Karnataka High Court
L.J. Prakash And Anr. vs The State Of Karnataka And Ors. on 10 June, 1996
Equivalent citations: ILR1996KAR3076, 1996(6)KARLJ90
Author: H.L. Dattu
Bench: H.L. Dattu
ORDER H.L. Dattu, J.
1. This judgment will dispose of W.P.15082/86 and W.P.15083/1986 as common questions of law and facts arise in these petitions.
2. The relevant facts for the disposal of the Writ Petitions may be noticed. They are -
Petitioners are directly recruited as First Division Clerks in the Office of Corporation of City of Bangalore on 19th November, 1975 and on 17th October, 1975 respectively. Petitioners in the Writ Petitions seem to be aggrieved mainly because of the fitment given to respondents - 3 to 6 above petitioners in the provisional seniority list of First Division Clerk prepared as on 1.1.1981 and published and circulated in the memo dated 20.6.1984. In the said list, 1st petitioner is placed at Sl.No. 47 and 2nd petitioner at Sl.No. 45 respectively, whereas respondents 3 to 6 are placed above petitioners at Sl.Nos. 3,5,7 and 25. According to the averments made in the Writ Petitions, respondents-3 to 6 had joined the services of the respondent-Corporation as Family Planning Extension Educators. The appointment was purely temporary in the pay scale of Rs. 140-250. As Extension Educators, they were posted to the Family Planning Section in the Health Department of the Corporation. The Family Planning Section in the Corporation was established in the year 1966 with the aid of Central Government on the pattern prescribed by the Ministry of Health, Government of India. An order of appointment issued to one of the respondents by 2nd respondent is extracted for better understanding of the case of the petitioners. It reads as under:
"CORPORATION OF THE CITY OF BANGALORE NO.B12(4)/PR 393/69-70 O/of the Commissioner Corporation of the City of Bangalore, Bangalore, dated: 27th May, 1970.
MEMO Sub : Filling up the posts of Family Planning Extension Educators in the Family Planning Section of the Health Department.
Ref : Health Officer's report No. HE(FP) 175/69-70 dated 26.2.70.
The following candidates of the employment Exchange who have been interviewed and selected are appointed temporarily as Family Planning Extension Educators (Male/female) on a pay of Rs. 140/- in grades Rs. 140-5-150-8-190-10-250 plus usual allowances and posted to Family Planning Section of the Health Department in the vacancies noted against each.
They are directed to report themselves for duty to the Health Officer with their original educational certificates within 7 days from the date of receipt of this memo, failing which their claim will be passed over. Further they are also directed to produce Physical Fitness Certificate and vaccination certificates before they join duty.
xxx xxx xxx
3. Shri M. Ramakrishna, 112 As male extension
18th Cross, 8th main, educator in the existing
Malleswaram, Bangalore-3, vacancy in Rajajinagar
Family Planning
Centre.
xxx xxx xxx
Sd/-
For Commissioner,
Corporation of Bangalore."
4. The order of appointment issued to respondents would clearly indicate that the appointment of Family Planning Extension Educators was to Family Planning Section in the Health Department of the Corporation, purely on temporary basis. Posts had been created on the pattern prescribed by Government of India with its financial assistance. During March, 1976, Government of India by its letter addressed to all State Governments directed reorganisation of the Family Planning Centres in accordance with the revised set-up and staffing pattern as laid down therein. In the said letter, it was indicated to keep the posts Extension Educators, Family Welfare workers etc., in the Family Planning Section vacant with effect from 1.4.1976 as no grants would be released by Government of India. Clause(4) of the said letter provided for absorption in the suitable alternative posts of the staff that would be rendered surplus as a result of the re-organisation. It is the statement of respondents-25 to 28 before this Court in their counter that the respondents viz., Extension Educators had represented to the 2nd respondent to absorb the surplus staff in the equated posts in other departments of the Corporation. The Administrator of the Corporation in its proceedings dated 28.2.1978 exercising his powers under Standing Orders (Taxation and Finance) resolved to absorb the surplus staff of the Family Planning Section in the equated posts of First Division Clerks. In the said order it had been made clear by the Administrator of the Corporation that eight posts of 1st Division Clerks which are vacant are to be filled up by direct recruitment and be filled up by absorbing the eight Senior-most Extension Educators as First Division Clerks by protecting their pay scale in the scale of First Division Clerks. It was also made clear in the said resolution that the erstwhile employees of Family Planning Section has to take seniority from the date on which they enter the new post in the sense that their seniority will be counted below the First Division Clerks as on the date of their absorption. In these Writ Petitions we are not concerned with Family Welfare workers, Peons, Attendants of Family Planning Section even though the proceedings of the Administrator refers to them. Since proceedings dated 28.2.1975 involved change in the cadres of Extension Educators to that of First Division Clerks, the Administrator made reference to State Government for its approval. Simultaneously respondents and others aggrieved by that portion of the resolution which related to counting of their seniority below the last First Division Clerk as on the date of their absorption made representation to the Government requesting to count their seniority from the date of their initial appointment and to include the post held by them in the Cadre and Recruitment Rules. The Housing and Urban Development Department of the Government of Karnataka after taking into consideration the opinion of DPAR (Service Rules) and that of Law Department, the Government by its Order dated 15.9.1982, in partial modification of the proceedings of the Administrator dated 28.2.1978 accorded sanction to the seniority of the Extension Educators in the cadre of the First Division Clerks from the date of their initial appointment and other consequential benefits flowing from such fixation, pursuant to the order of State Government dated 15.9.1982, respondents and other Extension Educators of the Family Planning Section of the Corporation were appointed as First Division Clerks by the Corporation, exercising its powers under Sub-section (1) of Section 84 of the N.M.C.Act,1976 by its Memo No. B 12(4) Pr.403/ 82-83 dated 23rd November, 1983. The Corporation in its Memo No. BIL(3) GRL/4/83-84 dated 20.6.1984, prepared and published a provisional seniority list of First Division Clerks as on 1.1.1981. In the said list the name of the petitioners are at Sl.No. 47 and 45 respectively whereas respondents 3 to 6 are placed at Sl.No. 3, 5, 7 and 25. Before finalising the provisional gradation list, petitioner and others represented to respondent No. 2 and pointed out that the Government Order dated 15.9.1982 is contrary to Rule 6 of Seniority Rules. In turn, Commissioner of the Corporation made a report to the State Government to revise its order dated 15.9.1982 on ground that the Eleven Extension Educators were appointed by transfer from the Family Planning Section as First Division Clerks on their request and that consequently they have to be given seniority from the date of their appointment as First Division Clerks and not from the date of their initial appointment as Family Planning Extension Educators. Pursuant to the report of the Commissioner, the State Government by its order dated 12.6.1985 in No. HUD 59 HMU 85 has modified its earlier order dated 15.9.1982. While doing so, the Government directed the Corporation before the provisional gradation list is finalised to fix the seniority of the absorbed employees after verifying the factual position as to whether their appointments were made on transfer on their own requests or otherwise. Pursuant to the aforesaid order of the Government dated 12.6.1985, the Corporation prepared and published a revised provisional gradation list of First Division Clerks as on 1.1.1981 by a memo dated 24th September, 1985. In the said list it is stated by respondents themselves that the names of the respondents and other Extension Educators had not been included in the revised provisional gradation list. In the said memo, Commissioner had specifically noticed that after detailed verification of the records, it is established that officials working in the Family Planning Section are absorbed and appointed as First Division Clerks in the other departments on their specific request and with a specific condition that their earlier service in the Family Planning Section will not be counted for the purpose of seniority. In the memo it was also indicated that any employee aggrieved by the provisional gradation list of First Division Clerks prepared as on 1.1.1981, published and circulated on 24th September, 1985 may file their objections on or before 20.10.1985.
5. Aggrieved Extension Educators instead of filing their objections to the provisional gradation list, filed Writ Petitions before this Court in W.P. No. 17159/1985 and other connected matters inter alia questioning the correctness or otherwise of the Government Order dated 12.6.1985 modifying its earlier order dated 15.9.1982 and the revised provisional gradation list prepared and published by the Corporation by its memo dated 24.9.1985 and further for a direction to the Corporation to prepare and publish the gradation list of First division Clerk by fixing their seniority from the date of their initial appointment and to give them all consequential benefits as was directed by the State Government in its earlier order dated 15.9.1982. This Court by its order dated 18th February, 1986 was pleased to allow the Writ Petitions by setting aside the order of the State Government dated 12.6.1985 and the revised seniority list published under a memo dated 24th September, 1985 and the Court was further pleased to direct respondent-corporation to implement faithfully the order of the State Government dated 15.9.1982 and further prepare the gradation list of the First Division Clerks of the Corporation as on 1.4.1976 in accordance with law and affording an opportunity who will be affected thereby.
6. Pursuant to the order made by this Court in W.P.No. 17159/ 1985 and connected matters, the Corporation ought to have prepared the seniority list of First Division Clerks as on 1.4.1976 but without doing so, in order to fill up twenty two posts of Section Officers which is a promotional post from the feeder post of First Division Clerks, effected promotions to the post of Section Officer from out of First Division Clerks depending on their seniority in the seniority list published as on 1.1.1981 in the memo dated 20.6.1984 to hold independent charge in the grade of Rs. 750-1500 by its memo No. B.12(1)PR 375/85-86 dated 3rd July, 1986. Petitioners' case was not considered for the promotional post since they were at Sl.No. 47 and 45 in the provisional list prepared and published on 20.6.1984, pursuant to the Government Order dated 15th September, 1982. At this stage, it is very relevant to notice that in the Writ Petitions disposed of by this Court on 18.2.1986, petitioners and other similarly placed officials were not impleaded as parties by these writ petitioners, who are now respondents in these Writ Petitions. The present writ Petitioners had no occasion to justify the order of the State Government dated 12.6.1985, which had been passed on their representation to the Government through Commissioner for Corporation. In view of the later developments, in particular after the circulation of the memo dated 3.7.1986, petitioners being left with no other remedy approached this Court in a petition filed under Article 226 of the Constitution inter alia seeking a writ to quash the Government Order bearing No. HUD 113 MNU 78 dated 15.9.1982 and to quash memos bearing No. BIL (3) GRL 4/83-84 dated 20.6.1984 and memo No. B-12(1) PR 375/85-86 dated 3.7.1986. When these petitions pending consideration by this Court, corporation aggrieved by the order of this Court in W.P.17159/85 and connected matters disposed of on 18.2.1986, preferred appeals before this Court in W.A.No. 1960-1969/86. This Court by its order dated 15.11.1988 was pleased to allow the Writ Appeals in part by passing the following order-
"3. After hearing the learned Counsel for the parties, we find merit in the submissions of the learned Counsel for the appellant. As the impugned order (Annexure-L) has admittedly to be set aside on the ground that it infringes the principles of natural justice, no other finding was necessary to be recorded, and liberty should have been reserved to the Government to re-decide the matter afresh in accordance with law. In the view we are taking on first contention of the learned Counsel for the appellant, it is not necessary to decide any other contention.
4. For the reasons recorded above, we modify the judgment of the learned Single Judge to this extent that liberty is reserved to the State Government to re-decide the matter afresh in accordance with law, if it so desires, after affording an opportunity of hearing to the parties and any other interested persons. Till the matter is so decided the position as it exists under the order dated 15.9.1982 (Annexure-G) shall continue. All other findings recorded by the learned Single Judge are set aside and the State Government would be entitled to decide the whole matter dehors the said findings on merits. If the Government desires to reconsider its order dated 15.9.1982 then it should be done within six months from today."
7. State Government after affording an opportunity of hearing to all concerned, pursuant to the judgment of this Court in W.A.1960-69/86 was pleased to issue an endorsement to the petitioners dated 14.6.89 by rejecting the representation of petitioners and others and being of the view that the absorption of the employees of Family Planning Section as First Division Clerks in the Corporation is only a case of transfer to another cadre as a result of abolition of particular wing and therefore its earlier order dated 15.9.1982 is in order. The impugned endorsement dated 14.6.1989 reads as under:
ENDORSEMENT Sub : Fixation of seniority of Extn. Educators of the Family Planning Wing of the Bangalore City Corporation.
With reference to the representation dated 9.1.1989 of Sri L.J. Prakash and others, it is informed that in Government Order No. HUD 113 MNU 70 dated 15.9.1982, the seniority of the staff absorbed from the Family Planning programme was fixed from the date of initial appointment as it be the mode of fixation of seniority, where absorption to a cadre is on reduction of establishment. Later on, it was modified on the suggestion of the Commissioner, Bangalore City Corporation that these transfers/absorptions have been made on specific requests. The orders issued in G.O. No. HUD 59 MNU 85 dated 12.6.1985 was struck down by the High Court, since no opportunity has been given to the affected parties.
On an appeal filed by the Bangalore City Corporation, the High Court while upholding the order of the Single judge has observed the Government may review the G.O. dated 15.9.1982, if it so desires, after giving an opportunity to the concerned parties. This is a case of transfer to a cadre as a result of abolition of a particular wing and thereby reduction in the establishment. Therefore, Government consider that the Government Order dated 15.9.1982 is in order.
Hence, the appeal of the petitioners is hereby rejected. If the petitioners feel that they are aggrieved, they may approach the Court for redressal."
8. Since this endorsement has been issued after filing the Writ Petition, petitioners have taken permission of the Court to amend the Writ Petition and also to raise additional prayer to quash the endorsement issued by State Government dated 14.6.1989 by filing necessary application before this Court.
9. Respondents are served with the notices of the Writ Petitions. Respondents-3 to 6 have filed their objections wherein they have taken a stand that petitions have to be rejected solely on the ground of delay and latches and further the order of the State Government dated 15.9.1982 was pursuant to the directions issued by this Court in W.P.12202/1978 and W.A.176/1980 and in view of that the State Government need not follow the procedure prescribed under Section 98 of K.M.C.Act, 1976. Apart from saying this, respondents-3 to 6 have not said anything with regard to the merits of the matter. However, their Senior Counsel at the time of hearing of the petitions had sought leave of the Court to adopt the objections and arguments of the Learned Counsel for respondents-25 to 28. Respondents-25 to 28 who are also promoted to the post of Section Officers by 2nd respondent under its memo dated 3.7.1986 have filed their detailed statement of objections and have resisted the relief sought by the petitioners by contending that the Corporation had absorbed the employees of the erstwhile Family Planning Section. Consequent to its abolition and re-organisation and therefore, the past services rendered by them in the Family Planning wing should be taken into account for the purpose of fixation of their seniority in the cadre adopted by the State Government before modifying the resolution of First Division clerks. In so far as procedure/recommendation of the Corporation, they, have stated that the State Government exercising its powers under Section 102 of the K.M.C. Act, 1976 has passed the impugned order dated 15.9.1982 and the procedure prescribed under Section 98 of the Act even though not followed would not render the impugned order either invalid or illegal. Apart from saying this, they have also stated that the petitions are liable to be rejected on the ground of delay and latches also. State Government - respondent No. 1 and Corporation of City of Bangalore - respondent No. 2 though served and represented, they have chosen to remain silent spectators to the lis between petitioner and respondents 3 to 28.
10. The question involved in these Writ Petitions does not raise any intricate question of law but deninitely exposes the callous attitude of the State Government and its executives. They think their sub-ordinates are pawns in their hands to be shunted from one position to another without even passing proper speaking orders and they even go to the extent of rendering unsolicited advice by informing First Division Clerks that "this is our order. If you are aggrieved, approach the Court for redressal", which shows the amount of contempt that these higher ups exhibit on these lowly placed officials. The tenor of the endorsement smacks with utter disregard to the rule of law and the Undersecretary who has signed the endorsement may be thinking that Courts are helpless and he can do and undo things at his whims and fancy. I can only deprecate his attitude and I cannot do anything further only because he has not been arrayed as one of the respondents in the Writ Petitions. Be that as it may, the sole question which falls for decision is whether the interse seniority list as prepared and circulated by second respondent - Corporation and further the promotion effected to the post of Section Managers from among the eligible First Division Clerks relying upon the seniority list prepared on 20.6.1984 pursuant to the Government Order dated 15.9.1982 mentioned at Annexures 'A', 'C' and 'F' to the Writ Petitions is arbitrary, illegal and inoperative as those orders purport to affect prejudicially the seniority of petitioners - respondents 3 to 28 in the service of the Corporation. Before adverting to claims and counter claims of the parties to lis, let me first notice the admitted facts in the case. It is not disputed, but it is rather admitted that respondents 3 to 28 were working in the services of Family Planning Section of the Corporation as Extension Educators which wing had been sponsored by Family Planning Department of Central Government. The appointments made were purely on temporary basis in the sense that the scheme would continue as long as the Central Government pumps in the grants for effectively running the sponsored scheme. The Central Government by its letter addressed to all State Governments and Union Territories, directed re-organisation of the Family Planning Centres in accordance with revised setup and staffing pattern as laid down in their letter dated 23.2.1976. Clause (4) of the said letter provided for absorption in the suitable alternative posts of the staff that would be rendered surplus as a result of the reorganisation. Consequent to this letter, the Family Planning Scheme flouted in the Health Department by the Corporation had to be abolished for want of grants from Union Government. Staff appointed temporarily in the Family Planning Scheme had to be retrenched which is a natural course which the Corporation was bound to do in accordance with set legal principles, but the respondents and others made representation to the Commissioner to absorb the surplus staff in the equated posts in the other departments of the Corporation. The Administrator taking into consideration the plight of the employees of Family Planning Section, which wing had to be abolished and taking into consideration the representation of the erstwhile employees and keeping in view the legal position in mind with regard to absorption of an employee on request, absorbed all the staff of Family Planning Section into the other departments in the Corporation. For purpose of this case, Extension Educators were absorbed and appointed as First Division Clerks with a specific condition that their seniority will be counted below the last First Division Clerk as on the date of their absorption. The proceedings of the Administrator as it involved change in cadres was sent for approval to the State Government as required under the provisions of the Karnataka Municipal Corporation Act. The State Government wholly ignoring the provisions of Rule 6 of Seniority Rules, provisions of Section 98 of K.M.C. Act, 1976 and the law laid down by various Courts including Apex Court, proceeded to modify the recommendation of the Administrator, directing him to fix the seniority of the Extention Educators in the cadre of First Division Clerks from the date of their initial appointment and to extend all consequential benefits flowing from such fixation. First and foremost, the State Government before cancelling or modifying the resolution/ recommendation of the Corporation under the provisions of K.M.C, Act had to issue a show cause notice granting sufficient time of not less than fifteen days directing them to show cause, why their resolution/recommendation should not be either cancelled or modified wholly or in part. Admittedly, such a mandatory notice had not been issued to second respondent - Corporation by the State Government before modifying its resolution in the proceedings dated 28.2.1978. In my view, the notice contemplated under the provisions of Section 98 mandatory and any violation of the said statutory provision and the orders passed thereon would be not only illegal but also null and void. Further, in my view, respondent - Corporation cannot take shelter either under Section 102 of K.M.C. Act 1976 or under, the directions issued by this Court in W.P.No. 12202/1978 and W.A.No. 176/1980. Even otherwise, the impugned order dated 15.9.82 is opposed to rules of natural justice since the same has been passed without hearing those First Division Clerks whose seniority would be affected while fixing the seniority of freshly appointed First Division Clerks, who were working in the Family Planning Section before its abolition. The impugned order is also wholly bad and invalid for the reason that the impugned order ignores Rule 6 of Karnataka Government Servants (Seniority) Rules, 1957. Rule 6 of the Seniority Rules reads as under:
6. The transfer of a person in public interest from one class or grade of service to another class or grade earning the same pay or scale of pay shall not be treated as first appointment to the latter for purposes of seniority and the seniority of a person so transferred shall be determined with reference to his first appointment to the class or grade from which he was transferred.
Provided that, where the transfer is made at the request of the officer, he shall be placed in the serniority list of the class or grade of service to which he is transferred below all the officers borne oh that class or grade of service on or before the date of transfer.
(The other proviso and Explanation is not extracted since it is not necessary for our purpose.)
11. Rule 6 provides for the fixation of seniority of employees ,of Government Service transferred in the public interest from one department to another to an equivalent post. They are entitled to count the entire service rendered in the department from which they are transferred. This is not so in a case of an employee who gets transferred to another department or to another post on his request. In such cases, Rule provides for fixation of seniority from the date on which he enters the new post. The case of respondents squarely falls within the first proviso to Rule 6 of Seniority rules, assuming it is a case of transfer from one wing of the department to another wing at request of Corporation employee. Even on this count, the order of the State Government is wholly bad, invalid and illegal.
12. Now let us look at the case of the petitioners in another angle. The appointment order appointing respondents as Family Planning Extension Educators was purely temporary under the scheme sponsored by Union Government. The scheme itself was abolished sometime in the month of March, 1976. The erstwhile staff of the Family Planning Section was absorbed in another department by the Corporation by its resolution by appointing them as First Division Clerks. Now what is the meaning and effect of this absorption? The expression 'absorbed' has been explained by Apex Court in the case of DEVA DUTT v. STATE OF MADHYA PRADESH, 1991 Supp. (2) SCC 553 as under:
'Coming to the question of seniority, the term 'absorbed' in the service jurisprudence with reference to a post in the very nature of things implies that an employee who has not been holding a particular post in his own right by virtue of either recruitment or promotion to that post but is holding a different post in a different department is brought to that post either on deputation or by transfer and is subsequently absorbed in that post where after he becomes a holder of that post in his own right and loses his lien on his parent post.' The Apex Court again in the case of FEDERATION OF DIRECTLY APPOINTED OFFICERS OF INDIAN RAILWAY v. UNION OF INDIA, was pleased to observe that:
'When there has been complete absorption of the personnel of one service into another, and the seniority of the absorbees is to be reckoned their dates of absorption as stipulated in their appointment letters ------
In view of the law laid down by Supreme Court, the status of absorbed employee, absorbed on his own request, his seniority has to be counted from the date on which he enters new service. The contrary view expressed in the impugned order dated 15.9.1982 cannot be sustained. Hence, the impugned order is held to be invalid and inoperative.
13. Pursuant to the order of the State Government dated 15.9.1982, respondent - Corporation had prepared a provisional Gradation List of First Division Clerks as on 1.1.1981 and circulated the same by a memo dated 20.6.1984. The list had not been finalised as on 3rd July, 1986. However, the Corporation in order to fill up twentytwo posts of Section Managers which is a promotional post from the feeder post of first Division Clerks, they have relied on the aforesaid provisional Gradation List only because the revised , provisional Gradation List prepared and published on 24.9.1985 had been quashed by this Court. The presumption and assumption of the Corporation that once the revised list is quashed, the previous superseded list would revive for consideration is opposed to law laid down by this Court in VISHWANATH'S Case, Viswanath v. State of Mysore, 1973(1) KLJ 284 case. Even otherwise, now that I have held that the impugned order of the State Government dated 15.9.1982 and the endorsement dated 18th June, 1959 are invalid and illegal, any Gradation List prepared basing on the order dated 15.9.1982 should be naturally held inoperative. But second respondent - Corporation basing on the said provisional Gradation List has effected certain promotions to the post of Section Officers by their memo dated 3rd July, 1986. Petitioners even though had approached the Court immediately after circulation of the aforesaid memo, they failed to obtain any interim orders from this Court. But that does not come in the way of petitioners obtaining the main relief sought for in the Writ Petitions. Time cannot cure the illegalities of an order.
14. For the foregoing reasons, Writ Petitions are allowed. As a result of the acceptance of these Writ Petitions, the order of the State Government in No. HUD 113 MNV 70 dated 15th September, 1982 is quashed. So also, the endorsement issued by State Government in No. HUD 11 MNU 89 dated 14th June, 1989 by which it had been held that the Government Order dated 15.9.1982 as valid, rejecting the representation of the petitioners and others dated 9.1.1989. In view of quashing of the Government Order dated 15.9.1982 the provisional Gradation List of First Division Clerks prepared as on 1.1.81 and published on 23.6.1984 by second respondent - Corporation is declared as inoperative. Consequently, promotions granted to First Division Clerks in the memo dated 3rd July, 1986 as Section Officers is quashed, holding the same as invalid and illegal. The case had a chequered career and in view of this, the State Government - respondent No. 1 is directed to pass fresh orders in accordance with the observations made by this Court after hearing the interested persons within three months from the date of receipt of this order. In the normal course, I would not have decided this case on merits when this Court wanted the State Government to pass fresh order in accordance with law, but in view of the long pendency of this matter before various forums, in protracted litigation involving wastage of public money and time and in view of callous and highly deplorable and disturbing attitude of the executives of Housing and Urban Development Department, I have taken this extreme step of directing the State Government to pass fresh orders on the resolution of the Corporation dated 28.2.1978 in accordance with observations made by this Court.
15. Petitioners succeed in these petitions and they are entitled to the costs of this litigation and the same is payable by first respondent, quantified at Rs. 2,500 for each petitioner.