IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 4TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 57447 OF 2013 (S-PRO) BETWEEN:
SRI SATHISH CHANDRAN S, S/O S L SHIVARAM, AGED ABOUT 53 YEARS, JUNIOR ENGINEER (ATFC), KREDL, BBMP, BYATARAYANPURA DIVISION, H.NO. 1982/A, 8TH MAIN, E-BLOCK, II STAGE, RAJAJINAGAR, BANGALORE-560010.
(BY SRI. N SHANTKUMAR, ADVOCATE FOR SRI. MANJESH H M, ADVOCATE) AND:
1. STATE OF KARNATAKA, REP BY ITS CHIEF SECRETARY, DEPT OF RURAL DEVELOPMENT AND PANCHAYAT RAJ, M S BUILDING, BANGALORE-01.
2. THE MANAGING DIRECTOR, KARNATAKA RURAL INFRASTRUCTURE DEVELOPMENT LTD, CHINNASWAMY STADIUM, GATE NO.14, RAJBHAVAN ROAD, BANGALORE-560001.
3. ABBASALI MULLA, S/O A N MULLA, AGED ABOUT 50 YEARS, ASST. ENGINER GRADE-II KRIDL, OFFICE ASSIST DIRECTOR-I, BIJAPURA, JUBLE BHAVAN, NAVANAGAR, BAGALKOTE.
(BY SRI. M V RAMESH JOIS, AGA FOR R1; SRI. PAVAN KUMAR FOR … PETITIONER … RESPONDENTS SRI. H DEVENDRAPPA, ADVOCATES FOR R2;
SIR. MANJUNATH PRASAD H N, ADVOCATE FOR R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE PROMOTION OF THE RESPONDENT DATED 07.06.2008 VIDE ANNEX-P AND ORDER DATED 07.10.2011 PASSED BY THE R2 VIDE ANNEX-N AND ETC., THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The essential grievance of the petitioner is against the denial of promotion from the post of Assistant Task Force Commander (‘ATFC’ hereafter) to that of Task Force Commander, Grade – II (‘TFC’ hereafter), in terms of Rule 29 of Karnataka Land Army Corporation Cadre and Recruitment Rules, 1996, w.e.f. the dated the third respondent i.e, his immediate was promoted. After service of notice, the respondents having entered appearance through their counsel resist the writ petition.
2. BRIEF FACTS OF THE CASE:
(a) petitioner who was a daily wager working in the post of ATFC, came to be regularized in service w.e.f. 01.05.1989; the third respondent who too was a daily wager having been regularized in service as ATFC w.e.f. 12.01.1996; the said respondent came to be promoted as TFC vide order 07.06.2008 vide DPC dated 05.06.2008 on the basis of the Provisional Seniority List of ATFCs that was published on 01.04.2009; later, this List was finalized on 04.05.2012; third respondent’s promotion was liable to be altered based upon his ranking in the Final Seniority.
(b) the third respondent being junior and the petitioner being senior, the petitioner had given representations seeking grant of promotion w.e.f. the date his immediate junior was promoted so that petitioner would figure above the third respondent; the promotion of the third respondent having been withdrawn and he having been reverted to the post of ATFC, this Court in his W.P.No.60435/2010 vide judgment dated 25.10.2010 had restored promotion as before and directed the respondent- Management to consider the matter afresh; the matter having been accordingly considered the promotion given to the third respondent was regularized and re-affirmed on 07.10.2011; and, (c) petitioner’s representation having remained unconsidered and the reminders having remained un- responded, he has approached this Court seeking redressal of his grievance;
3. The respondents resist the writ petition contending that the promotions granted long ago if set aside would cause heart burn to the employees so promoted and therefore the Apex Court in the case of UOI VS. CHAMAN RANA, AIR 2018 SC 1478 has discouraged belated challenge; petition falling within such a rule, needs to be dismissed; per contra, petitioner retorts that he was not in the know of promotion at all inasmuch as, even in the Final Seniority List dated 05.04.3012, the third respondent was not described as the promotee - TFC at all; the learned counsel for the respondent-Management at this stage places on record an Office Memorandum dated 19.07.2019 whereby the promotion has been accorded to petitioner as well as TFC, GR-II in the admissible pay scale of Rs.43,100 – 83,900/- and therefore, contends that the petition has become infructuous;
4. Having heard the learned counsel for the parties and having perused the petition papers as also the decision cited at the Bar, relief needs to be granted tote petitioner for the following reasons:
(i) admittedly, the third respondent who is junior to petitioner has been granted promotion to the post of TFC w.e.f. 07.06.2008 and his reversion order dated 07.01.2010 having been set aside by this Court the said promotion is retained by him; no reason is forthcoming as to why the petitioner was denied the promotion despite his representation and reminders; the promotion granted to the third respondent was on the basis of the Provisional Seniority List dated 01.04.2009; which was finalized on 04.05.2012, wherein petitioner again figures as a senior to the third respondent; and, (ii) it is a settled principle of law that no promotion accorded on the basis of the provisional Seniority List is final and therefore, is subject to alteration based upon the ranking in the final Seniority List vide KYATEGOWDA vs. STATE OF MYSORE, 1970(2) MLJ 407; the representation of the petitioner therefore ought to have been considered for granting promotion which is now granted vide Office Memorandum dated 19.07.2019 but not with restrospective effect ie., the date when his immediate junior i.e., Respondent No.3 was granted i.e., 07.06.2008; there is no reason or rhyme as to why petitioner should be denied the benefit.
(iii) the contention of the 3rd Respondent that a belated challenge to the promotion should not be favoured by the Writ Court, as a general rule is true; petitioner has offered explanation as to why he has approached the Court with some delay although the same has not been articulatedly pleaded in the writ petition; the fact remains that the promotion of the 3rd respondent was on the basis of Provisional Seniority List and later in the Final Seniority List, the 3rd respondent was shown as being junior to the petitioner without mentioning anything about his promotion; petitioner’s representation remained unconsidered; at long last promotion is also accorded to the petitioner vide Memorandum dated 19.07.2019 ie., after the filing of the writ petition; that being the position, petitioner cannot be denied relief on the alleged ground of delay & laches; after all, the promotion granted to the 3rd respondent is not being snatched away.
In the above circumstances, this writ petition succeeds; a Writ of Mandamus issues to the respondent No.2 to treat 07.06.2008 as the date of petitioner’s promotion to the post of TFC – Grade II now granted vide Office memorandum dated 19.07.2019 with all service benefits sans monetary, within a period of eight weeks, petitioner shall be treated senior to Respondent No.3.
If this order is not complied within the above period, the second respondent shall be liable to pay a cost of Rs.25,000/- to the petitioner which shall be recovered from the erring officials responsible for non-compliance, of this order.
It is needless to mention that petitioner’s claim for further promotion, if any also requires to be considered based upon the altered dated of his promotion to the post of TFC.
Sd/- JUDGE Bsv