IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE P.B.BAJANTHRI WRIT PETITION NO.25029/2019 (S-PRO) BETWEEN:
SRI ERANNA S/O LATE KARIYANNA AGED ABOUT 60 YEARS WORKING AS ASSISTANT EXECUTIVE ENGINEER (INDEPENDENT CHARGE) R/AT MANJUNATHA NILAYA 15TH CROSS, GANGOTHRINAGAR NEAR SIT COLLEGE BACK GATE TUMKUR ... PETITIONER (BY SRI JAGADEESHA P.R. & SRI J.PRASHANTH, ADVOCATES) AND:
1. THE MANAGING DIRECTOR KARNATAKA URBAN WATER SUPPLY AND DRAINAGE BOARD JALBHAVAN, BANNERGHATTA MAIN ROAD BANGALORE 2. THE STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY URBAN DEVELOPMENT DEPARTMENT VIKASA SOUDHA DR. B.R.AMBEDKAR VEEDHI BANGALORE-560 001 3. THE COMMISSIONER SOCIAL WELFARE DEPARTMENT M.S.BUILDING DR.AMBEDKAR VEEDHI BANGALORE-560 001 ... RESPONDENTS (BY SRI H.N.SHASHIDHAR, ADVOCATE FOR R-1; SRI SREEDHAR N.HEGDE, HCGP FOR R-2;
R-3 SERVED AND UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENTS TO CONSIDER THE REPRESENTATIONS DATED 14.11.2018, 06.01.2019 AND 19.03.2019 OF THE PETITIONER VIDE ANNEXURES-A, B & C RESPECTIVELY AND PROMOTE HIM TO THE POST OF ASSISTANT EXECUTIVE ENGINEER ON THE BASIS OF THE SENIORITY LIST ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R 1. Sri Sreedhar N.Hegde, learned HCGP takes notice for respondent no.2.
2. In the instant petition, the petitioner has sought for the following reliefs:
a) Issue a writ, order or direction in the nature of mandamus directing the Respondents to consider the representations dated 14.11.2018, 06.01.2019 and 19.03.2019 of the Petitioner vide Annexures-A, B and C respectively and promote him to the post of Assistant Executive Engineer on the basis of the seniority list.
b) Issue a writ, order or direction in the nature of mandamus directing the Respondents to conduct Departmental Promotion Committee meeting and to give retrospective promotion to the petitioner with effect from 28.01.2013 the day on which he was given independent charge as Assistant Executive Engineer in the services of the Respondent Board with all consequential benefit following from the same.
c) Pass any order of consequential relief or any other appropriate order or direction as this Hon’ble Court deems fit in the facts and circumstances of the case in the ends of justice and equity.
3. Petitioner was appointed on daily wage basis on 07.07.1985 and his services were regularized on 07.07.1995 against one of the posts of Assistant Engineer. Having regard to the length of service rendered by the petitioner in the cadre of Assistant Engineer and as he was eligible for promotion to the cadre of Assistant Executive Engineer, he was placed in independent charge of Assistant Executive Engineer on 28.01.2013.
4. Rule 32 of the Karnataka Civil Services Rules (‘the KCSR’ for short) reads as under:
“32. Instead of appointing a Government servant to officiate, it is also permissible to appoint him to be in charge of the current duties of a vacant post. In such a case a “charge allowance” (additional pay) is payable as specified in Rule 68.
Note 1.−A Government servant can be appointed under this Rule to be in-charge of the current duties of a vacant post only if he is eligible to be promoted to officiate in that post according to the Cadre and Recruitment Rules applicable to that post or if he is holding a post in an equivalent or higher grade.
Note 2.−The provisions of this Rule apply also to cases where a Government servant being relieved of his own appointment is appointed to be in independent charge of a higher appointment as a temporary measure.”
5. The aforesaid arrangement placing in independent charge of the post to an employee is made in administrative exigency or in the absence of direct recruitee. Such arrangement has been prolonged even to this date and the petitioner retired on 30.06.2019. While he was in service he had submitted number of representations to regularize the independent charge arrangement while effecting retrospective promotion under the Karnataka State Civil Services (Regulation of Promotion, Pay and Pension) Rules, 1978 (‘the Rules, 1978’ for short). Sub-rule (3) of Rule 2 of the Rules, 1978 reads as under:
“2(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:
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.”
In terms of the aforesaid statutory provisions, the petitioner is entitled for promotion from the date of placing him in independent charge of the post of Assistant Executive Engineer is required to be examined by the official respondents. There is inaction on the part of the respondents in not taking up the issue as to whether the petitioner is entitled to retrospective promotion to the cadre of Assistant Executive Engineer with effect from 28.01.2013, the date on which he was placed in independent charge of the post under Rule 32 of the KCSR.
6. In the light of the aforesaid statutory provisions read with the fact that he was placed in independent charge of the post of Assistant Executive Engineer on 28.01.2013, the official respondents are hereby directed to take a decision as to whether the petitioner is entitled for promotion to the cadre of Assistant Executive Engineer within the promotional quota for the post of Assistant Executive Engineer. If the petitioner’s grievance falls under the promotional post of Assistant Executive Engineer, in such an event, the official respondents are hereby directed to consider the grievance of the petitioner while effecting promotion to the cadre of Assistant Executive Engineer with effect from 28.01.2013 while reading Rule 32 of the KCSR read with the Rules, 1978 cited supra. Further to pay difference of salary and retiral benefits while fixing his pay in the promotional post and refixation of pension. The above exercise shall be completed within a period of two months from the date of receipt of a copy of this order and communicate the decision to the petitioner.
Sd/- JUDGE hkh.