Karnataka High Court
K C Umesh vs Government Of Karnataka on 6 December, 2023
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
-1-
NC: 2023:KHC:44242
WP No. 2791 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
WRIT PETITION NO.2791 OF 2023 (S-RES)
BETWEEN:
K.C. UMESH
S/O. LATE G.V. CHINNASOMAIAH,
AGED ABOUT 62 YEARS,
RETIRED AS A ASST. EXECUTIVE ENGINEER,
BBMP, KENGERI DIVISION, BENGALURU,
RESIDING AT NO.1011, BSK VI STAGE
I BLOCK, BENGALURU - 560 098. ... PETITIONER
(BY SRI DANAPPA P. PANIBHATE, ADVOCATE)
AND:
1. GOVERNMENT OF KARNATAKA,
REP. BY ITS PRINCIPAL SECRETARY,
ENERGY DEPARTMENT,
Digitally VIKASA SOUDHA, II FLOOR,
signed by
KIRAN BANGALORE - 560 001.
KUMAR R
Location: 2. MANAGING DIRECTOR,
HIGH
COURT OF KARNATAKA POWER CORPORATION LIMITED,
KARNATAKA SHAKTHI BHAVAN, RACE COURSE ROAD,
BANGALORE - 560 001.
3. CHIEF ENGINEER (CIVIL-KALI)
KARNATAKA POWER CORPORATION LIMITED,
GANESH GUDI, UTTARA
KANNADA DISTRICT - 581 365. ... RESPONDENTS
(BY SRI PRINCE ISSAC, AGA FOR R-1;
SRI PRADHYUMNA L.N., ADVOCATE FOR R-2 & R-3)
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NC: 2023:KHC:44242
WP No. 2791 of 2023
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ORDER DATED 09/01/2023 BEARING NO.A1 P2
D/3078 PASSED BY THE R-2 VIDE ANNEXURE-D; QUASH THE
ORDER DATED 30/09/2020 BEARING NO.A1 P2 D/2044
PASSED BY THE R-2 VIDE ANNEXURE-B AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. These facts are not in dispute.
2. The petitioner was working as an Executive Engineer at the Karnataka Power Corporation Limited (KPCL) and by an order dated 05.12.2014, he was promoted as a Superintending Engineer and was given the posting to BTPS, Ballari. However, the petitioner failed to report for duty and consequently, the order of promotion made in his favour was canceled. This led to the petitioner filing W.P.No.35497/2015. This Court, after hearing the parties, came to the conclusion that the cancellation of promotion of the petitioner to the post of Superintending Engineer could not be found fault with, since the KPCL could not be -3- NC: 2023:KHC:44242 WP No. 2791 of 2023 expected to wait for the petitioner to report for the promoted post for years on end. However, this court passed a further direction in the following terms:
"10. Rule 15.13 of Cadre and Recruitment Rules of the first respondent-Corporation reads as follows:
"15.13: If for any reason an employee does not accept the promotion/upgradation to a higher post (either on seniority-cum- merit or on selection) he/she will not be considered for that post for a period of 2 years from the date of order of promotion which has not been accepted."
The above rule would make it clear that if, for any reason, an employee does not accept promotion to the higher post, he will not be entitled for consideration of his case for promotion for a period of 2 years from the date of earlier order of promotion. In terms of the above Rule, though case of the petitioner could not have been considered for promotion from 05.12.2014 for a period of 2 years i.e., till 04.12.2016, but, thereafter, the Corporation was required to consider the case of the petitioner for promotion. -4-
NC: 2023:KHC:44242 WP No. 2791 of 2023
11. having regard to the above Rule, if the petitioner makes appropriate representation to the first respondent-Corporation, the first respondent- Corporation shall consider the same for promotion to the post of Superintending Engineer in the light of rule 15.13 of Cadre and Recruitment Rules. "
3. Pursuant to the said order, the petitioner submitted a representation requesting that he be promoted with effect from 04.12.2016 i.e., on the expiry of two years from the date of the earlier order of promotion. However, this request has been rejected in the following terms:
"¥Àæ¸ÀÄÛvÀ ¥ÀæPÀgÀtzÀ°è ²æà PÉ.¹.GªÉÄñï, JEE[¹]¤ªÀÈvÀÛ gÀªÀgÀÄ ¸À°è¹zÀ ªÀÄ£À« ¥Àj²Ã°¹zÁUÀ CªÀjUÉ EE[¹] ºÀÄzÉݬÄAzÀ J¸ïE[¹] ºÀÄzÉÝUÉ ªÀÄÄA§rÛ ¤ÃqÀ®Ä ¥Àj²Ã°¹zÀÄÝ, F PɼÀPÀAqÀ PÁgÀtUÀ½AzÀ ¸ÀzÀjAiÀĪÀgÀÄ ªÀÄÄA§rÛUÉ CºÀðgÁVgÀĪÀÅzÀÄ PÀAqÀħA¢gÀĪÀÅ¢®è.
• 2013-2014 CªÀ¢ü¬ÄAzÀ 2019-2020gÀ CªÀ¢üUÉ ¥Áåqïì ¹éÃPÀÈwAiÀiÁVgÀĪÀÅ¢®è.-5-
NC: 2023:KHC:44242 WP No. 2791 of 2023 • ¢£ÁAPÀ:01.02.2012 jAzÀ JgÀqÀÄ ªÀµÀðUÀ¼À ¤AiÉÆÃd£ÉAiÀÄ CªÀ¢üAiÀÄÄ ªÀÄÄVzÀ £ÀAvÀgÀªÀÇ ¤UÀªÀÄzÀ°è ªÀgÀ¢ ªÀiÁrPÉÆArgÀĪÀÅ¢®è.
• ¢£ÁAPÀ:12.11.2019jAzÀ ¢£ÁAPÀ:13.09.2020gÀ ªÀgÉUÉ ¤UÀªÀÄzÀ°è C£À¢üÃPÀÈvÀ UÉÊgÀÄ ºÁdjAiÀiÁVgÀÄvÁÛgÉ.
DzÀÝjAzÀ ªÀÄ£À« ¢£ÁAPÀ:24.11.2022gÀ°è PÉÆÃjgÀĪÀAvÉ EE[¹] ºÀÄzÉݬÄAzÀ J¸ïE[¹] ºÀÄzÉÝAiÀÄ ªÀÄÄA§rÛUÉ ¥ÀjUÀt¸À®Ä CªÀPÁ±À«gÀĪÀÅ¢®è."
4. To the post of Superintending Engineer, the method of appointment prescribed is by way of promotion on selection and only two conditions are prescribed i.e., the possession of a Bachelor's Degree or its equivalent in the relevant engineering discipline and service of five years as an Executive Engineer in the Corporation. The petitioner was promoted on 05.12.2014 and this was obviously because he was found to possess all the requisite qualification and was suitable to be selected to the post of a Superintending Engineer, by way of promotion. This selection of the petitioner as a Superintending Engineer, on consideration of his antecedents, cannot be nullified -6- NC: 2023:KHC:44242 WP No. 2791 of 2023 merely merely because he did not accept the order of promotion or as held by this Court, he chose to not act upon the order of promotion.
5. The fact that the petitioner was promoted as a Superintending Engineer presupposes that he was eligible in all respects and it is only for this reason, the KPCL Obviously had decided to promote him as a Superintending Engineer. The KPCL, which was bound to reconsider his case for promotion on the expiry of two years from the date of the earlier order of promotion, cannot sit in judgment over the promotion that it had itself granted in the year 2014. To put it differently, if the KPCL had found that the petitioner was eligible for promotion in the year 2014, the same KPCL could not have come to the conclusion that the petitioner became ineligible for promotion in the year 2016.
6. As could be seen from the impugned order, two reasons given by the KPCL are in relation to the events -7- NC: 2023:KHC:44242 WP No. 2791 of 2023 which were prior to 2014. Obviously, if these two conditions of the petitioner's conduct existed in the year 2014 and yet the KPCL did promote the petitioner on 05.12.2014. Therefore, the two reasons given by the KPCL cannot be of any consequence at all.
7. The third reason given by the KPCL was that the petitioner was unauthorizedly absent from 12.11.2019 to 13.09.2020. It may be pertinent to state here that this Court, while disposing of the earlier petition filed by the petitioner, has recorded a finding that there was an order of deputation passed by the BBMP on 20.07.2019, whereby the Government notification dated 12.07.2019 extending the period of deputation of the petitioner by a period of one year, was referred to. In this petition, along with the rejoinder, the petitioner has produced the Government notification dated 12.07.2019, which reads as follows:
"PÀ£ÁðlPÀ «zÀÄåvï ¤UÀªÀÄ ¤AiÀÄ«ÄvÀzÀ ¸ÉêÉUÉ ¸ÉÃjzÀ ²æÃ.PÉ.¹.GªÉÄñï, PÁAiÀÄð¥Á®PÀ C©üAiÀÄAvÀgÀgÀÄ(¹«¯ï) EªÀgÀ£ÀÄß -8- NC: 2023:KHC:44242 WP No. 2791 of 2023 PÀÆqÀ¯Éà eÁjUÉ §gÀĪÀAvÉ MAzÀÄ ªÀµÀðzÀ CªÀ¢üUÉ CxÀªÁ ªÀÄÄA¢£À DzÉñÀzÀªÀgÉUÉ EªÀÅUÀ¼À°è AiÀiÁªÀÅzÀÄ ªÉÆzÀ¯ÉÆà C°èAiÀĪÀgÉUÉ §ÈºÀvï ¨ÉAUÀ¼ÀÆgÀÄ ªÀĺÁ£ÀUÀgÀ ¥Á°PÉAiÀÄ°è£À PÁAiÀÄð¥Á®PÀ C©üAiÀÄAvÀgÀgÀ ºÀÄzÉÝUÉ ªÀÄgÀĸÀܼÀ ¤AiÀÄÄQÛUÉƽ¹ DzÉò¹zÉ."
8. As could be seen from the above, the Government had deputed the petitioner for a period of one year from 12.07.2019 and it is, therefore, obvious that the petitioner, in due compliance of the said order, served the BBMP on the direction of the Government. Hence, the KPCL could not, have come to the conclusion that the petitioner was in unauthorized absence and was, hence, disentitled for being promoted as a Superintending Engineer.
9. In my view, as already held above, since the petitioner was already promoted in the year 2014, the question of going into his eligibility afresh would not arise. The petitioner, having not accepted the order of promotion, suffered the consequence of getting his promotion postponed by a period of two years. The KPCL, -9- NC: 2023:KHC:44242 WP No. 2791 of 2023 by reason of the fact that the petitioner did not accept the promotion, cannot embark upon a fresh consideration of the petitioner's eligibility for promotion. I am, therefore, of the view that the KPCL is required to promote the petitioner with effect from 04.12.2016 and pass necessary orders. The petitioner would also be entitled to all consequential benefits that would arise out of this order.
10. In the result, the impugned orders are quashed.
11. It is needless to state that the salary of the petitioner, as well as the pension shall be re-fixed on such promotion being granted to the petitioner from 04.12.2016, within a period of two months from the date of receipt of a copy of this order.
Writ Petition is accordingly allowed.
Sd/-
JUDGE PKS List No.: 1 Sl No.: 53