IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF AUGUST, 2019 PRESENT THE HON’BLE MR. JUSTICE L.NARAYANA SWAMY AND THE HON’BLE MR. JUSTICE R.DEVDAS W.P. NO.11213 OF 2019(S-KSAT) BETWEEN:
SRI. SHIVASHANKAR B S/O T. K. BASAVARAJU AGED ABOUT 57 YEARS PRESENTLY WORKING AS ENGINEER MEMBER BANGALORE DEVELOPMENT AUTHORITY BANGALORE – 560 020.
AND:
(BY SRI M. S. BHAGWAT, ADV.,) ...PETITIONER 1. THE CHIEF SECRETARY GOVERNMENT OF KARNATAKA VIDHANA SOUDHA DR. B. R. AMBEDKAR VEEDHI BANGALORE – 560 001.
2. THE STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS VIDHANA SOUDHA DR. B. R. AMBEDKAR VEEDHI BANGALORE – 560 001.
... RESPONDENTS (BY SMT M.S. PRATHIMA – AGA FOR R-1 AND R-2) *** THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS FROM THE RESPONDENTS; SET ASIDE THE IMPUGNED ORDER DATED 15.02.2019 PASSED BY THE HON’BLE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL IN APPLICATION NO. 4858/2018 (ANNEXURE-A) AND CONSEQUENTLY ALLOW THE SAID APPLICATION NO. 4858/2018 AS PRAYED FOR BY THE PETITIONER BEFORE THE HON’BLE TRIBUNAL.
THIS WRIT PETITION IS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY NARAYANA SWAMY. J., PASSED THE FOLLOWING:
ORDER This writ petition is filed by the petitioner seeking to set aside the order dated 15.02.2019 passed by the Karnataka State Administrative Tribunal (in short ‘the Tribunal’) in Application No.4858/2018 vide Annexure-A and consequently allow the said application.
2. In brief the facts of the case are that the petitioner initially appointed as an Assistant Executive Engineer during the year 1992 through direct recruitment as probationary engineer. Thereafter, he was promoted from time to time and finally as Chief Engineer under Rule 32 of Karnataka Civil Services Rules. Subsequently, on 02.07.2007 petitioner gave a representation to fix the seniority, when it was not considered petitioner approached Tribunal and the said application was allowed on 17.05.2010. Then matter reached this Court and on remand and matter was freshly considered before the Tribunal. Tribunal directed the respondents therein to consider seniority and give promotions.
4. Finally, the promotion of the petitioner was kept in sealed cover in view of the law laid down by the Hon’ble Supreme Court in several cases, but the same was opposed to another decision of the Hon’ble Supreme Court in the case of STATE OF PUNJAB AND OTHERS vs CHAMAN LAL GOYAL reported in 1995(2) SCC 570. Relying upon the said decisions the Tribunal had rejected the application of the petitioner. Hence, he has approached before this Court.
5. The learned counsel for petitioner submits that in a similar case in application No.4095/2018 preferred by similarly placed persons the Tribunal has directed the respondents to consider their promotions. It is submitted that the respondents are overlooking the case of the petitioner on the ground that there is a criminal case pending against him which was registered in the year 2008 and charge sheet was filed during 2012. The learned counsel for petitioner further submits that the respondents have placed the petitioner on independent charge on 14.05.2007 against clear vacancy as the petitioner was fully eligible and qualified for promotion. It is alleged that now the case of the petitioner kept in a sealed cover and denied regular promotion.
6. The learned counsel for respondents submitted that since the case of the petitioner is on par with similarly placed persons and as per the various decisions of the Hon’ble Supreme Court, it is for the petitioner to make a fresh representation along with relevant documents. He further submitted that if such a representation is made the respondents would consider the same in accordance with law and pass necessary orders.
7. We have heard the learned counsel on both sides and perused the records.
8. The sum and substance of the case of the petitioner is that there is a criminal case pending against him since 2012, which is filed under the provisions of Section 13(1)(a) of the Prevention of Corruption Act. In the decision of the Hon’ble Supreme Court in Chiman Lal Goyal’s case, referred to supra, it is held that delay in initiating or conclusion of enquiry should not result in denial of promotion to the delinquent employee. In the instant case the enquiry initiated during the year 2008 and there is 8 to 10 years delay in completing the same. There is an inordinate delay. Further, the Tribunal on an application by the similarly placed persons has directed the respondent – authorities to consider their case for promotion.
9. For convenience the order portion passed in Prabhakar H.Chini in Application No.4095/2018 dt. 10.10.2018 by the Tribunal is reproduced as hereunder:
“Respondents are directed to consider the case of the applicant for promotion to the post of Chief Engineer with retrospective effect, along with similarly placed officers of the PWD who are placed in independent charge of the post of Chier Engineer under Rule 32 of the KCSR, after a final order is passed by the Hon’ble Supreme Court of India in M.A. No.1151/18 pertaining to B.K.Pavithra (supra) and other connected cases.”
So also the operative portion in the case of Lakshman Rao Peshve in Application No.4328/2018 dated 15.02.2019 reads as hereunder:
“Respondents are directed to consider the case of the applicant for promotion to the post of Chief Engineer with retrospective effect, along with similarly placed officers of the PWD who are placed in independent charge of the post of Chief Engineer under Rule 32 of the Karnataka Civil Services Rules, after a final order is passed by the Hon’ble Supreme Court of India in M.A. No.1151/18 pertaining to B.K.Pavithra and other connected cases supra, which shall be subject to review after conclusion of the criminal case pending against the applicant.”
10. In view of the above, we are of the considered opinion that the instant writ petition requires to be disposed of. Accordingly, we pass the following order:
(a) The impugned order dated 15.02.2019 passed by the Tribunal in Application No.4858/2018 vide Annexure-A is hereby set aside;
(b) Petitioner is permitted to make a fresh representation along with copies of the relevant documents along with judgments referred to above, within a period of two weeks from the date of receipt of the copy of this Order;
(c) The respondents are directed to consider such representation preferred by the petitioner and pass a considered order in accordance with law,* at any event not later than two months from 19.09.2019.
With the above observation and directions the present writ petition is allowed.
SD/- JUDGE SD/- JUDGE VK * Added in terms of the court order dt. 19.09.2019