Karnataka High Court
Harish M Shetty vs National Institute Of Techonology ... on 14 November, 2022
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION NO.13092/2021 (S-PRO)
BETWEEN:
HARISH M SHETTY
S/O S MAHABALA SHETTY
AGED 49 YEARS
WORKING AS ASSISTANT REGISTRAR
(ON OFFICIATING BASIS)
NATIONAL INSTITUTE OF TECHNOLOGY KARNATAKA
(NITK) SURATHKAL - 575 025
MANGALORE, D.K.DISTRICT
AND R/AT S M SHETTY COMPOUND
BEHIND NITK HOSTEL
MUNCHOOR ROAD, SRINIVASA NAGAR PO
SURATHKAL - 575 025
MANGALORE, D.K.DISTRICT
...PETITIONER
(BY SRI.NARAYANA BHAT M, ADVOCATE)
AND:
1. NATIONAL INSTITUTE OF TECHONOLOGY KARNATAKA
REPRESENTED BY ITS REGISTRAR,
SURATHKAL - 575 025
MANGALORE, D.K.DISTRICT
2. THE DIRECTOR
NATIONAL INSTITUTE OF TECHNOLOGY KARNATAKA
2
SURATHKAL - 575 025
MANGALORE, DK DISTRICT
...RESPONDENTS
(BY SRI.P.S.RAJAGOPAL, SR.COUNSEL A/W SRI JAYANTH DEV
KUMAR, ADVOCATE FOR R1 & R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO DIRECT TO QUASH
THE IMPUGNED ORDER THE O.M DATED 13.7.2021 PRODUCED
AT ANNEXURE-E, AS OPPOSED TO ARTICLES 14, 16 AND 21 OF
THE CONSTITUTION OF INDIA AND ETC.,
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
The petitioner, an Assistant in the second respondent is before this Court under Article 226 of the Constitution of India praying for a writ of certiorari to quash the impugned O.M. bearing No.1070/ESTT/2021 Bill II dated 13.07.2021 (Annexure-E) and for a writ of mandamus directing the respondents to effect promotions to the post of Assistant Registrar by constituting a Departmental promotion Committee in accordance with the Rules and select candidates who are eligible as on the date of vacancy and grant all consequential benefits.
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2. Heard learned counsel Sri.M.Narayana Bhat for petitioner through video conference and learned senior counsel Sri.P.S.Rajagopal for respondents for Jayanth Devkumar, learned counsel for respondents. Perused the writ petition papers.
3. Learned counsel for the petitioner would submit that the petitioner was working as Assistant (SG-II) in the second respondent-National Institute of Technology, Karnataka (for short "NITK") and was appointed to officiate as Assistant Registrar by O.M. dated 19.05.2019. Learned counsel would submit that there are 7 posts of Assistant Registrar in the second respondent-NITK, out of which, 5 posts are to be filled up by direct recruitment and 2 posts to be filled up by promotion from the cadre of Superintendent (SG-I) or Superintendent (SG-II). It is the contention of the learned counsel for the petitioner that as there was no eligible candidate in the cadre of Superintendent (SG-I) or 4 Superintendent (SG-II), the petitioner was placed in-charge of the post of Assistant Registrar by order dated 14.03.2018 (Annexure-C). Subsequently, under Annexure-D, Office Memorandum dated 19.05.2019, the petitioner was appointed on officiating basis as Assistant Registrar (Academic) and his pay scale was also fixed in the pay Band-3 of Rs.15,600- 39,100 + GP of Rs.5,400/- as per 6th CPC. Learned counsel would also submit that Annexure-D officiating order was issued with concurrence of the Competent Authority. When the petitioner was discharging and functioning as Assistant Registrar (Academic), the impugned O.M. dated 13.07.2021 was issued discontinuing the officiating charge of the post of Assistant Registrar (Academic) and the petitioner was reverted to the post of Assistant (SG-II) with immediate effect. Learned counsel Sri.Narayana Bhat would contend that the impugned order of reversion is passed without providing any opportunity to the petitioner and the same would be violative of principles of natural justice. Learned counsel would submit that the petitioner was promoted to officiate as Assistant 5 Registrar and his pay was also fixed in the cadre of Assistant Registrar. By virtue of the impugned order, the petitioner is reverted and his pay is drastically reduced. When the pay is reduced, it would result in civil consequences and if the order of any authority results in civil consequences, minimum show-cause notice would be necessary before passing such order. Learned counsel would submit that the petitioner is working as Assistant Registrar (Academic) for the last more than 4 years 8 months and he is the only candidate possessing education qualification for officiating in the post of Assistant Registrar.
4. Per contra, learned senior counsel Sri.P.S.Rajagopal for respondents would submit that the post of Assistant Registrar is to be filled up from the cadre of Superintendent (SG-I) or from Superintendent (SG-II). The petitioner is in the cadre of Assistant and he never worked as Superintendent (SG-I) or Superintendent (SG-II) and hence, he is not eligible to be considered for posting him to officiate as Assistant Registrar 6 (Academic). Learned senior counsel would submit that the Board of the Institute is the Competent Authority, but the O.M. dated 27.04.2020 (Annexure-A) appointing the petitioner to officiate as Assistant Registrar (Academic) was issued by the Director. Learned senior counsel would also submit hat the petitioner would not qualify or would not possess qualification required for officiating as Assistant Registrar (Academic). Learned senior counsel placing reliance on the decision of the Hon'ble Apex Court reported in (1975) 3 SCC 73 in the case of G.S.GILL AND OTHERS v/s THE STATE OF PUNJAB AND OTHERS would submit that the petitioner has no substantive right to the post of Assistant Registrar (Academic) and as such, withdrawing the O.M. dated 27.04.2020 and reverting the petitioner to join as Assistant (SG-II) would not amount to reversion and violative of Article 311 of Constitution of India. Thus, he prays for dismissal of the writ petition.
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5. Admittedly, the petitioner an Assistant (SG-II) was appointed to officiate as Assistant Registrar (Academic) under Annexure-D O.M. dated 27.04.2020. On appointing the petitioner as officiating Assistant Registrar (Academic), his pay was also fixed in the pay Band-3 pay Band-3 of Rs.15,600-39,100 + GP of Rs.5,400/- as per 6th CPC as per 6th CPC. Under impugned O.M. dated 13.07.2021, the respondent No.1 is discontinued the officiating charge of the petitioner as Assistant Registrar (Academic) and the petitioner is informed that he is reverted and directed to join as Assistant (SG-II) and his pay is also re-fixed. The re-fixation has drastically reduced the pay of the petitioner. When a person's pay is reduced, it would result in civil consequence. When the action of the authority results in civil consequences, notice of the said action is a must. In the instant case, admittedly no notice is issued before discontinuing officiating charge as Assistant Registrar (Academic) in respect of the petitioner. The Hon'ble Apex Court in a decision reported in the case of BHAGWAN 8 SHUKLA S/O SARABJIT SHUKLA v/s. UNION OF INDIA AND OTHERS reported in (1994) 6 SCC 154 was considering a case of reducing basic pay on the ground of wrong fixation initially and that the position had continued due to administrative lapses for about twenty years, at paragraph-3, it is observed as follows:
"3. We have heard learned counsel for the parties. That the petitioner's basic pay had been fixed since 1970 at Rs.190 p.m. is not disputed. There is also no dispute that the basic pay of the appellant was reduced to Rs 181 p.m. from Rs 190 p.m. in 1991 retrospectively w.e.f. 18-12-1970. The appellant has obviously been visited with civil consequences but he had been granted no opportunity to show cause against the reduction of his basic pay. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There has, thus, been a flagrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being heard. Fair play in action warrants that no such order which 9 has the effect of an employee suffering civil consequences should be passed without putting the (sic employee) concerned to notice and giving him a hearing in the matter. Since, that was not done, the order (memorandum) dated 25-7-1991, which was impugned before the Tribunal could not certainly be sustained and the Central Administrative Tribunal fell in error in dismissing the petition of the appellant. The order of the Tribunal deserves to be set aside. We, accordingly, accept this appeal and set aside the order of the Central Administrative Tribunal dated 17-9-1993 as well as the order (memorandum) impugned before the Tribunal dated 25-7-1991 reducing the basic pay of the appellant from Rs.190 to Rs.181 w.e.f. 18-12-1970."
6. In the case on hand also it is the case of the respondents that wrongly the petitioner was posted to officiate as Assistant Registrar (Academic) and pay was fixed in the said post. Therefore, without putting the petitioner on notice, the respondents could not have passed the impugned order. Therefore, without going into merits or demerits of the case of either side, I pass the following order: 10
The O.M. bearing No.1070/Estt/2021/B2 dated 13.07.2021 is read down as show-cause notice and the petitioner is granted 20 days time from the date of receipt of a copy of this order to submit his reply to the O.M. dated 13.07.2021 (Annexure-E). On completion of period granted above, the Competent Authority, respondent No.1 shall consider the reply, if any submitted by the petitioner and pass orders in accordance with law.
All contentions of the parties are left open. With the above, the writ petition stands disposed of. In view of disposal of the writ petition, I.A.No.1/2021 for vacating stay is also disposed of.
Sd/-
JUDGE mpk/-* CT:NS