IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF MARCH, 2019 BEFORE THE HON' BLE MR.JUSTICE R. DEVDAS WRIT PETITION NO.16682 OF 2018(S-RES) BETWEEN SRI. N. BASAVARAJU S/O LATE NANJAIAH, AGED ABOUT 52 YEARS, PRESENTLY WORKING AS EXECUTIVE ENGINEER ROAD INFRASTRUCTURE BRUHAT BANGALORE MAHANAGARA PALIKE, N.R.SQUARE BANGALORE - 560 002 R/AT NO. 362/14, 6TH CROSS, 8TH MAIN, HAMPINAGARA RPC LAYOUT, VIJAYANAGAR BANGALORE - 560 104.
(BY SRI M P SRIKANTH, ADVOCATE) AND 1. THE PRINCIPAL SECRETARY TO GOVERNMENT URBAN DEVELOPMENT DEPARTMENT VIKASA SOUDHA, 4TH FLOOR DR B.R.AMBEDKAR VEEDHI BANGALORE - 560 001.
2. THE SECRETARY URBAN DEVELOPMENT DEPARTMENT VIKASA SOUDHA, 4TH FLOOR, ... PETITIONER DR B.R.AMBEDKAR VEEDHI BANGALORE - 560 001.
3. THE DIRECTOR MUNICIPAL ADMINISTRATION, 9TH FLOOR, VISHVESWARAIAH TOWER DR B.R.AMBEDKAR VEEDHI BANGALORE - 560 001.
4. THE COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE, N.R.SQUARE BANGALORE - 560 002.
5. SRI B SRIKANTASWAMY EXECUTIVE ENGINEER DISTRICT URBAN DEVELOPMENT CELL SHIMOGA -577201 6. SRI BASAVANAGOUDA T PATIL INCHARGE EXECUTIVE ENGINEER DISTRICT URBAN DEVELOPNMENT CELL DHARWAD 580001 7. SRI T MANJUNATH ASSISTANT EXECUTIVE ENGINEER DISTRICT URBAN DEVELOPMENT CELL BANGALORE URBAN 560002 8. D M TARADE ASSISTANT EXECUTIVE ENGINEER RABAKAVI-BANAHATTI CMC BAGALKOT DISTRICT 587101.
9. B NAGARAJ ASSISTANT EXECUTIVE ENGINEER DISTRICT URBAN DEVELOPMENT CELL MYSORE URBAN 570001 10. D N MADHAVAN ASSISTANT EXECUTIVE ENGINEER GOWRIBIDANUR CITY MUNICIPAL COUNCIL CHIKKABALLAPURA DISTRICT 561208 (BY SRI M S PRATHIMA, AGA FOR R1 TO R3 SRI KEMPANNA, ADVOCATE FOR R4 ...RESPONDENTS SRI M B PRABHAKAR, ADVOCATE FOR R5 & R6 VIDE ORDER DATED 14/01/2019 R7 IS HELD SUFFICIENT R8, R9 & R10 ARE SERVED) THIS WRIT PETITION FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ASSIGNMENT OF SENIORITY GIVEN TO THE PETITIONER AS SL.NO.109 IN THE CADRE OF ASSISTANT EXECUTIVE ENGINEERS AS PER THE FINAL GRADATION LIST ISSUED BY THE R-1 AS PUBLISHED ON 29.01.2018 VIDE ANNX-AM AND TO PROVIDE HIM WITH A PROPER SENIORITY CONSIDERING THE ENTRY INTO SERVICE AS B.E. DEGREE HOLDER AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER R. DEVDAS J., (ORAL):
Though the matter is coming up for ‘Hearing on Interlocutory Application’, with the consent of the learned counsels on both the sides the matter is heard and disposed of finally.
2. The petitioner contends that he was initially appointed temporarily under Nehru Rojagar Yojana in compliance of the order of the Deputy Commissioner of Mandya District, on daily wage basis for execution of Nehru Rojagar Yojana. The petitioner was relieved from service on 31.01.1994 and the petitioner questioned the same before this Court in W.P.No.15266/1997. This Court having quashed the order dated 31.01.1994, the petitioner was reinstated on 03.04.1998. Since there was a specific direction to consider and pass suitable orders for the period 31.01.1994 to 02.04.1998, the said period was considered to be dies-non and it was also declared that said period be counted for all service benefits except monetary benefits. Thereafter, by order dated 29.07.1999, petitioner was absorbed as monthly regular salaried employee, with a direction to fix the pay scale. In furtherance of the order dated 29.07.1999, the Chief Officer of Malavalli Municipality passed an order on 09.09.1999 fixing the pay scale of the petitioner at Rs.6,000/-.
3. It is further contended by the petitioner that his services were regularised vide order dated 21.11.2003 while the petitioner was working on deputation at Bengaluru Development Authority. By notification dated 25.03.2010 a seniority list was published, whereby the petitioner is found at Sl.No.27. The contention of the petitioner is that he joined the services as daily wage employee on 09.05.1991 and therefore his service should have been counted from 09.05.1991 instead of 02.08.1991 when a formal order of appointment was issued in favour of the petitioner. In this regard, the learned counsel points out to a communication dated 12.04.2018 made by the Executive Engineer (Planning), BBMP addressed to the Secretary of the Urban Development Department. In the said communication, it is observed that by order dated 09.05.1991 made by the Deputy Commissioner, the petitioner was appointed as daily wage worker and therefore that date has to be taken as the date of entry into service.
4. Learned counsel for the private respondents however contends that the Government passed an order on 21.11.2003 having observed that the petitioner herein has completed 10 years of service starting from 16.08.1991 to 16.08.2001 and therefore by order dated 21.11.2003, the petitioner was regularised in the post of Assistant Engineer w.e.f., 16.8.2001 in the pay scale of Rs.6,000/- to 11,200/-. The learned counsel for the private respondents further submits that even when the seniority list vide notification dated 25.09.2010 was published showing the date of entry into service of the petitioner as 16.08.1991, the petitioner has not filed his objections. It was further contended that at this length of time, the petitioner should not be permitted to change the date of entry into service since he did not question the Government Order dated 21.11.2003 when his services in the cadre of Assistant Engineer was regularised taking 16.8.1991 as date of entry into service.
5. Learned Additional Government Advocate also submits that the petitioner not raise his little finger questioning or seeking correction of the date of entry into service when the order dated 21.11.2003 was passed by the State Government and neither did the petitioner file his objections to the seniority list, which was issued by notification dated 25.03.2010.
6. Learned counsel for the petitioner submits that if the records speak to the fact that the petitioner in fact joined the services on 09.05.1991 and by consideration of his representation if the authorities correct the date of entry into service, the same cannot be objected to. Therefore, the learned counsel submits that the respondent authorities may be directed to consider the representation of the petitioner as regards his contention that his date of entry into service was in fact 09.05.1991 and if the same is established by way of documentary evidence, the authorities may consider correcting the date of entry into service.
7. Heard the learned counsels and perused the writ papers. The prayer of the petitioner is that his representation be considered by the respondent/authorities to find out whether his date of entry into service was in fact 09.05.1991. It is the contention of the petitioner that failure to seek correction in the order dated 21.11.2003 and the seniority list finalized on 25.03.2010, should not be held against the petitioner since the fact of entry into service can only be ascertained by documentary evidence which is available with the authorities. If there is a mistake in ascertaining the correct date of entry into service and the petitioner is able to substantiate its contention from the records available with the authorities, the petitioner is entitled for such a relief. Needless to observe that the respondents are also at liberty to raise their objections before the authority when the representations of the petitioner is being considered.
8. With these observations, the writ petition is disposed of directing the respondents to consider the representations already given by the petitioners. The petitioner is also directed to furnish copies of the representations along with supporting documents to the respondent No.3 - Director of Municipal Administration, within a period of two weeks from the date of receipt of copy of this order. The Director of Municipal Administration, shall thereafter consider the representations along with the objections that may be filed by the private respondents herein, within an outer limit of three months from the date of receipt of copy of this order.
SD/- JUDGE KLY/