Karnataka High Court
Sri M S Sreeranga vs The State Of Karnataka on 15 November, 2022
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION NO. 43911/2019 (S-RES)
C/W
WRIT PETITION NO.21548/2021(S-RES)
IN WP NO.43911/2019
BETWEEN:
SRI M.S.SREERANGA
S/O.SRI.M.SRINIVASA RAO,
AGED ABOUT 45 YEARS,
WORKING AS JUNIOR ENGINEER,
TOWN MUNICIPAL COUNCIL,
MADHUGIRI, TUMKUR DISTRICT.
...PETITIONER
(BY SRI.UDAYA HOLLA, SR.COUNSEL A/W
SRI.NAGARAJ D, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY ITS SECRETARY TO GOVERNMENT,
URBAN DEVELOPMENT DEPARTMENT,
M.S.BUILDING, DR.AMBEDKAR VEEDHI,
BANGALORE 56001.
2. THE DIRECTOR OF MUNICIPAL
ADMINISTRATION,
PHODIUM BLOCK, VISVESHWARAYYA TOWER,
DR.AMBEDKAR VEEDHI,
BANGALORE-560001.
2
3. THE COMMISSIONER
DIRECTORATE OF MUNICIPAL ADMINISTRATION,
PHODIUM BLOCK,
VISVESHWARAYYA TOWER,
DR.AMBEDKAR VEEDHI,
BANGALORE 560001.
4. SRI NATARAJU C M
ASSISTANT ENGINEER,
ODD, CITY MUNICPAL COUNCIL,
KOLLEGALA-571440
CHAMARAJANAGAR DISTRICT.
5. SRI T V RAGHAVENDRA
ASSISTANT ENGINEER,
AGED ABOUT 47 YEARS,
CITY MUNCIPAL COUNCIL,
CHANNAPATNA-562160
RAMANAGARA DISTRICT.
6. SRI RANGARAJU D H
AGED ABOUT 49 YEARS
ASSISTANT ENGINEER,
BANGALORE DEVELOPMENT AUTHORITY,
T.CHOWDAIAH ROAD,
KUMARA KRUPA WEST,
BANGALORE-560001.
7. SRI NAGARAJA K R
ASSISTANT ENGINEER,
AGED ABOUT 49 YEARS
BRUHAT BANGALORE MAHANAGARA PALIKE,
HUDSON CIRCLE,
BANGALORE-560002.
8. SRI ARUN K
ASSISTANT ENGINEER,
AGED ABOUT 39 YEARS,
3
CITY MUNICIPAL COUNCIL,
PUTTUR-574203.
DAKSHINA KANNADA DISTRICT.
9. SRI ARVIND RAO K
ASSISTANT ENGINEER,
AGED ABOUT 42 YEARS,
CITY MUNICIPAL COUNCIL,
KARWAR,
UTTARA KANNADA DISTRICT.
10 . SRI DAYANAND N
ASSISTANT ENGINEER,
AGED ABOUT 40 YEARS,
BURHAT BANGALORE MAHANAGARA PALIKE,
HUDSON CIRCLE,
BANGALORE-560002.
...RESPONDENTS
(BY SRI.M.V.RAMESH JOIS, AGA FOR R1 TO R3;
SRI.RAGHAVENDRA.G.GAYATHRI, ADVOCATE FOR R4-R6 & R8
SRI.K.B.MURALIDHAR, ADVOCATE FOR R7, R9 & R10 SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT TO
DIRECT THE R2 AND 3 TO CONSIDER ANNEXURE-J DATED
10.03.2017 APPOINT THE PETITIONER AS ASSISTANT ENGINEER
BY WAY OF TRANSFER FROM THE POST OF JUNIOR ENGINEER
WITH EFFECT FROM THE DATE ON WHICH HIS JUNIORS I.E,
R.4 TO 10 HAVE BEEN APPOINTED AS PER THE AMENDED
RULES 2011 AND GRANT ALL CONSEQUENTIAL BENEFITS TAKE
SENIORITY INCLUDING MONETARY BENEFITS.
4
IN WP NO.21548/2021
BETWEEN:
SRI ARUN H R
S/O SRI RANGAPPA K P
AGED ABOUT 39 YEARS,
WORKING AS JUNIOR ENGINEER
PURASABHA PAVAGADA
TUMKUR DISTRICT
...PETITIONER
(BY SRI.UDAYA HOLLA, SR.COUNSEL A/W SRI. D.NAGARAJ,
ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY ITS SECRETARY TO GOVERNMENT
URBAN DEVELOPMENT DEPARTMENT
M S BUILDING, DR AMBEDKAR VEEDHI
BANGALORE-560 001
2. THE DIRECTOR OF MUNICIPAL ADMINISTRATION
PHODIUM BLOCK
VISHWESHWARAYYA TOWER
DR AMBEKDAR VEEDHI
BANGALORE-560 001
3. THE COMMISSIONER
DIRECTORATE OF MUNICIPAL ADMINISTRATION
PHODIUM BLOCK
VISHVESHWARAYYA TOWER
DR AMBEDKAR VEEDHI
BANGALORE-560 001
5
4. SRI RANGARAJU D H
AGED ABOUT 50 YEARS
ASSISTANT ENGINEER
BANGALORE DEVELOPMENT AUTHORITY
T CHOWDAIAH ROAD
KUMARA KRUPA WEST
BANGALORE-560 001
5. SRI NAGARAJA K R
ASSISTANT ENGINEER
AGED ABOUT 50 YEARS
BRUHAT BANGALORE MAHANAGARA PALIKE
HUDSON CIRCLE
BANGALORE-560 002
6. SRI ARUN K
ASSISTANT ENGINEER
AGED ABOUT 40 YEARS
CITY MUNICIPAL COUNCIL
PUTTUR-574203
DAKSHINA KANNADA DISTRICT
7. SRI ARVIND RAO K
ASSISTANT ENGINEER
AGED ABOUT 43 YEARS,
CITY MUNICIPAL COUNCIL
KARWAR-581 302
UTTARA KANNADA DISTRICT
8. SRI DAYANAND N
ASSISTANT ENGINEER
AGED ABOUT 41 YEARS
BRUHAT BANGALORE MAHANAGARA PALIKE
HUDSON CIRCLE
BANGALORE-560 002
...RESPONDENTS
6
(BY SRI.M.V.RAMESH JOIS, AGA FOR R1-3;
SRI.RAGHAVENDRA.G.GAYATHRI, ADVOCATE FOR R4 & R6;
SRI.K.B.MURALIDHAR, ADVOCATE FOR R7;
R5 & R8 SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE
R-2 AND R-3 TO CONSIDER THE REPRESENTATION DTD
11.10.2021 VIDE ANNX-F AND APPOINT THE PETITIONER AS
ASSISTANT ENGINEER BY WAY OF TRANSFER FROM THE POST
OF JUNIOR ENGINEER WITH EFFECT FROM THE DAY ON
WHICH HIS JUNIORS I.E., R-4 TO 8 HAVE BEEN APPOINTED AS
PER AMENDED RULES 2011 I.E., WITH EFFECT FROM
25.06.2013 AND GRANT ALL CONSEQUENTIAL BENEFITS
INCLUDING THE SENIORITY, MONETARY BENEFITS ETC.,
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
The petitioner in W.P.No.No.43911/2019 is before this Court praying for the following relief:
Issue a writ, order or direction in the nature of mandamus to the Respondent Nos.2 and 3 to consider Annexure-J dated 10.03.2017 appoint the Petitioner as Assistant Engineer by way of transfer 7 from the post of Junior Engineer with effect from the date on which his Juniors i.e., Respondent Nos.4 to 10 have been appointed as per the amended Rules 2011 and grant all consequential benefits like seniority including monetary benefits, etc., in the interest of justice and equity.
2. The petitioner in W.P.No.No.21548/2020 is before this Court with identical prayer as that of the above prayer.
3. Heard learned senior counsel Sri.Udaya Holla for Sri.D.Nagaraj, learned counsel for the petitioners; learned AGA Sri.M.V.Ramesh Jois for respondent Nos.1 to 3; learned counsel Sri.Raghavendra Gayathri and learned counsel Sri.K.B.Muralidhar for private respondents. Perused the writ petition papers.
4. Learned senior counsel Sri.Udaya Holla would submit that the petitioners and respondent Nos.4 to 10 were appointed as Junior Engineers in the second respondent- Department through process of selection by the Karnataka Public Service Commission. The petitioners and respondent 8 Nos.4 to 10 were appointed under order of appointment dated 19.10.2005. The Government, in Urban Development Department by notification dated 11.07.2012 (Annexure-C) brought amendment to Schedule-II, Rule 5 of Karnataka Municipalities (Recruitment of Officers and Employees) Rules 2011 (for short "2011 Rules"). Method of recruitment to the post of Assistant Engineers was amended to provide 90% by direct recruitment or by transfer of Junior Engineers and 10% by deputation of Assistant Engineers from Public Works Department or other departments of the Government or Board. A Junior Engineer who possess B.E., B.Tech., AMIE or any other equivalent qualification in Civil Engineering from an Institution recognized by the Government would be eligible to seek transfer as Assistant Engineer and one time irrevocable option of the Junior Engineer shall be obtained before such transfer. The transfer shall be effective from the date of graduation or from the date of joining the service whichever is later, subject to availability of vacancies. Learned senior counsel Sri.Udaya Holla would submit that the respondent 9 Nos.4 to 10 were provided the benefit of transfer and they were transferred from the cadre of Junior Engineer to the cadre of Assistant Engineer on 16.05.2013 in terms of Annexure-E. The petitioners were not aware of such transfer, since the amended notification providing transfer was not published in regular gazette and it was only published in special gazette. The transfer of respondent Nos.4 to 10 came to the knowledge of the petitioners only when the provisional seniority list of the cadre of Junior Engineers was published on 27.05.2019. Thereafter, petitioners made representation at Annexure-H dated 09.03.2017 requesting grant of transfer with retrospective effect from the date of private respondents No.4 to 10 are transferred as Assistant Engineers and to grant all consequential benefits.
5. Learned senior counsel would contend that there is no proper publication of notification dated 11.07.2012 which provided for transfer of Junior Engineers as Assistant Engineers on acquiring degree in Engineering. It was published in special gazette and not in regular gazette. 10 Learned senior counsel would place reliance on the judgment of the Hon'ble Apex Court reported in (1998)8 SCC 250 in the case of COLLECTOR OF CENTRAL EXCISE v/s NEW TOBACCO CO. AND OTHERS to say that mere printing it in the gazette would not be enough, unless the gazette containing the notification is made available to the public. Since, there is no proper publication of the impugned amended notification, the benefit of transfer granted to respondents No.4 to 10 would be illegal. Further, learned senior counsel would contend that as required under the amended rules, the respondent-authority i.e. respondent No.2 ought to have invited options giving opportunity to all the concerned Junior Engineers to submit their option and thereafter, the cases of Junior Engineers who had acquired degree ought to have been considered for transfer as Assistant Engineers. Referring to amended Rule, learned senior counsel would further submit that it is for the authorities to obtain irrevocable one time option from the Junior Engineers and submits that respondent No.2 failed to 11 obtain such irrevocable option from the petitioners along with all other Junior Engineers including respondent Nos.4 to 10. Learned senior counsel would submit that the petitioners are seniors to respondent Nos.4 to 10 in the seniority list of Junior Engineers published on 27.05.2019 (Annexure-G), therefore, without considering the case of seniors for transfer as Assistant Engineers, the cases of juniors respondent Nos.4 to 10 could not have been considered. Thus, he prays for allowing the writ petition.
6. Per contra, learned counsel Sri.K.B.Muralidhara as well as learned counsel Sri.Raghavendra Gayathri appearing for private respondents submit that in terms of the amended rules, the petitioners failed to submit their request or option for transfer as Assistant Engineers. Even though the petitioners were provided with opportunity to submit option, they have failed to utilize the opportunity. Learned counsel inviting attention of this Court to Annexure-E dated 16.05.2013 submits that the said order makes it clear that all 12 the Junior Engineers were granted 7 days time to submit their option through Commissioner/Office of the Local Bodies by Director's letter dated 25.10.2012. If the petitioners fail to utilize the opportunity granted to them, it is not open for them to complain that they had no opportunity.
7. Learned counsel for private respondents would also contend that the petitioners slept over their right and at this length of time, settled position cannot be unsettled at the instance of the petitioners. Learned counsel for respondents would submit that transfer from Junior Engineers to Assistant Engineers was granted to respondent Nos.4 to 10 in the year 2013 and the petitioners are before this Court even without challenging the order of transfer of respondent Nos.4 to 10, praying for a direction to consider their case for retrospective transfer from the date respondent Nos.4 to 10 are granted transfer as Assistant Engineers. It is submitted that the request of the petitioners suffers from delay and 13 laches. Therefore, they submit that only on the question of delay and laches, the writ petitions are liable to be rejected.
8. Learned counsel would also submit that the petitioners cannot plead ignorance of amendment to the Cadre and Recruitment Rules under notification dated 11.07.2012. The amended recruitment rules providing transfer of Junior Engineers to Assistant Engineers was effected only after calling objection by publishing draft rules under Notification dated 23.11.2011. The Government after considering the objections, issued notification dated 11.07.2012 providing transfer of the Junior Engineers to the cadre of Assistant Engineers. Learned counsel Sri.Raghavendra Gayathri would place reliance on the judgment of Hon'ble Apex Court reported in (2009) 15 SCC 321 in the case of GHULAM RASOOL LONE v/s STATE OF JAMMU AND KASHMIR AND ANOTHER to contend that only on the question of delay, the writ petitions are liable to be rejected.
14
9. Learned counsel Sri.K.B.Muralidhara referring to Section 23 of the Karnataka General Clauses Act, 1899 would submit that publication in official gazette would be conclusive proof of publication, since the notification amending rule is published in special gazette. It is submitted that the same would suffice publication. Thus, they prayed for dismissal of the writ petition.
10. Having heard the learned counsel for the parties and on perusal of the writ petition papers, the only point which falls for consideration is as to whether the petitioners would be entitled to seek a writ of mandamus as prayed in the writ petition?
11. Answer to the above point would be in the negative for the following reasons:
The first respondent - State of Karnataka, Urban Development Department in exercise of its power under Section 323 of the Karnataka Municipalities Act, 1964 by notification 08.07.2004, made rules called the Karnataka 15 Municipalities (Recruitment of Officers and Employees) Rules, 2004 (for short "2004 Rules") which provided method of recruitment, mode of promotion and other Rules governing certain service conditions. Under 2004 Rules, the post of Assistant Engineer was to be filled up by 75% by direct recruitment and 25% by deputation from PWD or other Departments or Board or Corporation. Thereafter, in supersession of above Notification dated 08.07.2004 under Notification dated 21.01.2011, the first respondent made Rules called the Karnataka Municipalities (Recruitment of Officers and Employees) Rules, 2010 (for short "2010 Rules") providing for the method of recruitment, promotion and other Rules governing certain service conditions. Under 2010 Rules, the method of filling up of post of Assistant Engineer was 90% by direct recruitment and 10% by deputation from Public Works Department or any Board or Corporation. The above 2010 Rules was further amended under Notification dated 11.07.2012 (Annexure-R2), particularly, Schedule-II, to 16 Rule 5, in respect of method of recruitment of Assistant Engineer. The amendment reads as follows:
"4. Amendment of Schedule-II. (i) in Schedule II under Rule 5 of the said rules the entry *XX (Here specify the sanctioned cadre strength) shall be deleted and the words "As in Schedule-l under Rule 3' shall be substituted.
(ii) Entry in Column (4) against Sl. No. (3) shall be substituted as follows.
"Ninety percent by direct recruitment or by transfer of a Junior Engineer and Ten percent by deputations of an Assistant Engineers from Public Works Department or other departments of the Government"
(iii) After entry *For Direct Recruitment the following shall be inserted.
For transfer from the post of Junior Engineer Must possess BE, or B.Tech or AMIE (India) or any other equivalent qualification in civil 17 Engineering from an institution recognized by Government.
Note 1: The irrevocable one time Option of the Junior Engineer shall be obtained before such transfer Note 2: The transfer shall be effective from the date of graduation or from the date of joining the service. whichever is later, subject to availability of vacancies without ignoring the inters seniority among those eligible for such transfer.
Notes: A Junior Engineer who is appointed by transfer as Assistant Engineer on or after 1.4.2011 shall be entitled to count one third of the service rendered by him its Junior Engineer prior to appointment as Assistant Engineer subject to a Maximum of 4 years as if it had been in the past of Assistant Engineer for the purpose of consideration: for promotion to the post of Assistant Executive Engineer subject to following conditions namely:-
(i) The seniority of a Junior Engineer who is appointed as Assistant Engineer shall be 18 fixed in the category of Assistant Engineer with reference to the notional date arrived at after giving weight age of service as aforesaid:"
The above amendment provided for filling up of post of Assistant Engineer, 90% by direct recruitment or by transfer of Junior Engineer and 10% by deputation of Assistant Engineers from Public Works Department or other Departments of the Government. For transfer from the post of Junior Engineer, one must possess B.E., or B.Tech or AMIE (India) or any other equivalent qualification in Civil Engineering from an institution recognized by the Government. It also makes it clear that the irrevocable one time option of the Junior Engineer shall be obtained before such transfer.
12. In pursuance to the above amended provision which provided for transfer of a Junior Engineer, who possesses Engineering Degree as specified therein, the second respondent considered the request of the respondent Nos.4 to 10 for transfer from the cadre of Junior Engineer to the cadre 19 of Assistant Engineer. Under order dated 16.05.2013 of the second respondent - Director (Annexure-E), respondent Nos.4 to 10 were transferred from the cadre of Junior Engineer to the cadre of Assistant Engineer. The contention of the learned senior counsel for the petitioner that the petitioners had no opportunity to submit their request, since it was not made known to the petitioners and there was no proper publication of amended C&R Notification dated 11.07.2012 cannot be accepted for the reason that, a reading of the order dated 16.05.2013 makes it clear that the second respondent - Directorate by letter dated 25.10.2012, addressed to Commissioner/Chief Officers of the Town and City Municipal Councils, directed to forward one time option of qualified Junior Engineers working in their Municipal Council along with degree certificate. Relevant portion of the order dated 16.05.2013 which provided opportunity to all the Junior Engineers reads as follows:
"¸ÀPÁðgÀzÀ ¢: 11.07.2012gÀ wzÀÄÝ¥Àr DzÉñÀzÀ ªÉÄÃgÉUÉ ¥ËgÀ¸ÉêÁ ªÀÈAzÀzÀ QjAiÀÄ C©üAiÀÄAvÀgÀgÀÄ BE (Civil) ºÁUÀÆ B.Tech ¥ÀzÀ« 20 ¥ÀqÉzÀ ²æÃ.£ÀlgÁd ¹.JA. QjAiÀÄ C©üAiÀÄAvÀgÀgÀÄ ºÁUÀÆ EvÀgÀgÀÄ vÁªÀÅ BE (Civil) ¥ÀzÀ« ¥ÀqÉzÀ ¢£ÁAPÀ CxÀªÁ ¸ÉêÉUÉ ¸ÉÃj ¢£ÁAPÀ¢AzÀ EªÀÅUÀ¼À°è AiÀiÁªÀÅzÀÄ ªÉÆzÀ®Ä D ¢£ÁAPÀ¢AzÀ ¸ÀºÁAiÀÄPÀ C©üAiÀÄAvÀgÀgÀ ºÀÄzÉÝUÉ ªÀUÁðªÀuÉ ªÀiÁqÀ®Ä ªÀÄ£À« ¸À°è¹zÀgÀ ªÉÄÃgÉUÉ EzÀĪÀgÉUÉ DAiÉÄÌUÉÆAqÀ QjAiÀÄ C©üAiÀÄAvÀgÀgÀ°è BE (Civil) ºÁUÀÆ B.Tech ºÁUÀÆ AMIE (India) ¥ÀzÀ« ¥ÀqÉzÀ QjAiÀÄ C©üAiÀÄAvÀgÀgÀ ºÀÄzÉÝAiÀÄ£ÀÄß ¸ÀºÁAiÀÄPÀ C©üAiÀÄAvÀgÀgÀ ºÀÄzÉÝUÉ ªÀUÁðªÀuÉ ªÀiÁqÀ®Ä QjAiÀÄ C©üAiÀÄAvÀgÀgÀ ¢: 1.1.2012PÉÌ EgÀĪÀAvÉ vÁvÁÌ°PÀ eÉõÀ×vÁ ¥ÀnÖ DzsÁgÀªÁV ¸ÀzÀj eÉõÀ×vÁ ¥ÀnÖAiÀÄ PÀæªÀÄ ¸ÀASÉå 173jAzÀ 280 gÀªÀgÉUÉ QjAiÀÄ C©üAiÀÄAvÀgÀgÀÄ F ªÉÄîÌAqÀ ¥ÀzÀ«AiÀÄ°è GwÛÃtðgÁVzÀÝ°è «±Àé «zÁå®AiÀÄ zÀÈrüÃPÀÈvÀ ¥ÀæªÀiÁt ¥ÀvÀæzÉÆA¢UÉ ºÁUÀÆ QjAiÀÄ C©üAiÀÄAvÀgÀgÀÄ ¸ÀºÁAiÀÄPÀ C©üAiÀÄAvÀgÀgÀ ºÀÄzÉÝUÉ ¸ÉÃ¥ÀðqÉAiÀiÁUÀ®Ä EaѸÀ¢zÀÝ°è ªÀÄÄZÀѽPÉ ¥ÀvÀæzÉÆA¢UÉ 7 ¢£ÀUÀ¼ÉƼÀUÁV zÁR¯ÁwUÀ¼ÉÆA¢UÉ ¸À°è¸ÀĪÀAvÉ gÁdåzÀ J¯Áè £ÀUÀgÀ ¸ÀܽÃAiÀÄ ¸ÀA¸ÉÜAiÀÄ DAiÀÄÄPÀÛgÀÄ/¥ËgÁAiÀÄÄPÀÛgÀÄ/ªÀÄÄSÁå¢üPÁjUÀ½UÉ ¤zÉÃð±À£Á®AiÀÄzÀ ¢: 25.10.2012 gÀAzÀÄ ¥ÀvÀæ §gÉAiÀįÁVvÀÄÛ."
(emphasis supplied)
13. The petitioners failed to utilize the opportunity provided to them and having failed to utilize the opportunity, now it is not open for the petitioners to contend that they had no opportunity to submit their request for transfer along with respondent Nos.4 to 10. Moreover, for seeking transfer from the cadre of Junior Engineer to Assistant Engineer on 21 acquiring Engineer Degree, it is open for such Engineer to make application enclosing Degree Certificate requesting to transfer from the cadre of Junior Engineer to Assistant Engineer. The amended rule would not postulate calling of applications for transfer from Junior Engineer to Assistant Engineer. Only condition is that on acquiring B.E. or B.Tech or AMIE or any other equivalent qualification, such Junior Engineer shall along with one time irrevocable option along with Degree Certificate make application or representation to the Appointing Authority for transfer. Once such request along with irrevocable one time option and Degree Certificate is submitted to the Appointing Authority, the Appointing Authority in terms of amended Cadre and Recruitment Rules under notification dated 11.07.2012 shall consider such request and consequences shall follow. Such request is submitted by the petitioners only in the year 2017 requesting transfer from Junior Engineer to Assistant Engineer. 22
14. The contention of the learned senior counsel for the petitioners that there was no proper publication and mere publication in special gazette would not satisfy the requirement of publication cannot be accepted in the facts and circumstances of the present case. The amended 2012 Rules (Annexure-R2) was published in special gazette dated 11.07.2012. Before the final notification was issued, draft amendment was published under notification dated 23.11.2011 inviting objections and suggestions from all persons likely to be affected. It is not that without providing any opportunity, the amended rule is published. The amendment is for the benefit of a class of persons working in the department of Municipal Administration i.e., Junior Engineers. Publication of amended rule is not for general public or it would not for the benefit of general public. A Municipal Servant working in the Department cannot contend that he was not aware or that amendment was not within his knowledge. To contend that there was no proper publication, learned senior counsel places reliance on the NEW TOBACCO 23 CO. AND OTHERS (supra). The question that arose for consideration in the said NEW TOBACCO CO. AND OTHERS (supra) was whether a Central Excise Notification comes into force with effect from the date on which it is printed in the Government Gazette or from the date it is made available to the public. While answering the above question, the Hon'ble Apex Court held that if publication is through a Gazette, then mere printing of the Gazette would not be enough, unless the Gazette containing the notification is made available to the public, the notification cannot be said to have been duly published. In the case on hand, there is no dispute with regard to publication of the amended notification dated 11.07.2012. On publication of the amended rules, the second respondent addressed letter dated 25.10.2012 to the Commissioners of the Local Bodies to obtain irrevocable option for transfer from Junior Engineers working in their Municipalities, with proof for acquiring Engineering Degree and to forward the same to the Directorate/respondent No.2. By letter dated 25.10.2012 the amendment dated 11.07.2012 24 was brought to the notice of Junior Engineers working in the Municipalities. Therefore, the ratio laid down in NEW TOBACCO CO. (supra) would have no application to the facts of the present case. The petitioners working in the department as Junior Engineers failed to submit application/representation in time, when based on the amendment, their colleagues had requested for transfer from Junior Engineer to Assistant Engineer and the same was granted under impugned order of the second respondent dated 16.05.2013. Respondent Nos.4 to 10, from the date of impugned order are working as Assistant Engineers. Therefore, when respondent Nos.4 to 10 are working as Assistant Engineers since 2013, the petitioners contention that the petitioners were not aware or that publication of amended notification is not proper cannot be believed or there is no basis to believe the same.
15. Further, Section 23(5) of the Karnataka General Clauses Act, 1899 would state that publication in the Gazette of a rule 25 or bye-law purporting to have been made in exercise of a power to make rules or bye-laws after previous publication, shall be conclusive proof that the rule or bye law has been duly made.
16. Learned counsel for respondent Nos.4 to 10 contended that the writ petition is liable to be dismissed only on the ground of delay and latches. The amended rules providing for transfer of a Junior Engineer to Assistant Engineer on acquiring degree in Engineering was published under the notification dated 11.07.2012. In pursuance to the said amendment notification, respondent Nos.4 to 10 were transferred from the cadre of Junior Engineers to the cadre of Assistant Engineers under impugned order dated 16.05.2013. There is delay of more than 6 years in preferring the writ petition. The petitioners and respondent Nos.4 to 10 are working in the department of second respondent-Municipal Administration. After respondent Nos.4 to 10 were transferred as Assistant Engineers, the seniority list of Assistant 26 Engineers was published on 18.11.2017 and respondent Nos.4 to 10 were shown in the said seniority list and thereafter respondent Nos.4 to 10 were promoted to the cadre of Assistant Executive Engineers. It is settled position of law that settled position cannot be unsettled after a long time. The petitioners slept over their right and they were not diligent in pursuing their remedy. There is also provision for promotion to the cadre of Assistant Executive Engineer from the cadre of Junior Engineers, as such it appears that the petitioners thought fit not to opt for transfer. The Hon'ble Apex Court in the case of P.S.SADASIVASWAMY V/S. STATE OF TAMIL NADU [(1975) 1 SCC 152] was considering challenge to promotion after fourteen long years and observed as follows:
"2. ............................................................ ......................................................... A person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the 27 Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The petitioner's petition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work. We consider that the High Court was right in dismissing the appellant's petition as well as the appeal."
17. In the instant case also the amendment was notified in the year 2012; respondent Nos.4 to 10 were transferred from the cadre of Junior Engineers to Assistant Engineers in the year 2013 and they were promoted to the next higher cadre in 28 the year 2017. The petitioners failed to challenge any of the above events and they slept over the matter and they are before this Court with a prayer for mandamus only in the year 2019 and 2020 respectively. Thus, the writ petitions are liable to be dismissed on the ground of delay and laches.
18. The above order would not be an impediment to consider the representation dated 09.03.2017 (Annexure-H) forwarded to the 2nd respondent-Director under letter dated 10.03.2017 (Annexure-J) in W.P.No.43911/2019 and representation dated 11.10.2021 (Annexure-F) in W.P.No.21548/2021 in accordance with law prospectively.
Accordingly, both the writ petitions stand disposed of.
SD/-
JUDGE mpk/-* CT: NS