SRI SRINIVASAIAH v. STATE OF KARNATAKA

Heard learned counsel Smt.B.V.Vidyulatha for the petitioner, Sri V.Seshu, learned HCGP for respondent No.1 and learned counsel Sri Mahesh R.Uppin for respondent No.2. Perused the entire Writ Petition papers.

5. Learned counsel Smt.Vidyulatha for the petitioner would submit that the Tribunal committed a grave error in rejecting the application of the petitioner seeking promotion to the cadre of Panchayath Secretary, Grade I as well as - 5 - NC: 2024:KHC:30052-DB WP No. 21613 of 2022 Panchayath Development Officer from the date his juniors are promoted solely on the ground of delay. Learned counsel would submit that the question of delay would not arise in the present case since enquiry against the petitioner was pending and during the pendency of enquiry, the petitioner would not be entitled for promotion. Further, the learned counsel would submit that subsequently, after exoneration of the petitioner of the charges, the petitioner is promoted to the cadre of Panchayath Secretary, Grade I on 17.10.2019 and to the cadre of Panchayath Development Officer on 06.01.2022. Thus, the learned counsel would submit that when the enquiry was pending, the petitioner was not entitled for promotion and as such, the question of delay in approaching the Court would not arise. Further, the learned counsel would submit that since the petitioner is exonerated of the charges leveled against him, the petitioner would be entitled for retrospective promotion from the date his juniors are promoted to the next higher cadre, if he is otherwise eligible. Learned counsel would also submit that subsequent to the promotion of the petitioner as Panchayath Secretary, Grade I as well as Panchayath Development Officer, the petitioner had made representation - 6 - NC: 2024:KHC:30052-DB WP No. 21613 of 2022

27.01.2022 (Annexure-F) seeking retrospective promotion from the date his juniors are promoted which is pending consideration. Thus, the learned counsel would pray for consideration of petitioner’s case retrospective promotion from the date his juniors are promoted to the next higher cadre.

6. Per contra, Sri Seshu, learned HCGP would submit that consequent to the order of Tribunal in Application No.849/2020 as well as Application No.2509/2021, the State Government under letters dated 04.12.2021 and 04.01.2022 directed the second respondent to consider the case of the petitioner for promotion from retrospective date.

7. Learned counsel Sri Uppin would vehemently oppose the prayer of the petitioner and would support the order passed by the Tribunal. Further, the learned counsel would submit that the Tribunal rightly rejected the application of the petitioner on the ground of delay. He submits that the juniors of the petitioner were promoted as Panchayath Secretary, Grade I on 08.02.2013 and they were further promoted as Panchayath Development Officers on 25.10.2016, but the - 7 - NC: 2024:KHC:30052-DB WP No. 21613 of 2022 petitioner has not challenged their promotion and he has also not approached the Tribunal within time. It is submitted that the petitioner approached the Tribunal only in the year 2020. As such, there is delay on the part of the petitioner. Further, the learned counsel would submit that the petitioner filed applications after applications before the Tribunal seeking the same relief. Therefore, he submits that the petitioner is not entitled for retrospective promotion as prayed for by the petitioner. In that regard, learned counsel Sri Uppin places reliance on the decision of the Apex Court in the case of State of Uttaranchal v. Shiv Charan Singh Bhandari, reported in (2013) 12 SCC 179.

8. On hearing the learned counsel for the parties and on perusal of the entire writ petition papers, the only point which falls for consideration is as to whether the Tribunal in the facts and circumstances of the case is justified in rejecting the petitioner’s application for consideration of his case for retrospective promotion from the date his juniors were promoted only on the ground of delay. - 8 - NC: 2024:KHC:30052-DB WP No. 21613 of 2022

9. The answer to the above point would be in the negative for the following reasons: The petitioner was working as Grama Panchayat Secretary Grade-II and while he was working as such, a departmental enquiry was instituted by issuing charge memo for certain misconduct and the same was culminated in exonerating the petitioner by order dated 06.02.2014. When the enquiry was pending against the petitioner, his juniors were promoted to the next higher cadre of Grama Panchayat Secretary Grade-I on 08.02.2013. Thereafter, one more enquiry was instituted against the petitioner by issuing charge memo which also culminated in exoneration of the petitioner under order dated 24.04.2017. While the second enquiry was pending, the juniors of the petitioner were promoted further as Panchayat Development Officers

25.10.2016. These are undisputed facts.

10. The petitioner on his exoneration in the first enquiry made a representation on 07.02.2014 requesting to consider his case for promotion to the cadre of Grama Panchayat Secretary Grade-I from the date his juniors were promoted. Subsequently, on completion of second enquiry, the petitioner - 9 - NC: 2024:KHC:30052-DB WP No. 21613 of 2022 was exonerated under order dated 24.04.2017 and the respondents considered the case of the petitioner for promotion to the next higher cadre of Grama Panchayat Secretary Grade-I and promoted the petitioner on 17.10.2019 as Grama Panchayat Secretary Grade-I. Thereafter, the petitioner approached the Tribunal in Application No.849/2020 seeking for a direction to the respondents to consider his representation for retrospective promotion to the next higher cadre. The same was allowed by order dated 22.06.2021, holding that the petitioner would be entitled for promotion to the cadre of Grama Panchayat Secretary Grade-I from the date when his immediate juniors were promoted, but he would be entitled for financial benefits with prospective effect from the date of his exoneration from the disciplinary proceedings. So also, the Tribunal observed that the petitioner would be entitled for promotion to the cadre of Panchayat Development Officer from the date his juniors were promoted to the said post, but he would be entitled for financial benefits with prospective effect from the date of his exoneration from the Disciplinary Proceedings under order dated 24.04.2017. - 10 - NC: 2024:KHC:30052-DB WP No. 21613 of 2022

11. The Tribunal while allowing the application at paragraph 7 of the order dated 22.06.2021 in Application No.849/2020 has observed as follows: “The eligibility for financial benefits is entirely on account of the fact that if the applicant is eligible for promotion to the post of Grama Panchayat Secretary Grade-I and the post of Panchayat Development Officer, the denial of the is entirely attributable the second respondent.”

12. The above observation makes it abundantly clear that second respondent is entirely responsible for non- consideration of petitioner’s case for retrospective promotion as well as for denial of financial benefits, which the petitioner would be entitled to. When the 2nd respondent has suffered above observation, action of the 2nd respondent in rejecting petitioner’s request for retrospective promotion on delay would be wholly unreasonable.

13. The petitioner application No.2509/2021 challenging the order of promotion of 3rd respondent therein and for a further direction to the respondents to consider the case of the petitioner for promotion - 11 - NC: 2024:KHC:30052-DB WP No. 21613 of 2022 to the post of Panchayat Development Officer. The Tribunal by order dated 11.08.2021 allowed the application and directed the respondents to consider the case of the applicant for promotion to the post of Panchayat Development Officer by following the order passed in Application No.849/2020 dated

22.06.2021.

14. The applicant Application No.1017/2021 praying for a direction to consider his case for promotion to the cadre of Panchayat Development Officer with effect from the date, his juniors were promoted i.e., from

25.10.2016 by considering his representations dated

04.05.2020 and 30.10.2019. The petitioner had also filed I.A. for condonation of delay under Section 21(3) of Administrative Tribunals Act, 1995 praying to condone the delay of 1460 days in presenting the application. The Tribunal refused to condone the delay and rejected the application, only on the ground of delay in approaching the Tribunal; that the juniors have been promoted and are enjoying the promotion for considerable length of time and if the application is allowed, it will result in administration chaos apart from financial implication for the Government. - 12 - NC: 2024:KHC:30052-DB WP No. 21613 of 2022

15. The approach of the Tribunal in refusing to condone the delay and in dismissing the application is wholly erroneous and misconceived. In fact, there was no delay on the part of the petitioner in approaching the Tribunal in seeking a direction to consider his case for retrospective promotion to the cadre of Panchayat Development Officer. In fact, it is the inaction or slackness of the 2nd respondent in taking action as directed by the Tribunal.

16. It is an admitted fact that two enquiries instituted against the petitioner culminated in his exoneration under order dated 06.02.2014 as well as 24.04.2017. His juniors were promoted to the cadre of Grama Panchayat Secretary Grade-I and further to the cadre of Panchayat Development Officer during the pendency of the enquiries against the petitioner. Therefore, the petitioner would become eligible consideration of his case for promotion only on completion of departmental enquiry. Admittedly, the departmental enquiry came to an end on 24.04.2017. Thereafter, the respondents considered the case of the petitioner for promotion and promoted him to the cadre of Grama Panchayat Secretary Grade-I on 17.10.2019, but the respondents failed to consider - 13 - NC: 2024:KHC:30052-DB WP No. 21613 of 2022 his case for promotion retrospectively from the date his juniors were promoted. Further, the Tribunal has also failed to notice that the respondents have failed to consider the case of the petitioner for promotion as well as retrospective promotion to the cadre of Panchayat Development Officer as on the date of filing the application before the Tribunal. In fact, the petitioner was before the Tribunal agitating his grievance with regard to consideration of his case for promotion to the cadre of Grama Panchayat Secretary Grade-I as well as to the cadre of Panchayat Development Officer in two applications disposed of earlier to the filing of Application No.1017/2021.

17. Moreover, the cause of action to seek retrospective promotion has arisen only on his prospective promotion to the cadre of Grama Panchayat Secretary Grade-I on 17.10.2019 and on failure of 2nd respondent to consider petitioner’s case for retrospective promotion. It is also to be noted that the petitioner is promoted to the cadre of Panchayat Development Officer on 06.01.2022, for seeking retrospective promotion to the cadre of Panchayat Development Officer has also arisen on

06.01.2022 when he is promoted to the cadre of Panchayat Development Officer prospectively. When the Tribunal by it - 14 - NC: 2024:KHC:30052-DB WP No. 21613 of 2022 sorder dated 22.06.2021 in Application No.849/2020 directed the respondents to consider the case of the petitioner for retrospective promotion both to the cadre of Grama Panchayat Secretary Grade-I as well as Panchayat Development Officer, the Tribunal is not justified in rejecting the petitioners’ application solely on the ground of delay.

18. Anyone who sleeps over his right is bound to suffer. In the instant case, the petitioner, from the date of his exoneration in the first enquiry in the year 2014 is agitating his right for promotion by making representations as well as by approaching the Tribunal. Therefore, it cannot be said that the petitioner has slept over his right to consider his case for promotion. On the other hand, the second respondent, in pursuance of the direction of the Tribunal in Application No.849/2020 dated 22.06.2021 ought to have considered the case of the petitioner for retrospective promotion to the cadre of Grama Panchayat Secretary Grade-I as well as to the cadre of Panchayat Development Officer. The second respondent having failed in its duty or obligation to consider petitioner’s case for retrospective promotion cannot attribute delay to the petitioner. - 15 - NC: 2024:KHC:30052-DB WP No. 21613 of 2022

19. As noted above, the petitioner is exonerated in the pending enquiries under orders dated 06.02.2014 and

24.04.2017 respectively. On exoneration in the pending departmental enquiry, a Government servant would get right for consideration of his case for promotion if his juniors are promoted to the next higher cadre during the pendency of the departmental enquiry, over-looking the case of the petitioner. The petitioner would also get right for consideration of his case in case of his exoneration from retrospective date under Rule 2 of Karnataka State Civil Services (Regulation of Promotion, Pay and Pension) Rules, 1978. Relevant Rule 2(1) reads as follows: “2.Promotion – Promotion of a civil servant may be made with effect from a retrospective date – (1) if his claim for promotion – (a) was withheld on account of disciplinary proceedings or criminal prosecution of both pending against him and he is exonerated or acquitted subsequently; or (b) was not considered on the ground that he was working in some other department on deputation or otherwise; or - 16 - NC: 2024:KHC:30052-DB WP No. 21613 of 2022 (c) was not considered on the ground that he was wrongly or incorrectly described in the provisional or final inter-State Seniority List or gradation list; or (d) was passed over on account of adverse remarks in his Confidential Reports which were expunged subsequently.”

20. The above rule explicitly makes it clear that a civil servant would be entitled for consideration of his case for retrospective promotion, if his claim for promotion was withheld on account of disciplinary proceedings pending against him and if he is exonerated in the said pending enquiry.

21. Learned counsel Sri.Uppin for respondent No.2 mainly contended that there is delay on the part of the petitioner in approaching the Tribunal, but the said contention cannot be accepted for the reasons stated above. Further, learned counsel would submit that, to consider the direction issued by the Tribunal in Application No.849/2020, the direction issued by the Tribunal in Application No.1017/2021 was the impediment. That submission also cannot be accepted, since the case of the petitioner was considered for promotion to the cadre of Grama Panchayat Secretary Grade-I under order dated - 17 - NC: 2024:KHC:30052-DB WP No. 21613 of 2022

17.10.2019 prospectively. Learned counsel for respondent No.2 Sri.Uppin places reliance on the decision of STATE OF UTTARANCHAL AND ANOTHER (supra) to buttress his argument with regard to delay. In the said decision, the respondents had slept over their rights and they belatedly sought for consideration of their case for promotion and in that circumstances, the Honb'le Supreme Court has held that “No promotions could be unsettled after a long delay.” The said decision has no application to the facts of the present case.

22. In the instant case, the petitioner has not slept over his right and he was agitating his right from 2014 onwards immediately on promotion of his juniors, though enquiry was pending against him. Two departmental enquiries were pending against the petitioner on the date of his juniors promotion and only after conclusion of the enquiry, the petitioner became eligible for consideration of his case for promotion. As respondent No.2 has failed to implement the direction of the Tribunal in Application No.849/2020 dated

22.06.2021 as well as the order dated 11.08.2021 Application No.2509/2021, respondent No.2 is liable to pay cost of the proceedings to the petitioner. - 18 - NC: 2024:KHC:30052-DB WP No. 21613 of 2022

23. The Writ Petition is allowed. Respondent No.2 is directed to consider the representation of the petitioner produced at Annexure-F dated 27.1.2022 and promote the petitioner retrospectively from the date his juniors are promoted to the cadre of Panchayath Secretary Grade I as well as to the cadre of Panchayath Development Officer, if he is otherwise eligible. The petitioner would be entitled for all consequential financial benefits as observed by the Tribunal in order dated 22.6.2021 in Application No.849/2020 so also for revision of pension.

24. Respondent No.2 shall pay costs of `25,000/- to the petitioner.

25. Compliance within two months. SD/- (S.G.PANDIT) JUDGE SD/- (C.M. POONACHA) JUDGE ND/MPK List No.: 1 Sl No.: 26