BY SRI REUBEN JACOB, AAG & SRI v. SHIVAREDDY, AGA FOR R
Case Details
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JANUARY, 2025 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT WRIT PETITION No.2514/2020 (S-RES) BETWEEN: 1. SMT. K R DAKSHAYINI W/O U.C. CHANDRASHEKAR AGED ABOUT 52 YEARS SECOND DIVISION ASSISTANT, CITY MUNCIPAL COUNCIL, CHICKAMANGALURU, R/AT NEAR GUNDINAMMA TEMPLE, MOOKAMBIKA NILAYA, HOSAMANE EXTENSION, CHIKAMANGALURU-577101. 2. SMT.M.Y. KAMALAMMA W/O N.ONKARAPPA AGED ABOUT 52 YEARS SECOND DIVISION ASSISTANT, TOWN MUNICIPAL COUNCIL, MUDIGERE, CHIKKAMANGALURU DISTRICT, R/AT MOORMANEHALLI ROAD, KOTE, CHIKKAMANGALURU-577101. 3. SMT. CHANDRAKALA D/O MUNISWAMY AGED ABOUT 53 YEARS SECOND DIVISION ASSISTANT, TOWN MUNICIPAL COUNCIL, 2 MUDIGERE TALUK, MUDIGERE, CHICKKAMANGALURU DISTRICT, R/AT BEHIND WATERTANK, MUDIGERE-577132. 4. SMT. LEELAVATHI W/O NARAYAN, AGED ABOUT 58 YEARS SECOND DIVISION ASSISTANT, TOWN MUNCIPAL COUNCIL, KADUR, CHIKKAMANGALURU DISTRICT, R/AT NO.101, VISHWAS RESIDNECY, MANGO GARDEN, CHRISTIAN COLONY, CHIKAMANGALRUU-577101. 5. SMT. SHAHANAZ BANU W/O MOHAMMED KHAN AGED ABOUT 48 YEARS SECOND DIVISION ASSISTANT, CITY MUNICIPAL COUNCIL CHIKKAMANGALURU R/AT OPP: RAMESHWARA TEMPLE, AFEEFA MANSION MALLANDUR ROAD, UPPALLI-577101. (BY SRI. C M NAGABUSHANA, ADV.) AND: 1. THE SECRETARY URBAN DEVELOPMENT DEPARTMENT M.S.BUILDING, VIKASA SOUDHA, BANGALORE-01. ...PETITIONERS 2. THE DIRECTOR OF MUNCIPAL ADMINISTRATOR V.V. TOWER, BANGALORE-560001. 3 3. THE DEPUTY COMMISSIONER CHIKKAMAGALURU DISTRICT CHIKKAMAGALURU. 4. SRI. G. PRAKASH, FDA, PRESENTLY WORKING AS MANAGER, TOWN MUNICIPAL COUNCIL, BIRUR-577116.
Legal Reasoning
before this Court in this writ petition. 4. Heard learned counsel Professor C.M.Nagabhushana for petitioners, learned Additional Advocate General Sri.Reuben Jacob along with Sri.V.Shivareddy, learned Additional Government 8 Advocate for respondent Nos.1 to 3, Sri.J.N.Naveen, learned counsel for respondent Nos.4 to 7 and 9 to 13 as well as learned counsel Sri.Prakash.M.H., for
Arguments
5. SRI. C.G. DEEPAK S/O LATE GOVINDARAJU, FIRST DIVISION ASSISTANT, TOWN MUNICIPAL COUNCIL, BIRUR-577116. 6. SRI. B.K. UMESH, SDA, TOWN MUNICIPAL COUNCIL, TARIKERE-577228. 7. SRI. C.G. CHANDRASHKEAR S/O LATE GANGARAJU, SDA, CITY MUNICIPAL COUNCIL, CHIKKAMAGALUR-577101. 8. SMT. SHEELA, SDA, CITY MUNICIPAL COUNCIL, CHIKKAMAGALUR-577101. 9. SRI. V. ANANDA SDA, PATTANA PANCHAYATHI, KOPPA-577126. 10. SRI. RAVIKUMAR B.A, SDA, PATTANA PANCHAYATHI, 4 CHIKKAMAGALURU DISTRICT, AJJAMPURA-577547. 11. SMT. M.C. ASHA, W/O C.G. DEEPAK, SDA, CITY MUNICIPAL COUNCIL, CHIKKAMAGALURU-577101. 12. SRI. R. NAGENDRA, S/O LATE RAVANAIAH, SDA, CITY MUNICIPAL COUNCIL, SHIVAMOGGA DISTRICT, SAGARA-577401. 13. SRI. ANTHONY CRUSE SDA, TOWN MUNICIPAL COUNCIL, TARIKERE-577228. 14. SRI. KRISHNAIAH, SDA, TOWN MUNICIPAL COUNCIL, MUDIGERE-577132. (BY SRI REUBEN JACOB, AAG & SRI V. SHIVAREDDY, AGA FOR R1 TO R3 SRI PRAKASH M.H., ADV. FOR R8 SRI J.N. NAVEEN, ADV. FOR R4 TO R7, R9 TO R13 R14 IS SERVED) …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS QUASH THE IMPUGNED OFFICIAL MEMORANDUM DATED 23/27.09.2019 ANNEXURE-F AND IMPUGNED ENDORSEMENTS DATED 26/28.11.2019 VIDE ANNEXURE-H, H1, H2, H3, H4 AND SET ASIDE THE RANKING AND DATE OF ELIGIBILITY BASED ON THE DATE OF COMPLETING 10 YEARS OF SERVICE AS THE DATE OF REGULARIZATION IN THE CADRE OF SECOND DIVISION 5 ASSISTANT TO THE PETITIONERS AND TO EXTEND ALL THE CONSEQUENTIAL BENEFITS ARISING THERETO. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING: COMING ON 16/01/2025 CORAM: HON'BLE MR JUSTICE S.G.PANDIT CAV ORDER The petitioners, Second Division Assistants (‘SDA’ for short) working in various Town Municipal Councils of Municipal Administration Department are before this Court, questioning the ranking assigned to them in the seniority list of the SDAs published under impugned O.M. bearing No.¸ÀA/rAiÀÄÄr¹/(2)/¹Dgï/163/2018-19 dated 23/27.09.2019 (Annexure-F) and also questioning the impugned endorsements rejecting petitioners’ request for assigning proper ranking, with a further direction to assign ranking, taking the date of regularization in the Cadre of SDA. 6 2. The Brief facts of the case are that: The petitioners were initially appointed as Typists on daily wage in various Town Municipal Councils on various dates between the years 1990 and 1992. They completed 10 years of service as daily wagers in the year 2002 and in terms of the judgment of the Hon’ble Apex Court, the services of the petitioners were regularized under Annexure-A dated 07.07.2007 of the second respondent. Annexure-A, order of regularization indicates the dates on which the petitioners were regularized. 3. Under O.M. dated 03.01.2018 (Annexure-C), the 3rd respondent published the provisional seniority list of SDAs of Chikkamagalur District, inviting objections/ suggestions from the concerned. In the said provisional seniority list, the petitioners were at Sl.Nos.32, 35, 36, 37 and 39 whereas respondent Nos. 4 to 14 were below the petitioners. Thereafter, 3rd respondent, under 7 Annexure-F/O.M. dated 23/27.09.2019 published the final seniority list of the cadre of SDAs. While finalizing the seniority list of the SDAs, the petitioners were shown below the private respondent Nos.4 to 14 by postponing the date of eligibility. The petitioners made representation at Annexure-G dated 30.10.2019 to rectify the seniority list and to assign proper ranking to the petitioners. Under Annexure-H series, endorsements dated 26/28.11.2019, petitioners’ requests are rejected. Challenging the ranking assigned to the petitioners under final seniority list of SDAs published under O.M. dated 23/27.09.2019 and endorsements dated 26/28.11.2019, the petitioners are
Decision
respondent No.8. Perused the writ petition papers. 5. Learned counsel for the petitioners would submit that the petitioners who were initially appointed as Typists on daily wage between the years 1990 and 1992 were regularized under order of second respondent dated 07.07.2007 (Annexure-A). He submits that the regularization of petitioners was from the date, they completed 10 years of service as daily wagers i.e., from 01.10.1998, 15.12.2000, 01.06.2002, 01.06.2002, respectively. Learned counsel would submit that while in the provisional seniority list of SDAs published on 03.01.2015 at Annexure-C, the petitioners were correctly shown above the respondents, but while finalizing the seniority list, ranking of the petitioners are pushed down and respondent Nos.4 to 14 are shown 9 above the petitioners. Further, he submits that respondent Nos.4 to 14 are appointed subsequently and are regularized subsequent to the regularization of the petitioners. Hence, they could not have been shown above the petitioners. Thus, learned counsel would submit that while preparing the seniority list and publishing under impugned O.M., the 3rd respondent has not followed the procedure known to law. Learned counsel would submit that a regularized employee would get seniority from the date of regularization in terms of Rule 1-A of the Karnataka Government Servants (Seniority) Rules, 1957. Thus, he prays for setting aside the ranking of the petitioners as well as respondents, with a direction to the respondents-Authorities to re-do the seniority list, in accordance with law. 6. Per contra, learned Additional Advocate General Sri.Reuben Jacob supports the impugned seniority list and submits that in terms of amended recruitment rules, 10 i.e., Karnataka Municipalities (Recruitment of Officers and Employees) Rules, 2004 (for short “2004 Rules”) certain of the posts including Typists were abolished and as such, there were no posts for the petitioners to assign seniority as on the date of their regularization. In that regard, learned Additional Advocate General invites attention of this Court particularly to Rule 16(i) of 2004 Rules and submits that the posts held by the petitioners on daily wage were abolished and there were no posts to give them the date of eligibility as on the date of publication of seniority list, as such, they were pushed down in the seniority list. Further, it is submitted that, as there were no sanctioned posts in view of abolition, the petitioners could not get the date of eligibility as on the date of their regularization. Thus, he prays for dismissal of the writ petition. 11 7. Learned counsel Sri.J.N.Naveen for respondent Nos.4 to 14 adopts the arguments of learned Additional Advocate General. 8. Having heard the learned counsel for the parties and on perusal of the writ petition papers, the only point which falls for consideration is as to whether the impugned seniority list published under O.M. dated 23/27.09.2019 of the cadre of SDAs needs interference insofar as petitioners and respondent Nos.4 to 14 are concerned? 9. Answer to the above point would in the affirmative and it requires interference at the hands of this Court, for the following reasons: It is an admitted fact that the petitioners were initially appointed as Typists on daily wage basis between the years 1990 to 1992. It is also an admitted fact that under Annexure-A order of the second 12 respondent dated 07.07.2007, petitioners were regularized as Typists on completion of their ten years of service. The date of regularization is assigned on completion of their 10 years as daily wage employees. The second respondent under O.M. dated 03.01.2018 (Annexure-C) published provisional seniority list of SDAs assigning ranking to the petitioners above the private respondent Nos.4 to 14. 10. In the provisional seniority list, petitioners were at Sl.Nos.32, 34, 35, and 36 whereas respondent Nos.4 to 14 were at Sl.Nos.37, 39, 40, 49 and 50. But while finalizing the seniority list under Annexure-F, O.M. dated 23/27.09.2019, the petitioners are pushed down and the respondents are pushed up in the seniority list. It is to be noted that when the petitioners were ranked higher than the respondents and respondents were below the petitioners in the provisional list and when the petitioners were pushed down below the private 13 respondents Nos.4 to 14 in the final seniority list, the petitioners had no opportunity. Pushing down the petitioners’ ranking to their disadvantage in the final seniority list is in violation of principles of natural justice. 11. In terms of Rule 1-A of 1957 Rules, seniority of a regularized employee shall be determined from the date of his regularization. In terms of the above Rule, petitioners would be entitled for counting their service for seniority from the date of their regularization i.e., dates assigned in their order of regularization of the second respondent dated 07.07.2007. 12. Learned Additional Advocate General Sri.Reuben Jacob places reliance on Rule 16(i) of 2004 Rules to contend that there was no post as the posts were abolished under 2004 Rules. The said submission of the learned Additional Advocate General is contrary to the records. Admittedly, petitioners were working against 14 the sanction posts and unless they were holding sanction post, they would not have been entitled for regularization. It is not in dispute that the petitioners were working on daily wage since 1990 and 1992. When they hold the posts as such till their regularization, it cannot be said that in terms of Rule 16(i) of 2004 Rules, the posts got abolished. Rule 16(i) of 2004 Rules reads as follows: “16. Abolition of posts.– The posts specified in Annexure-I existing in the Urban local bodies shall be abolished. Provided that, - (i) No such posts shall be abolished unless such posts become vacant due to death, retirement, promotion or otherwise of persons already working” A reading of the above Rule makes it abundantly clear that the posts existing in urban local bodies specified in Annexure-1 to the Rules would get abolished unless 15 such post become vacant due to death, retirement, promotion or otherwise of persons already working. The persons otherwise already working would come to the rescue of the petitioners. The petitioners were working against those Typist posts since form the date of their appointment on daily wages against the sanctioned posts. As the petitioners were working against those posts, it cannot be said that, in terms of Rule 16(i) of 2004 Rules, those posts got abolished. There is no merit in the submission of the learned Additional Advocate General. 13. For the reasons recorded above, the following: ORDER a) Writ petition is allowed in part. b) The ranking assigned to the petitioners and respondent Nos.4 to 14 in the impugned final seniority list of the cadre 16 of Second Division Assistants relating to the Chikkamagaluru District published under O.M. bearing No.¸ÀA/rAiÀÄÄr¹/(2)/ ¹Dgï/163/2018-19 dated 23/27.09.2019 (Annexure-F) are quashed. c) Respondent No.3 is directed to re-do the seniority list keeping in mind the observations made above in this order and thereafter to review the promotions in accordance with law. d) Time for compliance: four months from the date of receipt of a copy of this order. Sd/- (S.G.PANDIT) JUDGE mpk/-* NC CT:bms