Karnataka High Court
N Ravi vs The Commissioner on 12 July, 2021
Author: M.Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JULY, 2021 R
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.7504/2020 (S- PRO)
BETWEEN
1. N.RAVI
S/O LATE NARAYANA,
AGED ABOUT 37 YEARS,
WORKING AS IN-CHARGE
TAX INSPECTOR
OFFICE OF THE
ASSISTANT REVENUE OFFICER
KODIGEHALLI SUB- DIVISION,
8TH MAIN, SAHAKARA NAGAR
BBMP, BENGALURU - 560 092.
SERIAL NO.4416
2. N.RAMESH
S/O LATE NARAYANAPPA,
AGED ABOUT 40 YEARS,
WORKING AS IN-CHARGE
TAX INSPECTOR
OFFICE OF THE COMMISSIONER,
BBMP, NR SQUARE
BENGALURU - 560 002.
3. EBINIZER GNANSHEKAR
S/O LATE GOPAL ,
AGED ABOUT 40 YEARS,
WORKING AS IN-CHARGE
TAX INSPECTOR
OFFICE OF THE ASSISTANT
REVENUE OFFICER,
2
GANDHINAGAR SUB- DIVISION
GOOD SHED ROAD,
COTTONPET, BBMP,
BENGALURU - 560 003.
4. M.GOPI
S/O LATE MALLAIAH,
AGED ABOUT 47 YEARS,
WORKING AS IN-CHARGE
TAX INSPECTOR
OFFICE OF THE
ASSISTANT REVENUE OFFICER,
VIDYARANYA PURA SUB-DIVISION
WARD NO 11, NEAR BUS STAND
VIDYARANYA PURA
BENGALURU - 560 097.
5. G.SHIVAKUMAR
S/O LATE GOVINDA,
AGED ABOUT 31 YEARS,
GROUP D EMPLOYEE
IN OFFICE OF THE
JOINT COMMISSIONER WEST
SAMPIGE ROAD, OPP. MANTRIMALL,
BBMP, BENGALURU - 560 002.
6. NARAYANA M.,
S/O MOHAN
AGED ABOUT 28 YEARS,
GROUP 'D' EMPLOYEE
WORKING IN THE OFFICE OF
IN OFFICE OF THE HEAD LEGAL CELL
BBMP HEAD OFFICE,
N.R.SQUARE, BENGALURU - 560 001.
7. G.MANJUNATH
S/O LATE GUDDAIAH,
AGED ABOUT 45 YEARS,
WORKING AS IN CHARGE
TAX INSPECTOR
3
OFFICE OF THE
ASSISTANT REVENUE OFFICER
NAGPURA SUB DIVISION
MAHALAKSHMI LAYOUT
WARD NO 67, NAGPURA
BENGALURU - 560 086.
8. V.SRINIVAS
S/O LATE VENKATESH,
AGED ABOUT 33 YEARS,
WORKING AS IN CHARGE
TAX INSPECTOR
OFFICE OF THE
ASSISTANT REVENUE
OFFICER HBR LAYOUT,
WARD NO 29, HENNUR MAIN ROAD,
6TH CROSS, KACHARAKANAHALLI
BENGALURU - 560 084.
9. A.GOPAL KRISHNA
S/O LATE YARASWMY,
AGED ABOUT 37 YEARS,
WORKING AS IN CHARGE
TAX INSPECTOR
OFFICE OF THE
ASSISTANT REVENUE OFFICER
K G NAGAR SUB DIVISION
WARD NO 119, J.C.ROAD,
BBMP COMPLEX, BENGALURU - 560 002.
10. K.NAGESH
S/O LATE KEMPAIAH,
AGED ABOUT 47 YEARS,
WORKING AS IN CHARGE
TAX INSPECTOR,
OFFICE OF THE
ASSISTANT REVENUE OFFICER,
BTM LAYOUT, SUB DIVISION,
WARD NO 172, HOSUR MAIN ROAD,
MADIVALA, BENGALURU - 560 068.
4
11. SHEKAR V.,
S/O LATE VENKATAIAH,
AGED ABOUT 36 YEARS,
WORKING AS IN CHARGE
TAX INSPECTOR,
OFFICE OF THE
ASSISTANT REVENUE OFFICER,
K.G.HALLI, SUB DIVISION
WARD NO. 60, SAGAIAHPURAM,
KIMS ROAD, BENGALURU - 560 001.
12. SRINIVASALU
S/O LATE VENKATESH,
AGED ABOUT 30 YEARS,
WORKING AS IN CHARGE
TAX INSPECTOR,
OFFICE OF THE
ASSISTANT REVENUE OFFICER
BEGUR SUB DIVISION
WARD NO 192,
BEGUR MAIN BOMMANAHALLI,
BENGALURU - 560 068.
13. PRASHANTH KUMAR
S/O RAMANNA @ NARAYANA,
AGED ABOUT 41 YEARS,
WORKING AS PEON
OFFICE OF THE
CHIEF HEALTH OFFICER
HEAD OFFICE BBMP,
N.R.SQUARE, BENGALURU - 560 002.
14. V. SRIKANTH
S/O LATE S.VENKATESH,
AGED ABOUT 35 YEARS,
WORKING AS GROUP- D
OFFICE OF THE JOINT DIRECTOR
TOWN PLANNING (SOUTH)
HEAD OFFICE BBMP
N R QUARE, BENGALURU - 560 002.
5
15. RAMAMURTHY Y.,
S/O LATE YAMAIAH R.,
AGED ABOUT 32 YEARS,
WORKING AS IN CHARGE
TAX INSPECTOR OFFICE
OF THE ASSISTANT REVENUE
OFFICER HBR LAYOUT
SUB- DIVISION WARD NO 24,
BDA COMPLEX 3RD BLOCK,
HENNUR, BENGALURU - 560 045.
16. SATHISH U.,
S/O LATE UDAY KUMAR,
AGED ABOUT 32 YEARS,
WORKING AS IN CHARGE
TAX INSPECTOR ,
OFFICE OF THE
ASSISTANT REVENUE OFFICER
JEEVAN BEEMA NAGAR,
WARD NO 80, NO 16, A AND B MAIN
HAL 2ND STAGE, BENGALURU - 560 008.
17. SURESH BABU
S/O LATE NARAYANA,
AGED ABOUT 39 YEARS,
WORKING AS IN CHARGE
TAX INSPECTOR
OFFICE OF THE
ASSISTANT REVENUE OFFICER
CHIKKAPET SUB DIVISION,
TULASI THOTA WARD NO 121,
MAGADI ROAD, 4TH CROSS,
BENGALURU - 560 026.
... PETITIONERS
(BY SRI V. LAXMINARAYANA, SENIOR ADVOCATE A/W.
SRI V. SRINIVAS, ADVOCATE)
6
AND
1. THE COMMISSIONER
BBMP, N.R.SQUARE,
BENGALURU - 560 001.
2. THE DEPUTY COMMISSIONER (ADMIN)
BBMP, N R SQUARE,
BENGALURU - 560 001.
3. M.RAMPRASAD
AGED MAJOR, TAX INSPECTOR,
BBMP, HEAD OFFICE,
N R SQUARE, BENGALURU - 560 002.
4. C.VENKATESH
AGED MAJOR, TAX INSPECTOR,
BBMP, HEAD OFFICE, N.R. SQUARE,
BENGALURU - 560 002.
5. R. UMASH
AGED MAJOR,
TAX INSPECTOR,
BBMP, HEAD OFFICE, N.R. SQUARE,
BENGALURU - 560 002.
6. MOHAMED NASSER
AGED MAJOR, TAX INSPECTOR,
BBMP, HEAD OFFICE, N R SQUARE,
BENGALURU - 560 002.
7. T.HARINI
AGED MAJOR, TAX INSPECTOR,
BBMP, HEAD OFFICE, N R SQUARE,
BENGALURU - 560 002.
8. R. HEMANTH
AGED MAJOR,
TAX INSPECTOR,
BBMP, HEAD OFFICE, N R SQUARE,
7
BENGALURU - 560 002.
9. S.RAJESH
AGED MAJOR, TAX INSPECTOR,
BBMP, HEAD OFFICE, N R SQUARE,
BENGALURU - 560 002.
10. V.CHANDRASHEKAR
AGED MAJOR, TAX INSPECTOR,
BBMP, HEAD OFFICE, N R SQUARE,
BENGALURU - 560 002.
11. N.RAJESH
AGED MAJOR, TAX INSPECTOR,
BBMP, HEAD OFFICE, N R SQUARE,
BENGALURU - 560 002.
12. N.H.GIRISH
AGED MAJOR,
TAX INSPECTOR,
BBMP, HEAD OFFICE, N R SQUARE,
BENGALURU - 560 002.
13. B.KIRAN
AGED MAJOR, TAX INSPECTOR,
BBMP, HEAD OFFICE, N R SQUARE,
BENGALURU - 560 002.
14. D.DIVYA
AGED MAJOR,
SECOND DIVISION ASSISTANT,
BBMP, HEAD OFFICE, N R SQUARE,
BENGALURU - 560 002.
15. S.DIVYA
AGED MAJOR,
SECOND DIVISION ASSISTANT,
BBMP, HEAD OFFICE, N R SQUARE,
BENGALURU - 560 002.
8
16. M.MANJUNATH
AGED MAJOR,
SECOND DIVISION ASSISTANT,
BBMP, HEAD OFFICE, N R SQUARE,
BENGALURU - 560 002.
17. D.NIRMALA DEVI
AGED MAJOR,
SECOND DIVISION ASSISTANT,
BBMP, HEAD OFFICE, N R SQUARE,
BENGALURU - 560 002.
18. R.REKHA
AGED MAJOR,
SECOND DIVISION ASSISTANT,
BBMP, HEAD OFFICE, N R SQUARE,
BENGALURU - 560 002.
... RESPONDENTS
(BY SRI ARAVIND M.NEGLUR, ADVOCATE FOR R1 AND R2;
SRI K.SUBBA RAO, SENIOR ADVOCATE A/W.
SRI K.N.SATHEESH, ADVOCATE FOR R3 TO R18)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE PROMOTION ORDER DTD. 13.03.2020 ISSUED
BY THE R.2 VIDE ANNEXURE-J AND K TO THE WRIT
PETITION; DIRECT THE R-2 TO CONSIDER THESE
PETITIONERS TO THE PROMOTIONS TO THE NEXT CADRE
i.e., TO THE POST OF TAX INSPECTORS IN ACCORDANCE
WITH LAW.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 02.07.2021, COMING ON
FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING :-
9
ORDER
The petitioners in this writ petition who are seventeen in number call in question an order of promotion dated 13-03-2020, promoting private respondent Nos.3 to 18 to the cadre of Tax Inspector ignoring the claim of the petitioners.
2. Sans unnecessary details, the facts in brief as averred by the petitioners in the writ petition, are as follows:-
All the petitioners entered the service of Bruhat Bengaluru Mahanagara Palike (hereinafter referred to as 'the BBMP' for short) as Group-D employees with the qualification of SSLC, which was the requisite qualification for the post at the time of their entry. The petitioners entered service between 18-12-2002 and 19-04-2010. The petitioners further claim that they have cleared all the requisite departmental examinations for consideration of their cases for 10 promotion to the next higher cadre which is Tax Inspector/Second Division Assistant.
3. On 13-12-2013, an amendment was brought about to the Karnataka Civil Services (Recruitment to Ministerial Posts) Rules, 1978 by the Karnataka Civil Services (Recruitment to Ministerial Posts) (Amendment) Rules, 2013, substituting the qualification of pass in Pre-University Course in place of SSLC for the post of Second Division Assistants and equivalent posts. It further transpires that on 21-12-2014, the said Rules further came to be amended by way of clarification that PUC or equivalent qualification would not be insisted upon employees who have already joined service with SSLC qualification for promotion to higher cadre. Owing to the clarification made in the year 2014, several employees of the BBMP who were similarly situated as that of the petitioners with the qualification of SSLC were all promoted to the cadre of Tax Inspector 11 on 26-09-2016. The employees who were promoted were all seniors to the petitioners and the qualification which they possessed was that of a pass in SSLC.
4. Considering the seniority of the petitioners, they were placed on in-charge basis in the cadre of Tax Inspector which is the next higher cadre for promotion from Group-D posts in the BBMP. When the petitioners were all working as Tax Inspectors on in-charge basis, a Circular was issued on 03-10-2019 calling for service particulars of the petitioners in tune with their seniority. But promotions were not granted despite summoning of records for a long time. This drove some of the petitioners to this Court in Writ Petition No. 4877 of 2020 seeking a mandamus to consider their cases for promotion. This came to be disposed of by this Court on 02-03-2020 directing the BBMP to act efficaciously and expeditiously and complete grant of promotion as permissible in law.
12
5. Promotions to the petitioners were not granted, but the promotions of private respondents 3 to 18 were granted on 13-03-2020 along with others to the post of Second Division Assistants or Tax Inspectors as the case would be. This promotion was granted to the private respondents on the ground that the requisite qualification in terms of the Rules obtaining at the relevant point in time was a pass in PUC and the petitioners herein are holders of SSLC. It is however now contended the State Government on 16-03-2020, notified new Rules to the employees of BBMP namely Bruhat Bengaluru Mahanagara Palike (General Cadre and Recruitment of Officers and Employees) Rules, 2018 in exercise of powers conferred by Government under Section 71 read with Section 421 of the Karnataka Municipal Corporations Act, 1976. This came into effect from 16-03-2020. In the newly framed Rules to the posts of Second Division Assistants or Tax Inspectors, the minimum qualification depicted is PUC. 13 It is the grant of promotions ignoring the cases of the petitioners to the private respondents that is called in question in the writ petition.
6. Heard Shri V. Laxminarayana, learned Senior Counsel for Shri V. Srinivas, learned counsel for the petitioners, Shri K. Subba Rao, learned Senior Counsel for Shri K.N. Satheesh, learned counsel for respondent Nos.3 to 18 and Shri Aravind M. Neglur, learned counsel appearing for respondent Nos.1 and 2.
7. The learned senior counsel Shri V. Laxminarayana, would submit that the petitioners are all seniors to private respondents. The qualification that the petitioners possess at the time of entry into Group-D service was SSLC; at the time when the petitioners entered service, the promotional post also needed the qualification of SSLC; it is for the first time in the year 2013, the Rules that were existing came to be amended with the prescription of qualification of 14 PUC for the post of Second Division Assistant or equivalent; this was clarified later by way of a proviso that it would not be applicable to employees who have already joined service with the qualification of SSLC.
7.1. The learned senior counsel would submit that notwithstanding this clarification, the private respondents who are juniors to the petitioners are promoted on 13-03-2020, under the Rules which insisted qualification of PUC despite the subsequent clarification and would also submit that the new Rules notified on 16-03-2020, would not be applicable to the petitioners as the vacancies arose long before promulgation of the Rules of 2020.
8. Per-contra, the learned senior counsel representing respondent Nos.3 to 18 would seek to justify their promotions on the ground that, be it the new or the old Rules earlier prevailing, what was insisted upon, as a qualification for promotion, was 15 PUC. Admittedly, the petitioners do not possess the qualification of PUC and on that ground, the learned senior counsel would submit that though private respondents were juniors to the petitioners, on the ground that they are qualified, are promoted.
9. The learned counsel for the BBMP, Sri Aravind M. Neglur, would also toe the lines of the learned senior counsel appearing for respondent Nos.3 to 18, in making identical submissions but would further submit that there are vacancies in the BBMP in the posts to which the petitioners are also seeking promotion and the petitioners can also be accommodated.
10. I have given my anxious consideration to the contentions and contra-contentions of the respective learned senior counsel and the learned counsel appearing for the BBMP and in furtherance whereof, the following points would arise for consideration: 16
'(i) Whether the petitioners had a right to be considered for a promotion to the post of Tax Inspectors/Second Division Assistants in terms of the Rules of 2013?
(ii) Whether the new Rules notified on 16.03.2020 would take away the right of the petitioners for promotion to the next higher post of Tax Inspector/Second Division Assistant in the light of vacancies in these posts existing long before the promulgation of the new Rules of 2020?' Re. Point No.(i) Whether the petitioners had a right to be considered for a promotion to the post of Tax Inspectors/Second Division Assistants in terms of the Rules of 2013?
11. Facts are not in dispute. The petitioners and the private respondents entered the cadre of Group-D in the BBMP. Petitioners entered service before private respondent Nos.3 to 18 joined the service of the BBMP. Thus, the petitioners were seniors to the private respondents. The controversy is with regard to the 17 promotion to the next higher cadre of either Tax Inspector or Second Division Assistant, the feeder cadre of which among others is, from Group-D employees. Both the petitioners and the private respondents entered as Group-D employees and formed the feeder cadre inter alia for promotion to the post of Second Division Assistant or Tax Inspector, as the case would be.
12. The Rules that were obtaining at the relevant point in time in the Government for grant of promotion to the post of Second Division Assistants/Tax Inspectors underwent a change on 13-12-2013, in the light of amendment to the Karnataka Civil Services (Recruitment to the Ministerial Posts) (Amendment) Rules, 2013. These Rules are applicable to the employees of the BBMP. The amended Rule reads as follows:
"NO.DPAR 18 SCR 2013, Bangalore, dated 13-12-2013.18
WHEREAS the draft of the Karnataka Civil Services (Recruitment to the Ministerial Posts) Rules, 1978 was published as required by clause (a), sub-section (2) of Section 3 read with Section 8 of the Karnataka State Civil Services Act, 1978 (Karnataka Act 14 of 1990) in Notification No.DPAR 18 SCR 2013 dated 13-11-2013 in Part-IVA (PR No.1268) of the Karnataka Gazette Extra-ordinary dated 13-11-2013 inviting objections and suggestions from all persons likely to be affected thereby within fifteen days from the date of publication of the draft in Official Gazette.
WHEREAS, the said Gazette was made available to the public on 13-11-2013.
AND WHEREAS, no objections and suggestions have been received in this behalf by the State Government.
NOW, THEREFORE, in exercise of the powers conferred by sub-section (1) of Section 3 read with Section 8 of the Karnataka State Civil Services Act, 1978 (Karnataka Act 14 of 1990) the Government of Karnataka hereby makes the following rules, namely:-
RULES
1. Title and commencement:- (1) These rules may be called the Karnataka Civil Services (Recruitment to the Ministerial Posts) (Amendment) Rules, 2013.19
(2) They shall come into force from the date of their publication in the Official Gazette.
2. Amendment of rule 4:- In the Karnataka Civil Services (Recruitment to the Ministerial Posts) Rules, 1978, in rule 4, -
(i) in sub-rule (1), in clause (ii), for the words "Secondary School Leaving Certificate Examination or equivalent qualification" the words "Pre-University Course examination or equivalent qualification" shall be substituted.
(ii) in sub-rule 2, for the words "Secondary School Leaving Certificate Examination or equivalent qualification"
the words "Pre-University Course examination or equivalent qualification"
shall be substituted."
(emphasis supplied) In terms of the amendment as aforementioned, the qualification of SSLC obtaining in Rule 4 of the principal rules came to be amended to that of Pre-University Examination or equivalent qualification. Immediately thereafter on 21-04-2014, these rules were further clarified by adding a proviso which reads as follows: 20
"¹§âA¢ ªÀÄvÀÄÛ DqÀ½vÀ ¸ÀÄzsÁgÀuÉ ¸ÀaªÁ®AiÀÄ C¢ü¸ÀÆZÀ£É ¸ÀASÉå:¹D¸ÀÄE 20 ¸ÉêÀ£É 2014 ¨ÉAUÀ¼ÀÆgÀÄ, ¢£ÁAPÀ:21/04/2014.
PÀ£ÁðlPÀ ¹«¯ï ¸ÉêÁ (°¦PÀ ºÀÄzÉÝUÀ¼À £ÉêÀÄPÁw) ¤AiÀĪÀÄUÀ¼ÀÄ, 1978, EzÀÄ ªÀÄvÀÛµÀÄ Ö wzÀÄÝ¥Àr ªÀiÁqÀĪÀÅzÀPÉÌ ¢£ÁAPÀ:
25-02-2014gÀ C¢ü¸ÀÆZÀ£É ¸ÀASÉå:¹D¸ÀÄE 20 ¸ÉêÀ£É 2014gÀ°è ¥ÀæPÀn¹gÀĪÀ F ªÀÄÄA¢£À ¤AiÀĪÀÄUÀ¼À PÀgÀqÀ£ÀÄß C¢üPÊÉ vÀ gÁdå¥ÀvÀæzÀ°è EzÀgÀ ¥ÀæPÀluÉAiÀÄ ¢£ÁAPÀ¢AzÀ 15 ¢£ÀUÀ¼ÉƼÀUÁV CzÀjAzÀ ¨Á¢üvÀgÁUÀĪÀ ¸ÀA¨sÀªÀ«gÀĪÀ J®è ªÀåQÛUÀ½AzÀ DPÉëÃ¥ÀuÉUÀ¼À£ÀÄß ªÀÄvÀÄÛ ¸À®ºÉUÀ¼À£ÀÄß DºÁ餹 ¢£ÁAPÀ:25/02/2014gÀ PÀ£ÁðlPÀ gÁdå¥ÀvÀæzÀ ¨sÁUÀ IV-J (¦.Dgï.¸ÀA:151)gÀ°è PÀ£ÁðlPÀ gÁdå ¹«¯ï ¸ÉêÉUÀ¼À C¢ü¤AiÀĪÀÄ, 1978 (1990gÀ PÀ£ÁðlPÀ C¢ü¤AiÀĪÀÄ 14)gÀ 3£Éà ¥ÀæPÀgÀtzÀ (2)£Éà G¥À ¥ÀæPÀgÀtzÀ (J) RAqÀzÀ ªÀÄÆ®PÀ CUÀvÀå¥Àr¸À¯ÁzÀAvÉ ¥ÀæPÀn¸À¯ÁVgÀĪÀÅzÀjAzÀ;
¸ÀzÀj gÁdå¥ÀvÀæªÀ£ÀÄß ¢£ÁAPÀ:25/02/2014gÀAzÀÄ ¸ÁªÀðd¤PÀjUÉ ®¨sÀåªÁUÀĪÀAvÉ ªÀiÁrgÀĪÀÅzÀjAzÀ; ªÀÄvÀÄÛ ¸ÀzÀj PÀgÀr£À §UÉÎ AiÀiÁªÀÅzÉà DPÉëÃ¥ÀuÉ/¸À®ºÉUÀ¼ÀÄ ¹éÃPÀÈvÀªÁUÀ¢gÀĪÀÅzÀjAzÀ;
FUÀ PÀ£ÁðlPÀ gÁdå ¹«¯ï ¸ÉêÉUÀ¼À C¢ü¤AiÀĪÀÄ, 1978 (1990gÀ PÀ£ÁðlPÀ C¢ü¤AiÀĪÀÄ, 14)gÀ 8£Éà ¥ÀæPÀgÀtzÉÆA¢UÉ N¢PÉÆAqÀ 3£Éà ¥ÀæPÀgÀtzÀ (1)£Éà G¥À ¥ÀæPÀgÀtzÀ ªÀÄÆ®PÀ ¥ÀæzÀvÀÛªÁzÀ C¢üPÁgÀUÀ¼À£ÀÄß ZÀ¯Á¬Ä¹, PÀ£ÁðlPÀ ¸ÀPÁðgÀªÀÅ F ªÀÄÆ®PÀ F PɼÀPÀAqÀ ¤AiÀĪÀÄUÀ¼À£ÀÄß gÀa¸ÀÄvÀÛzÉ, JAzÀgÉ:-
¤AiÀĪÀÄUÀ¼ÀÄ 21
1. ²Ã¶ðPÉ ªÀÄvÀÄÛ ¥ÁægÀA¨sÀ:- (1) F ¤AiÀĪÀÄUÀ¼À£ÀÄß PÀ£ÁðlPÀ ¹«¯ï ¸ÉêÁ (°¦PÀ ºÀÄzÉÝUÀ¼À £ÉêÀÄPÁw) (wzÀÄÝ¥Àr) ¤AiÀĪÀÄUÀ¼ÀÄ, 2014 JAzÀÄ PÀgÉAiÀÄvÀPÀÌzÀÄÝ.
(2) F ¤AiÀĪÀÄUÀ¼ÀÄ C¢üPÀÈvÀ gÁdå¥ÀvÀæzÀ°è ¥ÀæPÀlªÁzÀ ¢£ÁAPÀ¢AzÀ eÁjUÉ §gÀvÀPÀÌzÀÄÝ.
2. ¤AiÀĪÀÄ 4PÉÌ wzÀÄÝ¥Àr:- PÀ£ÁðlPÀ ¹«¯ï ¸ÉêÁ (°¦PÀ ºÀÄzÉÝUÀ¼À £ÉêÀÄPÁw) ¤AiÀĪÀÄUÀ¼ÀÄ, 1978gÀ, ¤AiÀĪÀÄ 4gÀ G¥À¤AiÀĪÀÄ (2)gÀ £ÀAvÀgÀ F PɼÀV£À ¥ÀgÀAvÀÄPÀªÀ£ÀÄß ¸ÉÃj¸ÀvÀPÀÌzÀÄÝ, CAzÀgÉ:-
"¥ÀgÀAvÀÄ PÀ£ÁðlPÀ ¹ªÀ¯ï ¸ÉêÁ (°¦PÀ ºÀÄzÉÝUÀ¼À £ÉêÀÄPÁw) ¤AiÀĪÀÄUÀ¼ÀÄ, 2013 eÁjUÉ §gÀĪÀ ¢£ÁAPÀzÀAzÀÄ J¸ï.J¸ï.J¯ï.¹. «zÁåºÀðvÉ ºÉÆA¢ FUÁUÀ¯Éà ¸ÉêÉAiÀÄ°ègÀĪÀªÀgÀ ªÀÄÄA§rÛ CxÀªÁ ªÀUÁðªÀuÉUÉ ¥ÀzÀ« ¥ÀƪÀð ²PÀët ¥ÀjÃPÉë CxÀªÁ EzÀgÀ vÀvÀìªÀiÁ£À ¥ÀjÃPÉëAiÀÄ°è vÉÃUÀðqÉAiÀÄ£ÀÄß CºÀðvÉAiÀÄ£ÁßV £ÀUÀ¢¥Àr¹gÀĪÀÅzÀÄ C£Àé¬Ä¸ÀĪÀÅ¢®è."
(emphasis supplied) In terms of the proviso, the rules which insisted on qualification of PUC were made inapplicable to the employees who had joined the BBMP with the qualification of SSLC.
22
13. In terms of the said qualification several employees who were in Group-D and seniors to the petitioners who had the qualification of SSLC were all promoted to the cadre of Tax Inspector or Second Division Assistant. This fact is not in dispute. Therefore, the BBMP was aware and applied the proviso to grant promotion to several seniors to the petitioners with their qualification being SSLC to the next higher cadre of Tax Inspector/Second Division Assistant. The petitioners who were next in line for promotion in terms of their seniority were all placed on in-charge basis in the cadre of Tax Inspector on 12.02.2019. After about 8 months of the petitioners being placed as in-charge Tax Inspectors, in order to grant promotions to the petitioners, service records were summoned by a Circular dated 03-10-2019. The Circular reads as follows:-
" ¸ÀÄvÉÆÛÃ¯É «µÀAiÀÄ: £Á®Ì£Éà zÀeÉð £ËPÀgÀgÀ ªÀÈAzÀ¢AzÀ ¢éwÃAiÀÄ zÀeÉð 23 ¸ÀºÁAiÀÄPÀgÀÄ / PÀAzÁAiÀÄ ªÀ¸ÀÆ°UÁgÀgÀ ºÀÄzÉÝUÉ ªÀÄÄA§rÛ ¤ÃqÀĪÀ §UÉÎ.
G¯ÉèÃR: 1) ¸ÀPÁðgÀzÀ ¹§ãA¢ ªÀÄvÀÄÛ DqÀ½vÀ ¸ÀÄzsÁgÀuÉ E¯ÁSÉAiÀÄ DzÉñÀ ¸ÀASÉå:¹D¸ÀÄE 186 J¸ïDgïJ¸ï 2018, ¢£ÁAPÀ:27-02-2019.
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(emphasis supplied) The Circular clearly directed that several of Group-D employees who were Attendars, Gangmen, Daffedars etc. are required to be considered for promotion to the posts of Second Division Assistants/Tax Inspectors according to their seniority. Though, on 03-10-2019, service records of the petitioners were summoned, nothing progressed thereafter. It is then the petitioners approached this Court in Writ Petition No.4877 of 2020. This Court by its order dated 02-03-2020, disposed of the writ petition by the following order:
"5. It is the case of the petitioners that if the relief as sought for is not granted, the respondents may delay the completion of the process of granting promotions. Keeping in view the submissions made by the learned counsel for the petitioners that records have already been requisitioned and are under consideration, is suffice to demonstrate that 25 the respondents are acting in a fair and square manner and marginal delay in constitution of Departmental Promotion Committee would not entitle the petitioners for a relief as in the nature sought for.
6. Be that as it may, this Court is of the considered opinion that the respondents would act efficaciously and expeditiously and complete the process of granting promotions as permissible under law."
The order passed by this Court did not enure to the benefit of the petitioners, but to the private respondents who were immediately thereafter promoted on 13-03- 2020, taking into consideration the qualification prescribed under the Rules which stood prior to adding the proviso. The Rule that bears reference in the order of promotion dated 13-03-2020 is the notification dated 13.12.2013, and the qualification of PUC that was sought for in the Rules. Though the order refers to the proviso as well, but all the private respondents who are 26 promoted possessed the qualification of PUC. This is vindicated from the justification given by the BBMP in the statement of objections contending that the petitioners have been rightly denied promotions for want of requisite qualification. The statement of objections insofar as it is germane reads as follows:-
"3. It is submitted that the petitioners have been rightly denied promotion for want of requisite qualification as on the date of consideration of their candidature. There-fore, the writ petition is liable to be dismissed.
4. It is submitted that the petitioners have been relying upon law that stood prior to amendment to seek promotion. Therefore, the petition is liable to be dismissed.
5. It is submitted that the Karnataka Civil Services (Recruitment of Ministerial Posts) Rules, 1978 have been amended with effect from 13-12-2013. A copy of the notification bearing No.DPAR 18 SCR 2013, 27 Bengaluru, dated 13-12-2013 is produced herewith and marked Annexure-R1. Rule 4 of the said Rules has been inserted with the words "Pre-University Course Examination or equivalent qualifications" in the place of "Secondary School Living Certificate or equivalent qualification". Since the amendment has come into effect from 13-11-
2013 the petitioners are governed by the amended provision. There-fore, the writ petition filed by the petitioners should fail."
(emphasis added) Therefore, it need not necessitate this Court to delve deeper as to whether the Rule prior to insertion of the proviso is taken into consideration or otherwise, as BBMP itself clearly indicates in its affidavit that what was considered was the Rule dated 13.12.2013, and the petitioners despite being seniors were denied promotions on the ground that the Rule insisted PUC as the requisite qualification and the petitioners did not possess such a qualification. In view of the preceding 28 analysis, I hold point No.1 in favour of the petitioners by declaring that the petitioners were entitled to be considered for promotion to the post of Second Division Assistants/Tax Inspectors in the light of the insertion of proviso clarifying the Rule of 2013, as also in the light of the undisputed fact that several seniors to the petitioners were all granted promotion relying on the proviso which dispensed with the qualification of PUC, if the employees are appointed prior to 13.12.2013, as also the placement of the petitioners on in- charge basis in the existing vacancies pending consideration of their cases for regular promotion to the post of Second Division Assistants/Tax Inspectors. It is beyond cavil that the private respondents 3 to 18 have stolen a march over the petitioners.
Re. Point No.(ii): Whether the new Rules notified on 16.03.2020 would take away the right of the petitioners for promotion to the next higher post of Tax Inspector/Second Division Assistant in the light of 29 vacancies in these posts existing long before the promulgation of the new Rules of 2020?
14. After the promotion of private respondents on 13.03.2020, the State Government notified Bruhat Bengaluru Mahanagara Palike (General Cadre and Recruitment of Officers and Employee) Rules, 2020 which came into effect from 16.03.2020 (hereinafter referred to as 'the Rules, 2020' for short). The Rules, 2020 insofar as they pertain to the cadre of Tax Inspector read as follows:-
Revenue Department 1 Sl. No. 06
2. Category of posts Tax Inspector (Rs.21400-
and scale of pay. 42000)
3. Number of posts 594 4 Method of (1) Sixty percent by direct Recruitment recruitment; and (2) Forty percent by promotion from any of the Group 'D' cadre on the basis of combined seniority.
Seniority is being determined by treating a person holding of a post carrying higher scale of pay as senior to a person carrying higher scale of pay.30
5. Minimum For Promotion. -
qualification (1) Must have passed PUC/ equivalent examination; and (2) Must have put in a service of not less than five years of service in the cadre of Group-
'D'.
For Direct Recruitment. -
Must have passed PUC or equivalent examination with Kannada as a language.
The qualification prescribed for promotion to the post of Tax Inspector was PUC. On the strength of these Rules, both the learned senior counsel appearing for private respondents and learned counsel appearing for BBMP, would in unison submit that, admittedly, the petitioners are not qualified as the Rules, 2020, also insisted qualification of PUC which the private respondents possess.
15. The issue now springs for consideration in the light of the facts, contentions and contra-contentions is with regard to application of Rules when the vacancies arose in the cadre of Tax Inspector. It is not in dispute 31 that several vacancies arose in the cadre of Tax Inspector or Second Division Assistant, as the case would before the Rules, 2020, came into force which was on 16-03-2020. Owing to existence of vacancies, all the petitioners herein were placed on in-charge basis in the cadre of Tax Inspector or Second Division Assistant.
The Rules that were prevailing prior to the Rules, 2020, had not insisted on qualification of PUC for employees who had joined service of the BBMP prior to 13-12-2013, for promotion to next higher cadre. All the petitioners have joined the service of BBMP before 13-12-2013 and are seniors to private respondents. Under the Rules then prevailing, the promotions of the petitioners could not have been denied. Taking into consideration the new Rules, the vacancies that existed prior to promulgation of the new Rules cannot be considered in terms of new Rules. Two principles emerge in the controversy. The promotion that is granted to private respondents even before the Rules, 32 2020, was contrary to the proviso that deleted insistence of PUC as a qualification for promotion and the vacancies that arose when the old Rules were prevailing will have to be filled up on promotion in terms of the old Rules. Old Rules, as stated, deleted the qualification and the new Rules that insisted on qualification of PUC would not be applicable to the vacancies that arose prior to those Rules. The petitioners who were qualified in terms of the proviso notified on 21-04-2014, became eligible for consideration for promotions. Consideration for promotion, is trite a fundamental right as held in plethora of judgments of the Apex Court. Therefore, cases of petitioners ought to have been considered.
16. It is now germane to notice and consider the defence of the respondents that new Rules have come into force and the petitioners cannot be considered for promotion to the cadre of Second Division Assistant or 33 Tax Inspector. Since the application of the Rules qua vacancies, as an issue, has emerged, it is necessary to notice the line of law as delineated by the Apex Court. The Apex Court in the case of State of Rajasthan v. R. Dayal1, has held as follows:
"8. Therefore, it is not in dispute and cannot be disputed that while selecting officers, minimum requisite qualifications and experience for promotion specified in the relevant column, should be taken into consideration against vacancies existing as on 1st April of the year of selection. But since the Rules came to be amended and the amendment became effective with immediate effect and clause (11-B) of Rule 24-A indicates that options have been given to the Government or the appointing Authority, as the case may be, to revise the select list as existing as per the law as on the date of the appointment or as may be directed by a competent court, selection is required to be made by the concerned DPC. An appointment made, after selection as per the procedure, to the vacancies existing prior to the amendment, is valid. But the question is whether selection would be made, in the case of appointment to the vacancies which 1 (1997) 10 SCC 419 34 admittedly arose after the amendment of the Rules came into force, according to the amended Rules or in terms of Rule 9 read with Rules 23 and 24-A, as mentioned hereinbefore. This Court has considered the similar question in para 9 of the judgment above-cited. This Court has specifically laid that the vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules. Accordingly, this Court had held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filled in accordance with the law existing as on the date when the vacancies arose. Undoubtedly, the selection came to be made prior to the amendment of the Rules in accordance with law then existing since the anticipated vacancies also must have been taken into consideration in the light of Rule 9 of the Rules. But after the amended Rules came into force, necessarily the amended Rules would be required to be applied for and given effect to. But, unfortunately, that has not been done in the present case. The two courses are open to the Government or the appointing authority, viz., either to make temporary promotions for the 35 ensuing financial year until the DPC meets or in exercise of the power under Rule 24-A(11- B), they can revise the panel already prepared in accordance with the Rules and make appointments in accordance therewith.
9. It is contended by Shri Das that one of the persons, namely, H.L. Meena was appointed against a carried-forward post as per the existing Rules and, therefore, his appointment cannot be challenged. We find it difficult to give acceptance to the contention.
Even a carried-forward vacancy is required to be considered in accordance with the law existing unless suitable relaxation is made by the Government. As on that date, when the appointment came to be made, the selection was required to be made on the basis of the Rules as existing on the date the vacancy arose. Since, admittedly, that has not been done, the appointment of Shri Bhatnagar and H.L. Meena must be treated to be only temporary appointments pending consideration of the claims of all the eligible persons belonging to General and Reserved quota separately as per Rules.
(emphasis supplied) 36 The Apex Court later in the case of A. Manoharan v. Union of India2, has held as follows:
"25. Furthermore, the Regulations have been amended only with effect from 11-8-2004. It would have a prospective effect. It cannot be applied retrospectively. Any vacancy which has arisen prior to coming into force of the said amended Regulations must be filled up in terms of the law as was existing prior thereto. (State of Rajasthan v. R. Dayal [(1997) 10 SCC 419 : 1997 SCC (L&S) 1631] , SCC para 8.)"
(emphasis supplied) Again the Apex Court in the case of Kulwant Singh v. Daya Ram3, has held as follows:
"38. Keeping the aforesaid proposition of law in mind we shall proceed to deal with various other facets which have been canvassed before us, for we feel it is not a case which can be shut down by holding that the order dated 8-1-1990 [Mewa Singh v. Chandigarh Admn., OA No. 137/CH/89, order dated 8-1-1990 (Tri)] 2 (2008) 3 SCC 641 3 (2015) 3 SCC 177 37 having gone unassailed, the doors of justice from all quarters get closed. The Tribunal in Acchhar Chand case [Acchhar Chand v. Union of India, OA No. 510/CH/88, order dated 28-9-1988 (Tri)] , which was decided on 28-9-1988, had strictly gone by the principles stated in Y.V. Rangaiah [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382 : AIR 1983 SC 852] by directing to prepare a fresh list of constables for sending to Lower School Course at Police Training College, Phillaur, in accordance with the pre-amended Rule as far as vacancies of Head Constables which had come into existence prior to the Notification dated 17-6-1988. It had further clarified that it is open to the respondent to act in accordance with the amended Rule in respect of the vacancies/posts of Head Constables which may have occurred subsequent to coming into force of the amended Rule.
Submission of Mr Gupta is that the said order was not only in accord with Y.V. Rangaiah [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382 : AIR 1983 SC 852] but also in consonance with the principles stated in P. Ganeshwar Rao [P. Ganeshwar Rao v. State of A.P., 1988 Supp SCC 740 : 1989 SCC (L&S) 123 : (1988) 8 ATC 957] , R. Dayal [State of Rajasthan v. R. Dayal, (1997) 10 SCC 419 :
1997 SCC (L&S) 1631] , B.L. Gupta [B.L. 38 Gupta v. MCD, (1998) 9 SCC 223 : 1998 SCC (L&S) 532] and Arjun Singh Rathore [Arjun Singh Rathore v. B.N. Chaturvedi, (2007) 11 SCC 605 : (2008) 2 SCC (L&S) 387] .
39. In P. Ganeshwar Rao [P. Ganeshwar Rao v. State of A.P., 1988 Supp SCC 740 : 1989 SCC (L&S) 123 : (1988) 8 ATC 957] the Court reproduced a passage from Y.V. Rangaiah [Y.V. Rangaiah v. J.
Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382 : AIR 1983 SC 852] and observed that it appositely applied to the facts of the said case. The question that emerged for consideration in the said case was whether the amendment made on 28-4- 1980 to the Special Rules in the said case applied only to the vacancies that arose after the date on which the amendment came into force or whether it applied to the vacancies which had arisen before the said date also. Interpreting the Rule the Court observed that the amendment on 28-4-1980 did not apply to the vacancies that had arisen prior to the date of amendment. The ratio of the said decision is that the vacancies that had arisen after the amendment would be governed by the amended Rule and the vacancies that had arisen prior to the amendment would be governed by the unamended Rule.
39
40. In R. Dayal [State of Rajasthan v. R. Dayal, (1997) 10 SCC 419 : 1997 SCC (L&S) 1631] the Court was considering the effect of Rule 24-A of the Rajasthan Service of Engineers (Building and Roads Branch) Rules, 1954 (as amended). It pertained to the vacancies which were filled up prior to the amended Rule. Question arose whether the vacancies were prepared to be filled up under the amended Rule or unamended Rule. On behalf of the respondents therein reliance was placed on Y.V. Rangaiah [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382 : AIR 1983 SC 852] . The Court, appreciating the factual scenario and the rule position, came to hold as follows: (R. Dayal case [State of Rajasthan v. R. Dayal, (1997) 10 SCC 419 :
1997 SCC (L&S) 1631] , SCC p. 422, para 8) "8. ... But the question is whether selection would be made, in the case of appointment to the vacancies which admittedly arose after the amendment of the Rules came into force, according to the amended Rules or in terms of Rule 9 read with Rules 23 and 24-A, as mentioned hereinbefore. This Court has considered the similar question in para 9 of the judgment above-40
cited. This Court has specifically laid that the vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules. Accordingly, this Court had held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filled in accordance with the law existing as on the date when the vacancies arose."
41. In B.L. Gupta [B.L. Gupta v. MCD, (1998) 9 SCC 223 : 1998 SCC (L&S) 532] the Court reiterated the principle stated in Y.V. Rangaiah [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382 : AIR 1983 SC 852] , P. Ganeshwar Rao [P. Ganeshwar Rao v. State of A.P., 1988 Supp SCC 740 : 1989 SCC (L&S) 123 : (1988) 8 ATC 957] and A.A. Calton v. Director of Education [(1983) 3 SCC 33 : 1983 SCC (L&S) 356] wherein it had been held that the vacancies which had occurred prior to 41 the amendment of rules were governed by the old rules and not by the amended rules. In Arjun Singh Rathore [Arjun Singh Rathore v. B.N. Chaturvedi, (2007) 11 SCC 605 : (2008) 2 SCC (L&S) 387] the views stated in Y.V. Rangaiah [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382 : AIR 1983 SC 852] and R. Dayal [State of Rajasthan v. R. Dayal, (1997) 10 SCC 419 : 1997 SCC (L&S) 1631] were reiterated."
(emphasis supplied) The Apex Court yet again in the case of State of Orissa v. State (TRYSEM) Livestock Inspector Sangha4, has held as follows:
"10. There cannot be any quarrel with the first principle in service jurisprudence, that for direct recruitment, the qualification has to be seen at the time of recruitment. In direct recruitment a lot of policy issues are also involved. It is not mandatory that all such vacancies should be filled up and if at all to be filled up, should be filled up as and when vacancies arise. Those are all matters left to the conscious decision of the appointing authority. It is also open to the competent authority to decide the mode and manner of 4 (2018) 18 SCC 247 42 selection and prescribe the qualification and eligibility at the time of recruitment. However, in the case of promotion, the incumbents are entitled to stake a claim for vacancies which existed prior to the amendment to be filled up as per the unamended rules. That is based on the principle of legitimate expectation.
Hence, we find it difficult to appreciate the submission made by Shri R.P. Bhat, learned Senior Counsel, that the qualification should be seen as on the date of occurrence of vacancies, in the case of direct recruitment.
14. Thus, the view taken by the High Court that the appointment will have to be made in terms of the Rules existing at the time of occurrence of vacancy, for direct recruitment, placing wrong reliance in Vinod Kumar Sangal [Vinod Kumar Sangal v. Union of India, (1995) 4 SCC 246 : 1995 SCC (L&S) 963] does not reflect the correct legal position. As we have already stated above, for promotees, they can always stake a claim for promotion in respect of the vacancies available prior to the amendment to be filled up in terms of the amended Rules. That is not the situation in the present case.
(emphasis supplied) 43 The controversy is further clarified by the Apex Court in its latest judgment in the case of DR.ASWATHY R.S. KARTHIKA AND OTHERS v. DR. ARCHANA M. AND OTHERS5. A perusal at the judgments of the Apex Court and the principle enunciated therein, beyond equivocation will lead to a conclusion that the vacancies that existed prior to the promulgation of the new Rules will have to be filled up in accordance with the Rules obtaining at the relevant point in time.
17. Insofar as the judgments relied on by the learned senior counsel appearing for private respondents contending that the judgment in the case of Y.V. RANGAIAH AND ORS. VS J. SREENIVASA RAO AND ORS.6, which enunciated that vacancies under the old Rules will have to be filled up in terms of the unamended Rules has been clarified in the subsequent judgments. The clarified judgments relied on by the 5 (2020) 8 SCC 98 6 (1983) 3 SCC 284 44 learned counsel appearing for the respondents are in the cases of, Deepak Agarwal v. State of U.P.7, wherein it has held as follows:
"8. We have heard the exhaustive submissions made by the learned counsel for the parties. Dr. Rajeev Dhavan, learned Senior Counsel, appearing for the appellants, has highlighted the primary issues involved herein, which are as follows:
Whether the State of Uttar Pradesh amendment of 17-5-1999 in the Schedule is invalid because--
(a) it abolishes Technical Assistant Officers (TAO) and Statistical Officers (SO) as feeder streams to the post of Deputy Excise Commissioner;
(b) denies TAO and SO the right to be considered for promotion;
(c) stagnates them by denying any promotional avenue and merely gives them a "sop" of upgradation with no avenue to promotion;
(d) gives retroactive application to the amendment to exclude persons covered by the pre-amended Rules of 1983.7
(2011) 6 SCC 725 45
9. By the amendment, the avenue of promotion of the appellants has been totally blocked. The upgradation of the pay scale is a mere sop. The decision to amend the Rules on 19-5-1999 came within one year of granting eligibility to the post of Statistical Officer on 22-6-1998. It was unreasonable for the State to do a total volte face. Only reason for such a volte face was the pressure from the Excise Commissioner to be favoured.
28. In our opinion, the matter is squarely covered by the ratio of the judgment of this Court in Dr. K. Ramulu [(1997) 3 SCC 59 : 1997 SCC (L&S) 625] . In the aforesaid case, this Court considered all the judgments cited by the learned Senior Counsel for the appellant and held that Y.V. Rangaiah case [(1983) 3 SCC 284 : 1983 SCC (L&S) 382] would not be applicable in the facts and circumstances of that case. It was observed that for reasons germane to the decision, the Government is entitled to take a decision not to fill up the existing vacancies as on the relevant date. It was also held that when the Government takes a conscious decision and amends the rules, the promotions have to be made in accordance with the rules prevalent at the time when the consideration takes place."
46Later in the case of State of Tripura v. Nikhil Ranjan Chakraborty8, following the judgment in the case of Deepak Agarwal (supra) holds as follows:
"8. In Deepak Agarwal [Deepak Agarwal v. State of U.P., (2011) 6 SCC 725 :
(2011) 2 SCC (L&S) 175] the appellants were Technical Officers who along with Assistant Excise Commissioners were eligible to be considered for promotion to the post of Deputy Excise Commissioner. Two days before the DPC was scheduled to meet to consider the cases of all eligible officers for promotion, the Rules concerned were amended and Technical Officers stood excluded as the feeder post for the next promotional post of Deputy Excise Commissioner. The challenge to such exclusion having been negated [Deepak Agarwal v. State of U.P., 2002 SCC OnLine All 1279 : 2002 All LJ 1701] by the High Court, the matter reached this Court and the relevant paragraphs of the decision were:
(Deepak Agarwal case [Deepak Agarwal v. State of U.P., (2011) 6 SCC 725 : (2011) 2 SCC (L&S) 175] , SCC pp. 728 & 734-35, paras 2 & 23-26) "2. The old vacancies have to be filled under the old rules is the mantra 8 (2017) 3 SCC 646 47 sought to be invoked by the appellants in support of their claim that the vacancies arising prior to 17-5-1999, ought to be filled under the 1983 Rules as they existed prior to the amendment dated 17-5-1999. The claim is based on the principle enunciated by this Court in Y.V. Rangaiah v. J. Sreenivasa Rao [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382] .
***
23. Could the right of the appellants, to be considered under the unamended 1983 Rules be taken away? The promotions to the 12 vacancies have been made on 26-5-
1999 under the amended Rules. The High Court rejected [Deepak Agarwal v. State of U.P., 2002 SCC OnLine All 1279 : 2002 All LJ 1701] the submissions of the appellants that the controversy herein is squarely covered by the judgment of this Court in Y.V. Rangaiah [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 :
1983 SCC (L&S) 382] . The High Court has relied on the judgment of this Court in K. Ramulu v. S. Suryaprakash Rao [K. Ramulu v. S. 48 Suryaprakash Rao, (1997) 3 SCC 59 :
1997 SCC (L&S) 625] .
24. We are of the considered opinion that the judgment in Y.V. Rangaiah case [Y.V. Rangaiah v. J.
Sreenivasa Rao, (1983) 3 SCC 284 :
1983 SCC (L&S) 382] would not be applicable in the facts and circumstances of this case. The aforesaid judgment was rendered on the interpretation of Rule 4(a)(1)(i) of the Andhra Pradesh Registration and Subordinate Service Rules, 1976. The aforesaid Rule provided for preparation of a panel for the eligible candidates every year in the month of September. This was a statutory duty cast upon the State. The exercise was required to be conducted each year. Thereafter, only promotion orders were to be issued. However, no panel had been prepared for the year 1976. Subsequently, the Rule was amended, which rendered the petitioners therein ineligible to be considered for promotion. In these circumstances, it was observed by this Court that the amendment would not be applicable to the vacancies which had arisen prior to the amendment. The vacancies 49 which occurred prior to the amended Rules would be governed by the old Rules and not the amended Rules.
25. In the present case, there is no statutory duty cast upon the respondents to either prepare a yearwise panel of the eligible candidates or of the selected candidates for promotion. In fact, the proviso to Rule 2 enables the State to keep any post unfilled. Therefore, clearly there is no statutory duty which the State could be mandated to perform under the applicable Rules. The requirement to identify the vacancies in a year or to take a decision as to how many posts are to be filled under Rule 7 cannot be equated with not issuing promotion orders to the candidates duly selected for promotion. In our opinion, the appellants had not acquired any right to be considered for promotion.
Therefore, it is difficult to accept the submissions of Dr Rajeev Dhavan that the vacancies, which had arisen before 17-5-1999 had to be filled under the unamended Rules.
50
26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the "rule in force" on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah case [Y.V. Rangaiah v. J.
Sreenivasa Rao, (1983) 3 SCC 284 :
1983 SCC (L&S) 382] lays down any particular time-frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants has been taken away by the amendment."
10. In our view, the instant case is fully covered by the law laid down by this Court 51 in Deepak Agrawal [Deepak Agarwal v. State of U.P., (2011) 6 SCC 725 : (2011) 2 SCC (L&S) 175] and the High Court was completely in error in allowing the writ petition and in dismissing the writ appeals.
We, therefore, allow these appeals, set aside the judgment [Nikhil Ranjan Chakraborty v. Brajendra Tripura, 2012 SCC OnLine Gau 806 : (2013) 5 Gau LR 898] under appeal and dismiss Writ Petitions (Civil) Nos. 104, 105, 106, 153 and 181 of 2012.
11. Before we part, we must also express that a selection contemplated in the year 2011 in which the original writ petitioners did not stand excluded has been stalled as a result of challenge raised and litigation initiated by the original writ petitioners. In our view, the challenge was totally uncalled for and avoidable. However, it resulted in putting in abeyance the entire process of selection and adversely affected the administration. We, therefore, feel compelled to impose exemplary costs of Rs 10,000 on each of the writ petitioners which shall be deposited with the High Court within six weeks from the date of this order and upon such deposit, the entire amount shall be made over to the Chief Minister's Relief Fund for the State of Tripura."
52Later, the Apex Court following both the judgments (supra) in the case of Union of India v. Krishna Kumar9, holds as follows:
"11. In Deepak Agarwal v. State of U.P. [Deepak Agarwal v. State of U.P., (2011) 6 SCC 725 : (2011) 2 SCC (L&S) 175] , this Court observed thus: (SCC p. 735, paras 26-
27) "26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the "Rules in force" on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah case [Y.V. Rangaiah v. J.
Sreenivasa Rao, (1983) 3 SCC 284 :
9
(2019) 4 SCC 319 53 1983 SCC (L&S) 382] lays down any particular time-frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants has been taken away by the amendment.
27. The judgments cited by the learned counsel for the appellants, namely, B.L. Gupta v. MCD [B.L. Gupta v. MCD, (1998) 9 SCC 223 :
1998 SCC (L&S) 532] , P. Ganeshwar Rao v. State of A.P. [P. Ganeshwar Rao v. State of A.P., 1988 Supp SCC 740 : 1989 SCC (L&S) 123] and N.T. Devin Katti v. Karnataka Public Service Commission [N.T. Devin Katti v. Karnataka Public Service Commission, (1990) 3 SCC 157 : 1990 SCC (L&S) 446] are reiterations of a principle laid down in Y.V. Rangaiah case [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382] ."
12. Recently, in State of Tripura v. Nikhil Ranjan Chakraborty [State of Tripura v. Nikhil Ranjan Chakraborty, (2017) 54 3 SCC 646 : (2017) 1 SCC (L&S) 718] , another two-Judge Bench of this Court held thus: (SCC pp. 650-51, para 9) "9. The law is thus clear that a candidate has the right to be considered in the light of the existing rules, namely, "rules in force on the date" the consideration takes place and that there is no rule of absolute application that vacancies must invariably be filled by the law existing on the date when they arose. As against the case of total exclusion and absolute deprivation of a chance to be considered as in Deepak Agarwal [Deepak Agarwal v. State of U.P., (2011) 6 SCC 725 : (2011) 2 SCC (L&S) 175] , in the instant case certain additional posts have been included in the feeder cadre, thereby expanding the zone of consideration. It is not as if the writ petitioners or similarly situated candidates were totally excluded. At best, they now had to compete with some more candidates.
In any case, since there was no accrued right nor was there any mandate that vacancies must be filled invariably by the law existing on the date when the vacancy arose, the 55 State was well within its rights to stipulate that the vacancies be filled in accordance with the Rules as amended. Secondly, the process to amend the Rules had also begun well before the Notification dated 24-11- 2011."
13. In view of this statement of the law, it is evident that once the structure of Assam Rifles underwent a change following the creation of the intermediate post of Warrant Officer, persons holding the post of Havaldar would be considered for promotion to the post of Warrant Officer. The intermediate post of Warrant Officer was created as a result of the restructuring exercise. The High Court was, in our view, in error in postulating that vacancies which arose prior to the amendment of the Recruitment Rules would necessarily be governed by the Rules which existed at the time of the occurrence of the vacancies. As the decided cases noted earlier indicate, there is no such rule of absolute or universal application. The entire basis of the decision of the High Court was that those who were recruited prior to the restructuring exercise and were holding the post of Havaldars had acquired a vested right of promotion to the post of Naib Subedar. 56
This does not reflect the correct position in law. The right is to be considered for promotion in accordance with the Rules as they exist when the exercise is carried out for promotion.
(emphasis supplied) The aforesaid judgments relied on by the learned counsel appearing for the respondents are not applicable to the case at hand as the petitioners herein were all eligible to be considered for promotion under the Rules of 2013. Therefore, a statutory right for consideration of their cases for promotion was available in favour of the petitioners. That could not have been taken away by the illegal act of the respondent- BBMP by promoting the private respondents ignoring the claim of the petitioners. The onset of new Rules would not come in the way of the right of the petitioners on two counts. One, the Rules that were obtaining at the relevant point in time gave a right to the petitioners and in the light of the right of the petitioners, the vacancies 57 at that point in time and the petitioners holding the post of Tax Inspector or Second Division Assistant in those very vacancies that existed earlier to the promulgation of the new Rules dated 16.03.2020. It is in this light, the authorities relied on by the petitioners are apposite and not the ones relied on by the respondents.
18. Insofar as it concerns the judgment in the case of KRISHNA KUMAR (supra), this was a case of upgradation of post and creation of a new post, the Apex Court has held that when a new post is created, the concept of Rules obtaining when the vacancies arose is inapplicable as what is created is a new post on account of re-structuring of the cadre. The facts of the case on hand are not identical to the facts that were before the Apex Court. Therefore, this judgment also would be inapplicable to the facts on hand. Hence, I answer point No.2 in favour of the petitioners holding that the petitioners did have a right for consideration of 58 their cases for promotion under the old Rules. Therefore, what is applicable to the case of the petitioners are the Rules of 2013 as the vacancies arose long before the promulgation of the Rules 2020.
19. It is now necessary to consider the memo filed by the learned counsel appearing for the BBMP indicating several posts vacant in the cadre of Tax Inspector and Second Division Assistant. The chart given by the BBMP reads as follows:
"¥Á°PÉAiÀÄ°è ªÀÄAdÆgÁVgÀĪÀ, PÁAiÀÄð¤ªÀð»¸ÀÄwÛgÀĪÀ ªÀÄvÀÄÛ SÁ° EgÀĪÀ PÀAzÁAiÀÄ ªÀ¸ÀÆ°UÁgÀgÀÄ ªÀÄvÀÄÛ ¢éwÃAiÀÄ zÀeÉð ¸ÀºÁAiÀÄPÀgÀ «ªÀgÀUÀ¼ÀÄ ªÀÄAdÆgÁw PÁAiÀÄð¤ªÀð»¸ÀÄvÀÄÛgÀªÀ SÁ° EgÀĪÀ ºÀÄzÉÝUÀ¼ÀÄ ºÀÄzÉÝUÀ¼ÀÄ ºÀÄzÉÝUÀ¼ÄÀ PÀæ.¸ÀA. ºÀÄzÉÝ DR PR Total DR PR Total DR PR Total
1. PÀAzÁAiÀÄ 140 435 02 159 161 297 297 594 295 ªÀ¸ÀÆ°UÁgÀgÀÄ
2. ¢éwÃAiÀÄ zÀeÉð 456 225 681 264 130 394 192 95 287 ¸ÀºÁAiÀÄPÀgÀÄ 59 About 161 vacancies in the cadre of Tax Inspector and 287 vacancies in the cadre of Second Division Assistant exist as on date, out of which, 159 posts are earmarked for promotion in the cadre of Tax Inspector and 95 posts in the cadre of Second Division Assistant, which are to be filled up from amongst eligible candidates from the respective feeder cadres. Therefore, the BBMP could also consider retaining the private respondents in their promoted posts in the cadre of Tax Inspector or Second Division Assistant, but the petitioners will have to be seniors to the private respondents, as the petitioners were seniors in the feeder cadre.
20. For the aforesaid reasons, I pass the following:
ORDER
(i) Writ Petition is allowed.
(ii) Impugned order dated 13-03-2020, granting promotion to private respondent Nos.3 to 18 is quashed.60
(iii) Mandamus is issued to the Bruhat Bengaluru Mahanahara Palike to consider cases of the petitioners for promotions to the cadre of Tax Inspector/Second Division Assistant as the case would be in accordance with their seniority in the feeder cadre.
(iv) It is also open to the BBMP to continue the private respondents in the promoted posts owing to large number of vacancies existing, but the petitioners will have to be placed as seniors in terms of the seniority obtaining in the respective feeder cadres.
(v) Consideration of the cases of the petitioners in terms of direction No.(iii) shall be complied with by the BBMP within six weeks from the date of receipt of the copy of the order.
Ordered accordingly.
61In view of allowing of the petition, I.A.No.1/2021 filed for vacating stay does not survive for consideration. Accordingly, the same stands disposed of.
Sd/-
JUDGE bkp CT:MJ