Karnataka High Court
Sri Shivanna S/O Late Govindaiah vs The Command Area Development ... on 6 September, 2007
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
ORDER D.V. Shylendra Kumar, J.
Page 2024
1. Though the matter has come up for orders on the application for vacating the interim order of stay granted by this Court on 26.7.2006, with the consent of learned Counsel for the parties, the matter is taken up for disposal and disposed of as under.
2. Writ petition by a person who had been initially absorbed as a First Division Assistant in the services of the respondent No. 1 - Command Area Development Authority. The absorption of the petitioner was along with 78 other similar employees who it appears were earlier either Government servants or came from elsewhere in terms of a resolution passed by the Page 2025 respondent No. 1 -employer purporting to act under Rule-9 of the Karnataka Command Area Development Authority [Cadre Recruitment Rules] 1987.
3. The grievance of the petitioner is that the petitioner after such absorption, while had been given a promotion in terms of another office order dated 31.7.1997 promoting him to the post of Office Superintendent along with others indicating that the promotion of the petitioner was in terms of the roaster provision and the post having been reserved in favour of persons belonging to scheduled caste community at that time which has been unjustly and illegally cancelled in terms of the subsequent order dated 13.6.2006 [copy at Annexure - Q] passed by the employer and that is questioned in this writ petition.
4. This Court in terms of the order dated 26.7.2006 while issued emergent notice to the respondent No. 1 -employer - Command Area Development Authority, Cauvery Basin Project, respondent No. 2 - a person who was also a First Division Assistant and who was working in the very organization agitating that the promotion given to the petitioner was not proper; that he ranking higher in the seniority list of first division assistant should have been considered for promotion and not the petitioner and the respondent No. 3 - State of Karnataka, the order which was impugned in the writ petition, namely, order dated 13.6.2006 [copy at Annexure - Q] was stayed.
5. Subsequently, the respondents having been served, the respondent No. 2 - colleague of the petitioner, primarily at whose instance the impugned order has come into existence, has entered appearance through counsel Sri. Joseph and also filed statement of objections and an application for vacating the stay order. Respondent No. 3 is represented by Sri. Khureshi, learned Additional Government Advocate and also filed statement of objections.
6. I have heard Sri. P.S. Manjunath, learned Counsel for the petitioner, Sri. Joseph, learned Counsel for respondent No. 2 and Sri. Khureshi, learned Additional Government Advocate appearing for respondent No. 3. Respondent No. 1 - employer though served has remained unrepresented.
7. Submission of Sri. Manjunath, learned Counsel for the petitioner is that when a promotion had been accorded to the petitioner purporting to be in accordance with the normal norms and procedure way back in the year 1997, the respondent No. 1 - employer could not have cancelled such a promotion almost nine years later, that the petitioner having worked in the promoted post for about nine years has virtually acquired the right to remain in the post; that the action taken on the part of the employer after a lapse of nine years assuming that it is for correcting any error or mistake committed, without conceding the same, is too far fetched in point of time; that the action itself could not have been put in place at such distant point of time; that the action becomes arbitrary as such action was not taken in the immediate vicinity and therefore the impugned order deserves to be quashed.
Page 2026
8. It is also submitted that the matter in fact had received attention not only at the hands of the respondent No. 1 - employer, but had been brought to the notice of the Government also; that the respondent No. 1 - employer was more than willing to accommodate the petitioner who had already worked in the post of Office Superintendent; that the proposal had been sent to the Government, but the Government without being aware of the hardship and injustice that may occur to the petitioner has turned down the proposal; that the action of the Government is also not proper or justified, in the sense, not approving the proposal and therefore while the impugned order should be quashed only on the ground of delay and laches, if not the Government should be directed to consider positively the proposal sent by the employer to create supernumerary post of Office Superintendent so that even while the respondent No. 2 if so eligible can be promoted to the post, petitioner's post need not be disturbed.
9. In support of such submission, learned Counsel for the petitioner seeks sustenance from the decision of the Supreme Court in the case of 'Narendra Chadha and Ors. v. Union of India and Ors.' particularly observations contained in paragraph-14 of this decision.
10. Opposing the writ petition and supporting the order of the employer, what is urged by the learned Additional Advocate is that the very promotion given to the petitioner in the year 1997 was clearly contrary to a Government circular dated 16.11.1995 which held the field on the day the petitioner was promoted and which had made it very clear that the reservation provided for by the Government under its earlier orders to give effect to the policy and reservation permitted under Article 16(4) of the Constitution of India was not applicable in a situation where there was only a single post; that the reservation cannot be provided either by way of promotion or by direct recruitment in a situation wherever there was only one post.
11. Submission is that the promotion accorded in the year 1997 to the petitioner was in itself in violation of the Government Order of the year 1995 and if the employer had taken any action to set right a wrong committed by it, no exception can be taken; that there is no need for interference and the writ petition lacks merit which is to be dismissed.
12. Sri. Khureshi, learned Additional Government Advocate with reference to the statement of objections, supports the order.
13. Sri. Joseph, learned Counsel for respondent No. 2 who has filed an application for vacating stay also submits that the very initial promotion was flawed; that no promotion could have been given on the basis of reservation; that the order promoting the petitioner in the year 1997 expressly mentioning that it is as per the roaster point which in effect means it is for giving effect to the reservation in favour of persons belonging to scheduled caste and scheduled tribe community, the initial promotion itself is bad in law; that the respondent No. 2 had been continuously Page 2027 representing to the employer as well as the Government to set right this anomaly and if the employer if not by itself by the order of the Government had woken up to the situation a little belatedly and has taken a corrective measure, there is no need for interference with such an order passed by the respondent No. 1 - employer; that there cannot be any question of delay and laches on the part of the employer to set right a wrong committed earlier; that the petitioner had no right of promotion under the Government Orders and therefore the interim order of stay is to be vacated and writ petition is without any merit which has to be dismissed.
14. I have examined the petition pleadings, statement of objections and submissions made at the Bar by the learned Counsel for the parties. I have also perused the Judgment of the Supreme Court in Narendra Chadha's case supra.
15. While the impugned order canceling the promotion granted in the year 1997 in favour of the petitioner in terms of the subsequent order dated 13.6.2006 [copy at Annexure - Q] recites that it was for the purpose of giving effect to a Government Order of the year 1997, namely, 4.10.1997 where under the Government had withdrawn the reservation in favour of post where single post exists, in reality, this position in law had been achieved even in terms of the correction order issued by the Government as on 16.11.1995. Therefore, reference to the Government order either of 4.10.1997 or 7.9.1998 may be a misnomer. The legal position as on 31.7.1997 when the petitioner was actually promoted to the post of Office Superintendent was that there was no reservation to the person belonging to scheduled caste and scheduled tribe communities in respect of single post. The policy itself did not provide reservation and Government Order was not one providing for reservation in respect of the single post.
16. If such is the legal position, promotion accorded on the premise that there was a reservation in favour of persons belonging to scheduled caste/scheduled tribe community even in respect of such posts by working the roaster point is obviously a mistaken impression and if such mistake is subsequently corrected under the impugned order dated 13.6.2006, no exception can be taken.
17. I am also of the view that the principle of delay and laches is not attracted to the present case as normally this principle is invoked if a person seeking relief before the court approaches the court belatedly and at a point of time when legal rights of the opponents have virtually fructified into a durable status.
18. If the promotion is initially flawed, petitioner does not get any right under that order and there is no question of disturbing a right which had been acquired some sense of permanency by the subsequent order of the year 2006. It is therefore that I reject the argument of delay and laches to quash the order of the respondent No. 1 -employer canceling the promotion given to the petitioner in the year 1997.
Page 2028
19. The observations contained in paragraph-14 of Narendra Chadha's case supra, in the Judgment rendered by the Supreme Court while is not an authority for a proposition canvassed on behalf of the petitioner in the present situation, I do not find that such observations are also not in the nature of the law declared by the Supreme Court which is more in the nature of obiter, particularly, observing that if the Government by itself could have saved the situation and not disturbed the earlier employment of persons who had continued for as long as 15 to 20 years, they could do it. Even here, there is no direction issued in this regard to the Government. When such is the case, placing reliance on this decision of the Supreme Court, it is not possible to hold that the action taken by the employer is in any way wrong or illegal. Therefore, while this writ petition is to be dismissed and the interim order granted is to be vacated.
20. It is open to the petitioner to work out if there are other possibilities either with the employer or with the Government.
21. Accordingly, the interim order dated 26.6.2006 granted by this Court is vacated and without prejudice to the possibilities narrated above, the writ petition is dismissed.