IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER 2019 PRESENT THE HON'BLE MR. JUSTICE S N SATYANARAYANA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM W.P.NO.1996/2018(S-KAT) BETWEEN:
1. THE SECRETARY, STATE OF KARNATAKA, DEPARTMENT OF REVENUE I (MUZURAI), M.S BUILDING, BENGALURU – 560001 2. THE COMMISSIONER, RELIGIOUS ENDOWMENT DEPARTMENT, SECOND FLOOR, MAHADESHWARA VARTHA BHAVAN, CHAMRAJPET, BENGALURU.
3. THE EXECUTIVE OFFICER, SHRI. CHAMUNDESHWARI TEMPLE, CHAMUNDI HILLS, MYSURU.
…PETITIONERS (BY SMT. SHILPA.S.GOGI, HCGP) AND:
C.G. KRISHNA, S/O LATE. GANGADHARA MURTHY, A/A 41 YEARS, WORKING AS FIRST DIVISION ASSISTANT, OFFICE OF THE EXECUTIVE OFFICER, SHRI CHAMUNDESHWARA TEMPLE, CHAMUNDI HILLS, MYSURU.
PRESENTLY WORKING AT:
WORKING AS FIRST DIVISION ASSISTANT, OFFICE OF THE ASSISTANT COMMISSIONER, HINDU RELIGIOUS INSTITUTIONS AND CHARITABLE ENDORSEMENT DEPARTMENT, BENGALURU URBAN DISTRICT, PODIUM BLOCK, VISHWESHWARAIAH MINI TOWER, BENGALURU – 1.
…RESPONDENT (BY SRI. MARUTHI.S.H, ADVOCATE FOR CAVEAT) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN APPLICATION NO.413/2009 ON THE FILE OF KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, BENGALURU AND ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, SACHIN SHANKAR MAGADUM J., MADE THE FOLLOWING:
ORDER The petitioner is questioning the correctness and legality of the order dated 23.9.2016 passed in Application No.413/2009 by the Karnataka State Administrative Tribunal at Bengaluru(for short “Tribunal”) 2. The case of the respondent-applicant is that he has passed Pre-University Course. His father while working as a Teacher in the Department of Education died due to ill-health. Hence, he submitted an application for appointment on compassionate grounds to any suitable post with the petitioners. Thereafter, the second petitioner issued him an appointment order appointing him as SDA as per order dated 8.2.1994 and was posted to Sanskrit College, Melukote.
3. The second petitioner by order dated 29.2.2008 promoted the respondent applicant to the post of FDA. In pursuance of the promotion order, an Official Memorandum dated 6.3.2008 came to be issued by the second petitioner promoting him w.e.f. 1.5.2007 as FDA and was posted to Sri.Chamundeshwari Temple, Chamundeshwari Hills, Mysuru. When things stood thus, it appears the first petitioner issued a notice on 25.8.2008 to the respondent-applicant calling upon him to offer an explanation as to why the promotion order issued to him as per order dated 29.2.2008 should not be withdrawn on the ground that the same was given to him in violation of the Rules. The respondent-applicant could not submit his explanation to the notice due to ill- health of his mother and as he was the only person who was looking after his mother. In the meanwhile, the first petitioner vide order dated 12.12.2008 withdrew the order of promotion insofar the respondent-applicant is concerned and thereby reverted him to the post of SDA.
4. The aforesaid order was questioned by the respondent-applicant by filing an original application in O.A.413/2009. On receipt of notice, the present petitioners who were respondents before the Tribunal appeared and produced relevant documents. The Tribunal having examined the material on record and also the proposition of laid down by the Apex Court in the case of State of Karnataka .vs. B.V. Thimmappa reported in ILR 1994 KAR 2535 allowed the application by holding that the petitioners were not justified in withdrawing the promotion and the same is unjust and unfair since the applicant had subsequently passed the Accounts Higher Examination. Being aggrieved by the order of the Tribunal, the petitioners are before this Court questioning the correctness and legality of the impugned order passed by the Tribunal.
5. We have heard the counsel appearing for the petitioners and the respondent. The counsel appearing for the State would vehemently argue that as on the date of the application, the applicant did not possess prescribed qualification since as on the date of the Notification he had not cleared the Accounts Higher Examination, which is the required eligibility for promotion to the post of FDA. As such the petitioners were justified in reverting the respondent-applicant to the post of SDA. The Government Pleader would also vehemently argue that the Tribunal was not justified in mechanically allowing the application by relying on the decision reported in B.V. Thimmappa’s case supra.
6. The learned HCGP would further contend that Rule 4 of the Karnataka Civil Services(Service and Kannada Language Examinations) Rules,1974 imposes restriction for promotion to the higher post if the Government servant fails to pass the prescribed examination within the stipulated time and as such clearing of the Accounts Higher examination is mandatory. The Tribunal has erred in allowing the original application and as such the order of the Tribunal suffers from serious infirmities and warrant interference by this Court.
7. Per contra, the counsel appearing for the respondent-applicant in support of his contentions would rely on the decision of the Apex Court in B.V.
Thimmappa’s case supra at paras 30 and 31, which reads as under;
“30.Thus, Rule 4 of the Rules which is intended to be an embargo on promotion of government servants governed by the Rules, does not say anything, even remotely, to suggest that a government servant who had been promoted to higher post during the period allowed to him by the Rules to pass the examinations required to be passed by holders of such higher posts, should suffer the consequence of reversion, due to non-passing of such examinations by him. In this situation, the consequence of reversion of a government servant from the promotional post held by him to a lower post, for non- passing of examinations by him, cannot be implied from the Rules, on a mere assumption that the object and the purpose of the Rules, will otherwise, become a mockery. It is no doubt true, that in the process of interpretation of certain Statutes, Rules or Regulations, a Court is under a duty to draw certain inference as implied in them, if such inference is warranted in the context of the provisions contained in the concerned Statute, Rules or Regulations but when such an inference to be drawn is likely to result in imposition of penalty on any person, much less, a government servant, known canons of statutory interpretation, do not permit drawing of such inference solely on the supposed object or purpose to be served by the Statute, Rules or Regulations without any support derived therefor from the textual provisions.
31. Hence, when the Rules covering the whole "Scheme of Examinations for Government Servants", contain exhaustive provisions on all matters relating to examinations to be passed by government servants as holders of civil posts, the period within which such holders of civil posts have to pass the examinations required to be passed by them and the consequences which the government servants suffer in the event of their non-passing of the required examinations, and yet do not contain any provision which would suggest that government servants who had been promoted to higher posts during the period allowed for them to pass the examinations required to be passed by the holders of such promotional posts under the Rules should be reverted to the lower posts which they held before the commencement of the Rules, the same cannot be a matter to be implied from the Rules on the basis of so-called object of the Rules. Consequently, the view taken by the learned Judges of the Single Judge Benches and the Division Benches of the High Court, that it could be implied from the Rules and the Act that the consequence of non-passing by government servants who had been promoted to higher posts during the period allowed to them by the Rules, of the examinations required to be passed by them in time, rendered them liable to reversion from the higher promotional posts to lower posts held by them at the commencement of the Rules, cannot be regarded as that warranted or justified by the Rules. Our answer, therefore, to the question considered herein before, is that the non- passing of Service and Kannada Language Examinations by government servants of Karnataka required to be passed by them under the Rules within the period allowed thereunder for the purpose, does not render them liable to reversion, from the higher posts to which they were promoted during that period, to the lower posts held by them before such promotions.”
8. Having examined the material on record and the proposition of law laid down by the Apex Court in B.V. Thimmappa’s case supra, we find no substance in the contention raised by the learned HCGP. In the course of arguments, the HCGP also brought to our notice that the respondent-applicant has cleared the examination by producing the document by way of a memo dated 18.10.2019. In that view of the matter the respondent is better placed since he has already cleared the prescribed examination and hence, the action of the petitioners in reverting him to the post to which he held prior to promotion is bad in law and contrary to the ratio laid down by the Apex Court in the case referred supra wherein it has been clearly held that the Rules framed therein requiring the Government servants to pass examinations to seek promotion to higher posts does not contemplate that failure to clear the exams would not ipso facto call for reduction or reversion of promotion.
9. In view of the settled proposition of law the contention raised by the petitioners is unsustainable. The Tribunal has dealt with the matter in the light of dictum laid down by the Apex Court in B.V. Thimmappa’s case and has rightly set aside the order dated 12.12.2008 passed by the first petitioner. We do not find any infirmity in the impugned order passed by the Tribunal calling for interference by this Court.
In view of the foregoing reasons, the writ petition stands dismissed. No order as to costs.
Sd/- JUDGE Sd/- JUDGE *alb/-