPLE, PADMANABHANAGARA, BENGALURU-560 070.
3. J. DEEPAK AGED ABOUT 37 YEARS, SON OF M. JAVARAIAH, WORKING AS INSPECTOR OF EXCISE, OFFICE OF JOINT COMMISSIONER OF EXCISE, STATE EXCISE INTELLIGENCE BUREAU, NEW PUBLIC OFFICE BUILDING, K. R. CIRCLE, BENGALURU-560 027, RESIDING AT NO.30, WESTERN SIDE OF NIPPON ELECTRONICS, K. G. NAGAR, BENGALURU-560 019.
4. VIJAYAKUMAR DAMA AGED ABOUT 39 YEARS, SON OF RAJARAM DAMA, WORKING AS INSPECTOR OF EXCISE, YESHWANTHAPUR RANGE, RTO COMPLEX, BENGALURU, RESIDING AT NO.31, BEHIND CPRI COMPOUND, KARYAPPA LAYOUT, 80 FEET ROAD, RMV II STAGE, BENGALURU-560 094.
5. ASAD PEER AGED ABOUT 39 YEARS, SON OF LATE WALI PEER, WORKING AS INSPECTOR OF EXCISE, R. M. VILAS EXTENSION, II FLOOR, KRISHNAPPA BUILDING, GANGANAGAR BUS STAND, GANGANAGAR, BENGALURU, RESIDING AT NO.40, 5TH MAIN, KRISHNAPPA BLOCK, BENGALURU.
6. STATE OF KARNATAKA BY ITS SECRETARY, DEPARTMENT OF FINANCE (EXCISE), VIDHANA SOUDHA, BENGALURU-560 001.
7. COMMISSIONER OF EXCISE VOKKALIGARA BHAVAN, HUDSON CIRCLE, BENGALURU-560 027.
... RESPONDENTS (BY SRI M. NAGAPRASANNA, SENIOR COUNSEL FOR SRI K. PUTTEGOWDA, ADVOCATE FOR R-1 TO R-5; SRI I. THARANATH POOJARY, ADDITIONAL GOVERNMENT ADVOCATE FOR R-6 AND R-7) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE COMMON ORDER DATED 25.4.2013 IN SO FAR IT RELATES TO APPLICATION 1516 TO 1520 OF 2012 OF THE KARNATAKA ADMINISTRATIVE TRIBUNAL, BENGALURU VIDE ANNEXURE-A AND DISMISS THE APPLICATION NOS.1516 TO 1520/2012 FILED BY RESPONDENT NOS.1 TO 5 HEREIN IN KARNATAKA ADMINISTRATIVE TRIBUNAL, BENGALURU.
***** THESE WRIT PETITIONS COMING ON FOR HEARING THIS DAY, RAVI MALIMATH J., PASSED THE FOLLOWING:
ORDER The case of the contesting respondents is that they were initially appointed as First Division Assistants. They were subsequently promoted as Inspectors of Excise. The next promotion was to the cadre of Junior Superintendent of Excise. The applicants 1,3 and 5 were placed in independent charge of the post of Inspector of Excise under Rule 32 of the KCSRs. In terms of the order dated 20-8-2003, applicant No.2 and on 23-8-2003 the applicant No.4 by the order dated 6-8-2005. The posts of Inspector of Excise is filled up by promotion of 80% from the cadre of Sub-Inspector of Excise, 18% from the cadre of First Division Assistant and 2% from the cadre of Stenographer.
Prior to 2002 the posts of Inspector of Excise were filled by promotion by 90% from the cadre of Sub Inspector of Excise and 10% by promotion from the cadre of First Division Assistant. The applicants were placed with independent charge to the post of Inspectors of Excise as narrated hereinabove. Subsequently in terms of the order dated 14-10-2009 they were regularly promoted to the post of Inspector of Excise. That they were eligible and entitled for promotion to the posts of Inspector of Excise in terms of C & R Rules from a much earlier date namely, the date on which the vacancy arose from the date on which they were placed in independent charge. The second respondent published a final seniority list as on 31-12-2002 which was published on 31-1-2006. There was a short fall of 125 posts in the Executive cadre, that is, Sub Inspector of Excise. The applicants were promoted to the post of Inspector of Excise from the ministerial cadre, for the block period of from 5-3-2002 to 31-12-2002. There was a shortfall of 31 posts as on 31-12-2002 for the block period from 5-3-2002 to 31-12-2002. Therefore, the applicants submitted various representations to consider their case for retrospective promotion from the date on which they were placed in independent charge. Since nothing came of it, they filed the instant applications before the Karnataka Administrative Tribunal. The Tribunal by the impugned order, on contest, directed the respondents to consider their claim in terms of the decision in the case of VENKATESH K.T. vs. STATE OF KARNATAKA & OTHERS reported in (1991 KSLJ 1) and also in terms of Rule 2 of the Karnataka Civil Services Rules (Regulation of Promotion, Pay & Pension) Rules and consequential reliefs. Aggrieved by the same, respondents 3 to 7 before the Tribunal have filed these petitions.
2. Sri Narasimhan, learned counsel appearing for the petitioners submits that the impugned order is bad in law and liable to be set aside. His first contention is on delay. He submits that the earlier promotion was granted on 14-10-2009. The application seeking promotion with retrospective effect was challenged before the Tribunal in 2012. Therefore, there is a delay of almost 2½ years. Hence, he pleads that on the ground of delay the applications require to be rejected.
3. The learned counsel for the petitioners, in support of his contention places reliance of the judgment of the Hon'ble Supreme Court in the case of CHENNAI METROPOLITAN WATER SUPPLY AND SEWERAGE BOARD AND OTHERS vs. T.T. MURALI BABU reported in (2014) 4 SCC 108 with reference to para-16. We have considered the said contention. The Judgment therein is with reference to the exercise of constitutional power under Article 226. The Hon'ble Supreme Court held that in certain cases the delay and laches cannot be fatal but in most circumstances the inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. In the facts of the said case, there was a delay of almost 4 years and the same was challenged before the writ Court under Article 226 of the Constitution. Therefore, firstly we find that so far as the quantum of delay is concerned, the delay herein above even if it is to be accepted is only for a period of 2 ½ years from 14-10-2009 to 15-2-2012. Therefore, we do not find that the said facts would be applicable herein.
4. Secondly, what was sought to be considered in the aforesaid Judgment is the power of the Court under Article-226 of the Constitution. The power that was exercised by the Tribunal in the impugned order herein, is under Section-19 of the Administrative Tribunals Act, 1985. Section 21 of the Act, prescribes a limitation to approach the Tribunal. Section 21(1)(b) of the Act, would be applicable wherein in case a representation is made, an application could be filed after a period of 6 months from the date of representation and within a period of one year from the date of expiry of the period of 6 months but no reply has been received. Therefore, if this period is taken into consideration, the representation in the present case was made on 7-4-2010, 1½ year would expire in October 2011. Therefore, there is only a marginal delay in approaching the Tribunal. Moreover, in terms of Section- 21(3) of the Administrative Tribunals Act, 1985, there is a provision for condonation of delay. Therefore, the Tribunal was entitled to appreciate the reasons for condonation of delay. Therefore, the contention of the petitioner on delay cannot be accepted.
5. Sri.M.Nagaprasanna, learned Senior Counsel appearing for the respondents’ counsel, in support of his contention relies on the Judgment of this Court in the case of Dr.K.S.CHANDRAKANT AND OTHERS vs. THE UNION OF INDIA, MINISTRY OF TEXTILES AND ANOTHER reported in ILR 2016 KARNATAKA 2712, wherein it is held that there is no outer limit or period of time provided for condonation of delay as a control on the powers of the Tribunal by statutory provisions of the Act. Therefore, we do not find that the limitation as such can be a ground on which the respondents can be thrown out by the Court. Hence, the contention of the petitioners on delay is rejected.
6. The further plea of the petitioners is that the applicants are not entitled to be promoted with retrospective effect. Various contentions are urged with reference to Rule 32. It is contended that if the said Rule is applied, none of the applicants would be entitled to the same. However, on considering the contentions we are of the view that it is not necessary for us to go into the said contentions. The Tribunal while considering the contentions referred to the Full Bench order of the Tribunal in the case of Venkatesh. Therefore, the order passed by the Tribunal was to the effect that in the light of the Judgment in Venkatesh’s case the claim of the petitioners require to be considered and that the claim should also be considered in terms of Rule 2 of the of the Karnataka Civil Services Rules (Regulation of Promotion, Pay & Pension) Rules and also consequential reliefs. Therefore, it is for the State to ascertain whether Rule 2 and the Judgment in Venkatesh’s case are applicable. All the conditions as laid down in the Rule would necessarily have to be complied with before any relief is to be granted. Necessarily such an exercise has to be done by the State. It is not expected of this Court to go into the independent claim of each one of the applicants and to find out whether they are entitled for the relief that they claim. Since it is purely a question of fact and the applicability of Rule 2 and the Judgment to each one of the applicants, such an exercise necessarily has to be done by the State. Therefore, we do not find any ground to interfere with the order of the Tribunal. Consequently, writ petitions are dismissed.
Sd/- Sd/-
JUDGE JUDGE rsk/-