Karnataka High Court
D Honnaiah vs The Managing Director on 16 April, 2013
Author: D.V.Shylendra Kumar
Bench: D V Shylendra Kumar
IN THE HIGH COURT OF KARNATAKA
AT BANGALORE
Dated this the 16th day of April, 2013
BEFORE:
THE HON'BLE MR JUSTICE D V SHYLENDRA KUMAR
Writ Petition No.47590 of 2011 (S-KSRTC)
BETWEEN:
D HONNAIAH
S/O LATE DYAPE GOWDA,
AGED ABOUT 58 YEARS,
R/A BASAVESHWARA NILAYA,
MADDURAMMA BEEDI,
RAMANAGARA ROAD,
KANAKAPUR TOWN,
RAMANAGARA DISTRICT ... PETITIONER
[By Sri M C Basavaraju, Adv.]
AND:
1. THE MANAGING DIRECTOR
KSRTC, CENTRAL OFFICE
K.H. ROAD, SHANTHINAGAR,
BANGALORE - 560 027
2. THE DIRECTOR
(PERSONNEL AND ENVIRONMENT)
KSRTC, CENTRAL OFFICE
K.H. ROAD, SHANTHINAGAR,
BANGALORE - 560 027
3. THE DIVISIONAL CONTROLLER
KSRTC
BANGALORE CENTRAL DIVISION
SHANTHINAGAR
BANGALORE - 560 027
2
4. R S UMESH
FATHER NAME NOT KNOWN
AGED ABOUT 55 YEARS,
TRAFFIC CONTROLLER
NELAMANGALA DEPOT
BANGALORE CENTRAL DIVISION,
NELAMANGALA ... RESPONDENTS
[By Smt H R Renuka, Adv. for R1 to R3;
Sri S P Shashidhar, Adv. for R4]
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT THE
PROVISIONAL SENIORITY LIST FOR THE POST OF TRAFFIC
CONTROLLER AND ASSISTANT TRAFFIC CONTROLLER, VIDE
NOTIFICATION DATED 13.06.2011 PUBLISHED BY THE 3RD
RESPONDENT VIDE ANNEXURE - F TO THIS WRIT PETITION IN SO
FAR AS APPOINTMENT OF 4TH RESPONDENT FOR THE POST OF
TRAFFIC CONTROLLER AT SL.NO. 147 IS CONCERNED IS ILLEGAL
AND UNSUSTAINABLE IN THE EYE OF LAW AND ETC.,
THIS PETITION COMING ON FOR PRELIMINARY HEARING, 'B'
GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Writ petitioner who had joined the service of the respondent-KSRTC as conductor on 31-5-1978 is complaining that while he has still remained so and not accorded any promotion either to the post of assistant traffic controller or further post, his juniors, particularly fourth respondent, who had been appointed initially also as a conductor on 1-1-1980 in the Kolar division, has now 3 been promoted to the post of traffic controller and posted at Nelamangala and is therefore aggrieved by the denial of promotion to him and has approached this court seeking for the following relief:
i) Declare that the provisional seniority list for the post of Traffic Controller and Assistant Traffic Controller, bearing No. KARASA/ BENKEVI/SIBBANDI/JESTATHE/ 1716/ 2011-12 vide notification dated 13.06.2011 published by the 3rd respondent Vide Annexure 'F' to this writ petition in so far as appointment of 4th respondent for the post of Traffic Controller at Sl.No.147 is concerned is illegal and unsustainable in the eye of law and
ii) Issue a writ in the nature of writ of mandamus directing the respondent No.1 to 3 to give promotion to the petitioner for the post of Traffic Controller by considering his seniority from the date of initial appointment and also consider the objection vide Annexure - 'G' to this writ petition filed by the petitioner to the temporary select list published by the 3rd respondent under the facts and circumstances of the case and
iii) Pass such other order or orders as this Hon'ble Court may deem fit to grant under the facts and circumstances of the case in the interest of justice and equity.4
2. Notice had been issued to the respondents. Respondents 1 to 3 are represented by counsel Ms H R Renuka and fourth respondent is represented counsel Sri S P Sashidhar. Respondents 1 to 3 have filed statement of objections.
3. It is pointed in the statement of objections that while it is true that both petitioner and the fourth respondent were appointed in Kolar division; that both made requests for transfer from Kolar division to Bangalore division on different dates; that while the fourth respondent came to Bangalore division with effect from 15-9-1982 on his request for the same, petitioner came to Bangalore division on 22-1-1983, also on his request. The dates of reporting are said to be on 20-10-1982 and 16-2-1983 respectively of the fourth respondent and the petitioner.
4. It appears, petitioner had been transferred to Bangalore rural division on administrative grounds on the formation of this division in the year 1991 and petitioner 5 had also made a request while serving in Bangalore rural division to transfer him to Bangalore central division, as per his request dated 6-9-1998 and was while so transferred to Bangalore central division, that again being a request transfer, seniority of the petitioner in the transferred division should be counted from 6-9-1998 only. It is also averred that Regulation No 13(4)(c) of the KSRTC (Cadre & Recruitment) Regulations, 1982, which governs the question of seniority on transfer etc had come to be amended with effect from 1-1-1983 and the provision prior to this date was that an employee appointed in a particular division retains his seniority in the parent division though is transferred to other division irrespective of the fact that whether it is a request transfer or a transfer on administrative exigency, whereas on and after 1-1-1983 if it is a request transfer, the employee will join the division to which he is transferred, the transfer is subject to the condition that he should assume bottom of the seniority and as the petitioner had made a request and had been 6 transferred on two occasions after 1-1-1983, he lost the seniority in the parent division and a request made in the year 1998 for transfer from Bangalore rural division to Bangalore central division being on 6-9-1998, petitioner has taken the seniority only from this date within this division and in such circumstance, there is no comparison between the petitioner and the fourth respondent and the fourth respondent if has accorded promotions based on the seniority in the parent division i.e. Kolar division, it is based on such seniority he was considered for promotions; that the petitioner has not been singled out for any discriminatory or hostile treatment; that the service conditions of the petitioner being governed by Circular dated 9-2-1990 [copy at Annexure-R2 to the statement of objections] cannot have any grievance, particularly vis-à-vis the position of the fourth respondent and therefore prayed for dismissal of the writ petition.
7
5. However, Sri M C Basavaraju, learned counsel for petitioner, would submit that there are other circulars which govern the transfers of this nature, but more importantly the first transfer as per Annexure-D dated 4-9- 1998 having also mentioned that the transfer of the petitioner was due to administrative reasons, and therefore he cannot be relegated to the bottom of the seniority list and his seniority should be retained in the earlier division viz., Bangalore rural division, as that transfer being due to administrative reasons, seniority as it prevailed in the Bangalore division earlier which is Sl Nos 16 and 83 should be retained etc.
6. It is also submitted that when undisputedly petitioner was much senior to fourth respondent initially in the cadre of conductor and even seniority list of conductor published as per Annexure-E dated 29-7-2010 having shown the petitioner being placed at Sl No 174, whereas the fourth respondent figures at Sl No 427 and the petitioner, even as 8 per the seniority list published by the corporation, is more senior to fourth respondent, petitioner should accord promotion on par with the fourth respondent, if not higher, and therefore a writ of mandamus should be issued etc.
7. Petitioner's case cannot be compared with fourth respondent for the reason that fourth respondent had got promotion once earlier as assistant traffic controller and now is working as traffic controller, whereas the petitioner continues to remain as conductor. While it may be a fortutious circumstance that fourth respondent got the benefit of pre-amended Regulation 13(4)(c), as it prevailed prior to 1-1-1983, petitioner having made a request for transfer, after this date and while amended regulation 13(4)(c) was in operation lost the benefit of the seniority in the parent division. But, that is only an unfortunate circumstance in so far as the petitioner is concerned and may be a fortutious circumstance in respect of fourth respondent is concerned, that in itself cannot give a right to 9 petitioner to claim any promotion on par with fourth respondent.
8. It is also pointed out by the learned counsel for respondent-corporation that even Annexure-D transfer order by way of individual communication to the petitioner also recites that it was a request transfer and such persons assume bottom seniority in the transferred division. But, the reference made in this order is at Annexure-C, which is the list of employees of the corporation, who have been transferred on their own request and the petitioner's name figures at Sl No 49, which is not in dispute and para-2 of this order very clearly mentions that in the transferred division, they assume bottom seniority, in the sense, they will have to be below all others serving in the said cadre in the transferred division, and this is also not in dispute.
9. If that is so, petitioner cannot claim as a matter of right promotion accorded to fourth respondent by way of comparison or on the ground that he has been differently 10 treated compared to his junior. Fourth respondent did not remain junior to the petitioner on and after his transfer to Bangalore division in the first instance. It is, therefore, that I find no merit in this writ petition. Writ petition dismissed.
Sd/-
JUDGE *pjk