IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF OCTOBER 2019 BEFORE THE HON’BLE MR. JUSTICE B.VEERAPPA WRIT PETITION NO.5903/2015 (S-RES) BETWEEN:
SRI. KRISHNAPPA, S/O. ERAPPA, AGED ABOUT 40 YEARS, R/AT NO.27, J.V. ARCADE, GROUND FLOOR, KALPANA CHAWLA ROAD, R.M.V. EXTENSION, BHOPASANDRA, SANJAYNAGAR, BANGALORE-560 094. ... PETITIONER (BY SRI. S.M. CHANDRASHEKAR, SENIOR COUNSEL ALONG WITH SRI. PRABHUGOUD B. TUMBIGI, ADVOCATES) AND:
1. THE COMMISSIONER, BRUATH BANGALURU MAHANAGAR PALIKE, N.R. SQUARE, BANGALORE-560 002.
2. THE DEPUTY COMMISSIONER (ADMINISTRATION), BRUATH BANGALURU MAHANAGAR PALIKE, (BBMP), N.R. SQUARE, BANGALORE-560 002.
3. THE PUBLIC WORKS DEPARTMENT, GOVERNMENT OF KARNATAKA, M.S. BUILDING, BANGALORE-560 001.
REP. BY ITS SECRETARY. ... RESPONDENTS (BY SRI. B.S. GAUTHAM, ADVOCATE FOR R1 AND R2; SRI. H.R. SHOWRI, HCGP FOR R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 07.11.2014 ISSUED BY THE R1 VIDE ANN-S. DIRECT THE R2 TO CONSIDER THE PAST SERVICE OF THE PETITIONER IN THE POST OF ASST. ENGINEER, BBMP FROM 31.08.2007 TO 21.06.2010 FOR THE PURPOSE OF SENIORITY.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner in the above writ petition sought for writ of certiorari to quash the order dated 07.11.2014 made in No.B12(6A)PR/504/10-11 issued by the respondents as per Annexures ‘S’ and ‘W’, directing the 2nd respondent to consider the past service of the petitioner in the technical education from 12.03.1999 to 21.06.2010 for the purpose of seniority.
2. It is the case of the petitioner that the petitioner had joined as a lecturer in the department of technical education through KPSC and he was promoted as a lecturer – Senior grade. Subsequently, he was appointed as Assistant Engineer, PWD and was deputed to the BBMP as per the order passed by the 3rd respondent. The petitioner reported for duty with the 1st respondent. The 1st respondent assigned the work to the petitioner as an Assistant Engineer in the office of the Executive Engineer (Major roads). Accordingly, the petitioner discharged the duties of the Assistant Engineer in the 1st respondent-Corporation.
3. The KPSC issued notification calling for the applications interalia to the post of Assistant Engineer (Civil). On the application filed, the petitioner was selected to the post of Assistant Engineer, BBMP. The BBMP called upon the petitioner to appear in the office of the Assistant Commissioner (Appointment and Enquiry). The petitioner came to be selected and issued appointment order on 03.06.2010. On 21.06.2010, the petitioner was relieved from the office of the 3rd respondent and reported to the office of the 1st respondent. Thereafter, on 20.07.2010, the petitioner was assigned to the post of Assistant Engineer, Ward No.33, Office of the Assistant Executive Engineer (J.C. Nagar Sub Division), Bangalore. On 24.08.2011, the 2nd respondent granted the benefits in respect of salary, pension, leave and other benefits taking into consideration that the petitioner has worked in the department of Technical Education and in the 3rd respondent. Thereafter on 31.01.2013, the 1st respondent issued order publishing the Seniority list of the Assistant Engineers. The petitioner has filed the objections on 27.02.2013 and subsequently on 28.02.2013, the petitioner requested the respondents to consider his service in the department of Technical education as well as in the 3rd respondent department for the purpose of seniority from 12.03.1999. The same was not considered.
4. Therefore, the petitioner filed the writ petition in W.P. No.52974/2013 before this Court requesting the respondents to consider the representations. This court by an order dated 28.11.2013 directed the respondents to consider the representation of the petitioner within three months from the date of the receipt of the copy of the order. In pursuant to the order passed by this Court, the 2nd respondent rejected the claim of the petitioner to consider his services for the purpose of seniority in the post of Assistant Engineer, by impugned order dated 07.11.2014 and counted only for the purpose of pension and not for seniority. Therefore, he is before this court for the relief sought for.
5. The respondent Nos.1 and 2 have filed objections to the main writ petition, contending that the very writ petition field by the petitioner is not maintainable for the relief sought for. It is further contended that in view of the provision of Rule 6-A of the Karnataka Government Servants’ (Seniority) Rules, 1957 (hereinafter referred to as ‘Seniority Rules’ for short), the petitioner has not taken up such contention in the earlier proceedings and the petitioner has not produced any documents to substantiate his contention. Therefore, the impugned order issued is just and proper. It is further contended that after verifying the provision of Rule 6-A of the ‘Seniority Rules’, the respondents have not considered in the previous instances and therefore sought to dismiss the writ petition.
6. I have heard the learned counsel for the parties to the lis.
7. Sri. S.M. Chandrashekar, the learned Senior counsel for the petitioner reiterating the grounds urged in the writ petition, has contended that in view of the provisions of Rule 6-A of the ‘Seniority Rules’, the petitioner was appointed as a lecturer in the Educational Department on 12.03.1999. Subsequently, on the application filed, he came to be appointed as an Assistant Engineer, PWD. Therefore, in view of the provision of Section 6-A of the ‘Seniority Rules’, the earlier past services have to be counted from 03.03.1999 to 03.06.2010 for the purpose of seniority. The same has not been considered by the authorities concerned.
8. He would further contend that in view of Rule 252(b) of the Karnataka Civil Services Rules, his past services have to be considered in view of the dictum of the Hon’ble Supreme Court in the case of G. Rabinathan Vs. State of Karnataka and others reported in 1995 SC 1474 at para-7 held as under;
Para 7 – A reading of the Rule 6A indicates that the transfer or appointment of an officer of the Defence Services to an All India Service or a Civil Service of the Union or the Civil Service of any other State to any equivalent class or grade of service in the State Civil Services shall not be treated as first appointment to that claees or grade of service for purpose of seniority. Therefore, the Rule indicates that there should be continuity of the service. In other words, there would not be any break in service.”
Therefore, he sought to allow the appeal.
9. Per contra, Sri. B.S. Goutham, the learned counsel for the Corporation sought to justify the impugned order and contended that the petitioner resigns from the services and he proceeded another appointment. Therefore, in view of the provisions of rule 6A 1st proviso depicts that transfer or appointment is made at the request of officer, he shall be placed in the seniority list of the class or grade of service to which he is transferred or appointed below the persons borne on that class or grade of service immediately prior to the date of such transfer or appointment.
10. In support of his contention, the learned counsel for the respondent relied upon the dictum of the Supreme Court in the case of V.S. Richards vs. The State of Karnataka, rep. by its Secretary, Department of Finance, Bangalore and Another reported in ILR 2003 3582. Therefore, sought to dismiss the writ petition.
11. Having heard the learned counsel for the parties, it is an undisputed fact that the petitioner was appointed as a lecturer in Jayachamarajendra Polytechnic through KPSC and he was promoted as a lecturer – Senior grade. It is also not in dispute that on the notification issued by the 3rd respondent on 09.03.2007, the petitioner came to be appointed as an Assistant Engineer, PWD and subsequently, he was deputed to the BBMP and thereafter in view of the notification issued by the KPSC, calling for the applications for the posts of Assistant Engineers (Civil), the petitioner came to be selected to the post of Assistant Engineer, BBMP on 03.10.2010 and subsequently, he relieved from the office of the 3rd respondent and reported to the office of the 1st respondent. It is further contended that on the application filed by the petitioner for seniority, the 2nd respondent rejected his application for the purpose of counting his past services only on the ground that his past services shall be considered for the purpose of pension and cannot be considered for seniority.
12. It is also contended by the learned senior counsel for the petitioner that the resignation was made by the petitioner with the permission of the Appointment Authority at that time. Therefore, his service has to be considered as per Rule 252(b) of KCS Rules, 1957 read with Rule 6-A of ‘Seniority Rules’. Though the learned counsel for the respondents contended that the petitioner has resigned and joined separate service, therefore his seniority has to be considered under the 1st proviso of Rule 6-A of the cannot be accepted for the simple reason, that by careful perusal of the impugned Endorsement issued by the respondents, it is only stating that his service from 31.08.2007 to 21.06.2010 worked as Assistant Engineer cannot be considered for seniority, can be considered only to pension. The endorsement does not depicts the reasons for denying the past services of the petitioner for calculating the seniority except by oral submission by the learned counsel for the respondents and statement of objection.
13. It is well settled that what is not stated in the impugned order can not be added and be supplemented either by way of arguments or by statement of objections. The provisions of Section 252(b) of KCS Rules, 1957 reads as under:
“Resignation of an appointment to take up, with proper permission, another appointment, whether permanent or temporary, service in which counts in full or in part, is not a resignation of public service.
14. On careful reading of the said provision makes it clear that the resignation of an appointment to take up, with proper permission, another appointment, whether permanent or temporary, service in which counts in full or in part, is not a resignation of public service. The 1st proviso of Rule 6-A of the ‘Seniority Rules’ clearly depicts that transfer or appointment is made at the request of the officer, he shall be placed in the Seniority list of the class or grade of Service to which he is transferred or appointed below the persons borne on that class or grade of service immediately prior to the date of such transfer or appointment.
15. In view of the above, the impugned endorsement issued by the 2nd respondent cannot be sustained and the matter requires reconsideration by the authorities afresh and pass appropriate orders in the light of the provisions of Rule 252(b) of the KSC Rules, 1957 read with Rule 6-A of the ‘Seniority Rules’ and in accordance with the dictums of the Hon’ble Supreme Court and this court as stated supra relied upon by the counsel for the parties.
16. For the reasons stated above, the writ petition is allowed. The impugned endorsement issued by the 2nd respondent dated 07.11.2014 is hereby quashed. The matter is remanded to respondents No.1 and 2 to reconsider the seniority of the petitioner with effect from 03.03.1999 and to pass appropriate speaking order in the light of the observations made, within a period of three months from the date of the receipt of the copy of this order.
Ordered accordingly.
Sd/- JUDGE snc