Karnataka High Court
Kum Savitha H A vs The State Of Karnataka on 13 September, 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF SEPTEMBER, 2024
PRESENT
THE HON'BLE MRS. JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR. JUSTICE G BASAVARAJA
WRIT PETITION NO. 21414 OF 2023 (S-KSAT)
BETWEEN:
KUM. SAVITHA H.A.
AGED ABOUT 49 YEARS
D/O LATE H.S. ANANDAMURTHY
EXECUTIVE ENGINEER
O/O THE CHIEF ENGINEER
PANCHAYATH RAJ ENGINEERING DEPARTMENT
GRAMEEN ABHIVRUDDI BHAVANA
ANANDA RAO CIRCLE
BENGALURU-560 009
...PETITIONER
(BY SRI. SATISH K., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY
TO GOVERNMENT
RURAL DEVELOPMENT AND
PANCHAYAT RAJ DEPARTMENT
M.S. BUILDING
BENGALURU-560 001
2. THE STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY
PUBLIC WORKS DEPARTMENT
M.S. BUILDING
BENGALURU-560 001
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3. SHRI. M. BASANA GOUDA
S/O M. RUDRA GOUDA
AGED ABOUT 33 YEARS
WORKING AS EXECUTIVE ENGINEER
RDWSD DIVISION, KOPPAL
RAICHUR DISTRICT-584 128
4. SHRI. ANAND
S/O CHANDRA SHETTY
AGED ABOUT 28 YEARS
EXECUTIVE ENGINEER
RDWSD DIVISION, GADAG
INDUSTRIAL ESTATE, GADAG
5. SRI. SHIVANANDA
S/O KALAPPA
AGED ABOUT 30 YEARS
EXECUTIVE ENGINEER
RDWSD DIVISION
KOLHAPUR CIRCLE
BELAGAVI
6. SRI. PRAKASH
S/O RAMESH
AGED ABOUT 30 YEARS
EXECUTIVE ENGINEER
RDWSD DIVISION
UTTARA KANNADA
KARWAR
7. SRI. PAMPAPATHI VIRUPAPURA
S/O BASAVARAJ
AGED ABOUT 30 YEARS
EXECUTIVE ENGINEER
PMGSY, BENGALURU RURAL DIVISION
BENGALURU
8. SHRI. RAJ KUMAR
S/O INDRADEVA
AGED ABOUT 36 YEARS
EXECUTIVE ENGINEER
PRED, BIDAR
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9. SMT. MENAKA PATEL
S/O SHRAVAN
AGED ABOUT 29 YEARS
EXECUTIVE ENGINEER
RDWSD DIVISION
RAICHUR
...RESPONDENTS
(BY SRI. NAVEEN CHANDRASHEKAR, AGA FOR R1 & R2;
SRI. M.A. SUBRAMANI, ADVOCATE FOR C/R3 & C/R7
AND ALSO FOR R6 TO R9;
R4-SERVED & UNREPRESENTED;
SRI. RAMESH MANCHI, ADVOCATE FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH, BY ISSUE OF A WRIT OF CERTIORARI OR ANY OTHER
APPROPRIATE WRIT OR ORDER THE IMPUGNED ORDER DATED
04.09.2023 PASSED BY THE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL IN APPLICATIONS No.2978-84/2022
c/w. APPLICATIONS No.5895-5901/2022 (VIDE ANNEXURE-A) AS
NULL AND VOID WITH ALL CONSEQUENTIAL BENEFITS AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 30.08.2024 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, ANU SIVARAMAN
J., PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN
and
HON'BLE MR. JUSTICE G BASAVARAJA
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CAV JUDGMENT
(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN) This writ petition is filed against the order of the Karnataka State Administrative Tribunal (for short "the Tribunal") dated 04.09.2023 in Applications No.5895- 5901/2022 c/w. Applications No.2978-2984/2022.
2. The private respondents had filed two applications before the Tribunal. In Applications No.2978-2984/2022, respondents herein had challenged the petitioner's appointment as Executive Engineer in the Panchayat Raj Engineering Department (for short "the PRED") and the ranking assigned to her. In another application, they questioned her promotion to the cadre of Superintending Engineer. Both applications were clubbed; the Tribunal passed a final order on 04.09.2023, setting aside the petitioner's appointment in the PRED and her promotion to the cadre of Superintending Engineer.
3. The petitioner was initially appointed as Assistant Engineer in the Public Works Department through direct recruitment by the Karnataka Public Service Commission.
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5 She was later appointed as Assistant Executive Engineer in the Public Works Department on 24.02.2012. Subsequently, based on seniority-cum-merit, the petitioner was promoted to the post of Executive Engineer on 27.06.2018.
4. In 2019-2020, the Government bifurcated the Public Works, Water Resources, Rural Development and Panchayat Raj Departments into three independent departments, as per a policy decision and the judgment of the Supreme Court in B.K. Pavithra and others v. Union of India (B.K. Pavithra-II) reported in (2019)16 SCC
129. The Rural Development and Panchayath Raj Department had two wings, namely., the Panchayath Raj Engineering Services and the Rural Drinking Water and Sanitation Services.
5. It is submitted that the Government allowed employees to opt for permanent absorption into the newly created departments. The petitioner, an employee of the Public Works Department, exercised her option to be absorbed into the Rural Development and Panchayat Raj
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6 Department (for short "the RDPR"), as per her qualifications. However, she was permanently absorbed into the Rural Drinking Water and Sanitation Services (for short "the RDWSS") as an Executive Engineer through an order dated 27.11.2020.
6. Aggrieved by this, the petitioner submitted representation on 15.12.2020 stating that she had not opted for Rural Drinking Water and Sanitation Services. When no response was received for the said representation, another representation was made on 08.01.2021, requesting a correction in her absorption. The RDPR issued an order dated 04.03.2022, correcting her absorption to the Panchayat Raj Engineering Services as an Executive Engineer. The seniority list was published, where petitioner was shown as having been promoted to the cadre of Executive Engineer on 27.06.2018 and final seniority list of Executive Engineers published on 20.06.2022, which placed the petitioner at Serial No.3, ahead of the private respondents, who were promoted much later, on 23.07.2021.
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7. Based on ranking assigned in the seniority list, the petitioner was promoted to the cadre of Superintending Engineer on 25.08.2022. The private respondents challenged her seniority and promotion in the applications filed before the Tribunal. The Tribunal allowed the applications, setting aside the petitioner's absorption, promotion and reverting her to the cadre of Executive Engineer. Being aggrieved by the same, the petitioner has approached this Court.
8. The learned counsel appearing for the petitioner submits that she had rightfully exercised her option for absorption into the Panchayat Raj Engineering Services, which was her preferred Department. She was erroneously absorbed into the RDWSS through the order dated 27.11.2020, despite having never opted for it. This error was acknowledged and corrected by the order dated 04.03.2022, absorbing her in the Panchayat Raj Engineering Services as per her qualifications. The Tribunal, however, failed to appreciate the legal justification for this rectification. It is specifically contended that in the option
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8 four made available to the employees of the PWD, the option given was only for remaining in the PWD or opting for absorption in the RDPR. No option to separate wings of the RDPR was ever given to employees of the PWD.
9. The petitioner's counsel further argues that the Tribunal's decision, which reverted her to the RDWSS, disregarded critical factual aspects. For instance, her promotion to Executive Engineer in 2018 and her seniority in that cadre were not given proper weight in the Tribunal's assessment. The Tribunal's oversight is evident in its failure to address the petitioner's legitimate concerns and the legal arguments raised before it. The petitioner emphasizes that the modification of her absorption from the RDWSS to the Panchayat Raj Engineering Services was simply a rectification of an administrative error. The modification order dated 04.03.2022 was in full compliance with the rules, and no legal rights of the private respondents were affected. The private respondents have no locus standi to challenge the rectification as it does not directly impact their legal status.
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10. The learned counsel appearing for the petitioner submits that the respondents are basing the challenge on the possibility of losing their chances for promotion, but they do not have a vested right to promotion. The Supreme Court has repeatedly held in any number of cases and ruled that individuals only have a right to be considered for promotion, not a guaranteed right to promotion. The Tribunal's ruling on this ground is legally unsustainable as mere expectations cannot be equated with legal entitlements.
11. The petitioner highlights that several other officials who were wrongly absorbed in the RDWSS had their absorptions corrected, just like her. These rectifications were not challenged or set aside. Quashing her absorption alone amounts to discrimination and violates Articles 14 and 16 of the Constitution of India, which guarantee equality before the law and equal opportunity in public employment. This discriminatory treatment was neither addressed nor considered by the Tribunal further substantiate the petitioner's argument.
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12. The petitioner contends that her promotion to the position of Superintending Engineer on 25.08.2022 was in accordance with the seniority list of Executive Engineers published on 20.06.2022. Her placement at Serial No.3, well ahead of the private respondents who were ranked between 14 and 20 and promoted much later in 2021, justifies her promotion. The Tribunal's order ignored this key fact and wrongly set aside her promotion without legal justification. The petitioner asserts that the Tribunal's order would unjustly revert her to the post of Executive Engineer after she has served as a Superintending Engineer for over a year. This reversion would force her to work under her juniors.
13. The learned counsel appearing for the respondents submits that the Writ Petition filed by the petitioner challenging the order of the Tribunal is devoid of merit and the petition is frivolous, vexatious and ought to be dismissed as it is not maintainable on facts. The Tribunal, after due consideration of the material facts, correctly passed its order, and the same warrants no interference by
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11 this Court. The petitioner seeks to challenge various administrative orders relating to seniority and departmental promotions, particularly order dated 04.03.2022, which changed the Petitioner's department from RDWSS to PRED, resulting in promotions and seniority adjustments.
14. The respondents respectfully submit the following chronological summary of key events for reference of this Court:
• On 06.04.2017, respondents No.3 to 9 were appointed as Assistant Executive Engineers in the RDPR Department - Annexure-A1.
• On 16.05.2020, RDPR issued a circular inviting permanent transfer options for employees of the PWD to RDPR. Annexure-A3. The petitioner improperly opted through PWD form, leading to complications. • On 07.09.2020 & 17.10.2020, notifications were issued by the Department of RDPR and PWD regarding officers who gave options - Annexure-R14. • On 27.11.2020, the petitioner was absorbed in RDWS as per RDPR orders - Annexure-A5.
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12 • On 04.03.2022, the impugned order permitted the petitioner's change from RDWS to PRED - Annexure- A6.
• On 15.07.2022, an addendum was issued backdating the petitioner's absorption to 27.11.2020, which adversely impacted the seniority of respondents No.3 to 9 - Annexure-A13.
• On 25.08.2022, the petitioner was promoted to the cadre of Superintending Engineer - Annexure-R3. • Finally, on 04.09.2023, KSAT passed the impugned order, which the petitioner is now challenging - Annexure-A.
15. The Petitioner's absorption from RDWS to PRED and the subsequent change in seniority ranking are illegal and without authority for the following reasons:
• The RDPR circular dated 16.05.2020 clearly stipulated that the options submitted for transfer were irrevocable. Despite this, the petitioner sought a change in department post facto, which is not permissible under the Rules.
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13 • The order dated 04.03.2022, permitting the petitioner's transfer from RDWSS to PRED, was issued after Rule 16A of the Karnataka Civil Services (General Recruitment) Rules, 1977 which previously allowed permanent transfers, was omitted on 06.07.2021. Therefore, the change in the department was made without legal sanction.
• The final seniority list of 20.06.2022 includes the petitioner's name, despite the fact that she was not part of the Executive Engineer cadre in PRED as of 01.03.2022. To cover this discrepancy, an illegal addendum was issued on 15.07.2022, backdating her absorption to 27.11.2020.
• The Petitioner was promoted to the cadre of Superintending Engineer on 25.08.2022 (Annexure- R3) based on the altered seniority list, which wrongly placed her above the respondents. As per the Karnataka Government Servants (Seniority) Rules, 1957, seniority is determined based on the date of entry into the cadre. The petitioner, having changed
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departments after the issuance of the final seniority list, cannot claim seniority over respondents No.3 to 9, who were consistently part of the PRED since their appointments. The impugned orders are in violation of these rules.
• The Department of RDPR, by allowing the Petitioner's request for a departmental change and issuing 04.03.2022 order, acted without authority and in contravention of the amended rules. The absorption backdated to 27.11.2020 was merely a facade to justify the illegal promotion and alteration of seniority.
16. The respondents are directly affected by the arbitrary change in seniority caused by the petitioner's improper absorption and promotion. As per settled law, when seniority is impacted, aggrieved parties have locus standi to challenge such actions. Therefore, respondents No.3 to 9 have valid grounds to contest the petitioner's actions before the Tribunal, and the Tribunal rightly upheld their contentions.
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17. The facts of the case are not is dispute. The only question which requires consideration is whether the option four made available to employees of PWD had the specific option for PRED or RDWSS wings of RDPR. The learned Counsel for the petitioner asserts that there was no such option made available to employees of the PWD. This contention is supported by the State. Though the learned counsel for the respondents/applicants submits that the employees of RDPR were provided with option forms showing both the wings separately, nothing is on record to support their contention that such option was available to employees of PWD.
18. It is submitted that on being transferred to the Rural Drinking Water and Sanitation Services of the Department of the Rural Development and Panchayath Raj Engineering Department, the petitioner had submitted the representation pointing out that she had never intended to be absorbed in the said wing. The said representation was duly considered and the petitioner was permanently transferred to the PRED, by communication dated
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16 04.03.2022. By order dated 15.07.2022, the effect of the petitioner's transfer to PRED was changed as 27.11.2020. It is to be noticed that after the permanent transfer on 04.03.2022, Annexure-A9 would show that in the provisional seniority list dated 07.04.2022 also the petitioner had been placed above the respondents.
19. We have considered the contentions advanced. The petitioner is admittedly senior to the private respondents having been appointed as an Assistant Executive Engineer in the Public Works Department on 24.02.2012 and having been promoted as Executive Engineer on 27.06.2018. The private respondents entered service only on 06.04.2017 and were promoted as Executive Engineers in RDPR only on 23.07.2021. There is nothing on record to show that the option form circulated in the Public Works Department contained the specific option to be posted either in the PRED or RDWSS. We are of the opinion that the finding of the Tribunal that the petitioner was not entitled to be transferred to Panchayat Raj Engineering Division by Annexure-A6 or to be granted seniority in the
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17 said division from 27.01.2020 was untenable. The further direction that the petitioner is to be reverted to the cadre of the Executive Engineer of RDWSS is also untenable especially in view of the finding of the Tribunal that there is no consensus/preference of the applicant for PRED/RDWSS forthcoming in either the submission of the respondent - State or of the petitioner herein. We are of the opinion that in view of the fact that the petitioner was never given an option to opt for either of the wings of RDPR and had submitted an option only for being absorbed in the RDPR, the directions issued by the Tribunal are untenable. The petitioner is therefore entitled to succeed in this writ petition. Hence, the following:-
(i) The writ petition is allowed.
(ii) The order of the Tribunal in Applications No.5895-5901/2022 c/w. Applications No.2978-2984/2022 dated 04.09.2023 shall stand set-aside.
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(iii) The applications submitted by the private respondents before the Tribunal shall stand dismissed.
Pending I.A.No.1/2024, is hereby stands disposed of.
Sd/-
(ANU SIVARAMAN) JUDGE Sd/-
(G BASAVARAJA) JUDGE cp*