IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF MARCH, 2019 BEFORE THE HON' BLE MR.JUSTICE R. DEVDAS WRIT PETITION NO.23111 OF 2016 (S-RES) BETWEEN SRI PUTTAPPA S/O LATE JAVARAIAH AGED ABOUT 51 YEARS, ATTENDER, DEVARAMALLANAYAKANAHALLI, DEVALAPURA HOBLI, NAGAMANGALA TALUK, MANDYA DISTRICT-571401.
... PETITIONER (BY SRI P.CHANGALARAYA REDDY, ADVOCATE) AND 1. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY, RURAL DEVELOPMENT AND PANCHAYATH RAJ, M.S. BUILDING, K.R. CIRCLE, BANGALORE-560001.
2. THE CHIEF EXECUTIVE OFFICER ZILLA PANCHAYATH, MANDYA DISTRICT, MANDYA-571401.
3. THE DEPUTY SECRETARY (ADMINISTRATION) ZILLA PANCHAYATH, MANDYA DISTRICT, MANDYA-571401.
4. THE EXECUTIVE OFFICER TALUK PANCHAYATH, NAGAMANGALA-571432.
5. THE PANCHAYATH DEVELOPMENT OFFICER DEVARAMALLANAYAKANAHALLI GRAMA PANCHAYATH NAGAMANGALA TALUK, MANDYA DISTRICT-571401.
6. SRI. D.A. NAGESH ATTENDER, S/O ANKAIAH, DEVARAMALLANAYAKANAHALLI GRAMA PANCHAYATH, NAGAMANGALA TALUK, MANDYA DISTRICT-571401.
... RESPONDENTS (BY SRI SRIDHAR.N.HEGDE, HCGP FOR R1 SRI B J SOMAYAJI, ADVOCATE FOR R2 TO R5 SRI D M GIRISH, ADVOCATE FOR R6) THIS WRIT PETITION FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 08.03.2016 AT ANNEX-G PASSED BY R-2 AND DIRECT RESPONDENTS FOR GIVING PROMOTION TO THE CADRE OF BILL COLLECTOR TO THE PETITIONER AND TO EXTEND ALL THE CONSEQUENTIAL BENEFIT ARISING THERETO.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER R. DEVDAS J., (ORAL):
The petitioner was appointed as a attender and posted to the respondent No.5 Grama Panchayath, by order dated 26.06.1997. The petitioner is before this Court questioning the promotion granted to respondent No.6 by the impugned order dated 08.03.2016.
2. Learned counsel for the petitioner submits that the petitioner is senior to respondent No.6, in terms of the seniority list prepared by the respondent No.5 Gram Panchayth, which is produced at Annexure-B. Learned counsel for the petitioner submits that according to the seniority list, the petitioner herein is placed at Sl.No.1 with his date of entry into service being shown as 29.11.1995. The respondent No.6 is at Sl.No.4 in the seniority list and his date of entry into service as waterman is 02.01.2001.
3. Learned counsel for the petitioner draws the attention of this Court to the Government order dated 10.09.2014 which is the guidelines for appointment and promotion of the staff of the gram panchayath. It is pointed out from the Government Order where only one post of the category of Bill Collector is vacant, the same has to be filled up by way of promotion of eligible candidates of gram panchayath. Further, it is provided therein that the promotion to the post of Bill Collector shall be from the persons who are holding the post of water man/pump mechanic/attender, in that order, who have continuously served for a period of five years, having good conduct and in terms of the seniority. It is therefore, contended by the learned counsel for the petitioner that the petitioner herein is the senior-most according to the seniority list.
4. The gram panchayath, in its resolution dated 04.09.2015 discussed the subject of filling up of the sole Bill collector’s post that was lying vacant. From the resolution it was pointed out that the members of the gram panchayath were appraised of the fact that the petitioner herein was the senior most. However, some of the members opined that there were complaints against the petitioner and he was not suitable for being promoted as a Bill Collector and therefore it was decided to promote the respondent No.6 herein who was placed at Sl.No.4 in the seniority list. The decision of the gram panchayath was conveyed to the Executive Officer of the Taluk Panchayath, who in turn conveyed the same to the Chief Executive Officer of the Zilla Panchayath.
5. The learned counsel for the petitioner however points out from the communication made by the Panchayath Development Officer of the Gram Panchayath vide letter dated 29.12.2015 addressed to the Executive Officer of the Taluk Panchayath that the petitioner herein was placed at Sl.No.1 in the seniority list and he had made a representation to the Chief Executive Officer of the Zilla Panchayath to consider him for promotion since he was the senior most and possessed all qualification for being appointed as Bill Collector. The learned counsel, while pointing out to the impugned order dated 08.03.2016 issued by the Executive Officer of the Zilla Panchayath submits that though the Chief Executive Officer took note of the communication made by the Executive Officer, without analyzing as to whether the resolution passed by the Grama Panchayth was in accordance with law, proceeded to pass the impugned order, which is clearly in violation of the requirement of law.
6. The learned counsel places reliance of a judgment of the Apex Court in the case of Nirmal Kumar Choudhary and others etc., /vs./ State of Bihar and others , etc. reported in AIR 1988 SC 394 to buttress his contention that seniority would ordinarily depend upon the length of service, of course, subject to contrary rules holding the field.
It was further pointed out from the decision that it is equally well recognized cannon of service jurisprudence that in the absence of any other valid rule for determining inter se seniority of members belonging to the same service, the rule of continuous officiation or the length of service or the date of entering in service and continuous uninterrupted service thereafter would be valid and would satisfy the test of Article 16. It was therefore submitted that the petitioner was having all the requisite qualification to be appointed as Bill Collector and he being the senior most in the combined seniority list prepared by the Gram Panchayath, the petitioner should have been appointed as Bill Collector. It was also submitted that the reasons assigned by the members of the Gram Panchayath that there were complaints received against the petitioner by virtue of which his candidature for promotion was rejected is well and truly beyond the powers of the members of the gram panchayath and in contravention to the provisions of law governing appointment of a Bill Collector, by way of promotion.
7. Sri B.G.Somayaji, learned counsel appearing for the respondent Zilla Panchayath, Taluk Panchayath and the Gram Panchayath submits that if we go strictly by government order dated 10.09.2014 neither the petitioner nor the respondent No.6 is eligible for promotion. It was pointed out that the educational qualification required for a person to be appointed as a Bill Collector is PUC and computer knowledge. It was submitted that neither the petitioner nor the respondent No.6 have passed PUC and therefore neither of them were eligible for promotion as Bill Collector. It was also argued that the guidelines clearly provides that the promotion shall be in the following order: i.e., waterman/pump mechanic/attender and therefore the question of appointing ‘Attender’ will come only if no waterman or pump mechanic is available and eligible for promotion. It was therefore contended that when the waterman is available for promotion only he or she can be appointed as Bill Collector by way of promotion. In that view of the matter, it was submitted that the petitioner could not claim that he should be promoted since respondent No.6, who was waterman, was available for promotion.
8. Learned counsel for the respondent No.6 submits that the appointment of the respondent No.6 was in accordance with law and no fault could be found with the order of appointment or order of promotion granted to the respondent No.6. To a pointed question as to the seniority list, the learned counsel submits that it is only a list of all the staff of the panchayath and it cannot be construed as seniority list. The learned counsel for the panchayath, however, is unable to make any submission with respect to the seniority list. However, the learned counsel for the respondent panchayath would try to substantiate his contention by submitting that these are different cadres and combined seniority list could not have been prepared.
9. Heard the learned counsels and perused the writ papers.
10. The contention of the learned counsel for the respondents runs counter to the documents produced on record and the discussions of the members of the gram panchayath on the subject. In the discussions in the resolution it is clear that the members of the gram panchayath have indeed admitted to the fact that the petitioner was placed at Sl.No.1 in the combined seniority list that was prepared by the gram panchayath. Therefore, the learned counsel’s submission that the seniority list is not a seniority list and it is only a list of the members of the staff of the gram panchayath, cannot be accepted.
11. The other aspect of the matter is, starting from the Gram panchayath to the Chief Executive Officer, none of them have discussed the provisions in the guidelines in the matter of appointment or promotion or qualification to the post of Bill Collector. The question of educational qualification of the attenders, whether the order recommended viz waterman/pump mechanic/attender would mean that if a waterman is available for promotion, only a waterman could be permitted and the candidature of a pump operator or attender cannot be considered, are issues which have not been discussed by any of the authorities. The only ground on which the candidature of the petitioner is rejected is that there were some complaints against him. That, in the opinion of this Court, is no criteria for over looking the candidature of the petitioner.
12. Going by the decision of the Apex court in the case of Nirmal Kumar Choudhary, in the absence of any other valid rule for determining inter se seniority of members belonging to the same service, the rule of continuous officiation or the length of service or the date of entering in service and continuous uninterrupted service thereafter would be valid and would satisfy the test of Article 16. In view of the seniority list which is prepared by he Gram Panchayath and which was in fact discussed by the members of the gram panchayath before passing the impugned resolution makes it clear that the petitioner was placed at Sl.No.1 and therefore he should have been selected and promoted as Bill Collector. As mentioned earlier, the decision of the gram panchayath in rejecting the candidature of the petitioner on the ground that there were certain complaints against him, cannot be countenanced as valid reason as the same would not fulfill the requirement in the guidelines issued by the State Government.
13. In the light of the above, the writ petition is allowed. The impugned order of approval dated 08.03.2016 passed by the respondent No.2 - Chief Executive Officer of Zilla Panchayth is hereby quashed and set aside. Consequently, respondent No.2 - Chief Executive Officer is hereby directed to consider the representation of the petitioner in the light of the observations made herein above and pass orders within a period of four weeks from the date of receipt of copy of this order.
KLY/ SD/- JUDGE