Karnataka High Court · 2012

SRI A R SRINIVAS MERE-IS AGED ABOUT 51 YE \RS SENIOR ASSISTANT, DPAR (SERVICES-A) GROUND FLOOR VIDHANASOUDHA BANGS LORE-560 001 SRI S S BIRADAR 3r \(9 r 53 ‘ L\E SENIOR ASSISRIANT R59f5’-i 55 crc. 9 BANGALORE-560 00.1. 55,c _Er

2. SRI S BALAVENDRAN AOF.:D AEOET 57 YEARS SENIOR 255I5TPNT FINANCE DEPARTMEJN•T(PMU) 2ND FLOOR. VIDBANA SOLTDEIA 00 I SRI S K PAlE-_V ES HE-A 33.17 AGEI) AI3OUT 116 f\f 1c.SST—’ - DEPARTNITPVF (EXPEL v

4. 2ND FLOOR VIDHANA SOUDHA F.3\NOA.LORF* 15130 001.

14. SRI PRAKASH [I300SANUR CCD nOL t 56\t 475 SENIOR ASSISTANT, DPARACCOUNTS1iI) PEA M S BUH DING BANGALORF4-560 001

17. SRI S \.rFNK4TESHMIIRTrIV AGED ABOUT 55 YEARS SENIOR ASSISTANT,DPAR (SERVICE RULESB) GROIJNO FLOOR DUN BANGALORE 560 00 1 SRI K MOHAN MAJOR AGED ABOUT 51 YEARS ASSIST UNT, DFAR(AR4INSPE1CTION WING) T.:ISFI1 II DING HuiNGALORhn0 001 SRI F 5 .5RIKfl4fHA BABU AGED ABOUT 56 YEARS FN ION ASSIS I NNT U1L CER\ I F 11 S4A1L 2ND fLOOR .\:*IDFLNA VEEDHI F3ANGAI..OREJ560 001. SFJFT J JPETiTIOISLEPS SrI 7) PAVAN [7Sf-i 12 I 10 Ai)VOCAJILS) 5 AND

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4. •SRI .P RCHISJPF.ASWAI../FY ‘ OE9T2 TAfT T 59 ‘TARS SEN ION ASSISTANT, DEAR iSEEN IC NT N) VIDHANA SOD DHA i.3ANGALOREN 560 001 SRIKBEERESI-I S/OSHRT IcEMPAIAFI AC ED .ABODT 4:2 YEARS SENIOR ASSISTANT, DPEAR (ACCOI2TNS) IDEAN F SO r)Ij BANOALORFE 560 00 1 SRi PR? F3.HU DEVA S/O ST HONNAIAH AGED AI3OUT 49 YEARS SENIOR ASSISTANT. DPAR SSEPV1CETPI VIDHANA SON DITA BANTOALORIN560 001 SRI A V JAYASHEKAR cO L’IE\ELRAEIFEDHA “I CLT E1t F TE N SENIOR AS:S1S4FANIF LiNAN C. N DEP.ARTM EAT lSCj’L REEORIvIS REEL BANGALDRFS56O 001 3 5 Ri H 3453 iTS NATI 1:\CiI ‘ 3 C ‘CDL) \r3OU 1 52 ‘iN iRS SENIOR ASSISTANT, SPAR SiRCiE F I-IC LES-A) VIDHANA -SOCDI1A BANGALORW 560 001 (. SRI C H SHIVAKUViAR S OLE O’N’ AC ED ABOUT 48 ETARS SENIOR ASSISTANT REV EN1 IL D EPARTM EN F (SN LU) IvLsBUILDINC SAC HIVALATMII IANGALORFC56O 001 7 5]4j IV 5/0 K T NARAS1MAIAH ACED ABOUT 44 YEARS SENIOR ASSISTANT. HEALTH AN[) LATELY WELFARE DEPARTMENT MA. BUILD-INC SACH1VALYA-ii BANOALORE- 560 001 8 S-R1 P A JAYADEVAMLRTEP( S/0 SRI4F±-AIJaniI A 1ED ABOL i 49 EARS SENIOR ASSISTANT P1 UI IC \VORkS r)rpArz[%Ir FA (ETNAI ICE CELL--li) V. S. BA ILDINC, SACF1BALAYA-H BA?TOALORE•--560 001 SRI E BI*1ARATFI EUIvIAR \ AGFA) ABOUT 4-8 YEARS SENIOR ASSISTANT, DPARCCOUTNS) x F’ ‘ 5’T I BANCIALORE—560 ii() I 7

10. SRI POONACHA 5/0 PMMAIAH AGED APQf 52 Yi.OAS miThTOi- \SS i U\ I 11?I\j \}“ x \ S Ui SACHI\ALAI1U H BANGALORR56O 001 I’ U N’ \ ‘)\ jiN \ < uT \ I •SRI B P C.HENLNABASAVESA S/C SRI PurIASwAMAIAI I GizD -BOu I 42 ‘U ‘HIS SPNIOR \SSISIANI C vIS SLCRF IAR1A I VIDHANA SOUDHA B.ANGALOR& 560001 r fl SRI 0 B 1-IEMANNA A Th j 2liI L\ k SENIOR ASSISTANT FINANCE DEEARTMENT (SERVI C ESU), VIDHANA SOLFD.HA BANGALORF-560 001 SRI N GOPALA1AH S/O SRI NARASAPPA AGED ABOUT 44 YEARS ON OFFICER ‘ ‘P’ )\ r r UA.I7CALORE-560 0(11 I ( SMT 13 41 DADS HAYANAM..MA pt’ CT-\p)pftcrp(_ I -Il) -- ‘F SENIOR ASSIS/ANT IIFAI II PEt \/IW3 I (SERVICES -III) V SJ3II. IIUDIN:G

4. S SACHR7AL•AY11 ifl\\(ij\l!)flFfl6;C) 00 I SRI S NAGARAJAPPA . XI ‘ U m\\\\ :x;1i iXiUL I * I ‘ml \It ‘R %f”\ ?0_j’!fl 4\ I I 6. I 8. \\\ TIpRm\TE\ \ri[)i iANi\ SOUDFIA BAN GALORE560 001 SRI NARASIMAH S/O SRI OBAUESHU AGED ABOUT 42 YEARS SENIOR ASSIST.ANT IR.RIOA. ION DEPARTMENT ItS. BUILDING S.ACHI\1ALAYAJ1 F3ANGALORFA56O 001 SRI C A TAYAR4rV1VCC4\IR/\ S/0 SRI AGED ABOUT 49 EYARS )T 5 r\1 I ) SE’ 3 U BA\G4LDTAE_590 00 1 SRI K PUTIIASWAIv1Y . / 0 KALAPPA SENIOR ASSISTANT RI (LAND GRANT I) MSBUILDING BANGALOREt6O 001 /UNuE DEPAR1 MEN 0 C) SRI 5) 5 NAfi ANA REQ S/0 NET LAKANI.A fQ4Q I) i’C)’ SUN iuR \5S151 EN I URBAN DEPAII2FMENT fVLSLf3]jIfJ){NC CB1VALAYAII BANCALORE560 001

20. SRI C MUN IEAJAPPA S/O KRISHNA PPA ACED ABOUT 50 YEARS SENIOR ASSISTANT IRRIGATION DEPARTMENT IS ERVIC ES-A) MRBUILDING SACHiVAUEYA-I I BANGALORE-560 00 1 2] SRI S BIVALINGA 0 KRJSRNETT-’ AGED ABOUT 46 EYARS SECTION OFFICER ?‘ 1SEL DEFTEr’ C’ MRBUiLDiNG BANGALORE-560 001 F)

22. SRI H S HONNEGOWDA 5/0 SHETTT COWDA . r T7 ‘ . “ x SENIOR ASS1STANT ‘ T D — IAvItEcIARAJAJ. ATSJ3LUILD1NG SACFI1VALAYA-Il [-3 < ‘t

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28. SUJATFIAMMA MAJ C) R SENIOR ASSISTNAJ -L’ K\ CD LRVk1L’1 SI ( ‘- -‘N - 1RRIç \ I t(J\ DEP \R I \1L\ 1 Li S BUILDING 3”\C \LUIRF-3b0 t) 7 C OO

29. J R AN NUIPOORNA MAJOR SENIOR ASSISTANT KARNATAKA 003/ ERNMENT SECRETARIAT HUD DEPARMTENT, 4 TH FLOOR lvi S i3LH1DiNO V1DIIANAVEEDII1 A U/’ A f j]1iN’;Jij_-. 1St- I 1 $9 SLIT 3/ PARVATH1 ‘2 52 \t2Ac Smf- KAZ\ 31 ‘x GO\ uEV 4 NT SLCL\ EDUCATION DEPARTIVI E?T (RIOHER EDUCATION) N -S BUILDINO BANOALORE 0<1-A U SMT :71 5 VASUIVIKFI I M.AJC) P ‘P\ J I .1 31 QIL- TO (\ 5 N S BUILDING \ I LANA VEEDI 11.: BAN GALORE- — 5(30 001 I ‘SIAN I CR OF KNIIC\ 6CR ARA ‘A ) I RM ‘OR M S F F II )IN) TA 10* Z NT) )CA L 3 Si C’ FII AM AC TORRID) 2 I S flI SOC’IAT FR A AC &K S FFRAM ADXCCiTLS OR 4 I ) NATP NA I NAT TANIIIArI A 28 J) ND OATF ,T WI R )IE 2 1 )T b r 10 26 I R I I I C Dl DIA NC NIA 2 N IF F S 1 8 0 3 I C a 4 R C 13 c’onduned by the Karnataka Public Senice Commission. In so far as the post of Assistants Is concerned, 50% of the post was filled up by direct recruitment and another 50% by promotion from Junior Assistants. As there was delay in recruiting Assistants through direct recruitment, the petitioners who were working as Junior Assistants were promoted as Assistants on

05.12.1985 and 20.01.1987 under Rule 17(c) of the Karnataka Civil Services (General Recruitment) Rules 1977, for short, hereinafter referred to as the Rule&. In fact, on 02.06.1988 when Gradation List of Assistants was prepared, the names of the petitioners also found a place in the said list. However, on

27.07.1988. the private respondents were appointed through Karnataka Public Service Commission by way of direct recruitment. However, on 04.08.1992 the Government passed an order declaring satisfactory completion of officiating period of petitioners under Rule 19(3)(c) of the Rules and affirmed the promotion of the petitioners to the post of Assistants retrospectively from the date of their promotion. Therefore, In tile Gradation List prepared, the names of the petitioners were 14 placed above that of the private respondents, which. is dated

26.08.1992. The said list was challenged before the Tribunal by the private respondents. The application was allowed and a direction was Issued to treat the said list as provisional list and an opportunity should be given to private respondents to file their objections. Thereafter the final Gradation List was prepared on 25.11.1996. Subsequently the said list came to be modified on 09.01.1997, which is treated as final Gradation List. In the said list, the name of the private respondents are shown above the petitioners. The petitioners herein challenged the said list complaining that they are seniors to the private respondents. During the pendency of the said proceedings, on

20.12.2004 the Government published a report showing the petitioners as seniors to the private respondents. Based on the said Seniority List. on 26.08.2005 the Seniority List of Senior Assistants was published by the Government. Aggrieved by the said List, the private respondents preferred the present application challenging the correctness of the said Seniority lAst.

2. Alter itearui both ti tic s. the Tribunal allowed tHe appileatioti etunu ustee he ‘ant Serinrin List and heM that tile private respondunis to this writ petition are seniors to tile petitioners and therefore directed restoration of thra nking to pm ate respondents As no interim order was granted by this Court. the Government implemented the order of the Tribunal and they have prepared Seniority List c tie to the directions issued by the Tribunal I lie Sta id not challenge the I of the Tribunal li-n cd c tionrrs as’ ‘ cating I 5 12. 1985. 1 the basis It thc Gradation 1 02 06 1988 and nhc ri die ( o’ e’ 111111 itt passc c ndei Rule 1 ¶ 4 iflel ol ht Ri4- — titiran2 h it’a :‘‘F t io—ts tivr1’ let 16 purpose of seniority, their entry into the said cadre Is to be calculated from 05.12.1985, 14.08.1986 and 20.01.1987. Admittedly, the private respondents were appointed on

27.08.1988 and therefore they can never be seniors to the petitioners. The Tribunal has not properly appreciated Rule 19(3)(c) and (I) and therefore. the said order is erroneous. Yet another reason given by the Thbunal Is that the petitioners have not challenged the earlier Gradation List, in which, the private respondents are shown above the petitioners and thereibre they are estopped from contending that they are seniors to the private respondents.

5. The learned Counsel respondents supported the impugned order.

6. From the material on record it is clear that the petitioners were appointed as Junior Assistants on 19.08.1977. On 05.12.1985, 14.08.1986 and 20.01.1987 when they were promoted as Assistants temporarily, the said order of 17 appointment was passed by virtue of the power conferred on them under Rule 17(c), whIch reads as under: j 7(C). Jill by promotion temporarily on the basis qf seniority-cam-merit a vacancy required to be filled by direct recruitment where selection to the post has not been finally made and there is likelihood of delay in making direct recruitment. No such promotion shall be made unless a requisition has been sent to the Commission or to the appropriate recruiting authority for selection of a suitable candidate. A candidate temporarily promoted sub-rule shall not have any preferential claim Jór regular promotion and also shall not count the period of service in the promoted post for seniority; he shall revert to his original post on the expiry of one year or on the appointment of a direct recruit whichever is earlier: Provided that when any promotion Is required to be made In conclusion with the Commission, the promotion shall be made qfter such consultation.” U—-- 18

7. A reading of the aforesaid provision makes it clear the candidate who is temporarily promoted under this sub-rule shall not have any preferential claim thr regular promotion and also shall not count the period of service in the promoted post for seniority. He shall revert to his original post on the expiry of one year or on the appointment of a direct recruit whichever is earlier. Therefore. the aforesaid promotion did not confer any right on the petitioners. It is also not in dispute that this provision under which promotion was given was omitted with effect from 24.02.1994. Therefore the contention that petitioners’ date of entry into the cadre of Assistants Is to be taken from the date of their appointment In the said post Is without any substance. It was contended that their officiating period has been held to be successfully completed by an order passed under Rule 19(3)(c), therefore, the period from which they worked temporarily as Assistants Is to be taken Into consideration for the purpose of seniority. If only the petitioners had been promoted on officiating basis for a period of one year. then Rule 19(c) is alt racted. The order of 19 promotion which Is placed on record clearly shows that the said promotion was given under Rule 17(c) and not under Rule 19(3)(a). For application of Rule 19(3)(c) the sine quo non Is that the promotion should be tinder Rule 19(3)(a). When admittedly the promotion was not tinder Rule 19(31(a). Rule 19(3)(c) has no application. The Government committed serious error in regularising the temporary promotion given to the petitioners under Rule 17(c) by Invoking Rule 19(3)(c). which is patently illegal, without the authority of law and therefore such retrospective operation and subsequent fixation of seniority on the basis of such service Is Illegal and the Tribunal was Justified In setting aside the seniority list which is based on such order. Therefore, we do not find any error committed by the TI-ibunal in passing the Impugned order.

8. In so far as the ground that as the petitioners had not challenged the earlier Seniority List, they are estopped from contending to contrary is concerned, as a mati.er of fact, they had challenged the order. But during the pendency of the said 20 proceedings, the impugned seniority list came to be published. therefore the application was dismissed as infnictuous. if the Seniority list published is not in accordance with law. merely on the ground that earlier Seniority List was not challenged, the Courts cannot up hold the subsequent list, which is contrary to law. But once it is demonstrated that impugned Seniority List is contrary to law and has ben set aside rightly by the Tribunal, the other reason given by the Tribunal is of no consequence. For the aforesaid reasons. we do not find any merit In this writ petition. Accordingly It is dismissed. Sd/a JUDGE Sd/a JUDGE ksp/