Central Administrative Tribunal - Bangalore
Maj Siddalingayya vs Anil Kumar T K Prl. Secy, Dpar & Ors on 25 July, 2023
1 CP No.57/2017/CAT/BANGALORE BENCH CENTRAL ADMINISTRATIVE TRIBUNAL BANGALORE BENCH, BENGALURU CONTEMPT PETITION NO.170/00057/2017 IN ORIGINAL APPLICATION NO.170/00230/2016 ORDER RESERVED ON : 28.02.2023 DATE OF ORDER HON'BLE MRS. JUSTICE S SUJATHA -- ..MEMBER(J) HON' BLE MR.RAKESH KUMAR GUPTA ...MEMBER(A) Major (Retd) Siddalingayya Hiremath, KAS, Aged about 39 years, S/o Shivayya Hiremath, Deputy General Manager, Rehabilitation and Resettlement Upper Krishna Project, Navanagar, Bagalkot -587103. Now working as Commissioner, Hubballi Dharwad Municipal Corporation, Lamington Road, R/o Hubballi, Dist: Dharwad. ... Petitioner (By Advocate Shri Avinash Sabarad represents Shri G.I.Gachchinamath) Vs. 1. Shri Anil Kumar T.K.., The Principal Secretary, Department of Personnel & 2 CP No.57/2017/CAT/BANGALORE BENCH Administrative Reforms (DPAR), Vidhana Soudha, Bengaluru -- 560001. 2. Dr.Subhash Chandra Kuntia, The Chief Secretary, Government of Karnataka, Vidhana Soudha, Bengaluru ~ 560001. 3. Shri Bhanu Pratap Sharma, Secretary to Government of India, Ministry of Personnel, Public Grievance and Pensions, (Department of Personnel and Training), North Block, New Delhi -110001. 4. Shri T.Jacob, Secretary, The Union Public Service Commission, Dholpur House, Shahjahan Road, New Delhi -- 110069. 5. Sri Ajay Mittal, Secretary to Government of India, Ministry of Personnel, Public Grievance and Pensions, (Department of Personnel and Training), North Block, New Delhi-110001. . Smt. P.Hemalatha, Aged Major, cP No.57/2017/CAT/BANGALORE BENCH Secretary to Government of Karnataka, Department of Personnel and Administrative Reforms, Vidhana Soudha, Bengaluru. . Sri P.Ravi Kumar, Aged Major, Chief Secretary to Government of Karnataka, Vidhana Soudha, Bengaluru. . Sri Deepak Khandekar, Aged Major, Secretary, Ministry of Personnel and Public Grievance, Government of India, New Delhi. . Ms. Vasudha Mishra, _ Aged Major, Secretary, The Union Public Service Commission, Dholpur Road, New Delhi. .... Respondents (By Advocate Shri M.VRamesh Jois for Respondents No.1,2,6&7, Shri N.Amaresh for Respondents No.3, 5 & 8, Shri M.Rajakumar for Respondents No.4 & 9) 4 CP No.57/2017/CAT/BANGALORE BENCH ORDER Per: Justice S.Sujatha sooveeeeeeeIMem ber(J) This contempt petition is filed by the original applicant alleging breach and wilful disobedience of the order dated 01.02.2017 passed by this Tribunal in OA No.170/230/2016, inter alia seeking initiation of contempt proceedings against the respondents. It is submitted that he served in Indian Army as a Short Service Commissioned Officer (SSCO) from 30.10.2000 to 30.04.2008. Thereafter, the applicant has been promoted as KAS (Junior Scale) in terms of the order dated 29.07.2010 issued by competent authority and has served as KAS officer since then. Being aggrieved by non- inclusion of his name in the list of candidates for consideration for promotion to IAS by the Government of Karnataka, the applicant preferred OA No.230/2016 before this Tribunal seeking directions to respondents to consider his case with all service and statutory benefits. 2, This Tribunal vide order dated 01.02.2017 allowed the OA to the extent indicated therein. Relevant paragraphs of the said OA are quoted hereunder for ready reference: 5 CP No.57/2017/CAT/BANGALORE BENCH | "12. Even a cursory glance shows that the DOPT's letter dated 09.06.2016 cited by the first two respondents runs counter to the fourth Proviso to Regulation 5(2) both in letter and spirit. The said Proviso specifies nothing about conducting any special competitive examination in respect of EC/SCS officers. There is nothing equivocal about the benefit offered to the target group. Equally pertinently the GOK gave the benefit of the said Proviso to Capt.Dr.K.Rajendra in the notification dated 02.03.2016 (Annexure A15) based on the DOPT's concurrence. Yet in some mysterious way the very same DOPT has given completely contrary advice in their letter dated 09.06.2016: a classic case of the left hand and the right hand working at cross purposes. We cannot understand on what basis both the GOK and the DOPT have quoted the case of Capt. Dr.K.Rajendra.as an alibi to deny the applicant the benefit of the said Proviso. We wonder why the respondents did not reveal the existence of Annexure A15 in the reply statement. We also note that the respondents have nowhere categorically stated that the Karnataka Public Service Commission (KPSC) conducts a special examination for ex-EC/SCS officers for recruitment to the KAS. 13. The fourth Proviso to Regulation 5(2) was a conscious and well-conceived measure of the Government of India to encourage officers who had served the country loyally for many years as EC/SCS personnel in the armed forces. These on Canty, uy 6 CP No.57/2017/CAT/BANGALORE BENCH personnel placed their lives on the line in their service of the country. The objective of Government was not only to provide them adequate opportunity for career growth but also to effectively harness the. services of a body of well-trained disciplined, experienced and dedicated men and women freshly released from the armed forces. The third respondent seems to have issued the letter dated 09.06.2016 without understanding or even adequately considering its implications. We do not know the reasons since the respondents have not provided any counter to the rejoinder filed by the applicant. | 14. In this context it is useful to see the definition of Regulation: "REGULATION" shall meen a Regulation made under the Government of India Act, 1870 [Act X of 1897 (General Clauses), $.3(46]. According to the Law Lexicon Reprint Edition, 1987 "A REGULATION OF AN EXECUTIVE DEPARTMENT" is a rule made by the head of the department for its action under an Act conferring power to do so. This definition makes it clear that the Regulation cannot be superseded by the letter dated 09.06.2016. 15. We hold that the applicant is entitled to the benefit offered by the fourth Proviso to Regulation 5(2). The respondents are directed to consider the applicant's representations and decide any pending issues including the question of the applicant's position in the seniority list of KAS officers and his claim to be considered for appointment to the IAS within three months of receiving a copy of our order. We 7 CP No.57/2017/CAT/BANGALORE BENCH make it clear that these issues will be decided in accordance with the IAS (Appointment by Promotion) Regulations, 1955, and other relevant rules, and based on the merit of the case." 3. The Respondent No.3 had filed W.P.No.11337/2017 (S-CAT) before the Hon'ble High Court Karnataka challenging the aforesaid order and the same came to be dismissed. Being aggrieved, the Union of India has preferred Special Leave Petition No.15887/2017 before the -Hon'ble Apex court. The said SLP was dismissed by the Hon'ble Apex Court on 04.07.2017 upholding the orders passed by this Tribunal and the Hon'ble High Court Karnataka. The applicant filed Contempt : Petition No.57/2017 to initiate contempt proceedings against the | respondents for wilful disobedience of the order of the Tribunal dated 01.02.2017 passed in OA No.230/2016. This Tribunal was pleased to issue notice and after service of notice, the Respondent No.2 herein has filed the compliance report and sought for dropping the contempt proceedings. The Respondent No.2 in the so called compliance report has submitted that the applicant is placed in the select list and his name is added at SI.No.56. Being aggrieved, the petitioner approached the Hon'ble High Court Karnataka, Dharwad Bench in W.P.103232/2018, 8 CP No.57/2017/CAT/BANGALORE BENCH The relevant portion of the order passed by the Hon'ble High Court of Karnataka dated 08.01.2020 is extracted hereunder for ready reference: "7, Revisiting paragraph 15, it clearly discloses that the issue with reference to the applicant's position in the seniority list of KAS officer and his claim to be considered for appointment to the IAS is the direction strictly ought to have been complied by the respondents. It appears that the same has not been done in the particular case. Therefore, this court has directed them to produce the consideration of the petitioner's name for the said post considering the pending issue of the applicant including the question of applicant's seniority and thereafter appropriate order ought to have been passed. Whether consideration of the seniority has been done by the respondents, if so, how is the moot question that ought to have been taken into consideration by the CAT while dealing with the contempt proceedings. Ta. It is not that compliance of the directions issued by the Courts are mechanically done like a post office without really understanding what exactly the direction to issue and what is the responsibility of the respondents by virtue of the directions issued, According to the direction, they have to give reasons and findings as to the decision taken by the respondents as the seniority of the petitioner was called in question and such directions have been issued. The act of the respondents should flow from legal understanding of the orders and logical 9. CP No.57/2017/CAT/BANGALORE BENCH conclusion with specific findings. The same is conspicuously absent in this case. Of course that can also be shown by producing the surrounding circumstances and documents which is also not been done for the present. 8. Now we come back to the orders passed which is impugned in the contempt proceedings. The contempt Court has reiterated at para 8 what are the directions issued and also the document produced by the respondents. At paragraph 9, it has simply stated that there has been no case of any wilful violation of the order passed by the Tribunal. Whether there was any wilful violation or not is the second question that ought to have been considered by the CAT. First it has to consider whether there was strict compliance of the order passed by the CAT in the letter and spirit of the direction issued. In our opinion, without production of the document as sought for by this Court either before this Court or before the CAT, the contempt Court could not have been concluded that there was a strict compliance of the directions issued by the CAT. Therefore, under the aforesaid facts and circumstances, we are of the opinion that dropping of the contempt proceedings without considering whether there was strict compliance of the directions issued by the CAT is erroneous. 9. There was. an objection raised by the respondents with regard to the maintainability of the petition on the ground that, consideration order passed by the respondents even if it is 10 CP No.57/2017/CAT/BANGALORE BENCH erroneous ought to have been challenged before the CAT in an independent proceedings not by continuing the contempt proceedings. Secondly, the learned counsel appearing for the UPSC also submitted that the appeal is maintainable against the orders in the contempt proceedings passed by the CAT. These two objections raised, in our opinion, are superfluous. When this Court is of the opinion that dropping of the contempt proceedings itself is erroneous because the CAT has not properly considered whether respondents have strictly complied with the directions or not. In such an eventuality, filing of separate proceedings challenging the alleged compliance order does not arise. When the compliance order itself is not in strict compliance of the directions as challenged by the petitioner herein. So far as other contention is concerned, in the contempt proceedings if a conviction order is passed then only the appeal provision can be invoked under the Contempt of Courts Act. But when the proceedings are dropped, in such an eventuality, the appeal provision cannot be invoked. Therefore, on both the counts the writ petition is maintainable before the Court. Accordingly, we hold that the writ petition is maintainable. 10. In view of the aforesaid observations, we are of the opinion that, contempt proceedings have to be restored to the file of the CAT and the CAT has to examine the order passed by the respondents as to whether it is in strict compliance of its order after providing an opportunity to both the parties to produce any further documents in respect of the above said 4. 11 CP No.57/2017/CAT/BANGALORE BENCH matter and pass appropriate orders in accordance with law. Accordingly, the order passed by the CAT in contempt proceedings No.170/00057/2017 dated 21.03.2018 is hereby set aside. 11. While disposing of the contempt proceedings on merit, the CAT has to strictly adhere to the material on record and it should not persuade itself by any observations made by this Court in this order." Accordingly, this Contempt Petition is restored to file and the matter is listed before the Bench. In the present proceedings, order dated 16.12.2022 ( styled as 'compliance report') issued by Secretary to Government, Department of Administrative Reforms, Vidhana Soudha, Bengaluru has been placed on record. The relevant paragraphs would read thus: "As per the Indian Administrative Service (Appointment by Promotion) Regulation 1955 Regulation 5(2) the "seniority" as in the State Civil Service i.e., Karnataka Administrative Service has to be followed and the "eligibility" criteria should be followed as specified in the provisos of the said Regulation. Four proviso is about being eligible considered for promotion i.e., for being included in zone of consideration (i.e. three times the vacancy). However, as mentioned explicitly in the Rule 12 CP No.57/2017/CAT/BANGALORE BENCH 5(2) the order of seniority in KAS has to be followed and Emergency Commissioned or Short Service Commissioned Officers would be eligible to be included in zone of consideration with only 4 years of continuous service, unlike other officers for whom 8 years continuous service is mandatory to become eligible to be included in the zone of consideration. Hence, you have been considered for the Select List-2015 and 2016 under fourth proviso of the Regulation 5(2) of Indian Administrative Service (Appointment by Promotion) Regulations 1955. As per the Hon'ble CAT Order dated 01.02.2017 and the request made in your representations were duly considered and complied." 5. Learned Counsel Mr.Avinash Sabarad representing the petitioner submitted that the compliance order dated 16.12.2022 is not in compliance with the directions issued by this Tribunal in OA No.230/2016 and the directions/observations made by the Hon'ble High Court of Karnataka in W.P. No.103232/2018 | (DD 08.01.2020) confirmed by the Hon'ble Apex Court. Inviting the attention of the Bench to fourth proviso of Regulation 5(2) of IAS (Appointment by Promotion) Regulation, 1955 ('Regulation, 1955' for short) submitted that 8 years of continuous service as required under the preceding 13 CP No.57/2017/CAT/BANGALORE BENCH proviso (third proviso) shall be counted from the deemed date of their appointment to that service. Thus argued that the proviso provides that 8 years of continuous service as. required under third proviso shall be counted from the appointment of Short Service Commissioned Officers to the Military Service and such period shall be treated as service rendered under State Civil Service (continuous service). This Tribunal considering the matter in detail inasmuch as to fourth proviso to Regulation 5(2) of Regulation, 1955 has held that fourth proviso to Regulation 5(2) was a conscious and well-conceived measure of Government of India to. encourage the officers who had served. the country for many years as EC/SCS personnel in armed forces. The notification dated 02.03.2016 giving the benefit of said proviso to Capt. Dr.J.Rajendra and contrary advice issued by DOPT dated 09.06.2016 also has been considered and held that the 3% Respondent seems to have issued the letter dated 09.06.2016 without considering its implications. | The contempt proceedings were dropped by this Tribunal vide order dated 21.03.2018 based on the reports styled as compliance report submitted by the respondents, wherein it was stated that the name of the petitioner was included in the zone of consideration in terms of the fourth proviso to Regulation 5(2) of the 14 CP No.57/2017/CAT/BANGALORE BENCH Regulations, 1955 and in the proposal dated 12.09.2017 also the name | of the petitioner was included | in the zone of consideration. Considering this aspect, the Hon'ble High Court observed that in terms of the directions issued in OA, the respondents ought to give reasons and findings as to the decision taken by the respondents as the seniority of the petitioner was called in question. Hence dropping of the contempt proceedings was found to be erroneous. _ Interpretation of the fourth proviso to Regulation 5(2) of Regulations, 1955 made by the respondents suffers from infirmities and the same is nothing but an attempt by the respondents to deny the benefit to the applicant to which -- he is legally entitled to. Thus argued to continue the contempt proceedings treating the compliance report dated 16.12.2022 as not the compliance report made strictly as per the directions issued in the OA. 6. Learned Counsel Shri Ramesh S.Jois representing the Respondents Nos.1&2 argued that the order dated 16.12.2022 (compliance order) establishes that, as per the fourth proviso to Regulation 5(2), the petitioner has been placed. at SI.No.57 in the eligibility list in the zone of consideration by computing eligibility criteria as specified under third proviso to Regulation 5(2). As per the said Regulation, the seniority as in the State Civil Service ice., 15 CP No.57/2017/CAT/BANGALORE BENCH Karnataka Administrative Service has to be followed and the eligibility criteria has to be followed in the said proviso of the Regulations, 1955, The Hon'ble High Court having noticed the seniority of the petitioner not being considered, arrived at a conclusion that the contempt proceedings has to be restored to the file of the CAT and the CAT has to examine the order passed by the respondents as to whether it is in strict compliance. However, it has been observed that the CAT has to strictly adhere to the material on record and it should not persuade itself by any observations made by the Hon'ble Court in the said order. Hence in view of the compliance order dated 16.12.2022 contempt proceedings deserves to be dropped. 7. We have carefully considered the submissions of the learned Counsel for the parties and perused the material on record. 8. It is well settled that while dealing with the contempt jurisdiction this Tribunal can inquire into the allegations of breach/wilful disobedience of the orders passed, it cannot sit in appeal of the order passed in adjudication of the issties concerned. The Court/Tribunal cannot travel beyond the original judgment and direction. It is impermissible for the Court/Tribunal to issue any 16 CP No.57/2017/CAT/BANGALORE BENCH additional or incidental remarks which were not to be found in the original judgment/order. However, it is mandatory to examine whether the order/directions issued by the Tribunal/Court is complied with in letter and spirit. In the DOPT letter dated 09.06.2016 it has been observed thus: "I am directed to refer to the State Govt.'s letter No.DPAR 37 SAS 2015 dated 20.5.2016 and to reiterate that the fourth proviso to Regulation 5(2) of the IAS (Appointment by Promotion) Regulations, 1955 is applicable to only those officers of such category, recruited by the State Government under their Recruitment Rules made specifically for them. In other words, the said proviso is applicable to those Emergency Commissioned/ Short Service Commissioned officers who were appointed through a competitive examination wherein these officers competed amongst themselves. This regulation only makes such officers eligible for consideration for promotion to IAS and therefore cannot be used for fixation of seniority of State Civil Service officers. 2. In view of above the case of Capt. Dr.K.Rajendra does not cover under the 4" proviso to Regulation 5(2) of the IAS (Promotion) Regulations and therefore is governed by Regulation 5(2) of the Promotion Regulations which state that the Committee shall consider for inclusion in a Select List, the 2 " coltrane D> or 17 ; CP No.57/2017/CAT/BANGALORE BENCH. cases of members of the State Civil Services in the order of a seniority in that service. 3. The State Govt. is requested to take further necessary action in the matter accordingly." 9. | Considering the aforesaid DOPT instructions, the Tribunal in OA No.230/2016 has categorically observed that the said DOPT letter dated 09.06.2016 runs counter to fourth proviso to Regulation 5(2) of Regulations, 1955, which reads thus: "5(2) The Committee shall consider for inclusion to the said list, the cases of members of the State Civil Services in the order of seniority in that service of a number which is equal to three times the number referred in sub-regulation(1). PORE MEO EDR O eRe EET R ORES EO EE EERO EDEDO DEE SEEDED EH DESHHSOOEOHDUD DE ODEESEUE EOE DEES RHEE EHO OSE DE SOED CORO a eee O ee ree HOHE H DER HE HEED DDE SEED OE SHEE OEE ODEEEH EDEL DESESSEDEEOEEESESE EAE OEEEO OOO HE SEER EE EERS Provided also that in respect of any released Emergency Commissioned or Short Service Commissioned officers appointed to the State Civil Service, eight years of continuous service as required under the preceding proviso shall be counted from the deemed date of their appointment to that service, -- subject to the condition that such officers'shall be eligible for consideration if they have completed not less than four years of actual continuous service, on the first day of January of the year for which the Select List is prepared, in the post of Deputy 18 CP No.57/2017/CAT/BANGALORE BENCH Collector or in any other post or posts declared equivalent thereto by the State Government." 10. The said provision has to be given a purposive interpretation considering the reasoning assigned by the Tribunal in arriving at a conclusion that the applicant is entitled to the benefit offered by the fourth proviso to Regulation 5(2) of Regulations, 1955, In this regard para-12 to 15 of the order dated 01.02.2017 in OA No.230/2016 plays a significant role. The interpretation of the State Government that the seniority as in State Civil Service i.e., Karnataka Administrative Service has to be followed and the eligibility criteria should be followed as specified in the provisions of the said Regulation, is hard to accept. Fourth proviso is applicable only to consider the eligibility, appears to be a narrow interpretation denying the purport and object of the said proviso, in the light of the observation and directions made by this Tribunal in OA No.230/2016. "In the first. round of contempt litigation, this Tribunal having considered so called compliance report held that the respondents have complied with the order dated 01.02.2017, accordingly dropped the contempt proceedings. On further challenge to the said order, the Hon'ble High Court of Karnataka, Dharwad Bench has observed that the applicant's 19 CP No.57/2017/CAT/BANGALORE BENCH position in the seniority list of Karnataka Administrative Service officers and his claim to be considered for appointment to IAS, ought to have been considered strictly in terms of the directions issued. 11. The service rendered by the complainant/petitioner as Short Service Commissioned Officer should be deemed as the service rendered in the State Civil Service as Deputy Collector. Hence the cumulative service rendered by the applicant is required to be considered for promotion to IAS in terms of the fourth proviso to Regulation 5(2). Placing the applicant at SI.No.57 for consideration of promotion to IAS indicates that only four years of his service in State Civil Service has been reckoned without taking into account seven years and six months of his service rendered in the service commission. Bestowing the benefit of fourth proviso to Regulation 5(2) has to be complied with, in letter and spirit not merely for eligibility. Application of Rule 6A of Karnataka Government Seniority Rules, 1956, which is not applicable to the petitioner herein, cannot be considered as compliance. Hence, the direction issued by this Tribunal has not been fully complied with nor the benefit of the fourth proviso to Regulation 5(2) has been extended to the complainant/petitioner in its 20 CP No.57/2017/CAT/BANGALORE BENCH entirety as directed by this Tribunal. Hence in my considered view, contempt petition cannot be closed and deserves to be proceeded with. ~ 6d-- (RAKESH KUMAR GUPTA) (JUSTICE S.SUJATHA) MEMBER(A) MEMBER(J) sd. 1 CP.No.57/2017/CAT/Bangalore Bench CENTRAL ADMINISTRATIVE TRIBUNAL BANGALORE BENCH, BENGALURU CONTEMPT PETITION NO.170/00057/2017 , IN ORIGINAL APPLICATION NO.170/00230/2016 ORDER RESERVED ON: 28.02.2023 -- DATE OF ORDER: CORAM: HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J) HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A) Major (Retd) Siddalingayya Hiremath, KAS Aged about 39 years S/o.Shivayya Hiremath Deputy General Manager Rehabilitation and Resettlement Upper Krishna Project, Navanagar Bagalkot-587 103 Now working as Commissioner Hubballi Dharwad Municipal Corporation Lamington Road R/o.Hubballi, Dist: Dharwad. .... Petitioner (By Advocate Shri Avinash Sabarad represents Shri G.I. Gachchinamath ) Vs. 1.Shri Anil Kumar T.K. The Principal Secretary Department of Personnel & Administration Reforms (DPAR) Vidhana Soudha Bengaluru-560 001. 2. Dr.Subhash Chandra Kuntia The Chief Secretary Government of Karnataka . Vidhana Soudha Bengaluru-560 001. 3. Shri Bhanu Pratap Sharma Secretary to Government of India 'Ministry of Personnel, Public CP.No.57/2017/CAT/Bangalore Bench Grievance and Pensions (Department of Personnel and Training) North Block, New Delhi-110 001. 4. Shri T. Jacob Secretary The Union Public Service Commission Dholpur House, Shahjahan Road, New Delhi-110 069. 5.Sri Ajay Mittal, Secretary to Government of India Ministry of Personnel, Public Grievance and Pensions (Department of Personnel and Training) North Block, New Delhi-110 001. 6.Smt P. Hemalatha, Aged major, Secretary to Government of Karnataka Department of Personnel & Administrative Reforms - Vidhana Soudha Bengaluru. 7.Sri P. Ravi Kumar, Aged major, Chief Secretary to Government of Karnataka Vidhana Soudha, Bengaluru. . 8.Sri Deepak Khandekar Aged major, Secretary, Ministry of Personnel and Public Grievance Government of India New Delhi. 9.Ms. Vasudha Mishra Aged major, Secretary The Union Public Service Commission -Dholpur House, Shahjahan Road, New Delhi. ... Respondents (By Advocate: Shri M.V. Ramesh Jois for Respondents No.1,2,6 & 7, Shri N. Amaresh for Respondents No. 3,5 & 8, Shri M. Rajakumar for Respondents No. 4 & 9 ) CP.No.57/2017/CAT/Bangalore Bench ORDER PER: RAKESH KUMAR GUPTA, MEMBER (A)
The present Contempt Petition has been filed under Section 17 of the Central Administrative Tribunals Act, 1985 read with section 11 and 12 of Contempt of Courts Act, 1971.
This Tribunal in OA.No.170/230/2016 dated 01.02.2017 had held that: the __ applicant/petitioner is entitled to the benefit offered by the fourth Proviso to Regulation 5(2). The respondents are directed to consider the applicant s representations and decide any pending issues including the question of the applicant's position in the seniority list of KAS officers and his claim to be considered for appointment to the IAS within three months of receiving a copy of our order. We make it clear that these issues will be decided in accordance with the IAS (Appointment by Promotion) Regulations, 1955, and other relevant rules, and based on the merits of the case.
The Respondent No.3 had filed Writ Petition No.11337/2017 (S-CAT) before the Hon'ble High Court of Karnataka challenging the said order. However, the Writ Petition was dismissed by the High Court. Subsequently, a compliance report on behalf of the State Government i.e. Respondent No.1 & 2, was filed in which it was submitted that following the order of the Tribunal, the name of the applicant was included in the zone of consideration in terms of the 4" proviso to Regulation 5(2) of the IAS (Appointment by Promotion) Regulations, 1955 and his name was included in the proposal sent to the UPSC for consideration for appointment to the CP.No.57/2017/CAT/Bangalore Bench IAS. The petitioner was also communicated about the compliance of the order vide communication dated 23.10.2017.
The petitioner submitted a rejoinder to the compliance report submitted by the State Government saying that the State Government did not take into account the 7 years and 6 months of service rendered in Short Service Commission by the petitioner for the purpose of his seniority in the KAS cadre.
C.P. No.57/2017 was filed by the petitioner alleging wilful violation of the orders passed by this Tribunal, by the State Government, with regard to his | seniority in the seniority list of KAS Officers. The CP was heard and closed by this Tribunal vide its order dated 21.3.2018, in which the Tribunal held as follows:
"9. Therefore, on detailed consideration of the entire matter, we are of the view that there has been no case of any wilful violation of the order passed by the Tribunal by the State Government. In case the applicant has any grievance with regard to his seniority in the seniority list of KAS officers, which according to the State Govt. has been done in terms of | Rule 6A of KGS Seniority Rules 1957, he may agitate the matter in the appropriate forum. As regards the respondents No.3 & 5 are concerned, there have also been no violation of the order passed by this Ti ribunal by them.
10. Accordingly, we hold that the order of the Tribunal dtd.01.02.2017 in
- OA.No.230/2016 has been complied with and hence the Contempt 5 CP.No.57/2017/CAT/Bangalore Bench Petition stands closed. Notices issued are discharged. No order as to Costs."
6. The orders of this Tribunal in CP.No.57/2017. dated 21.3.2018 were challenged in W.P.No.103232/2018 before the Hon'ble High Court of Karnataka. After hearing the parties, the Writ Petition was disposed of by the High Court with the following observations:
"10. In view of the aforesaid observations, we are of the opinion that, contempt proceedings have to be restored to the file of the CAT and the CAT has to examine the order passed by the respondents as to whether it is in strict compliance of its order after providing an opportunity to both the parties to produce any further documents in respect of the above said matter and pass appropriate orders in accordance with law. Accordingly, the order passed by the CAT in contempt proceedings | No.170/00057/2017 dated 21.03.2018 is hereby set aside.
11. While disposing of the contempt proceedings on merits, the CAT has to strictly adhere to the material on record and it should not persuade itself by any observations made by this Court in this order. With the aforesaid observations, this petition stands disposed off."
7. In pursuance of the observations made by the High Court in W.P. No. 103232/2018, the present CP was again listed before this Tribunal and the matter was heard.
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b) CP.No.57/2017/CAT/Bangalore Bench
8. The contentions raised by the petitioner in the course of hearing before this Tribunal were as follows:
The Short Service Commissioned Officers in State Civil Service have been offered the benefit in matters of promotion to IAS and the same is contained in 4" proviso to Regulation 5(2) of Indian Administrative Service (Appointment by Promotion) Regulations, 1955 which is as follows;
'Provided. also that in respect of any released Emergency Commissioned or Short Service Commissioner Officers appointed to the State Civil Service, eight years of continuous service as required under the preceding proviso shall be counted from the deemed date of their appointment to that service subject to the condition that such officers shall be eligible for consideration if they have completed not less than four years of actual continuous service, on the first day of the January of the year for which the select list is prepared in the post of Deputy Collector or in any other post or posts declared equivalent thereto by the State Government."
The complainant is a Short Service Commissioned Officer who served in the Regiment of Jammu and Kashmir Rifles for 7 years and 6 months. Thereafter he has been appointed as Deputy Collector in the State Civil Service officer w.e.f. 23 Aug 2010 and is eligible to be considered for promotion to IAS in the Select List of 2015. The Respondents/Accused No 1 & 2 by letter dated 15th Jul 2015 sought clarifications from Respondents/ Accused No 3 & 5 DOPT, igen strani wy ES CP.No.57/2017/CAT/Bangalore Bench Government of India) as to how the 4" Proviso is required to be considered. The Respondents / Accused No 3 & 5 vide their letter dated 18 Jan 2016 clarified that, "In accordance with 4th proviso to Regulation 5(2) of the IAS (Appointment by Promotion) Regulations, 1955, granting the benefit of deemed date of appointment in the State Civil Service to the Emergency Commissioned or Short Service Commissioned Officers appointed to a State Civil Service, is the subject matter exclusively falling within the domain of the State Government."
The essential ingredients of the fourth proviso to Regulation 5(2) of the IAS (Appointment by promotion) Regulation mandates not only consideration of actual continuous service under State Civil Service but also counting of service under Short Service Commission. The proviso specifically provides that the "eight years of continuous service as required under Regulation 5(2) shall be counted from the deemed date of their appointment to that service". Therefore, the service rendered by the complainant as a Short Service Commissioned Officer should be deemed as the service rendered in the State Civil Service as Deputy ~ Collector. Hence, the cumulative service rendered by the Applicant is required to be considered for promotion to IAS in terms of 4" proviso, which is 11 years, 10 months and 8 days. In the light of the same, it has been held that the Complainant herein is entitled for benefit of fourth proviso to Regulation 5(2). Further there is direction issued to decide
d) CP.No.57/2017/CAT/Bangalore Bench -
any pending issues including the question of applicant's position in the seniority list of KAS officer.
The Respondents No. 1 and 2 submitted a proposal to Respondent No. 4 for consideration of 56 officers of Karnataka Administrative Service for promotion to IAS in accordance with IAS (Appointment by | Promotion) Regulations, 1955. However the applicant was placed in the list at SJ. No. 56. This act on the part of the Respondents is just considering his four years of service in State Civil Service without taking into account 7 years and 6 months of service rendered in Short Service Commission. All the other candidates who are considered in | the same proposal in the zone of consideration have put in only 8 years to 9 years of service and therefore while sending the proposal to Union Public Service Commission the Respondents ought to have placed the complainant in the order of seniority considering the cumulative service rendered as Short Service Commissioned Officer along with the service rendered in State Civil Service.as Deputy Collector and ought to have placed accordingly in the list of officers found eligible for consideration for promotion to IAS. Instead, there has been a deliberate effort to wilfully disobey and disregard the orders of this | Tribunal and the complainant has been placed at SI. No.56, which is against the letter and spirit of the benefit offered by fourth proviso of Regulation 5(2) of Indian Administrative Service (Appointment by Promotion) Regulation, 1955.
9.
e) CP.No.57/2017/CAT/Bangalore Bench The issue in question was for fixing the notional seniority. However by misconstruing the same and applying Rule 6A of the Karnataka Government Seniority Rules, 1956 which the Respondents admit is totally not applicable to the Applicant/complainant herein, has placed | the position of the Applicant/complainant at SI. No. 56. Hence, the direction issued by this court in including the applicant's position in the seniority list has not been duly complied with nor the benefit of fourth
- proviso to Regulation 5(2) has been extended to the Complainant/Applicant as directed by this Tribunal. Hence, there is total disobedience of the directions issued by this Tribunal.
The respondents have filed their written statement, wherein they have averred as follows:
a) This Tribunal in its order dated: 29.08.2022 has passed the following order:
"The order dated 21.09.2021 now placed on record by the said respondents is not accompanied with any seniority list which indeed . has. been categorically observed by the Hon'ble High Court that re- fixation of. seniority has not been placed before the Court nor before the CA T for consideration. The same continued even as on date. Hence, the order dated 21.09.2021 is incomplete in as muchas compliance as directed by this Tribunal. Hence, to enable the learned counsel for Respondents No.1, 2, 6 and. 7 to place on record the necessary -- documents regarding the re-fixation of the seniority of the complainant, we adjourn the matter to 26.09.2022"
10
~ CP.No.57/2017/CAT/Bangalore Bench
b) In accordance with the orders of this. Tribunal dated 01.02.2017 passed in O.A. No. 230/2016 and order dated: 08.01.2020 of the Hon'ble High Court of Karnataka, Dharwad Bench, in W.P. No. 103232/2018 and the Tribunal order dated: 10.08.2021 in C.P.No.57/2017, the action taken by the State Government with regard to the applicant's position in the seniority list of Karnataka Administrative Service (KAS) officers is stated as follows:
i. With regard to the applicant position in the seniority list of Karnataka Administrative Service (KAS)
a) The Rule 6A of Karnataka Government (Seniority) Rules, 1957 is applicable only to those officers of Defence Service who are transferred or appointed to an equivalent cadre or grade of service in the State Civil Service.
b) The State Government has examined the past service of the applicant in the Short Service Commission from 30.10.2000 to 30.04.2008 for re-fixing his seniority in the KAS (Junior) Scale.
c) The applicant had appeared for the competitive exam (Gazetted Probationary 2008 conducted by the Karnataka Public Service Commission (KPSC) and he was selected under ex-military Person (XMP) reservation quota in the competitive exam which was | notified in the KPSC notification on 11.03.2010. Based on the selection notification of KPSC, appointment order was issued on 29.07.2010. The officer reported to duty on 24.08.2010.
11CP.No.57/2017/CAT/Bangalore Bench
d) After verification of the service period of the applicant in Short Service Commission between 30.10.2000 to 30.04.2008, the officer reported to the KAS (Junior Scale) on 24.08.2010. The State Government has verified that there is a break period between the Short Service Commission tenure and KAS (Junior Scale) selection in competitive examination.
e) Hence, the State Government had issued an endorsement to the applicant on 29.09.2021 stating that as per the Rule 6A of Karnataka - Government (Seniority) Rules, 1957 his past service cannot be fixed counting seniority in KAS (Junior Scale). The gradation list of the KAS (Junior Scale) is enclosed in Annexure-A.
c) Inrespect of any Commissioned or Short Service released Emergency Commissioned officers appointed to the State Civil Service, eight years of continuous service as required under the preceding proviso shall be counted from the deemed date of their appointment to that service, subject to the condition that such officers shall be eligible for consideration if they have completed not less than four years of actual continuous service, on the first day of the January of the year for which the select list is prepared, in the post of Deputy Collector or in any other post or posts declared equivalent thereto by the State Government."
d) Inthe State Government the seniority of the Administrative Karnataka Service is listed below:
Junior Scale 12 CP.No.57/2017/CAT/Bangalore Bench seg istray, "D> Senior Scale Selection Grade Scale Super time Scale Senior Super Time Scale
e) While preparing the eligible list as per proviso 5 (2) of IAS
- (Appointment by promotion) Regulation, 1955, the officers who have completed not less than 08 years of continuous service as per the 3"
proviso of Regulation 5 (2), in the Senior Super time Scale seniority will be considered first. If officers are not available in Senior Super Time Scale then, the eligible officers in the Super Time Scale seniority will be considered. Likewise in next lower scales.
f) The minimum years of service prescribed as 8 years and 4 years mentioned in the Regulation are criteria for eligibility to be considered for promotion and not fixation of seniority in KAS.
g) e) In the case in hand, the applicant has been included in Select List-
2016. Wherein the Central Government has determined 12 vacancies for the Select List-2016. As per the determination under Regulation 5 (2) 36 eligible officers can be recommended to Union Public Service Commission for consideration of appointment from the KAS.
h) ) While computing the eligible officers there were no eligible officers in the Senior Super Time Scale, Super Time Scale and Selection Grade in seniority of KAS scale. Hence, the officers in the Senior Scale _ seniority of KAS were computed and only 21 officers were available
j)
k) 13 CP.No.57/2017/CAT/Bangalore.Bench from $1.No. 1225 to 1248. The applicant though standing at Sl. No. 1329, below 81 officers, was included in the eligibility list as per 4"
proviso of Regulation 5(2). This fixation was done in the Select List | seniority which was sent by the State Government to UPSC by reckoning his deemed date of appointment in military service under the said proviso.
h) In the eligibility list provided Sri Nagaraju N.R. who is in Junior Scale with the higher Seniority No. 1228 has been placed below applicant in the Select List proposal sent by State Government to UPSC.
The eligible officers in the Select List of 2016 are identified as per Regulation 5 (2) of IAS (Appointment by Promotion) Regulation, 1955 . following scale-wise Seniority in the KAS. The 3" and 4" proviso of the regulation 5 (2) is for identifying the eligible officers within the seniority list of KAS Scales.
As per the 4" proviso, in case of Short service Commissioned Officers appointed to the State Civil Service, eight years of continuous service as required under the preceding proviso, shall be counted from the "deemed date of their appointment to that service". It can be counted only for purpose of 3" proviso which mandates 08 years' service, i.e. ex-military officer who had completed only 04 veal of service in KAS should be treated on par with a non-military KAS officer who had | completed 08 years of service in KAS, for the purpose of eligibility to .
be considered for IAS. This was done in the case of the applicant as I) 14 CP.No.57/2017/CAT/Bangalore Bench evident from the Select List sent by the State Government to UPSC.
- However, the promotion is done based on the seniority in KAS scales as mentioned supra.
It can be noted in the order of this Tribunal in O.A. No. 230/2016, dated 01.02.2017 that, "The respondents are directed to consider the applicant's representation and "decide" any pending issues. including the question of the applicant's position in the Seniority List of KAS officer and his claim to be considered for appointment to the LAS within three months of receiving the copy of our order. We make it clear that this issue will be decided in accordance with the IAS (Appointment by Promotion) Regulations, 1955, and other relevant Rules and based on the merit of the case."
As per the order of the Tribunal, the applicant's representation with regard to position in the Seniority list of KAS was verified and the State Government decided to give endorsement, which was given to the applicant on 06.07.2020 and again on 29.09.2021. The claim of the . officer to be considered for appointment, has been examined in accordance with IAS (Appointment to promotion) Regulations, 1955 & fixation in the Select List seniority was done as mentioned in paras supra.
Hence, the orders of this Tribunal has been complied with and the Tribunal is respectfully prayed to drop the Contempt Proceedings against the respondents.
12.
13. 15 :
CP.No.57/2017/CAT/Bangalore Bench Heard learned counsels for the petitioner and the respondents in this matter, In the present case, the petitioner has alleged that the respondents have not fully complied with the orders passed by this Tribunal in its true spirit and have denied all the benefits which were available to him under the 4% proviso to Regulations 5(2) of IAS. (Appointment. by Promotion) Regulations 1955. He has specifically alleged that he was entitled to fixation of his seniority in the KAS cadre after taking into account the Short Service Commission rendered by him for the State Civil Service and the State Government has not fixed his seniority appropriately taking into account his service rendered as a Short Service Commission officer.
The respondents on the other hand have stated that the petitioner has been _ granted the benefit under the 4 proviso to Regulations 5(2) of the IAS (Appointment by Promotion) Regulations 1955. The service rendered by him as a short service commissioned officer has been taken into account to ascertain his eligibility of minimum eight years of continuous service as required under the preceding proviso. He has also rendered four years of actual continuous service in the State Civil Service as required under the 4"
proviso to the Regulations.
The present CP had earlier been heard by this Tribunal and disposed of with the observation that :
"Therefore, on detailed consideration of the entire matter, we are of the view that there has been no case of any wilful violation of the 16 CP.No.57/2017/CAT/Bangalore Bench order passed by the Tribunal by the State Government. In case the applicant has any grievance with regard to his seniority in the seniority list of KAS officers, which according to the State Govt. has been done in terms of Rule 6A of KGS Seniority Rules 1957, he may agitate 'the matter in the appropriate forum. As regards the respondents No.3 & 5 are concerned, there have also been no violation of the order passed by this Tribunal by them.
10. Accordingly, we hold that the order of the Tribunal dtd.01.02.2017 in OA.No.230/2016 has been complied with and hence the Contempt Petition stands closed. Notices issued are discharged. No order as to Costs."
14. This order of this Tribunal in CP.No.57/2017 dated 21.3.2018 was challenged in WP. No.103232/2018 before the Hon'ble High Court of Karnataka, which after detailed examination of the issue, observed that "it has to be considered whether there was strict compliance of the order passed by the CAT in the letter and spirit of the directions issued. In our opinion, without production of the document as sought for by this Court either before this Court or before the CAT, the contempt Court could not have been concluded that there was a strict compliance of the directions 'issued by the CAT." |
15. The respondents were directed to produce copy of the order where the seniority position of the petitioner was considered and fixed in the post of Deputy Collector.
17 ;
CP.No.57/2017/CAT/Bangalore Bench
16. The respondents have now filed a copy of the detailed order dated 16.12.2022 in which the question of fixation of seniority of the petitioner in the KAS has been considered as follows:
"With regard to your position in the seniority list of Karnataka Administrative Service (KAS).:-
a) The State Government has examined the past service rendered in the Short Service Commission from 30.10.2000 to 30.04.2008 for fixing your seniority in the KAS (Junior) Scale as per Rule 6A of Karnataka Government (Seniority) Rules, 1957.
b) You have appeared for the competitive exam (Gazetted Probationary 2008 conducted by the Karnataka Public Service Commission (KPSQ)) -
and you were selected under ex-military Person (XMP) reservation quota in the competitive exam which was notified in the KPSC notification on 11.03.2010. Based on the selection notification of KPSC appointment order was issued on 29.07.2010 and reported to duty on 24.08.2010.
c) After verification of the service period rendered in Short Service Commission between 30.1 0.2000 to 30.04.2008 you reported to the KAS (Junior Scale) on 24.08.2010. The State Government has verified that there is a break period between the Short Service Commission tenure and .
KAS (Junior Scale) selection in competitive examination.
Hence, as per the Rule 6A of Karnataka Government (Seniority) Rules. | 1957 your past service cannot be fixed counting seniority in KAS (Junior Scale). Your seniority will remain in KAS (Junior Scale) as per Rule
17.
18. 18 CP.No.57/2017/CAT/Bangalore Bench 5(1)(a) of Karnataka Government (Seniority) Rules 195, which reads "Seniority" i.e.
3.(1) The decision regarding the seniority of direct recruits to a service or to a class of post shall be made by the appointing authority at the time of their first appointment in one of the modes mentioned below:-
(a) When the recruitment is made on the result of a competitive examination, the order of seniority will be in the order of merit..."
With regard to the eligibility of the petitioner for appointment to IAS under 4" Proviso to Regulations 5(2), the State Government in its detailed order dated 16.12.2022 has stated that the applicant has been included in the zone of consideration under proviso 4 of the Regulations 5(2) bypassing 83 officers senior to him in KAS, because they have not completed 8 years of continuous service in KAS. The petitioner has completed 4 years of actual service in KAS as on 01.1.2015. Hence, he was considered eligible for the Select List-2015, after taking into account his previous service rendered in the Short Service Commission from 30.10.2000 to 30.8.2008. The State Government in the same order has also categorically stated that:
"As per the Indian Administrative Service (Appointment by Promotion) Regulations 1955 Regulation 5(2) the "seniority" as in the State Civil Service i.e. Karnataka Administrative Service has to be followed and the "eligibility" criteria should be followed as specified in the provisos of the said Regulation.
19. 19 CP.No.57/2017/CAT/Bangalore Bench Fourth proviso is about being eligible for being considered for promotion, i.e. for being included in zone of consideration (i.e. three times the vacancy). Howeve, as mentioned explicitly in the Rule 5(2) the order of seniority in KAS has to be followed and an Emergency Commissioned or Short Service Commissioned Officers would be eligible to be included in zone of consideration with only 4 years of continuous service, unlike other officers for whom 8 years continuous service is mandatory to become eligible to be . included in the zone of consideration. Hence, you have been considered for the Select List-2015 and 2016 under fourth proviso of the Regulation 5(2) of Indian Administrative Service (Appointment by Promotion) Regulations 1955.
As per the Hon'ble CAT Order dated 01.02.2017 and the request made in your representations were duly considered and complied."
Before examining the issue it would be worthwhile to reproduce the entire provisions as given under Regulation 5 (2) of the Indian Administrative Service (Appointment by Promotion) Regulations. These are as follows:
"3 (2)The Committee shall consider for inclusion to the said list, the cases of members of the State Civil Services in the order of seniority in that service of a number which is equal to three times, the number referred in sub-regulation (1).
Provided that such restriction shall not apply in respect of a State where the total number of eligible officers is less than three times the maximum permissible size of the Select List and in such a case the Committee shall consider all the eligible officers;20
CP.No.57/2017/CAT/Bangalore Bench Provided further that in computing the number for inclusion in the field of consideration, the number of officers referred to in sub-regulation (3) shall be excluded;
Provided also that the Committee shall not consider the case of a member of the State Civil Service unless on the first day of January of the year for which the Select List is prepared, he is substantive in the State Civil Service and has completed not less than eight years of continuous service (whether officiating or substantive) in the post of Deputy Collector or in any other post or posts declared equivalent thereto by the State Government.
Provided also that in respect of any released Emergency Commissioned or ' Short Service Commissioned officers appointed to the State Civil Service, eight years of continuous service as required under the preceding proviso shall be counted from the deemed date of their appointment to that service, subject to the condition that such officers. shall be eligible for consideration if they have completed not less than four years of actual continuous service, on the first day of January of the year for which the Select List is prepared, in the post of Deputy Collector or in any other post or posts declared equivalent thereto by the State Government."
20. The Regulations 5(2) of the Indian Administrative Service (Appointment by Promotion) Regulations specifically relate to the process of consideration of State Civil Service to the Indian Administrative Service. It provides that the zone of consideration for State Civil Service officers to be considered should be equal to 3 times the number of vacancies:available for promotion under JAS regulations. It also specifies that the cases of members of the State Civil Services have to be considered in the order of seniority in the State Civil Services itself. Under the third proviso, it also lays down a specific condition regarding eligibility and provides that only herons who. are substantive in the State Civil Service and have completed not less than 8
21.
22. 21 : .
CP.No.57/2017/CAT/Bangalore Bench years of continuous service (whether officiating or substantive) in the post of Deputy collector or in any other post or posts declared equivalent post are . eligible to be considered for appointment by promotion under these regulations.
There are, therefore, two factors to be considered before any person can be considered for induction into the Indian Administrative Service from the State Civil Service. The first is seniority in the State Civil Service. The regulations specify that the zone of consideration for eligible members of the State civil service shall be limited to 3 times the number of vacancies for that year in the order of seniority in the State civil service. The 2" factor for consideration is eligibility for being considered. This proviso prescribes a minimum service of 8 years at the level of Deputy Collector or equivalent in the State Civil Service as eligibility.
The 4% proviso to Regulations 5(2), is concerned with the question of eligibility of a Short Service Commissioned Officer, who- has been appointed to the State Civil Service for consideration for appointment to the IAS. In his case, 8 years of continuous service as required under the preceding proviso. shall be counted from the deemed date of. their appointment to that service, subject to the condition that such officers shall be eligible if they have completed not less than four years of actual continuous service on the first day of the January of the year for which the select list is prepared, in the post of Deputy Collector or in any other post or .
posts declared equivalent by the State Government.
23, 24,
25. '22 CP.No.57/2017/CAT/Bangalore Bench This proviso, therefore, provides the benefit of a reduced period of a minimum of 4 years of actual service in the State Civil Service for Short Service Commissioned Officers or Emergency Commissioned officers, and allows them to count their service as Short Service Commissioned or Emergency Commissioned Officers to meet the requirement of minimum of 8 years' service to be considered as eligible for consideration for appointment to the IAS. The other members of the State Civil Service are required to have a minimum of 8 years of actual service in the State Civil Service, in order to be eligible for such a consideration.
The benefit available under the 4! proviso to Regulations 5(2) clearly means, relaxation to be given in terms of considering their eligibility alone and not with regard to seniority. It has been clearly mentioned in Regulations 5(2) itself that the case of each eligible member of the State Civil Service has to be considered if it falls within the zone of consideration. This zone of consideration is determined in the order of seniority in the State Civil Service.
The controversy in this case appears to be.as to what could be the scope of benefits under the 4" proviso to Regulations 5(2). Does this proviso, besides granting benefit in terms of reduced period of 4 years of minimum service in the State Civil Service for eligibility, also provides for benefit of seniority in the State Civil Service, to the Emergency Commissioned and Short Service Commissioned Officers, after counting their services as Short Service Commissioned Officers.
27.
28. 23 _CP.No.57/2017/CAT/Bangalore Bench ~~ 26. A plain reading of the Regulations in its entirety clearly indicates that 4"
proviso only deals with the question of eligibility of Short Service Commissioned Officers and does not in any manner give the benefit of retrospective seniority as well. The question of fixation of seniority in the State Civil Service, of Short Service Commissioned Officers/ Emergency Commissioned Officers, who have subsequently been appointed in the State Civil Service, is the domain of the State Government. It is the responsibility of the State Government alone to fix the seniority in the State Civil Service based upon the relevant rules of the State Civil Service.
As mentioned in the foregoing paras, the State Government has now produced a detailed order dated 16.12.2022 vide which the seniority of the petitioner has been fixed in terms of Rule 5(1)(a) of Karnataka Government (Seniority) Rules, 1957. They have also clarified that the benefit under the 4'b proviso to Regulations 5(2) of the IAS, has been given to the petitioner in terms of relaxation granted to him by declaring him eligible to be considered, since he had completed 4 years of continuous service in the State -
Civil Service as required under the 4" proviso to Regulations 5(2).
The directions of this Tribunal in OA.No.170/230/2016 dated 01.02.2017 were "to consider the applicant's representations and decide any pending issues including the question of the applicant's position in the seniority list of KAS officers and his claim to be considered for appointment to the IAS within three months of receiving a copy of our order. We make it clear that these issues will be decided in accordance with the IAS (Appointment by CS me e "4 a Q:
age Stray 7 AD "2 % 6 &
29.
30.
31. 24 CP.No.57/2017/CAT/Bangalore Bench Promotion) Regulations, 1955, and other relevant rules, and based on the merits of the case.
The detailed order issued by the State Government dated 16.12.2022 has considered both the issues i.e. the issue of eligibility of the petitioner under the 4"" proviso to Regulations 5(2) of the IAS, as well as his seniority in the State Civil Service in terms of Rule 5(1)(a) of Karnataka Government (Seniority) Rules, 1957.
Keeping the above in view, the order of the Tribunal dated 01.2.2017 in OA.No.230/2016 has stands fully complied with. In case the applicant is still not satisfied by these orders, particularly with reference to the fixation of his inter se seniority in the State Civil Service, he is at liberty to challenge the same before the appropriate forum.
The Contempt Petition filed by the petitioner stands closed. Notices issued are discharged,
32. However, there shall be no orders so as to costs.
(RAKESH-RUMAR GUPTA) . (JUSTICE § SUJATHA) /vrnt/ M R(A) MEMBER (J) | CENTRAL ADMINISTRATIVE TRIBUNAL, BANGALORE BENCH, BANGALORE Contempt Petition No. 57 of 2017 in Original Application No. 230 of 2016 Tuesday, this the 25" day of July, 2023 CORAM:
Hon'ble Mr. Justice Sunil Thomas, Member (J) Major (Retd) Siddalingayya Hiremath, KAS, Aged about 39 years, S/o. Shivayya Hiremath, Deputy General Manager, Rehabilitation and Resettlement, Upper Krishna Project, Navanagar, Bagalkot -- 587 103, | Now working as Commissioner, Hubballi Dharwad Municipal Corporation, Lamington Road, R/o.
Hubballi, Dist: Dharwad. Petitioner (By Advocate: Mr. G.I. Gachchinamath) Versus
1. . Sri Anil Kumar T.K., The Principal Secretary, Department of Personnel & Administration Reforms, (DPAR), Vidhana Soudha, Bengaluru ~-- 560 001.
2. Dr. Subhas Chandra Kuntia, The Chief Secretary, Government of Karnataka, Vidhana Soudha, Bengaluru ~ 560 001.
3. Shri Bhanu Pratap Sharma, Secretary to Government of India, Ministry of Personnel, Public Grievance and Pensions, (Department of Personnel and Training), North Block, New Delhi -- 110 001.
4. SriT. J acob, Secretary, The Union Public Service Commissioner, -
Dholpur House, Shahjahan Road, New Delhi -- 110 069.
5. , Sri Ajay Mittal, Secretary to Government of India, Ministry of Personnel, Public Grievance and Pensions, (Department of Personnel Training), North Block, New Delhi -- 110 001.
6. Smt. P. Hemalatha, aged major, Secretary to Government of Karnataka, Department of Personnel! and Administrative Reforms, Vidhana Soudha, Bengaluru.
7. Sri P. Ravi Kumar, Aged Major, Chief Secretary to Government of Karnataka, Vidhana Soudha, Bengaluru.
8. Sri Deepak Khandekar, aged major, Secretary, -- Ministry of Personnel & Public Grievances, Government of India, New Delhi.
9. Ms. Vasudha Mishra, aged major, Secretary, Union Public Service Commission, Dholpur Road, New Delhi. aa Respondents _ [By Advocates: Mr. Sridhar N. hedge (R1, 2, 6 & 7), Mr. N. Amaresh (R3, 5 & 8) and Mr. M. Rajakumar (R4 & 9)] This Contempt Petition having been heard on 30.06.2023, the Tribunal on 25.07.2023 delivered the following:
ORDER Per: Justice Sunil Thomas, Judicial Member -
This Contempt Petition is preferred by the original applicant in the * above OA, alleging breach and contumacious disobedience of final order dated 1.2.2017 of this Tribunal in the above OA. He will hereinafter be referred. as applicant.
2. Shorn of unnecessary details, the essential facts necessary for | determination of points in dispute in this contempt petition is as follows: | . The applicant herein served as a Short Service Commissioned Officer
- (SSCO) from 30.10.2000 to 30.4.2008 in the Armed Forces. Thereafter, he was appointed as an Assistant Commissioner of Sales Tax of State of Karnataka by order dated 26.5.2008. He served as such till 23.8.2010. While so, he had appeared for the Karnataka Administrative Service (KAS) 3 competitive examination for Gazetted Probationary, 2008, conducted by the Karnataka State Public Service Commission. The applicant was selected under the Ex-Military Pension Reservation Quota. On being ranked in the list, the applicant was appointed by order dated 29.7.2010 in the Karnataka Administrative Service. He reported for duty on 24.8.2010. He is continuing _ in the service. Claiming that his total service exceeds 12 years as on 1.1.2014 and that he was eligible for consideration to the Indian Administrative Service (IAS) by virtue of the third and fourth provisos to Regulation 5(2) of IAS (Appointment by Promotion) Regulation, 1955, he preferred the present OA before this Tribunal. By order dated 1.2.2017, this Tribunal allowed the OA and held that the applicant was entitled to the benefit of fourth proviso to the said Regulation 5(2). Respondents were ' directed to consider the applicant's representation and to decide pending issues including the question of applicant's position in the seniority list of KAS officers and his claims to be considered for appointment to the LAS within three months. It was clarified that the said issues will be decided in accordance with IAS (Appointment by Promotion) Regulations, 1955 and other relevant Rules, based on the merits of the case.
- 3, Union of India alone challenged the above order of Administrative Tribunal in Writ Petition No. 11337 of 2017 (SCAT) before the High Court of Karnataka. Confirming the order of the Tribunal the Writ Petition was dismissed. This was unsuccessfully challenged by the Union of India in SLP No. 15887 of 2017. Hence, the said order of the Tribunal has become final and conclusive.
: 4 4, | Thereafter, alleging that the respondents had willfully disobeyed the order of the Tribunal, present Contempt Petition was filed. Respondent No, 2, the State appeared and filed a report dated 25.10.2017, along with Annexures R1 to R4, claiming compliance and sought for dropping of the . proceedings. It was revealed in the report that the applicant was placed in the select list of 2015 at serial No. 57 in the list. Accordingly, the contempt petition was closed by this Tribunal. The above order closing the contempt petition was challenged by the applicant herein in WP (SCAT) No. 103232 of 2018 before the High Court of Karnataka. The Dharwad Bench of the
- High Court by its judgment dated 8.1.2020 set aside the impugned order and held that dropping of the contempt proceeding without considering whether ~ there was strict compliance of the order of the Tribunal was wrong. The contempt proceedings were restored. and this Tribunal was directed to examine the order passed by the respondents as to whether there was strict compliance of the order of this Tribunal. Thereafter, both sides were heard by the Division Bench of this Tribunal.
5. Based on the facts placed before the Tribunal, the Hon'ble Member ' (Judicial) by order dated 28.2.2023 came to the conclusion that the observations and direction issued by this Tribunal has not been duly complied with nor the benefit of fourth proviso to Regulation 5(2) extended . to the complainant/petitioner. Hence, the Hon'ble Member (Judicial) held that the contempt petition cannot be closed and deserved to be proceeded with, 5
6. However, the Hon'ble Member (A) came to the conclusion that the compliance order dated 16.12.2022 issued by the State Government has considered both the issues i.e. the issue of eligibility of the petitioner under fourth proviso to Regulation 5(2) of the Regulations, 1955 as well as his seniority in the State Civil Service and therefore, the order of the Tribunal stood fully complied with. Accordingly, it was held that contempt petition was liable to be closed.
7. Inthe li ght of the divergent views of the Hon'ble Members, the matter was placed before the Hon'ble Chairman of CAT, for his orders under
- Section 26 of the Act. By communication dated 12.5.2023 of the Principal Bench No. PB/ 13/01/2011-JA(Vol-Pt.1), the Hon'ble Chairman nominated me as 3" Member to hear CP No. 57 of 2017 in OA No. 230 of 2016.
8. Accordingly, both sides were heard on 30.06.2023. Heard the learned counsel for the applicant, the learned counsel for the State and the learned counsel for the UPSC. Examined the records.
9. Inthe light of the divergent opinion of both the Hon'ble Members, the following points were referred to me for consideration:
"1 Whether the contempt petition deserves to be closed as the order dated 01.02.2017 passed in OA No. 230/2016 has been Sully complied with, in terms of the order dated 16.12.2022 issued by the Government of Karnataka?
ii) Interpretation given to Fourth proviso to. Regulation 5(2) of IAS (Appointment by Promotion) Regulations, 1955 by the Government of Karnataka that relaxation to be given in terms of considering the eligibility alone and not with regard to seniority while extending the benefit offered to the fourth proviso to Regulation 5(2) is justifiable?"6
Since both the points are intermingled, both are considered together and the conclusion arrived as follows:
10. For a better appreciation of the entire facts in issue, it is essential to refer to the operative portion of the order in the present OA, which is as follows:
"15. We hold that the applicant is entitled to the benefit offered by the fourth Proviso to Regulation 5(2). The respondents are directed to consider the applicant's representations and decide any pending issues including the question of the applicant's position in the seniority list of KAS officers and his claim to be considered for appointment to the IAS within three months of receiving a copy of our order. We make it clear that these issues will be decided in accordance with the IAS (Appointment by Promotion) Regulations, 1955 and other relevant rules, based on the merits of the case."
11. Since the applicant has been granted benefit of the fourth proviso to Regulation 5(2), it is essential to refer to the said Regulationg for better understanding of the matter. Regulation 5(2) reads as follows:
*3(2) The Committee shall consider for inclusion to the said list, the cases of members of the State Civil Services in the order of a seniority in that service of a number which is equal to three times the number referred in sub-regulation (1):
Provided that such restriction shall not apply in respect of a State where the total number of eligible officers is less than three times the maximum permissible size of the Select List and in such a case the Committee shall consider all the eligible officers; Provided further that in computing the number for inclusion in the field of consideration, the number of officers referred to in sub-regulation (3) shall be excluded;
Provided also that the Committee shall not consider the case of a member of the State Civil Service unless on the first day of January of the year for which the Select List is prepared, he is substantive inthe. State Civil Service and has completed not less than eight years of continuous service (whether officiating or substantive) in the post of Deputy Collector or in, any other» post or posts declared equivalent thereto by the State Government.
Provided also that in respect of any. released Emergency Commissioned or Short Service. Commissioned officers appointed to the State Civil Service, eight years of continuous service as required under the preceding proviso shall be counted from the deemed date of their appointment to that service, subject to the condition that such officers shall 7 be eligible for consideration if they have completed not less than four years of actual continuous service, on the first day of Januar 'y of the year for which the Select List is prepared, in the post of Deputy Collector or in any other post or posts declared equivalent thereto by the State Government."
12. After the High Court order dated 8.1.2020, the matter was taken by this Tribunal on 7.9.2020. It was thereafter, adjourned to 2.3.2021. The learned counsel for the respondents Nos. | and 2 sought time to produce the original file. Original records were summoned by this Tribunal and after verification of the records, Tribunal passed an order on 10.8.2021 as follows:
"In order to ascertain the fact as to whether the consideration with regard to re-fixation of seniority of the petitioner on the post of Deputy Collector has actually taken place or not, we summoned the records in original. After perusal of the records with the assistance of Shri. Ramesh Jois, learned counsel representing the Respondents No.1, 2, 6 & 7, we find that no such consideration has actually taken place even uptil now.
The situation which has emerged from the facts and circumstances of this case leads us to form a prima facie view to summon the respondents in order to frame a charge against them.
However, Shri. Jois, learned counsel representing the Respondents No. 1, 2, 6 & 7, confronted with the said situation, stated that the respondents shall now reconsider the issue of refixation of the petitioner's seniority on the post of Deputy Collector and the order in this regard shall be issued within a period of six weeks from today,"
The proceedings dated 29.8.2022 discloses that a memo was filed on 23.9.2021 by the State enclosing an order dated 21.9.2021 issued by the State. This Tribunal by the proceedings on that day held that pursuant to the order of this Tribunal dated 10.8.2021, the learned counsel for the respondents had stated that the respondents shall reconsider the issue of re- fixation of petitioner's seniority in the post of Deputy Collector and the order in this regard will be issued. However, the order dated 21.9.2021 placed on record by the said respondents was not accompanied with any seniority list. This Tribunal further held that hence, the order dated 8 21.9.2021 was incomplete in as much as compliance as directed by this Tribunal. To enable the learned counsel for the respondents 1, 2, 6 and 7 to place on record the necessary documents regarding the re-fixation of the seniority of the complainant, the matter was adjourned. In fact the order which was placed along with a memo referred to the above was the _ communication dated 21.9.2021 from the Secretary to Government, Department of Personnel and Administrative Reforms, Government of Karnataka, to the applicant herein by which he was informed that on a consideration of his representation dated 10.6.2020 the Government had issued an endorsement dated 6.7.2020. It was informed that the benefit availed under ex-serviceman quota has also been factored in, while fixing his seniority in KAS junior scale at the time of appointment.
13. The matter was adjourned to 5.12.2022 on which day the Tribunal noticed that the learned counsel for respondents 1, 2, 6 & 7 had filed a memo dated 22.9.2022 along with a copy of the provisional seniority list of KAS (Junior Scale) officers from 27,.4.1978 to 31.12.2018 as on 1.1.2019 and the copy of the particulars of State Civil Service Officers who were eligible for consideration for promotion to IAS in their order of seniority to the Select
- List Year 2016, wherein the applicant's name was shown at serial No. 22. It was held that the memo was not in full compliance of the order passed by this Tribunal dated 1.12.2017 and the order of the Hon'ble High Court in WP No, 103232/2018. Hence, the learned counsel for respondents 1, 2, 6 & 7 sought further time to file a report of compliance. On the adjourned date it was reported that a memo dated 17.12.2022 was filed enclosing an order --
9dated 16.12.2022. The above order seems to be a communication from Secretary to the Government, DoP&T to the applicant herein wherein a _ detailed order is seen passed with reference to the seniority position of the applicant. It is seen that in the above order, the Government had taken up a stand that the applicant though eligible for being considered, did not have the sufficient seniority and hence, was placed at serial No. 57 in the list which was forwarded to the UPSC for consideration.
14. The sequence of past proceedings show that though the compliance _ Teport was filed on 25.10.2017, enclosing communicationg dated 26,5.2017 pursuant to the Selection Committee Meeting for preparation of select list of 2015, by which the applicant was placed at 57" position, the detailed order justifying the above with reasons was passed only on 16.12.2022, almost 5 years thereafter, that too, after repeated observations that seniority list was not placed either before this Tribunal or before the High Court. To that extent, purported compliance was much belated.
15. Next issue to be considered is whether the compliance report along with Annexures R2 to R4 and the order dated 16:12.2022, evidence due compliance of the final order of this Tribunal. The learned counsel for Government took up the contention that once a decision is taken by the authority, the correctness of such a decision can be challenged only in a separate proceeding and not in a contempt proceeding. This contention has . to be answered with reference to the final order in the OA. In the OA, Government resisted the claim of the applicant on the strength of a DoP&T 10 letter. Tribunal held that the DoP&T's letter dated 9.6.2016 relied on by the respondents run counter to the fourth proviso to Regulation 5(2), both in letter and spirit. It was held that the fourth proviso specified nothing about conducting any special competitive examination in respect of SCS officers. It was held that though the Government of Karnataka had given the benefit of such proviso to one Capt. Dr. K. Rajendra, in some mysterious way, the same DoP&T had given a completely contrary advice in their letter dated 9.6.2016. It was also taken note that the existence of Annexure A15 letter in favour of Capt. Dr. K. Rajendra was not disclosed in its reply statement. Essentially the above contention based on the DoP&T Circular was rejected and seems to have approved the stand taken in the case of Capt. Dr. K. Rajendra.
16. Proceeding further, this Tribunal held that fourth proviso to Regulation 5(2) was a conscious and well conceived measure of the Government of India to encourage officers who had served the country loyally for many years as EC/SCC personnel in the armed forces. The objective of the Government was not only to provide them adequate opportunity for career growth, but also to effectively harness the services of a body of well-trained, disciplined, experienced and dedicated men and women freshly released from the armed forces. It was on that premise it was held that the applicant was entitled to the benefit of fourth proviso to Regulation. 5(2), These observations clearly indicate that regarding the seniority there had to be a conscious decision in accordance with fourth proviso to Regulation 5(2). Since the question of seniority has been 1 impliedly dealt in the above order, any decision taken under the purported implementation of the said order is justiciable in the contempt proceedings itself, to the extent whether the order has been implemented, and not by a separate proceeding. To that extent the contention of the learned counsel for the respondents to the contra, is liable to be rejected.
17. The compliance report dated 25.10.2017 was affirmed by the Chief Secretary of the State of Karnataka. It was stated in the compliance report that the name of the applicant was included in the zone of consideration in terms of fourth proviso to Regulation 5(2) of the Indian Administrative ~ Service (Appointment by Promotion) Regulations, 1955. The communications in this regard addressed to the UPSC were produced as Annexures' R1 to R3. The communication issued to the applicant was produced as Annexure R4.
18. Annexure R1 is the communication dated 26.5.2017 of the Chief Secretary of the State, to the Secretary of the UPSC in regard to the selection committee meeting for preparation of select list of 2015, for promotion of SCS officers to IAS. The crucial portion in relation to the consideration of the applicant herein is seen at'page 7 of the above communication. It reads as follows:
"The State Government have examined the case of Major Siddalingaya S. Hiremath and submits that his name may be considered along with the list of 56 officers whose names have already been submitted to UPSC against the vacancies of Select List 2015. The State Government has not assigned notional seniority to Major Siddalingaya S. Hiremath and his name is placed at Sl. No. .57, below Shri N.R. Nagaraju, KAS. It is also informed that his name has been included i in the eligibility list as he is entitled to the benefit accorded under 4" proviso to Regulation 5(2) of the IAS (Appointment by Promotion) Regulations in the light of the order dated :
23.03.2017 in WP No, 11337/2017 of the. Hon'ble High Court of 12 Karnataka and also the order dated 1.2.2017 of the Hon'ble CAT, Bengaluru Bench in OA No, 230/2017.
Further, the State Government has re-examined the case of notional fixation of seniority of Captain Dr. K. Rejendra in light of the letter dated 09.06.2016 of DoPT, Gol, judgments of Hon'ble Courts and also the KGS (Seniority) Rules and has withdrawn the Notification dated 02.03.2016 fixing notional seniority for promotion to IAS in terms of qi proviso to Regulation 5(2) of the IAS (Appointment by Promotion) Regulations vide notification dated 25.05.2017."
19. Annexure R2 is another communication of the Chief Secretary addressed to the Secretary, UPSC dated 2.6.2017 in continuation of the above proposal and in reply to the endorsement of the UPSC on the earlier communication. Regarding the position of the contempt petitioner herein, after referring to the relevant Rules and case laws, the communication concluded by stating as under:
"Hence, the seniority of Major Siddalingayya Hiremath in the State, as per Rule 6A of KGS Seniority Rules, 1957, is SL No, 1329 and the same is notified as per draft gradation list published vide notification No. DPAR 02 SKG 2015 dated 03.04.2017. Similar interpretation applies to the case of Captain Dr. K. Rejendra also, and hence, it can be seen that the State Government did not apply different yardsticks to Capt K. Rajendra and Major Siddalingayya Hiremath, The DoPT has determined 35 vacancies for the preparation of the 2015 Select List. Hence, as per regulation 5(2), the State Government has to forward the names of 105 eligible officers to the UPSC. But only 56 eligible officers are eligible and the names of all these 56 eligible officers _ have been included in the proposdl.... veces"
20. In Annexure R2, Government proceeded to hold that though DoPT had determined 35 vacancies and for the preparation of the 2015 Select List, 105 eligible officers were to be recommended to the UPSC, only 56 officers were eligible and the names of all such persons were included, Though there "were several other officers senior to the applicant herein, none of them had qualified since they had not completed 8 years of tenure service as Deputy Collector or equivalent post. Accordingly, they were not recommended.
13However, the name of the applicant was included as the last person at serial No. 57, holding that he was eligible for consideration as per the fourth proviso to regulation 5(2), as ordered by this Tribunal in OA No. 230 of 2016 and High Court in WP No. 11337 of 2017.
_ 21. While considering the contempt petition and the compliance affidavit, in the light of the direction of the High Court in WP No. 103232 of 2018, the crucial question that arises is whether there was strict compliance of the order of this Tribunal in letter and spirit. High Court had noted that what exactly was the order with reference to consideration of seniority either by the respondent No. 1 or by the respondent No. 2 was not placed before the Court. The High Court accordingly, proceeded to hold that whether the ' question of consideration of seniority has been done by the respondents and if so how, was the moot question to be considered. This Tribunal was directed to consider the order passed by the respondents as to whether it was in strict compliance of its order. The learned counsel for the Government, supporting the above orders contended that they were issued in full compliance of the order of this Tribunal having due regard to the provisions contained in IAS (Appointment by Promotion) Regulation, 1955 as well as | the Karnataka Government (Seniority) Rules, 1957.
22. In this background, the original order now relied on dated 16.12.2022 . has to be scanned to find out whether there was full compliance. By the final order of this Tribunal, it was specifically held that the applicant was entitled to the benefit offered by the fourth proviso to Regulation 5(2). Accordingly, 14 the respondents were directed to consider the applicant's representation and decide any pending issue including the question of applicant's position in the seniority list of KAS officers and his claim to be considered for appointment to the IAS within three months of receiving a copy of that order. It was clarified that those issues will be decided in accordance with IAS (Appointment by Promotion) Regulations, 1955 and other relevant Rules and based on the merits of the case, The authority proceeded to consider the various representations submitted by the applicant. After referring to the. representations dated 31.1.2015, 19.6.2015, 25.6.2015, 1.7.2015 and 8.10.2015, the authorities specifically noted that in representation dated 31.1.2015 the applicant had sought that his service as Short Service Commissioned Officer in Indian Army from 30" October, 2002 to 30"
' October, 2008, the service as Group-A gazetted officer in Assistant Commissioner, Commercial Taxes from 6.6.2008 to 13.8.2010 and service as a member of State Civil Service in KAS from 24.8.2010 till the date of ' representation may be reckoned. In his subsequent representation he had contended that he fulfilled both the conditions that on 1.1.2014 he was a member of the State Civil Service and had by then rendered 5 years and 6 months of actual continuous service in Group-A post. However, through the last representation, he had requested that as on 1.1.2015 he had completed the requisite period of service as contemplated under the fourth proviso to Regulation 5(2) of TAS (Appointment by Promotion) Regulation, as a member of KAS. Hence, he requested that his service of 11 years and 8 days under the Government of Karnataka and Government of India may be 15 considered and he may be placed accordingly in. seniority in gradation prepared for the purpose of recommending names for promotion to IAS,
23. After referring to the past service rendered in the Short Service . Commission for the purpose of fixing the seniority in KAS Junior Scale as per Rule 6A of the Karnataka Government Seniority Rules, 1957, it was noticed that he had appeared for the competitive examination and was selected under ex-military person reservation quota. He reported for duty on 24.8.2010. It was noticed by the authority that there was a break period between Short Service Commission tenure and KAS Junior Scale selection in the competitive examination, On this factual premise, the authority ' concluded that as per Rule 6A of the Karnataka Government Seniority Rules, 1957, the past service cannot be fixed counting the seniority in KAS Junior Scale. His seniority will remain in the KAS Junior Scale as per Rule S(1)(a) of the Karnataka Government Seniority Rules, 1957. It was stated that while preparing the select list, as per the eligibility criteria under proviso to 5(2) of IAS (Appointment by Promotion) Regulation, 1955, the officers . who have completed not less than 8 years of continuous service as per the third proviso to Regulation 5(2) in the senior super time scale seniority were considered first. It was concluded that as per Regulation 5(2), the eligible candidates who were to be considered for the select list has to be taken in the order of seniority in the State Civil Service i.e, the Karnataka Administrative Service. It was further noted that as per the seniority and eligibility criteria, there were about 56 officers from the gradation list of the Karnataka
- Administrative Service who had completed 8 years of continuous service.16
The remaining officers, though were in the senior scale, were not considered in the eligibility list, as they had not completed 8 years of continuous service as required under the third proviso to Regulation 5(2). It was held that as per the fourth proviso, his previous service rendered in the Short Service Commission was computed to fulfill the eligibility criteria. However, regarding the seniority, it was held that he was considered below all the 56 persons in the above list as he had lesser service in KAS than other 56 officers. Accordingly, the applicant was placed at serial No. 57, holding that as per the Indian Administrative Service (Appointment by Promotion) Regulation, 1955, Regulation 5(2) seniority as in the State Civil Service i.e. Karnataka Administrative Service has to be followed and eligibility criteria should be followed as specified in the proviso to the said Regulation.
24, Though the authority had correctly stated that both the eligibility and seniority had to be taken into consideration for the purpose of inclusion of the applicant in the list of eligible candidates, the placing of the applicant at serial No. 57 has resulted in a dichotomy. Respondents were also justified in its view that the eligibility has to be considered under fourth proviso to. Regulation 5(2) of Indian Administrative Service (Appointment by Promotion) Regulation, 1955. According to the respondents, for the purpose of seniority, the applicant had to. be considered as per the seniority in the Karnataka Administrative Service. Admittedly, the applicant has been placed above several officers who had completed more than 7 years of service, but had not attained 8 years of minimum prescribed period under the third proviso to Regulation 5(2). If the contention of the respondents that 17 applicant had completed only 4 years of service as on 1.1.2015 is accepted, he cannot be placed even at SI. No. 57, above persons who have more than 7 _ years of service. This contradictory situation seems to have arisen from a faulty interpretation given to fourth proviso to Regulation 5(2), which will be dealt with later,
25. The learned counsel for the applicant contended that though the eligibility and seniority are both factors to be reckoned, both have to supplement and complement each other and cannot be at variance. It was contended that there cannot be one criteria for eligibility and yet another for seniority as adopted by the Government. The learned counsel for the applicant is well grounded in this contention.
26. In the present Original Application, the claim of the applicant was resisted by the respondents on the strength of a clarification dated 9.6.2016 given by the DoP&T. According to DoP&T, the fourth proviso to Regulation 5(2) of IAS (Appointment by Promotion) Regulation, 1955 was. only applicable to those categories of persons recruited by the State Government under the Recruitment Rules made specifically for them. It was opined that the said proviso was applicable to those emergency commissioned/short service commissioned officers, who were appointed through a competitive examination wherein those officers competed among themselves. It was contended by the Government that in view of this clarification, the applicant _ was not eligible for consideration for the appointment to IAS. To counter this argument, the applicant placed before this Tribunal a notification dated 18 _ 2.3.2016 (marked as Annexure A15) which dealt with the issue of one Capt. Dr. K. Rajendra, who was extended the benefit of fourth proviso to Regulation 5(2).
27. Capt. Dr. K. Rajendra had served in Short Service Commission during the period from 22.3.1993 to 31.3.1998. He entered the Karnataka Administrative Service on 2.2.2006. When the question came up as to whether he was entitled to the benefit of the fourth proviso to Regulation 5(2), the Government examined it in the light of an earlier clarification issued by DoP&T by its letter dated 18.1.2016 and also the advice of the UPSC by its communication dated 12.2016. It was noticed by the Government that there was no special provision either in the Recruitment Rules pertaining to Short Commission Service officers or in the KAS (Seniority) Rules, 1957 to determine the seniority by reckoning the service
- rendered in Short Service Commission of the Indian Army. Hence, it was necessary to consider the issue of counting the service in Short Service Commission and assigning the consequential deemed date of appointment in KAS with specific reference to the contents of fourth proviso to Regulation 5(2) of the IAS (Appointment by Promotion) Regulation. Ultimately, on the basis of the materials placed on record, by Annexure A15, the Government held that Capt. Dr. K. Rajendra was entitled to be assigned notional seniority " in the final gradation list of KAS Group A, Junior Scale officers, by placing him just below the last person in the batch selected to the Karnataka Administrative Service through Karnataka Public Service Commission immediately after Capt. Dr. K. Rajendra had joined the Indian Army. On this 19 premise, he was placed below the last among the 1997 batch of officers KAS by applying the fourth proviso to Regulation 5(2) of the IAS. It is pertinent to note that while the 1997 batch of KAS officers were selected Capt. Dr. K. Rajendra was still a Commissioned Officer in Indian Army. Further he had joined KAS, few years after he left Amny. Still, by invoking fourth proviso to Regulation 5(2) he was placed just below the last of the 1997 batch KAS officers. His deemed date of appointment was accordingly, fixed.
28, It is pertinent to note that in Capt. Dr. K. Rajendra's case, the specific " stand of the Government was that there was no specific provision either in the Recruitment Rules pertaining to SCS officers or in the Karnataka Administrative Service (Seniority) Rules, 1957 to determine the seniority by reckoning the service rendered in SSC in Indian Army. However, after considering the entire facts, Capt. Dr. K. Rajendra was placed as the last person in the batch selected to KAS, immediately after Capt. Dr. K. Rajendra joined the Indian Army. Thus, the benefit of fourth proviso was completely extended. After having adopted this stand in the case of Capt. Dr. . K. Rajendra, the State cannot now turn around and take a different stand in the case of the applicant. It is pertinent to note that in Capt. Dr. K. Rajendra's case, he had joined the Karnataka Administrative Service after 8 years, This break of service did not stand in the way of him being considered
29. The records disclose a communication of the Chief Secretary to the UPSC dated 26.5.2017. It indicates that before deciding the issue of the 20 applicant herein, case of Capt. Dr. K. Rajendra was reconsidered. Annexure A15 notification dated 2.3.2016, by which Capt. Dr. K. Rajendra was given the benefit of fourth proviso to Regulation 5(2) was revoked by notification dated 25.5.2017. On the next date of such revocation, on 26.5.2017, by Annexure R1 communication of the Chief Secretary, the select list of 2015 for promotion to IAS was forwarded. The communication dated 16.12.2022 which addressed to the applicant herein further held that the applicant was not entitled to reckon the past service for counting the seniority in the case of KAS Junior scale as per Rule 6A of the Karnataka Government (Seniority) Rules, 1957 in the light of the breakup of period between the short service . commission tenure and KAS Junior Scale selection. In this background it appears that the learned counsel for the applicant was perfectly justified in contending that after granting the benefit of fourth proviso to Regulation 5(2) to Capt. Dr. K. Rajendra, it was revoked by another order on the eve of deciding the case of the applicant herein, to deny the benefit to him.
30. A reference to Annexure R2 clearly shows that to place the applicant _ as the last in the list of 57 persons who were recommended for consideration for promotion to IAS, the State Government has relied on Rule 6A of the | KGS Seniority Rules, 1957. It also relied on the decision of the Supreme Court in G. Rabinathan v. State of Karnataka in [1995 Supp(2) SCC 542] . _and the decision of the Karnataka High Court in VS. Richards v. The State of Karnataka (ILR 2003 KAR 3582] . Relying on the above decisions and _ the Rule, it was held that as the officer had undergone a break in service * between tenure in the Army and the KAS, the benefit of Rule 6A of KGS 2] Seniority Rules, 1957 cannot be extended to him. It seems that the Government had specifically relied on Rule 6A of. the Karnataka " Government Servant (Seniority) Rules, 1957 to hold that the applicant was not entitled to reckon the past service in the Army for the purpose of reckoning the period prescribed under the fourth proviso to Regulation 5(2) of Indian. Administrative. Service (Appointment._by.. Promotion)..Rules Essentially Rule 6A relates to the transfer or appointment of an officer of the defence services, an All India Service or a Civil Service of the Union in such cases. It provides that in the case of such officers, the service in: State Civil Services shall not be treated as first appointment to that class or grade of service for the purpose of seniority, and the seniority of the officer so transferred or appointed shall be determined with reference to. his first appointment to the class or grade of service or services to which he belonged prior to such transfer or appointment.
31. In VS. Richards's case (supra), the applicant who had completed 15 years of service in Air F orce, after discharge applied to a post notified by the Karnataka Public Service Commission and got selected. He was appointed to the said post after some gap, Claiming that he was entitled to reckon the past service, by virtue of Rule 6A of the Karnataka Government Service (Seniority) Rules, 1957, the applicants approached the Court. The Division Bench of the High Court, held that Rule 6A was applicable only when an _ officer was in Defence service (as contrasted from an officer who has ceased to be in such service) is transferred or appointed to an equivalent grade of service in the State Service. Rule uses the term "transfer or appointment" of 22 an officer of the Defence Service etc. It was held that an officer of defence service necessarily refers to a serving officer and not an ex-officer. The Division Bench concluded that the past services can be reckoned under Rule 6A only when the past service continues without any break. Identical situation arose in G. Rabinathan's case (supra). In that case also the question that came up was whether the applicant was entitled for the benefit of Rule 6A of the Karnataka Government Servants (Seniority) Rules, 1957, Supreme Court held that a reading of the above provision would clearly indicate that transfer or appointment of an officer of the defence service or such officers mentioned therein, shall not be treated as first appointment to . that class or grade of service for the purpose of seniority. Therefore, the Rule indicated that there should be continuity of service, and there should not be any break in service.
32. There cannot be any dispute regarding the proposition of the law laid in the above decisions with reference to Rule 6A of Seniority Rules. The Rule is also clear that it refers to transfer or appointment of a person in _ defence service or such other services mentioned therein, and does not refer to the case of a short service commissioned or emergency commissioned officers appointed to State Service after their previous tenure. However, in the case at hand, the proposition that was laid down by this Tribunal and confirmed by the High Court was that the applicant was entitled to the benefit under fourth proviso to Regulation 5(2) of IAS (Appointment by Promotion) Regulation, which seems to be a specific provision covering the ' case of emergency commissioned or short service commissioned officers 23
----appointed-to.State.Service.after.the.expiry_of the previous tenure and not the case of service officers transferred or appointed to State Service. Evidently Rule 6A of Seniority Rules 1957 and fourth proviso to Regulation 5(2) deals with two different classes of persons and two different situations. Hence, Rule 6A of Seniority Rules and decisions in G. Rabinathan's case (supra) and V.S. Richards's case (supra) have no application to the facts of the present case.
33. A perusal of the fourth proviso to Regulation 5(2) of the Regulations shows that it virtually is a proviso to the third proviso. In the case of officers covered by fourth proviso, it relax the condition in the third proviso that for the purpose of considering the State civil servants for being promoted to IAS, 8 years continuous service in the cadre is essential. By virtue of the fourth proviso, an exception is carved out of third proviso in the case of released emergency commissioned or short service commissioned officers appointed to the State Civil Service. The said proviso prescribes four years of actual continuous service as Deputy Collector or in equivalent posts as on the 1" day of the January of the year for which select list is prepared.
34. The above proviso, also does not give any indication that officers referred therein should be in military service while joining State Service.
Even the words "any released emergency commissioned" used in fourth proviso clearly indicates that there may be a break of service before joining State Service.24
35. A close perusal of the said proviso clearly indicates that the fourth proviso has two parts. The latter part states that officers mentioned in that proviso shall be eligible for consideration if they have completed four years "of continuous service as Deputy Collector or "equivalent" posts. If the intention of the fourth proviso was only to relax the eight year period prescribed in the third proviso, in the case of officers mentioned in fourth proviso, only the latter part alone should have been there. However, the former part deals with another aspect, how to count the eight year continuous service prescribed in third proviso. It states that it shall be counted from the deemed date of their appointment to that service. The conscious usage of two phrases "deemed date of their appointment to that service" and "not less than four years of actual continuous service" clearly indicate the crux of the benefit bestowed on such persons. The latter part of said proviso clearly indicates that such officers will be eligible if they have completed not less than four years of "actual continuous service as Deputy Collector or in equivalent post". It clearly indicates that if such officers have completed four years of actual continuous service in the Karnataka Administrative Service, they are eligible, in relaxation of 8 years term " prescribed in third proviso, However, the former part of the above proviso refers to length of service of such officers. It states that 8 years of continuous service as required under the preceding proviso shall be counted from the "deemed date of their appointment to that service". It clearly indicates that for the purpose of counting the 8 years of continuous service there shall be a deemed date of their appointment. Consciously, here the 25 Regulation does not use the words "actual date of their appointment", but use the words "deemed date of their appointment to that service". This clearly shows that 8 years referred in third proviso is not reckoned the actual date of their appointment in the Administrative Service, but a deemed date reckoned from "the date of their appointment to that service". A cumulative reading of the proviso clearly indicates thal the authority is bound to fix the " deemed date for counting their 8 years of continuous service as required under the third proviso to Regulation 5(2). Thus fourth proviso of Regulation 5(2) contemplates both components of eligibility and length of service, in itself.
36. Evidently when the Tribunal indicated that the applicant is entitled to the benefit of fourth proviso to Regulation 5(2) and that it was well ' conceived measure of Government of India to encourage officers who had served Country and to effectively harness the services freshly released from armed forces, the. Tribunal was conscious about the twin usages of "deemed _ date of the appointment into the service" and the "actual date of continuous service" both employed in the fourth proviso. Evidently, for the purpose of fixing the 8 years of continuous service as provided under the preceding proviso, the authority was bound to fix the deemed date' of his appointment to that service and fix the continuous service accordingly. This has not been done. By an interpretative technique, which does not either stand to reason nor does get it statutory support, the benefit bestowed on the applicant cannot be set at naught. To that extent, the conclusion arrived at by the 26 Hon'ble Member (Judicial) that the order of this Tribunal has not been implemented in its full spirit has to be accepted.
° 37, A recapitulation of the above legal proposition in the light of the facts mentioned above clearly indicates that it is evident that for the purpose of recommending a person and including in the person in the proposal for being considered to the IAS both the question of eligibility and seniority arises. Though I agree to that extent with the reasoning of the Member (A), the ultimate conclusion that the order of this Tribunal has been complied with cannot be accepted. To that extent, I am in concurrence with the conclusion . arrived at by the Member (Judicial) that the order of the Tribunal has not been complied with and the matter needs to be proceeded to ascertain whether there is willful contumacious conduct on the part of the respondents.
ve
38. Accordingly, I am in agreement to the conclusion arrived at by the learned Member (Judicial) that the contempt petition cannot be closed. The matter shall now be placed before the Division Bench for consideration of ~ further course of action and steps to be taken. Accordingly, place the matter before the Hon'ble Division Bench at the earliest, for ordering further steps.
a Sa (JUSTICE SUNIL THOMAS)----~ JUDICIAL MEMBER "SA"27
Contempt Petition No. 57 of 2017 in Original Application No. 230 of 2016 PETITIONER'S ANNEXURES AnnexureAl-- True copy of the order made in application No. 17/00230/2016 Annexure A2~ True copy of representation.
Annexure A3-- True copy of acknowledgement.
* Annexure A4d-- -- True copy of representation. Annexure AS-- True copy ofacknowledgement, Annexu reA6-- True copy of representation, Annexure A7-- True copy of acknowledgement.
Annexure A8-- True copy of representation.
Annexure A9-- True copy of representation.
Annexure A10-- True copy of the order made in WP No. 11337/2017.
Annexure All -- True copy of Regulations.
Document No _1 - True copy of assessment report.
Document No 2 - True copy of notification.
Document No 3 -True copy of letter dated 18.1.2016.
Document No . 4 - True copy of letter dated 1.2.2016.
Document No 5 - True copy of correspondence dated'9.6.2016.
. 6 - True copy of notification dated 2.3.2016.
Document No Document No _1 - True copy of communication dt. 18.1.2016.
Document No . 2 - True copy of communication dt. 1.2.2016.
Document No Document No .3 - True copy of order passed in SLP No. 15887/2017.
.4- True copy of letter dt. 9.6.2016.
28Document No. 5 - True copy of letter dated 20.3.2017.
Document No. 6 - True copy of letter dt, 25.7.2017.
Document No. 7 - True copy of letter dt. 7.7.2020.
~ Document No. 8 - True copy of letter written law Department dt. 11.5.2017.
'Document No. 9 - True copy of notification dt. 25.5.2017.
Document No. 10-True copy of order made WP No. 103232/2018 dt. . 3.12.2018.
Document No. 11-True copy of endorsement dt. 6.7.2020.
Document No, 1-True copy of the Karnataka Government Servants (Seniority) Rules.
Document No. 2-True copy of Writ Petition No. 11337/2017.
Document No. 3-True copy of Special Leave Petition.
RESPONDENTS' ANNEXURES Annexure A-- Copy of the letter dated 25.7.2017.
Annexure RE Copy of the letter dated 26.5,.2017, Annexure R2-- Copy of the letter dated 2.6.2017. Annexure R3~ Copy of the letter dated 12.9.2017.
- Annexure R4-- Copy of the letter dated 23.10.2017. Annexure A- Copy of the letter dt. 25.7.2017.
Annexure B-- -- Copy of the letter dt. 7.7.2020 Annexure C -- Copy of the letter dt. 20.11.2020. Annexure RI1-- Copy of the gradation list.
' Annexure R2-- Copy of the proposal. | ~X~X-X-X-X-X-X-X~