SMT. K SUMANGALA v. THE STATE OF KARNATAKA

ORDER THE THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL ORDER

#1. The petitioner has filed this writ petition seeking following reliefs: In W.P.No.4703/2022: “(i) To call for the records relating to the issue of the impugned order bearing No.MU NI SE (1) CR- 173/2021 dated 18.02.2022 issued by the respondent No.3 vide Annexure-N and after perusal set aside the same. (ii) To pass such other order/s as this Hon’ble Court deems fit in the facts and circumstances of the case. HC-KAR - 5 - NC: 2026:KHC:39412 WP No. 4703 of 2022 C/W WP No. 18863 of 2021 CNR: KAHC010092552022 In W.P.No.18863/2021: “(i) To call for the records relating to the issue of the impugned order bearing No.Na Ae E 24 MNE 2008 dated 11.02.2009 issued by the respondent No.1 vide Annexure-D and after perusal quash the same in so far as it relates to the direction issued by respondent No.1 to assign the petitioner’s ranking at the bottom of the seniority list in the cadre of SDA. (ii) quash the ranking assigned to the petitioner at Sl.No.182 in the impugned final seniority list bearing No.Mysdc- Dudc/Est1/Sen/5/2018 (e-132965) (c- 48638) dtd. 14.06.2021 issued by the respondent No.4 vide Annx-K. (iii) set aside the impugned order bearing No.423387/DMA/Est3/cc3/3/2021 dtd. 07.09.2021 passed by respondent No.2 directing the respondent No.3 to alter the ranking assigned to the petitioner in the cadre of SDA and revert her to the cadre of SDA vide Annexure-L.”

#3. Brief facts leading rise to the filing of W.P. No.4703 of 2022 are as follows: The petitioner was initially appointed as a typist on

18.02.1997 and submitted an application in terms of Karnataka Civil Services (Typist and Junior HC-KAR CNR: KAHC010092552022 - 6 - NC: 2026:KHC:39412 WP No. 4703 of 2022 C/W WP No. 18863 of 2021 Assistant/Second Division Assistant) (Change of Cadre) from Typist to Second Division Assistant (“SDA”).

#4. The said Rules also provide for assigning the ranking, counting the past service rendered, excluding two years of service rendered in the previous post. Ignoring the same, a final seniority list was published in 2015 determining her rank at the bottom of the list in terms of the directions issued by respondent No.1.

#5. The petitioner filed objections to the provisional seniority list. Respondent No.4, after seeking clarification from respondent Nos.1 and 2 and on the direction issued that the said issue has to be resolved at the Corporation level itself, placing reliance on the Karnataka Civil Services (Typist and Junior Assistant/Second Division Clerks (change of cadre) Rules, 1964 (for short, ‘the 1964 Rules’), HC-KAR CNR: KAHC010092552022 - 7 - NC: 2026:KHC:39412 WP No. 4703 of 2022 C/W WP No. 18863 of 2021 determining the ranking of the petitioners at Sl.No.2 with the date of eligibility dated 28.02.1999. The said ranking assigned of the petitioner has become final, based on which, she has also been promoted to the post of First Division Assistant (“FDA”) on

26.08.2016.

#6. Subsequently, a provisional list was published on

15.01.2021 showing the name of the petitioner at Sl.Nos.115 and 182 with the date of eligibility as

20.02.1999.

#7. An objection was filed by the petitioner stating that the petitioner's ranking has been assigned contravention of the directions issued by respondent No.1 on 11.02.2009.

#8. Without noticing the said direction and ignoring the 1964 Rules, and without notifying her ranking is sought to be altered. On determination, at Sl.No.182. In the final selection list published on 14.06.2021. HC-KAR CNR: KAHC010092552022 - 8 - NC: 2026:KHC:39412 WP No. 4703 of 2022 C/W WP No. 18863 of 2021 Respondent No.2 directed respondent No.3 to re- determine the ranking of the petitioner and revert her back to the cadre of SDA.

#9. The petitioner approached this Court in W.P. No.18863 of 2021, challenging the order of respondent No.2 and ranking assigned to her in the seniority list of SDA.

#10. This Court issued emergent notice to the respondents on 20.02.2021. During the pendency of the said writ petition, when the matter is sub judice, respondent No.3 has proceeded to revert the petitioner to the cadre of Second Division Assistant without authority and contrary to the Karnataka Municipal Corporation (Common Recruitment of Officers and Employees) Rules, 2011. Hence, prays to allow the writ petition.

#11. Respondent No.3 has the statement of objections admitting that the petitioner joined the service of Mysore City Corporation as a typist as per HC-KAR CNR: KAHC010092552022 - 9 - NC: 2026:KHC:39412 WP No. 4703 of 2022 C/W WP No. 18863 of 2021 the appointment order dated 18.02.1997 and submitted an application on 31.01.2008 seeking for change of cadre from typist to that of a SDA as per the 1964 Rules, and the Corporation had forwarded the request and sought for approval from the Government.

#12. Accordingly, the Government has approved change of lien from the cadre of typist to the cadre of Second Division Assistant vide order dated 11.02.2009 and in the said order Government had directed the seniority of the petitioner to be placed at the bottom. Accordingly, respondent No.3 vide order dated

16.03.2009 changed the lien of the petitioner as directed.

#13. It is contended that as per Rule 5 of the 1964 Rules, when a typist changes the cadre to that of a junior Assistant or Second Division Assistant, a period of two years shall be excluded from the previous HC-KAR CNR: KAHC010092552022 - 10 - NC: 2026:KHC:39412 WP No. 4703 of 2022 C/W WP No. 18863 of 2021 services for the purpose of seniority in the change of cadre. Based on this provision, the petitioner had requested to rectify the anomaly by placing her lowest in the senior cadre.

#14. The Corporation, thereafter, addressed a letter to the Government highlighting her seniority in the second division assistant cadre should be at

19.02.1999. Respondent No.2 in its letter dated

02.05.2013 has informed the corporation to take necessary decision at its own level, in accordance with the Rules. Respondent No.2 Corporation has taken necessary steps and had reflected the name of the petitioner joining date as 19.02.1999 in the seniority list. The seniority list thus prepared in

#2015. The petitioner was promoted as First Division Assistant on 26.08.2016.

#15. It is contended that one Manjunath had objected to the ranking assigned to the petitioner in the seniority HC-KAR CNR: KAHC010092552022 - 11 - NC: 2026:KHC:39412 WP No. 4703 of 2022 C/W WP No. 18863 of 2021 list of Group-C cadre and based on that objections, respondent No.2 had directed the 3rd respondent to take steps to place the petitioner at the bottom of the list from the date of change of cadre permitted to her and to withdraw the order of promotion granted to her work as FDA.

#16. The order dated 07.09.2021 at Annexure-L also reveals that the second respondent is directed to fix the responsibility amongst the Corporation officials for wrong fixation of the dates and seniority in respect of the petitioner. Hence, on these grounds, prays to dispose of the writ petition.

#17. Despite granting sufficient opportunity, respondent State has not filed statement of objections in W.P. No.4703 of 2022.

#18. Brief facts leading rise to the filing of WP No.18863 of 2021 are as follows: HC-KAR CNR: KAHC010092552022 - 12 - NC: 2026:KHC:39412 WP No. 4703 of 2022 C/W WP No. 18863 of 2021

#19. The petitioner was appointed as a typist on

18.02.1997 and submitted an application for change of cadre from Typist to the Second Division Assistant. Accordingly, the Government has approved the change of cadre from typist to the SDA with a condition that she would take a ranking at the bottom of the seniority of SDA. The petitioner's ranking in the cadre of SDA is to be determined in terms of Rule 5(1) and (2) of 1964 Rules. Ignoring the same, final seniority list was published in 2015 determining her rank at the bottom of the list in terms of the direction issued by respondent No.1. A provisional list was published on 15.01.2021, showing the name of the petitioner at serial No.115 with date of eligibility as 20.02.1999. The petitioner filed objection to the provisional seniority list stating that it is in contravention of the directions issued by respondent No.1 on 11.02.2009. The petitioner made a request for change of seniority ranking in the HC-KAR CNR: KAHC010092552022 - 13 - NC: 2026:KHC:39412 WP No. 4703 of 2022 C/W WP No. 18863 of 2021 seniority list. The respondents have passed the impugned orders vide Annexures-K and L. Hence, this writ petition.

#20. The respondents have considered the seniority at serial No.2 vide Annexure-H. Hence, the impugned order passed by respondents is in contravention of the rules. Hence, on these grounds, prays to allow the writ petition.

#21. The respondents - State has filed a statement of objections contending that the writ petition filed by the petitioner is not maintainable as per the provision of Rules 2 and 5 of the 1964 Rules. The Government has issued an order dated 11.02.2009 approving the change of cadre and the lien from the post of typist to the Second Division Assistant subject to the condition that after change of cadre the rank/serial number of the petitioner shall be HC-KAR CNR: KAHC010092552022 - 14 - NC: 2026:KHC:39412 WP No. 4703 of 2022 C/W WP No. 18863 of 2021 below the serial number of last person in the seniority list of second division assistants.

#22. It is also contended that when the Mysore City Corporation sought clarification, the Government issued direction to determine the seniority issue of the petitioner at the level of Mysore City Corporation itself. It is contended that when a Government servant get changed from one cadre to another cadre, then his/her rank/place will have to be determined by showing her serial number below the serial number of last person in the seniority list without affecting to the seniority of the employees of that cadre, so there will be no difference to the seniority of the employees of newly got their cadre changed. For this reason, in order to determine the rank/place for the employees, showing her name below the serial number of last person in the seniority list when she newly got her cadre changed. HC-KAR CNR: KAHC010092552022 - 15 - NC: 2026:KHC:39412 WP No. 4703 of 2022 C/W WP No. 18863 of 2021 Hence, the claim of the petitioner is not based on law.

#23. It is contended that the petitioner should have been mentioned in the seniority list by following the above said Rule 5, but instead of following this Rule, her name was shown at serial No.2 in the seniority list illegally. Hence, she had a chance of getting promotion to the post of First Division Assistant as per the order issued by the Municipal Administration Department. Hence, on these grounds, prays to dismiss the writ petition.

#24. Heard the arguments of the learned counsel for the petitioner, and learned counsel for the Mysore City Corporation and learned Additional Government advocate.

#25. Learned counsel for the petitioner submits that the petitioner was initially appointed as a typist on

18.02.1997 and she has submitted an application for HC-KAR CNR: KAHC010092552022 - 16 - NC: 2026:KHC:39412 WP No. 4703 of 2022 C/W WP No. 18863 of 2021 change of cadre from typist to SDA. Pursuant to the application submitted by the petitioner, Government has approved the change of cadre from typist to SDA in terms of Rule 5 of 1964 Rules. In 2009, change of carder was effected vide Annexure- D.

#26. In 2015, a seniority list was published wherein the name of the petitioner was shown at serial No.2 in the seniority list. He also submits that the petitioner was appointed on 18.02.1997 and 2 years has to be excluded as per Rule 5 of Rules of 1964. If 2 years are excluded then the seniority has to be considered with effect from 19.02.1999. A final seniority list was published on 14.06.2021, wherein name of the petitioner is shown at serial No. 115 and 182 vide Annexure-K. He also submits that the petitioner was promoted as a First Division Assistant on

26.08.2016. HC-KAR CNR: KAHC010092552022 - 17 - NC: 2026:KHC:39412 WP No. 4703 of 2022 C/W WP No. 18863 of 2021

#27. He submits that in the provisional list name of the petitioner was shown at serial No.115. He submits that the petitioner was promoted as FDA on

16.08.2016. He submits that the respondents have not considered the change of cadre excluding 2 years from the date of her initial appointment i.e., from

19.02.1999. The order of respondent No.1 showing the name of the petitioner in the seniority list at the bottom is contrary to the Rule 5 of Rules of

#28. He also submits that the seniority list published in 2015 was not challenged by any of the staff working in the Mysore City Corporation. The said seniority list has attained finality. After lapse of 12 years, one Manjunath has raised a complaint regarding the seniority list showing the name of the petitioner at serial No.2. On the basis of a complaint, an order came to be passed by respondent No. 1 placing the petitioner at the bottom of the list in the seniority HC-KAR CNR: KAHC010092552022 - 18 - NC: 2026:KHC:39412 WP No. 4703 of 2022 C/W WP No. 18863 of 2021 list. The said order is passed without holding an enquiry and without issuing any notice. Thus, the said order is in violation of principles of natural justice. Hence, on this ground, he also submits that during the pendency of the writ petition in WP No.18863 of 2021, the respondents have passed an order reverting the petitioner from FDA to SDA. While an impugned order dated 18.02.2022 in WP No. 4703 of 2022.

#29. He also submits that respondent No.4 has admitted regarding the appointment of the petitioner as a Typist and promotion as SDA and name of the petitioner was shown as serial No.2 in the seniority list of the year 2015. Hence, on these grounds, he prays to allow the writ petition.

#30. Per contra, learned counsel for respondents City Corporation submits the petitioner was appointed as a Typist and submitted an application HC-KAR CNR: KAHC010092552022 - 19 - NC: 2026:KHC:39412 WP No. 4703 of 2022 C/W WP No. 18863 of 2021 for change of cadre from typist to SDA and the said application was approved by Government and the petitioner was permitted to change the cadre from typist to SDA and her name was shown in seniority list at serial No.2 in the year 2015. She submits that respondent No.4 sought a clarification respondent No.3 regarding the issue of a seniority list.

#31. The respondent No.3 has submitted that the issue regarding seniority list shall be settled at the corporation level in terms of Rule 5. She submitted in view of the directions issued by the respondent No.3, the name of the petitioner has shown at the bottom in the scenario list. The said order is at the instance of respondent No. 3. Hence, on these grounds, she prays to dispose of the writ petition. HC-KAR CNR: KAHC010092552022 - 20 - NC: 2026:KHC:39412 WP No. 4703 of 2022 C/W WP No. 18863 of 2021

#32. Respondent No. 4 has complied the directions issued by respondent No. 3 in terms of Rule 5 of the 1964 Rules. Hence, on these grounds, she prays to dispose of the writ petition.

#33. Per contra, learned Government Advocate submitted that as per Rule 2 and Rule 5 of the 1964 Rules, when a Government servant changes from one cadre to another cadre, then his/her rank/place will have to be determined by showing his/her serial number below the serial number of the last person in the seniority list, without effecting the seniority of the employees of the cadre, so that there will be no difference to the seniority of the employees of newly got their cadre changed. For this reason, it is in order to determine the rank/place of the employees showing their name below the serial number of the last person in the seniority list. The claim of the petitioner is not based on law. Accordingly, the respondent-State has directed respondent No.4- HC-KAR CNR: KAHC010092552022 - 21 - NC: 2026:KHC:39412 WP No. 4703 of 2022 C/W WP No. 18863 of 2021 Corporation to rectify the seniority list insofar as the petitioner is concerned. Hence, respondent No.4 has rightly considered the seniority list. Hence, on these grounds, she prays to dismiss the writ petition.

#34. Perused the records, and considered the submissions of the learned counsel for the parties.

#35. It is an undisputed fact that the petitioner was appointed as a typist on 18.02.1997. After joining the service, the petitioner has submitted an application as per Rule 2 of the 1964 Rules. The said application was forwarded by respondent No. 4 to the Government. The Government has approved for change of cadre from Typist to SDA vide order dated

11.02.2009 and permitted change of lien from typist to that of SDA with a condition that she would take at the bottom of the seniority of the SDA. HC-KAR CNR: KAHC010092552022 - 22 - NC: 2026:KHC:39412 WP No. 4703 of 2022 C/W WP No. 18863 of 2021

#36. Subsequently, a provisional seniority list of SDA was published on 28.02.2015 assigning the ranking of the petitioner at the bottom of list at serial No.51.

#37. The petitioner submitted her objections stating that she would be entitled for ranking and the date of eligibility in terms of the 1964 Rules. A clarification was sought from respondent No. 1 regarding assigning ranking to the petitioner a direction was issued to respondent No.4 to decide the matter at the corporation level itself vide clarification dated

04.03.2015.

#38. The second respondent directed fourth respondent to decide the matter in accordance with the law at respondent No. 4 level itself. Respondent No. 4, considering the claim of the petitioner and in view of the provisions made under the 1964 Rules proceeded to fix the seniority of the petitioner at serial No.2 after excluding two years of service HC-KAR CNR: KAHC010092552022 - 23 - NC: 2026:KHC:39412 WP No. 4703 of 2022 C/W WP No. 18863 of 2021 rendered in the cadre of typist vide order dated

17.07.2015.

#39. The petitioner was promoted as a First Division Assistant on 16.08.2016 from the cadre of SDA on the basis of ranking assigned to her in the final seniority list published on 17.07.2015. Admittedly, none of the employees who were working as SDA did challenge seniority list dated

16.08.2016. The final seniority list published on

16.08.2016 has attained finality.

#40. On 15.01.2021, a final provisional seniority list of Group-C cadre post was issued by respondent No. 3 in which the petitioner was shown at serial No.115 with the date of eligibility as 20.02.1999. The respondent No.4 brought to the notice of the respondent No.2 that the ranking assigned to the petitioner at serial No. 115 is in accordance with law HC-KAR CNR: KAHC010092552022 - 24 - NC: 2026:KHC:39412 WP No. 4703 of 2022 C/W WP No. 18863 of 2021 and therefore to drop further proceedings in the matter vide communication dated 05.04.2021.

#41. On 14.06.2021, while finalising the seniority list, the petitioner's name has been shown both at serial Nos.115 and 182 with the date of eligibility as

20.02.1999.

#42. The petitioner has submitted objections provisional seniority list showing the name of the petitioner at serial No.115. The petitioner submitted a representation to respondent No.2 requesting to cancel the ranking assigned at serial No.182 and retain the ranking assigned at serial No.115.

#43. In order to consider the case on hand, whether the service of the petitioner to be considered as per Rule 5, it is necessary to examine Rules 2 and 5 of the 1964 Rules.

#44. Rule 2 of the 1964 Rules, provides for change of cadre, which reads as follows: HC-KAR CNR: KAHC010092552022 - 25 - NC: 2026:KHC:39412 WP No. 4703 of 2022 C/W WP No. 18863 of 2021 “2. Change of Cadre.- Notwithstanding anything in the rules of recruitment specially made in respect of any service. (i) a Typists possessing the qualifications prescribed the post of Junior Assistants / Second Division Assistants may change his cadre to that of a Junior Assistant / Second Division Assistant, as the case may be, and (ii) x x x x”

#45. From a bare reading of this Rule, it is clear that a Typist possessing requisite qualification may apply for change of cadre. Pursuant to Rule 2, the petitioner submitted an application for change of cadre from the post of Typist to the post of Second Division Assistant. The Government has approved the change of cadre from Typist to Second Division Assistant from 19.02.1999, excluding the services of the petitioner rendered as Typist. Based on the order of change of cadre, a seniority list was published in

#2015. HC-KAR CNR: KAHC010092552022 - 26 - NC: 2026:KHC:39412 WP No. 4703 of 2022 C/W WP No. 18863 of 2021

#46. Rule 5 thereof provides for effect of change of cadre, which reads as follows: “5. Effect of change of cadre.- (1) Notwithstanding anything contained in the Karnataka Government Servant’s (Seniority) Rules, 1957 or any other rules and except as provided in sub-rule (2), a person who has been permitted to change his cadre under rule 2 shall be entitled to count his previous service for purposes of leave, pension and seniority. Provided that,- (a) x x x x (b) in the case of a Typist (other than an allottee under the States’ Reorganisation Act, 1956) who has changed his cadre to that of Junior Assistant or Second Division Assistant a further period of two years shall be excluded from the previous service for the purpose of seniority in the changed cadre. ”

#47. From a bare reading of the aforesaid Rule, it enumerates that if the cadre is changed, two years HC-KAR CNR: KAHC010092552022 - 27 - NC: 2026:KHC:39412 WP No. 4703 of 2022 C/W WP No. 18863 of 2021 shall be excluded from the previous service for the purpose of seniority in the changed cadre.

#48. Admittedly, the Government has excluded previous service rendered by the petitioner as a Typist. After excluding two years, the petitioner was shown in the seniority list. An order was passed for change of cadre on 19.02.1999 excluding two years as per clause (b) of Rule 5 of the 1964 Rules. The seniority list was published in 2015, wherein the name of the petitioner was shown at serial No.2.

#49. One Manjunath has filed a complaint against the petitioner stating that the name of the petitioner shown at serial No.2 in the seniority list is contrary to Rule 5 of Rules 1964.

#50. The respondents without holding an enquiry and considering Rule 5 of the 1964 Rules has passed an order. The impugned orders passed by respondents in regard to the placing the petitioner at HC-KAR CNR: KAHC010092552022 - 28 - NC: 2026:KHC:39412 WP No. 4703 of 2022 C/W WP No. 18863 of 2021 Sl.No.182. A final seniority list was published in

#2015. Admittedly, none of the employees who were in the cadre of SDA have challenged the seniority list. A final seniority list was issued on 14.06.2021 showing the name of the petitioner at serial Nos.115 and 182.

#51. The Government Advocate could not explain how the name of the petitioner was shown at two places in the seniority list i.e., at serial Nos.115 and 182 in the same seniority list.

#52. Though it is submitted that it is a clerical mistake, the list was published on 14.06.2021. When a specific query was put to the learned Government Advocate regarding what action has been taken against the erring Officer, he submitted that no action has been taken against the erring Officer.

#53. Further, while publishing the final seniority list dated

14.06.2021, the authorities did not consider the HC-KAR CNR: KAHC010092552022 - 29 - NC: 2026:KHC:39412 WP No. 4703 of 2022 C/W WP No. 18863 of 2021 seniority list which was published on 16.08.2016. Thus, the impugned order passed by respondent No.1 shows lack of application of mind. Hence, on these grounds, the impugned orders are liable to be quashed.

#54. In view of the above discussion, I proceed to pass the following order: ORDER i. ii. The writ petitions are allowed. In W.P. No.18863 of 2021, the impugned orders vide Annexures ‘K’ and ‘L’ are set aside. iii. In W.P.No.4703 of 2022, impugned order vide Annexure ‘N’ is quashed. iv. The respondent - State is directed to show the name of the petitioner at serial No.115 in the final seniority list dated 14.06.2021. HC-KAR CNR: KAHC010092552022 - 30 - NC: 2026:KHC:39412 WP No. 4703 of 2022 C/W WP No. 18863 of 2021 v. The respondents are directed to reinstate the petitioner in the post of First Division Assistant within two months from the date of receipt of a copy of this order. vi. In view of disposal of the petitions, pending IAs, if any, do not survive consideration, disposed of accordingly. Sd/- (ASHOK S.KINAGI) JUDGE RK- paras 1 to 10 SKS- paras 11 to end List No.: 1 Sl No.: 31