IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 16TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL No.3011 OF 2018 (S-PRO) BETWEEN:
V.S. VENKATESHA GOWDA AGED ABOUT 65 YEARS SON OF LATE SANNE GOWDA RETIRED DEPUTY GENERAL MANGER (R & D/QAD) (KARNATAKA SOAPS & DETERGENTS LIMITED) #100, NIRVANA CIRCULAR ROAD NANDINI DOLLARS SCHEME NANDINI LAYOUT BENGALURU – 560 096.
... APPELLANT (SRI.V.S.VENKATESHA GOWDA, PARTY-IN-PERSON FOR SRI. G. BALAKRISHNA SHASTRY, ADVOCATE) AND:
1. THE MANAGING DIRECTOR KARNATAKA SOAPS AND DETERGENTS LIMITED PB # 5531, BENGALURU–560 055.
2. THE GENERAL MANAGER (HRD) KARNATAKA SOAPS AND DETERGENTS LIMITED PB # 5531, BENGALURU – 560 055.
(BY SMT.SUMANA BALIGA, ADVOCATE) ... RESPONDENTS THIS APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 3003/2017 IN WRIT PETITION No. 20847/2013 [S-PRO] PASSED BY THE LEARNED SINGLE JUDGE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the impugned order dated 30.03.2017 passed by the learned Single Judge in W.P. No.20847 of 2013, by which the petition was dismissed, the writ petitioner is in appeal.
2. The petitioner filed writ petition under Articles 226 and 227 of the Constitution of India seeking a writ of mandamus directing the respondents to consider the representation dated 09.04.2013 submitted by the petitioner. The petitioner states that he joined the services of respondent-Karnataka Soaps and Detergents Limited on 13.10.1978 as Chemist. The petitioner was promoted as Senior Chemist (R&D/QAD) in May 1984 and to the post of Chief Chemist (R&D/QAD) on 11.10.1990. It is further stated that on the basis of seniority as well as career development plan scheme, the petitioner was promoted as Manager. He was further promoted as Assistant General Manager on 05.01.2004 as per order dated 10.01.2008 and as Deputy General Manager w.e.f. 11.04.2008. The petitioner further states that after retirement of one Dr.K.B.Patil, General Manager (R&D), the petitioner was put in charge of the post of General Manager (R&D) he being the senior most officer. The respondents brought into force Cadre and Recruitment Rules on 10.07.2012. As per the Cadre and Recruitment Rules, the criteria for filling up of the General Manager (R&D) post was that, one should have qualification of M.Sc. in Chemistry or Doctorate in Chemistry with five years experience in the lower post. The petitioner had made representation seeking promotion on regular basis to the post of General Manager which was rejected by issuance of endorsement dated 15.10.2012 stating that the petitioner has no qualification of five years experience in the post of Deputy General Manager. After completion of qualifying service of five years in the post of Deputy General Manager, the petitioner states that he made a representation on 09.04 2013. Since the respondent failed to consider his representation he filed writ petition seeking consideration of the representation for promotion to the post of General Manager. It is his case that he has not been promoted to the higher post as and when he was eligible and as such it resulted in loss of service. The learned Single Judge, taking note of the fact that the petitioner has retired on attaining the age of superannuation and also taking note of the fact that no junior of the petitioner is considered and promoted to the next higher cadre, was of the opinion that the question of issuing mandamus would not arise. Aggrieved by the same, the petitioner is in appeal.
3. Heard the appellant-petitioner/party-in-person and learned counsel for the respondents. Perused the appeal papers.
4. The petitioner/party-in-person would submit that the order of the learned Single Judge is wholly erroneous and the learned Single Judge has failed to consider the fact that the petitioner was not promoted by the respondent- authority as and when he became eligible for promotion. Learned Single Judge was not right in observing that the party-in-person has not pointed out any vested right for promotion to the post of General Manager. The respondent-authority denied the promotion without there being any reason and as on the date of representation, the petitioner had completed five years of service as Deputy General Manager and was eligible for promotion to the post of General Manager. The Party-in-person, in support of his contention would rely upon the decision of the Hon'ble Supreme Court reported in AIR 2015 SC 2904 in the case of RAMESH KUMAR v/s UNION OF INDIA AND OTHERS. Hence prays for allowing the appeal.
5. Per contra, learned counsel for the respondents would submit that the learned Single Judge has rightly refused to issue mandamus. Further she submits that the petitioner retired from service on attaining the age of superannuation on 31.08.2013 and before superannuation of the petitioner, no junior of the petitioner was promoted to the post of General Manager. Hence, the petitioner has no right to seek for mandamus. Thus prays for dismissal of the writ appeal.
6. On hearing the party-in-person and the learned counsel for the respondents and on perusal of the appeal papers, we are of the view that the learned Single Judge rightly refused to issue mandamus to consider representation of the petitioner. No employee has a right for promotion but has a right for consideration of his case for promotion. In the case on hand, it is to be seen that the petitioner was promoted as and when he was eligible for promotion and particularly when the respondents- authority felt necessity of filling the higher post by promotion. Due to administrative exigencies the employer may keep the post vacant or depending on the necessity, the employer may take decision to fill up the post. It is the case of the petitioner that he was not promoted to the next higher post as and when he became eligible and if he were to be promoted as and when he was eligible, he would have been promoted to the post of General Manager also during the period of his service. Mere becoming eligible would not be sufficient to seek promotion. There should be vacancy and need to fill up the next higher post. In a given case, the employer may take a decision to keep the post vacant depending on the requirement of administration.
7. Admittedly, the petitioner retired from service on attaining the age of superannuation on 31.08.2013. It is the case of the petitioner that he was senior most eligible Deputy General Manager for promotion to the post of General Manager. It is not the case of the petitioner that any of his junior was promoted to the next higher cadre of General Manager ignoring his case. The decision relied upon by the petitioner would have no application to the facts of the present case. The decision relied upon by the petitioner would relate to retrospective promotion under Section 90 of the Army Act. In the instant case, the petitioner cannot seek for retrospective promotion since the petitioner is not denied promotion promoting his juniors. Thus viewed from any angle, we are of the view that the petitioner has not made out any case for issuance of mandamus to consider his representation. After superannuation and in the absence of promotion of his juniors, the petitioner has no right to compel the respondents to promote him. No good ground is made out to interfere with the order of the learned Single Judge. Accordingly, the writ appeal is dismissed.
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JUDGE JUDGE mpk/-* CT:KHV