Karnataka High Court
Shri Neelappa Bover vs The Registrar General on 22 April, 2024
1
IN THE HIGH COURT OF KARNATAKA AT DHARWAD
DATED THIS THE 22ND DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 82377 OF 2013 (S-PRO)
C/W
WRIT PETITION NO. 101554 OF 2021 (S-PRO)
IN WRIT PETITION NO. 82377/2013
BETWEEN:
SHRI. NEELAPPA BOVER
S/O AMRAPPA BOVER
AGED 38 YEARS
WORKING AS SECTION OFFICER
HIGH COURT OF KARNATAKA
BENCH DHARWAD
....PETITIONER
(BY SRI. VIJAY KUMAR, ADVOCATE)
AND:
1. THE REGISTRAR GENERAL
HIGH COURT OF KARNATAKA
BENGALURU-560 001.
2. THE REGISTRAR (ADMN)
HIGH COURT OF KARNATAKA
BENGALURU-560 001.
....RESPONDENTS
(BY SRI. RAGHAVENDRA G. GAYATRI, AGA)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED NOTIFICATION DATED 09.04.2013
(ANNEXURE-D) ISSUED BY THE 1ST RESPONDENT IN SO
FAR AS IT DENIES THE PETITIONER PROMOTION TO THE
CADRE OF SECTION OFFICER, RETROSPECTIVELY W.E.F.
31.07.2011 AND ETC.
IN WRIT PETITION NO. 101554/2021
BETWEEN:
SHRI. NEELAPPA BOVER
S/O AMRAPPA BOVER
AGED 45 YEARS
ASSISTANT REGISTRAR
HIGH COURT OF KARNATAKA
R/O NO.27, KUMARESHWAR NAGAR
DHARWAD
....PETITIONER
(BY SRI. VIJAY KUMAR, ADVOCATE)
AND:
1. REGISTRAR GENERAL
HIGH COURT OF KARNATAKA
BENGALURU
2. STATE OF KARNATAKA
VIDHANA SOUDHA
BENGALURU
BY ITS CHIEF SECRETARY
3. SRI RAJENDRA TILGUL
AGE 54 YEARS
OCC: SECTION OFFICER
WORKING AT HIGH COURT OF KARNATAKA
3
KALBURGI BENCH
KALBURGI
....RESPONDENTS
(BY SRI. M.A. SUBRAMANI, ADVOCATE FOR R1;
SRI. ASHOK KATTIMANI, AGA FOR R2;
R3 - SERVED, UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO
ISSUE A WRIT OF CERTIORARI QUASHING THE IMPUGNED
FINAL SENIORTY LIST 08.04.2021 PUBLISHED BY THE 1ST
RESPONDENT INSOFAR AS IT RELATES TO THE POST OF
ASSISTANT REGISTRAR SHOWN AS ANNEXURE-A4 IN THE
LIST WHICH IS PRODUCED AT ANNEXURE-R AND ETC.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 19.04.2024, COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
The petitioner is assailing the final seniority list dated 8.4.2021 published by first respondent insofar as it relates to the post of Assistant Registrar as per Annexure-R. Petitioner is seeking a direction against respondent No.1 to promote petitioner to the post of Assistant Registrar in Local Cadre w.e.f. 2013. A writ of certiorari is also sought to quash the notification 4 dated 24.05.2021 issued by respondent No.1 insofar as it relates to assigning the date of entry in the cadre of Assistant Registrar Local Cadre as 30.1.2018 as against 20.8.2015 as per Annexure-X.
2. The present case calls for examination of principles of consequential seniority as delineated by Apex Court in the landmark judgment rendered in B.K. Pavithra-II and its application in the context of petitioner's grievance regarding seniority and promotion.
3. Petitioner appointed as a Second Division Assistant in the Office of Respondent No.1 in the year 1999 belongs to SC category. Over the years, the petitioner was promoted through various cadres, culminating in the position of Assistant Registrar under the Local Cadre on 20.8.2015. However, subsequent developments including the judgment 5 rendered by the Apex Court in B.K. Pavithra-I and Government Orders have led to disputes regarding petitioner's seniority and promotions.
4. Heard the learned counsel for the petitioner, learned counsel appearing for respondent No.1 and learned AGA for respondent No.2. I have given my anxious consideration to the records placed by both the parties.
5. It is borne out from the records that some of the employees of respondent No.1 feeling aggrieved by 2009 amendment to the High Court of Karnataka Service (Conditions of Service and Recruitment) Rules, 1973, approached this Court and the issue was given a quietus by the Division Bench in W.A.No.1934- 38/2011. The Division Bench disposed of the writ appeals with specific observations that vacancies that arose prior to coming into various amended Rules and 6 which remained vacant till then shall be filled up as per the Cadre and Recruitment Rules and not as per Amended Rules of 2009. Petitioner's grievance is that inspite of pendency of the writ petition filed by the petitioner relating to promotion to the cadre of Assistant Registrar, respondent No.1 while complying the directions of the Division Bench of this Court pushed down petitioner to the cadre of Section Officer from 17.6.2011 to 9.4.2013 ignoring the fact that one Mohd. Khaja Muneerulla had admittedly retired from service on 31.7.2011 and this compelled the petitioner to assail the process of redoing the seniority by filing a writ petition in W.P.82377/2013.
6. It is also borne out from records that pending consideration of petitioner's claim relating to promotion to the cadre of Assistant Registrar, petitioner claimed benefit of Article 371J and submitted a representation to respondent No.1 7 requesting to consider his case for promotion under Local Cadre. The said representation was rejected by respondent No.1 by issuing an endorsement which was again challenged in WP.No.23891/2013. The endorsement was set aside with a direction to respondent to reconsider the petitioner's case.
7. Though petitioner has challenged the action of respondent No.1 wherein he was pushed down to the cadre of Section Officer from 2011 to 2013, respondent No.1 taking 2013 as petitioner's eligibility to the cadre of Section Officer promoted petitioner to the post of Assistant Registrar under the local cadre on 20.8.2015.
8. Petitioner who assumed the charge as Assistant Registrar w.e.f. 20.8.2015 was again pushed 8 down to Section Officer in the background of implementation of the judgment rendered by the Hon'ble Apex Court in B.K. Pavithra-I. Respondent No.1 applying the principles laid down by Apex Court in B.K. Pavithra-I case and adopting catch-up theory promoted respondent No.3 who belongs to General Category as Assistant Registrar w.e.f. 20.8.2015.
9. Respondent No.2/State so as to protect the theory of consequential seniority brought in an Act known as Karnataka Extension of Consequential Seniority to Government Servants Promoted on the basis of reservation(to the Posts in the Civil Servants of the State) Act, 2017(hereinafter referred to as "Act, 2017"). The Act, 2017, provided a statutory mechanism to safeguard the interest of Government servants belonging to marginal communities. Respondent No.2/State issued instructions with regard to implementation of Act,2017. Under the 9 Government Order dated 27.2.2019 several directions were issued. Relevant portion is extracted which reads as under:
"8(1)(a) Section 4 of the Act of 2017 stipulates that, "Notwithstanding anything contained in this Act or any other law for the time being in force, the consequential seniority already accorded to the Government servants belonging to the SCs and the STs who were promoted in accordance with the policy of reservation in promotion provided for in the Reservation Order with effect from the Twenty Seventh Day of April, Nineteen Hundred and Seventy Eight shall be valid and shall be protected and shall not be disturbed." Accordingly, any Government servant belonging to the SCs or the STs whose seniority was altered in the seniority list prepared pursuant to the Government order dated 6th May, 2017, read at (6) above, his promotion reviewed, date of eligibility assigned to him and based on such date of eligibility was reverted to lower cadre, shall be posted back with retrospective effect to the cadre held by him immediately before such reversion. He shall continue to draw his pay, retrospectively from the date on which he was reverted, in that cadre, in the same scale of pay and at the same stage of pay at which he was drawing his pay before his reversion to lower cadre. In case post in the cadre held by him immediately before his reversion is not vacant, he shall be posted against a supernumerary post to be created by the administrative department concerned in the Karnataka Government Secretariat presuming concurrence of Finance Department. In this process, the officers / officials working at present in those cadres, belonging to any category, shall not be reverted. A supernumerary post so created shall stand abolished after action is completed in respect 10 of the revised seniority lists prepared as per sub-paragraph (2) hereunder in accordance with sections 4, 5 and 6 read with section 9 of the Karnataka State Civil Services (Regulation of Promotion, Pay and Pension) Act, 1973 and the Government servant concerned is adjusted against a sanctioned post.
(b) The Appointing Authorities / Heads of Departments shall consider and take appropriate decisions with regard to allocation / re-allocation of work among the officers / officials working against sanctioned posts and supernumerary posts.
This arrangement will continue till the supernumerary posts are abolished."
10. Act, 2017 was subjected to judicial review and the Apex Court in B.K. Pavithra-II judgment marked a significant milestone in the legal discourse concerning consequential seniority, affirming the rights of Government servants promoted on the basis of reservation in civil services. The Apex Court upheld Act, 2017 in B.K. Pavithra-II judgment.
11. B.K. Pavithra-II judgment, a significant legal precedent, unequivocally upheld the principles of consequential seniority and extended this application 11 to Government servants promoted on the basis of reservation in civil services.
12. In the light of these legal developments, this Court is required to examine as to whether respondent No.1 while reposting petitioner in the cadre of Assistant Registrar erred in placing him in a supernumerary post. This Court needs to further examine as to whether first respondent was justified in reverting petitioner to the post of Assistant Registrar w.e.f. 30.1.2018. The crux of petitioner's contention revolves around two key issues; firstly, the petitioner asserts the right to be reverted to the original post as mandated by B.K. Pavithra-II judgment. Secondly, petitioner argues for retrospective promotion to the cadre of Assistant Registrar w.e.f. 20.8.2015, highlighting the non- acceptance of promotion by respondent No.3 and subsequent vacancy in the said position. 12
13. Though, respondent No.1 in the light of dictum laid down by B.K. Pavithra-I judgment promoted respondent No.3 in the cadre of Assistant Registrar w.e.f. 20.8.2015, respondent No.3 submitted a representation on 30.1.2018 forgoing his promotion. If petitioner was pushed down from the cadre of Assistant Registrar to Section Officer in the light of judgment rendered in the case of B.K. Pavithra-I, the question that needs consideration is whether respondent No.1 was justified in reposting petitioner in the cadre of Assistant Registrar w.e.f. 30.1.2018, the date on which respondent No.3 submitted an application foregoing his promotion.
14. It is borne out from the records that respondent No.3 was given promotion by applying the principle of catch-up theory w.e.f 20.08.2015 respondent No.3 was extended promotion notionally 13 to the cadre of Assistant Registrar w.e.f. 20.8.2015, the date on which petitioner was promoted to the cadre of Assistant Registrar Local Cadre by applying the principle of consequential seniority. Therefore, it is clearly evident that while respondent No.3 was notionally promoted to the cadre of Assistant Registrar w.e.f. 20.8.2015, petitioner's reposting was erroneously done w.e.f. 30.1.2018, the date on which respondent No.3 submitted an application foregoing his promotion. This disparity treatment, coupled with vacancy created by non-acceptance of promotion respondent No.3, highlights the injustice faced by the petitioner.
15. The action of respondent No.1 in reposting the petitioner to the cadre of Assistant Registrar through creation of supernumerary post is also unsustainable. Respondent No.3 never accepted promotion. It is borne out from records that 14 respondent No.3 continued to discharge his duties as Section Officer.
16. Therefore, the post of Assistant Registrar held by petitioner till 2017 was never occupied by respondent No.3. If the cadre of Assistant Registrar held by petitioner immediately before his reversion remained vacant, respondent No.1 was not justified in posting the petitioner in the cadre of Assistant Registrar by creating supernumerary post. The promotion was never accepted by respondent No.3. On the contrary the records reveal that petitioner continued to discharge the duties of Assistant Registrar throughout while respondent No.3 continued to discharge the duties of Section Officer.
17. The material on record clearly indicates that respondent No.1 has not complied the dictum laid down by the Apex Court in the case of B.K. Pavithra-II 15 judgment. The petitioner's experience stands as a stark deviation from the mandate given by Apex Court in B.K. Pavithra-II judgment and the directions issued by respondent No.2/State in the light of Act, 2017. Despite being rightfully promoted to the cadre of Assistant Registrar by way of reservation on 20.8.2015, petitioner faced subsequent reversion to the position of Section Officer following the judgment rendered by the Apex Court in B.K. Pavithra-I. The contention of respondent No.1 that promotion given to respondent No.3 pursuant to notional promotion given to respondent No.3 is by implementing the directives issued by Apex Court in B.K.Pavithra-I judgment and therefore, the promotion given respondent No.3 is saved, runs contrary to the judgment rendered in B.K.Pavithra-II judgment, wherein the Constitutional validity of Act, 2017 was upheld by Apex Court. Respondent No.1 while reverting petitioner to the post 16 of Assistant Registrar has not implemented the directives of the Apex Court rendered in B.K. Pavithra- II judgment.
18. Therefore, this Court is more than satisfied that the action of respondent No.1 particularly in reposting petitioner to the cadre of Assistant Registrar through creation of supernumerary post w.e.f. 30.1.2018 clearly raises concerns of discrimination and non-compliance of legal directives as per B.K. Pavithra-II judgment and the directions issued by respondent No.2/State pursuant to the implementation of Act, 2017. Respondent No.1 was not justified in reposting the petitioner w.e.f. 30.1.2018.
19. In the light of foregoing analysis and legal principle, this Court passes the following: 17
ORDER
(i) The W.P.No.101554/2021 is allowed in part.
(ii) Petitioner shall be promoted to the cadre of Assistant Registrar with retrospective effect from
20.8.2015, i.e. the date of petitioner's original promotion.
(iii) Respondent No.1 is directed to rectify petitioner's seniority status and ensure compliance with the directives laid down in B.K. Pavithra-II judgment and Act, 2017.
(iv) Any further actions or promotions shall be carried out in strict accordance with the principles elucidated in B.K. Pavithra-II judgment and relevant statutes ensuring equality and fairness in treatment.
(v) In view of the order passed in
W.P.No.101554/2021, writ petition filed in
W.P.82377/2013 is rendered infructuous and
accordingly stands dismissed.
Sd/-
JUDGE
*alb/-