Karnataka High Court
Mysore Urban Development Authority vs State Of Karnataka on 23 June, 2020
Bench: Chief Justice, K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JUNE, 2020
PRESENT
THE HON'BLE MR.ABHAY S. OKA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE K. NATARAJAN
WRIT APPEAL NO.2979 OF 2018 (S-RES)
BETWEEN:
MYSORE URBAN DEVELOPMENT AUTHORITY
JHANSI RANI LAXMI BAI ROAD,
MYSORE - 570 005,
REPRESENTED BY ITS COMMISSIONER.
... APPELLANT
(BY SRI H.M. SIDDHARTHA, ADV.)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS
PRINCIPAL SECRETARY TO GOVERNMENT,
DEPARTMENT OF URBAN DEVELOPMENT,
4TH FLOOR, VIKAS SOUDHA,
BANGALORE - 560 001.
2. RACHAIAH
AGED ABOUT 62 YEARS,
S/O. LATE DESAIAH,
RESIDING AT NO.383,
EWS NEW KANTHARAJ URS ROAD,
I STAGE, KUVEMPUNAGAR,
MYSORE - 570 001.
... RESPONDENTS
(BY SRI I. THARANATH POOJARY, A.G.A., FOR R-1 &
SRI T.N. RAGHUPATHY, ADV., FOR R-2)
***
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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE
THE IMPUGNED ORDER DATED 21-8-2018 PASSED BY THE
LEARNED SINGLE JUDGE IN WRIT PETITION NO.168/2011 AND
DISMISS THE WRIT PETITION NO.168/2011 WITH EXEMPLARY
COST.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING
THROUGH VIDEO CONFERENCING THIS DAY, CHIEF JUSTICE
DELIVERED THE FOLLOWING:
JUDGMENT
The appellant who was the second respondent before the learned Single Judge has taken an exception to the judgment and order dated 21st August 2018 passed by the learned Single Judge in the writ petition filed by the second respondent.
2. According to the case of the second respondent, he was employed by the appellant as a Gangman with effect from 19th July 1973 and with effect from 22nd February 1984, he was posted as a Night Watchman. According to the case of the second respondent, as he was eligible for promotion, proposals were sent for promoting him. The second respondent relied upon the order dated 17th June 2000, by which, he was ordered to be promoted -3- to the post of Dafedar with effect from 25th March 2000. Reliance is placed by the second respondent on the order dated 8th June 1998 passed in his earlier writ petition wherein a direction was issued to the appellant to consider the representation of the second respondent for promotion in accordance with law. The case made out by the second respondent is on the basis of the said order that the order of promotion dated 17th June 2000 was issued. Reliance is also placed on the second representation which was filed pursuant to the order passed in Writ Petition No.40958/2003. On the second representation, the endorsement dated 2nd December 2010 was issued in which it was stated that the promotion order dated 17th June 2000 produced by the second respondent was fabricated and therefore, the said order has been withdrawn by the office memorandum dated 4th May 2001. A writ petition was filed by the second respondent before the learned Single Judge praying for quashing the endorsement and for issuing a writ of mandamus directing the appellant to promote the second respondent with effect from 17th June 2000. By the impugned judgment and order, the learned Single Judge allowed the writ petition by quashing the aforesaid endorsement and directed the appellant to grant all service -4- benefits to the second respondent by giving effect to the promotion order dated 17th June 2000. The learned Single Judge also noted that the second respondent had since retired from the service.
3. The learned counsel appearing for the appellant submitted that though the charge of fabrication of the order dated 17th June 2000 may not have been established in the disciplinary inquiry, still the contention that the order dated 17th June 2000 was fabricated remains open. He submitted that the learned Single Judge has not decided the issue whether the second respondent was eligible for promotion as he has not decided the issue whether the date of appointment of the second respondent is 19th July 1973 or 22nd February 1984. He would, therefore, submit that the impugned order cannot be sustained and deserves to be set aside.
4. We have heard the learned Additional Government Advocate appearing for the first respondent and the learned counsel appearing for the second respondent.
5. We have considered the submissions. From the impugned order, it appears that the only contention raised -5- by the appellant was that there was no such order as the order dated 17th June 2000. From the impugned order, it appears that the contention regarding the correct date of appointment was not raised by the appellant before the learned Single Judge. From paragraphs 4 and 5 of the impugned order, it appears that the contention of the appellant was that the second respondent was earlier directed by the learned Single Judge to produce the order dated 17th June 2000 by passing an order dated 1st March 2017. In paragraph 5 of the impugned order, after perusal of the order sheet, the learned Single Judge has recorded that no such direction in the order dated 1st March 2017 was found. On the contrary, the order dated 1st March 2017 recorded that the learned counsel for the second respondent had sought time to produce the originals of Annexures-A and F. The learned Single Judge has referred to the charges framed against the second respondent in the domestic enquiry. One of the charges (Charge No.2) was that the second respondent had submitted a photo copy of the promotion order which is not signed by the Commissioner of the appellant and that the second respondent has manipulated the signature of the Commissioner on the photo copy. Admittedly, the said -6- charge could not be established and the report of the Enquiry Officer has attained finality. Though the report of the Enquiry Officer is not conclusive, the finding recorded by the Enquiry Officer is that a draft of the order was signed by the Commissioner of the appellant.
6. The scenario which emerges is that the appellant failed to prove the allegation against the second respondent regarding fabrication of the order dated 17th June 2000. Thus, the learned Single Judge, in our view, was right in proceeding on the footing that the order dated 17th June 2000 was in existence. All that the learned Single Judge has done is to direct implementation of the order of promotion dated 17th June 2000.
7. Writ jurisdiction is always equitable or discretionary. In our view, the learned Single Judge has passed a discretionary order on the basis of the material on record and there is no perversity or gross illegality in his approach. Therefore, there is no reason to interfere with the impugned judgment and order.
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8. Accordingly, the writ appeal is dismissed. There will be no order as to costs.
9. The pending interlocutory application does not survive and is accordingly disposed of.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE KVK