Karnataka High Court
Sri D Rangaswamy vs Bangalore Water Supply And Sewerage ... on 31 October, 2022
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION NO.167/2022 (S-RES)
BETWEEN:
SRI. D RANGASWAMY
S/O DASAIAH
AGED ABOUT 48 YEARS
WORKING AS ASSISTANT ENGINEER
OFFICE OF THE
ASSISTANT EXECUTIVE ENGINEER
EV-2 SUB DIVISION, KADUGODI
BANGALORE-560 067.
...PETITIONER
(BY SRI SATISH K, ADV.)
AND:
BANGALORE WATER SUPPLY AND
SEWERAGE BOARD
REPRESENTED BY ITS
CHIEF ADMINISTRATIVE OFFICER
CUM SECRETARY
1ST FLOOR, CAUVERY BHAVAN
BANGALORE-560 009.
...RESPONDENT
(BY SRI B.L.SANJEEV, ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS
FROM THE RESPONDENT AND DIRECT THE RESPONDENT TO
DECLARE THE PROBATION OF THE PETITIONER AS
2
SATISFACTORY AND CONSEQUENTLY DIRECT THE
RESPONDENT TO CONSIDER THE CASE OF THE PETITIONER
FOR PROMOTION TO THE POST OF ASSISTANT EXECUTIVE
ENGINEER AND PROMOTE HIM TO THE SAID POST FROM THE
DATE HIS JUNIORS ARE PROMOTED WITH ALL
CONSEQUENTIAL BENEFITS INCLUDING SENIORITY AND
MONETARY.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner, an Assistant Engineer of the respondent- Bangalore Water Supply and Sewerage Board (for short "BWSSB") is before this Court praying for a writ of mandamus directing the respondent to declare the probation of the petitioner as satisfactory and consequently direct the respondent to consider the case of the petitioner for promotion to the next higher cadre, Assistant Executive Engineer and promote him to the said post from the date, his juniors are promoted, with all consequential benefits.
2. Heard learned counsel Sri.K.Satish for the petitioner and learned counsel Sri.B.L.Sanjeev for respondent-BWSSB. 3 Perused the writ petition papers and the statement of objections filed on behalf of the respondent.
3. The brief facts of the case are that the petitioner was appointed on 19.07.2010 and in the year 2011, he was trapped while receiving illegal gratification. The Lokayukta Police investigated the crime and filed charge sheet in Spl.C.C.No.122/2011 on the file of 23rd Additional City Civil and Sessions Judge and Special Judge, Bangalore. The learned trial Judge, by judgment dated 04.11.2015 convicted the petitioner for the offences punishable under Sections 7 and 13(1)(d) of the Prevention of Corruption of Act, 1988. Based on the judgment of conviction, by O.M. dated 25.01.2017, the petitioner was dismissed from service in exercise of its power under Rule 8(viii) of Karnataka Civil Services (Classification, Control and Appeal) Rules 1957 (for short "1957 Rules"). In the meanwhile, the petitioner had approached this Court in Criminal Appeal No.1347/2015 which was allowed by judgment dated 19.09.2018 whereby 4 the conviction against the petitioner was set aside and the petitioner was acquitted. It is submitted that, against the said order of acquittal, Lokayukta Police have filed an appeal before the Hon'ble Apex Court which is pending consideration.
4. On acquittal in the criminal appeal, the petitioner was before this Court in W.P.No.7821/2020 and this Court by order dated 13.08.2020 partly allowed the writ petition, quashing the impugned order of dismissal dated 25.01.2017 and directed the respondent to reinstate the petitioner into service, subject to outcome of the Special Leave Petition ("SLP" for short) by the Lokayukta. In pursuance of the order of this Court, the petitioner was reinstated into service on 03.10.2020. The petitioner is said to have submitted a representation dated 04.12.2020 to the respondent-BWSSB to declare his probationary period as satisfactory and also to promote him to the next higher cadre of Assistant Executive 5 Engineer. It is also submitted that, in the meanwhile pay of the petitioner was refixed.
5. Learned counsel Sri.K.Satish for the petitioner would contend that based on the judgment of conviction, the petitioner was dismissed from service, but the said ground is no more available since the petitioner is acquitted of the offense punishable under Section 13 of 1988 Act in Criminal Appeal No.1347/2015. Since the petitioner is acquitted, the petitioner would be entitled for all benefits. It is submitted that the respondents could deny promotion to the petitioner, if there is pending enquiry; criminal case or if convicted of any offenses or undergoing punishment. But in the instant case, there is no such circumstance to deny the promotion to the petitioner. Learned counsel would further submit that the petitioner was appointed in the year 2010 and till this date, the petitioner's probationary period is not declared as satisfactory. Learned counsel for the petitioner also points out that his juniors in the seniority list at Sl.No.327 and 330 6 are promoted under Annexure-F dated 13.08.2020 as Assistant Executive Engineers. Therefore, he prays for a direction to the respondent-BWSSB to declare his probationary period as well as to consider his case for promotion to the next higher cadre of Assistant Executive Engineer.
6. Per contra, learned counsel Sri.B.L.Sanjeev for respondent-BWSSB submits that this Court in W.P.No.7821/2020 granted relief to the petitioner in part, in that, this Court directed only reinstatement of the petitioner into service subject to the outcome of the SLP filed by Lokayukta. Learned counsel Sri.Sanjeev referring to the prayers made in the above stated writ petition submits that this Court had not granted prayers for consequential benefits of fixation of pay and seniority. Therefore, he submits that the petitioner would not be entitled for consideration of his case for promotion to the next higher cadre. He also submits that petitioner's case is considered and is kept in a sealed 7 cover. Learned counsel would further submit that the petitioner would be entitled to consequential benefits as well as promotion only after disposal and outcome of the SLP pending before the Hon'ble Supreme Court. Thus, he prays for dismissal of the writ petition.
7. Having heard the learned counsel for the parties and on perusal of the writ petition papers, I am of the view that the petitioner would be entitled for a writ of mandamus directing the respondents to consider his representation for declaration of probation period and depending on the outcome of the representation, requesting declaration of probation to consider his case for promotion to the next higher cadre.
8. Admittedly, the petitioner was appointed as Assistant Engineer in the respondent-BWSSB on 19.07.2010. It is also an admitted fact that the petitioner was convicted for the offense punishable under Section 13(2) of 1988 Act and subsequently in Crl.A.No.1347/2015 preferred by the petitioner, the judgment of conviction was set aside and the 8 petitioner was acquitted of the offense. In the meanwhile, the petitioner was dismissed from service by O.M. dated 25.01.2017 by the respondent-BWSSB on the basis of conviction in Special C.C.No.122/2011. But the order of conviction was set aside and the petitioner was acquitted by this Court in Criminal Appeal No.1347/2015. On acquittal, the petitioner approached this Court in W.P.No.7821/2020 challenging the order of dismissal. This Court, by order dated 13.08.2020 passed the following order:
"6. Consequently, the writ petition is partly allowed and the impugned order dated 25.01.2017 at Annexure-A passed by the respondent-Board is quashed and set aside. The respondent-Board is directed to reinstate the petitioner into service subject to the outcome of the Special Leave Petition filed by the Lokayukta."
This Court, by its order dated 13.08.2020 in W.P.No.7821/2020 partly allowed the writ petition setting aside the order of dismissal, directing the respondents to reinstate the petitioner into service, subject to the outcome of 9 SLP filed by the Lokayukta. In pursuance of the order of this Court in the above stated writ petition, the petitioner was reinstated into service by O.M. dated 03.10.2020. Subsequently, his pay was also refixed in terms of O.M. dated 02.02.2021 (Annexure-K).
9. The petitioner had not sought prayer for a direction for consequential benefits in the said writ petition and also fixation and seniority. Even though this Court had not specifically granted re-fixation, the respondent-BWSSB in its own, by order dated 02.02.2021 granted re-fixation of pay to the petitioner. Be that as it may, the petitioner would be entitled for consideration of his request for declaration of probationary period and the respondent-BWSSB would have to consider his request under the provisions of Karnataka Civil Services (Probation) Rules, 1977 (for short "1977 Rules"). If the respondent-BWSSB finds the services of the petitioner satisfactory, the respondent-Board is bound to pass orders declaring his probation, if it finds otherwise, it is also open for 10 the respondent-BWSSB to take action in accordance with the provisions of 1977 Rules.
10. Promotion of a government servant or an employee of the Board or Corporation could be withheld, if there is pending enquiry or criminal proceedings or on punishment in any Departmental Enquiry or conviction in any criminal case against the said government servant or employee. In the instant case, as on this date, enquiry or criminal case is not pending against the petitioner nor is there any order of punishment or conviction against the petitioner. In those circumstances, the respondent-BWSSB would have to consider petitioner's case for promotion to the next higher cadre, i.e., Assistant Executive Engineer from the date, his juniors are promoted, subject to declaration of probation period of the petitioner.
11. Hence, the following order:
(a) The respondent-BWSSB is directed to consider the case of the petitioner for declaration of probation 11 period under 1977 Rules. Depending on the order to be passed as directed above, the case of the petitioner to be considered for promotion to the next higher cadre of Assistant Executive Engineer, by considering representation of the petitioner at Annexure-J dated 04.12.2020, within a period of 3 months from the date of receipt of a copy of this order.
With the above, the writ petition stands disposed of.
SD/-
JUDGE mpk/-* CT:bms