Karnataka High Court
Smt. B. R. Lalithamba vs State Of Karnataka on 21 November, 2023
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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NC: 2023:KHC:41723
WP No. 13596 of 2016
C/W WP No. 10801 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21st DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
WRIT PETITION No.13596 OF 2016 (S-PRO)
C/W
WRIT PETITION No.10801 OF 2021 (S-PRO)
IN W.P.No.13596/2016:
BETWEEN:
SMT.B.R.LALITHAMBA,
W/O C.MAHESHA,
AGED ABOUT 35 YEARS,
ASSISTANT TECHNICAL OFFICER,
KARNATAKA RENEWABLE ENERGY
DEVELOPMENT LIMITED (KREDL),
(GOVERNMENT OF KARNATAKA ENTERPRISE)
BANGALORE-560 001.
RESIDING AT No.66, 3RD CROSS
OPP:PEARL GARDEN APARTMENTS,
Digitally DUO HEIGHTS LAYOUT,
signed by BEGUR, BENGALURU-560 065.
KIRAN
KUMAR R ...PETITIONER
Location: (BY SMT. LAKSHMY IYENGAR, SENIOR COUNSEL FOR
HIGH
COURT OF SMT.ANKITHA.G.SHELKE., ADVOCATE)
KARNATAKA
AND:
1. STATE OF KARNATAKA,
REPRESENTED BY ITS
ADDITIONAL CHIEF SECRETARY,
ENERGY DEPARTMENT,
VIKAS SOUDHA, BANGALORE-560 001.
2. THE KARNATAKA POWER CORPORATION
LIMITED (KPCL)
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NC: 2023:KHC:41723
WP No. 13596 of 2016
C/W WP No. 10801 of 2021
REPRESENTED BY ITS
MANAGING DIRECTOR,
SHAKTHI BHAVAN,
No.82, RACECOURSE ROAD,
BANGALORE-560 001.
3. KARNATAKA RENEWABLE ENERGY
DEVELOPMENT LTD.(KREDL)
(GOVERNMENT OF KARNATAKA ENTERPRISE)
No.39, SHANTHI GRUHA,
BHARATH SCOUTS & GUIDES BUILDING,
PALACE ROAD, BANGALORE-560 001.
BY ITS MANAGING DIRECTOR.
...RESPONDENTS
(BY SMT.PRATHIBHA.R.K., AGA FOR R-1;
SRI.KASHYAP.N.NAIK, ADVOCATE FOR R-2;
SRI.R.SUBRAMANYA FOR SRI.B.VINAYAKA, ADVOCATE
FOR R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH BY THE ISSUE OF A WRIT IN THE NATURE OF
CERTIORARI OR ANY OTHER APPROPRIATE WRIT, ORDER OR
DIRECTION AS THE CASE MAY BE THE ENDORSEMENT
DATED:19.11.2015 (ANNEXURE-L) OF THE R-2 AS BEING
ARBITRARY ILLEGAL AND DISCRIMINATORY AND VIOLATIVE
OF ARTICLES 14 & 16(1) OF THE CONSTITUTION OF INDIA
WITH A FURTHER DIRECTION DIRECTING THE R-2 TO EXTEND
EQUAL TREATMENT TO THE PETITIONER BY CONSIDERING HER
CASE FOR RETROSPECTIVE PROMOTION TO THE CADRE OF
ASSISTANT EXECUTIVE ENGINEER WITH EFFECT FROM THE
DATE OF BATCH-MATES WERE GIVEN PROMOTION, WITH ALL
CONSEQUENTIAL BENEFITS, INCLUDING THE MONETARY
BENEFITS.
IN W.P.No.10801/2021:
BETWEEN:
SMT.B.R.LALITHAMBA,
AGED 40 YEARS, W/O C.MAHESHA,
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NC: 2023:KHC:41723
WP No. 13596 of 2016
C/W WP No. 10801 of 2021
ASSISTANT TECHNICAL OFFICER
KARNATAKA RENEWABLE ENERGY DEVELOPMENT
LIMITED
(GOVERNMENT OF KARNATAKA UNDERTAKING)
No.39, "SHANTI GRUHA"
OPP CHIEF POST MASTER GENERAL OFFICE,
PALACE ROAD, BENGALURU-560 001.
RESIDING AT No.23, 1ST CROSS,
DUO HEIGHTS LAYOUT,
BEGUR, BENGALURU-560 068.
...PETITIONER
(BY SMT.LAKSHMY IYENGAR, SENIOR COUNSEL FOR
SMT.ANKITHA G.SHELKE, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
REPRESENTED BY ITS
ADDITIONAL CHIEF SECRETARY,
ENERGY DEPARTMENT,
VIKAS SOUDHA, BANGALORE-560 001.
2. KARNATAKA RENEWABLE ENERGY
DEVELOPMENT LIMITED
(GOVERNMENT OF KARNATAKA UNDERTAKING)
REPRESENTED BY ITS
MANAGING DIRECTOR,
No.39, "SHANTI GRUHA"
OPP.CHIEF POST MASTER GENERAL OFFICE
PALACE ROAD, BENGALURU-560 001.
3. KARNATAKA POWER CORPORATION LIMITED
(A GOVERNMENT OF KARNATAKA UNDERTAKING)
REPRESENTED BY ITS MANAGING DIRECTOR
No.82, SHAKTI BHAVAN,
RACE COURSE ROAD,
BENGALURU-560 001.
4. SRI.RAVEENDRA.H.KORI,
ASSISTANT TECHNICAL OFFICER.
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NC: 2023:KHC:41723
WP No. 13596 of 2016
C/W WP No. 10801 of 2021
5. SRI.DINESH KUMAR D.K.
PROJECT ENGINEER
6. SRI.S.R.RAVEENDRA,
ASSISTANT TECHNICAL OFFICER.
7. SMT.RADHA KONDUR.
ASSISTANT TECHNICAL OFFICER.
8. SMT.PALLAVI.H.C.,
ASSISTANT TECHNICAL OFFICER
RESPONDENT No.4 TO 8
WORKING AT KARNATAKA RENEWABLE
ENERGY DEVELOPMENT LIMITED
(GOVERNMENT OF KARNATAKA UNDERTAKING)
No.39 "SHANTI GRUHA"
OPP.CHIEF POST MASTER GENERAL OFFICE,
PALACE ROAD, BENGALURU-560 001.
...RESPONDENTS
(BY SMT. PRATHIBHA.R.K., AGA FOR R-1;
SRI.R.SUBRAMANYA FOR SRI.B.VINAYAKA,
ADVOCATE FOR R-2;
SMT.ASHWINI PATIL FOR SRI.AJAY NANDALIKE,
ADVOCATE FOR R-3;
SRI.JAYAKUMAR.S.PATIL, SENIOR COUNSEL FOR
SRI.A.MOHAMMED TAHIR, ADVOCATE FOR R-4 TO R-6 & R-8;
SRI. B.B.BALLARI, ADVOCATE FOR R-7 (VC))
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
DIRECT THE R-2 KREDL HEREIN TO GRANT PROMOTION TO
THE PETITIONER AS THE TECHNICAL OFFICER IN THE R2
KREDL WITH EFFECT FROM 03.06.2014 I.E., AND
CONSEQUENTLY BE CONSIDERED FOR PROMOTION AS THE
ASSISTANT GENERAL MANAGER IN R-2 KREDL, FROM THE
DATE THE PETITIONER WAS ELIGIBLE TO THE PROMOTED TO
THE POST OF TECHNICAL OFFICER IN TERMS OF THE
KARNATAKA RENEWABLE ENERGY DEVELOPMENT LIMITED
SERVICES (CADRE, RECRUITMENT AND CONDITION OF
SERVICE) RULES, 2001, AND GRANT ALL CONSEQUENTIAL
BENEFITS INCLUDING FIXATION OF SENIORITY, PROMOTION
AND MONETARY BENEFITS, ETC.
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NC: 2023:KHC:41723
WP No. 13596 of 2016
C/W WP No. 10801 of 2021
THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 26.10.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING :
ORDER
1. These two writ petitions are filed by the same petitioner.
2. In Writ Petition No.13596 of 2016, the petitioner is challenging an Endorsement dated 19.11.2015 (Annexure 'L'), by which her claim for retrospective promotion to the post of Assistant Executive Engineer in the Karnataka Power Corporation Limited ("the KPCL", for short) has been refused.
3. In Writ Petition No.10801 of 2021, the petitioner is inter alia seeking a mandamus to promote her as Technical Officer in the Karnataka Renewable Energy Development Limited ("the KREDL", for short)-- respondent No.3 (a Government of Karnataka Enterprise), wherein she was absorbed as an Assistant Technical Officer with effect from 21.04.2012. -6-
NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 IN W.P. No.13596 of 2016:
4. The brief facts of the case are as under:
(a) On 06.02.2003, the petitioner was appointed as a Junior Engineer (Electrical) in KPCL i.e., respondent No.2. Since, she thereafter acquired a Bachelor of Engineering degree, her designation was upgraded to the post of an Assistant Engineer (Electrical) on 04.05.2004.
(b) On 04.06.2007, the KPCL brought about an amendment to the Karnataka Power Corporation Limited Services (Cadre, Recruitment, Probation, Promotion and Seniority) Rules, 1997 ("the KPCL's C&R Rules", for short) and in respect of the promotion from the post of an Assistant Engineer to the post of an Assistant Executive Engineer, as against the earlier requirement of seven years of service as an Assistant Engineer, eight years of service as an Assistant Engineer or equivalents, was the criteria for granting the said promotion (Annexure 'R1').
(c) This amendment was subjected to a Note, which stated that for initial appointment as an Assistant -7- NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 Engineer or Junior Engineer, the candidates were required to complete minimum qualifying service in KPCL Projects.
Thus, in order to be eligible for promotion to the post of an Assistant Executive Engineer, the petitioner was required to have eight years' experience as an Assistant Engineer and she was also required to have a minimum qualifying service in KPCL Projects.
(d) On 20.05.2009, the petitioner was deputed to KREDL as an Assistant Technical Officer, which is equivalent to the cadre of Assistant Engineer. On 10.03.2011, KPCL published a seniority list.
(e) KPCL addressed a letter to the petitioner informing her that though the period of deputation of one year in KREDL had expired on 02.06.2010, she had not got herself relieved and reported back to duty at the KPCL. It was also informed to her that there was an urgent requirement of services of the Engineers in the KPCL and that she should, therefore, ensure that she got herself relieved from KREDL and report back to KPCL. -8-
NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021
(f) Interestingly, it was clearly informed to the petitioner in this communication that as per the KPCL's C&R Rules, the petitioner was required to have a minimum of five years' experience in KPCL Projects in order to be eligible for promotion to the post of Assistant Executive Engineer.
(g) It is, therefore, clear that in the year 2011 itself, the petitioner was informed that unless she possessed five years' experience in KPCL projects, she would not be entitled for further promotion to the post of Assistant Executive Engineer in KPCL.
(h) The petitioner, thereafter, by letter dated 28.01.2012 addressed to the Additional Chief Secretary-- the Head of the Department, had requested for her services to be absorbed into KREDL. This request was ultimately approved and by an order dated 21.04.2012/08.05.2012, the petitioner was absorbed as an Assistant Technical Officer into KREDL with effect from -9- NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 01.04.2012. Thus, with effect from 01.04.2012, the petitioner became an employee of KREDL.
(i) It is also not in dispute that all her terminal benefits were also made over by KPCL on her absorption into KREDL.
(j) Three years thereafter, the petitioner submitted a representation dated 05.08.2015 to KPCL, requesting to promote her to the post of an Assistant Executive Engineer, retrospectively. She sought retrospective promotion stating that she was under deputation at KREDL in the month of June, 2009 and at the time of considering the promotion of Assistant Engineers to the post of Assistant Executive Engineers (which was done in the year 2011), she had completed 03 years and 10 months of KPCL Project service, but was not considered for promotion. She also stated that since she was on deputation, she was not aware of the subsequent developments and that she recently learned about the Assistant Executive Engineers' promotion in the year 2011
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NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 and that her immediate seniors, who had been recruited in the year 2003, were considered for promotion with retrospective effect and she was, therefore, entitled to be promoted with effect from the date on which her batch- mates were promoted. She also requested that the delay in making the representation was required to be condoned.
(k) In response, the KPCL issued the impugned order dated 19.11.2015 (Annexure 'L'), in which it was stated that the petitioner was appointed on 17.02.2003 as a Junior Engineer (Electrical) and since she had acquired a Bachelor of Engineering degree, her post was upgraded to that of an Assistant Engineer in May, 2004 and she was in service at KPCL up to 31.03.2012 and thereafter, her services were absorbed into KREDL, with effect from 01.04.2012.
(l) KPCL stated that since the petitioner had not acquired the minimum qualifying service of five years in
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NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 KPCL Projects, she could not be considered for promotion and therefore, her request could not be entertained.
(m) Being aggrieved by this order refusing to promote her to the post of an Assistant Executive Engineer (retrospectively) from the date on which three of her batch-mates were promoted, the petitioner has preferred Writ Petition No.13596 of 2016.
5. As already stated above, the petitioner was absorbed into the services of KREDL with effect from 01.04.2012 and three years after her services were absorbed, on 05.08.2015, she made a request for retrospective promotion with her erstwhile employer. It is obvious that the petitioner could not have claimed for a promotion and that too, retrospectively, after she had left the services of the parent Department.
6. It has to be stated here that the petitioner, on being absorbed into KREDL, would lose all her rights to claim promotion in her erstwhile employment. It is obvious that
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NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 the petitioner is making a claim for retrospective promotion so as to stake a claim for being absorbed into a higher cadre in KREDL.
7. In my view, having regard to the fact that the petitioner staked a claim for promotion nearly four years after her batch-mates were promoted and after a period of three years from the termination of her employment with the KPCL, her claim for promotion cannot be entertained.
8. As already stated above, on being absorbed into KREDL, the petitioner cannot claim a promotion in her erstwhile Department and that too, retrospectively.
9. I am, hence, of the view that there is no merit in this writ petition. W.P. No.13596 of 2016 is, therefore, dismissed.
IN W.P. No.10801 of 2021:
10. The petitioner has filed this writ petition seeking a mandamus to be issued to respondent No.2 to grant her promotion to the post of Technical Officer with effect from
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NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 03.06.2014 and consequently, to also consider her for further promotion as an Assistant General Manager, from the date the petitioner was eligible to be promoted to the post of a Technical Officer, as provided under the Karnataka Renewable Energy Development Limited Services (Cadre, Recruitment and Conditions of Service) Rules, 2001 ("the KREDL's C&R Rules", for short).
11. The petitioner is also seeking quashing of the Seniority List dated 11.02.2020 and for a direction to the KREDL to prepare a fresh seniority list. A further prayer is sought to declare the appointment of respondents 4 to 8 as violative of the KREDL's C&R Rules.
12. The petitioner is also challenging the order of suspension dated 12.02.2021 passed against her, pending enquiry into certain misconduct that was alleged to have been committed by her, and she has also challenged the order dated 17.02.2021, by which the order of suspension has been revoked. In addition, the petitioner has also challenged the Notification dated 06.04.2021, by which the
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NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 KREDL's C&R Rules have been amended and the action taken by the Board for absorbing respondents 4, 5 and 8 was ratified.
13. The facts necessary for the purpose of this writ petition are as follows:
(a) The petitioner was initially appointed as a Junior Engineer (Electrical) in the KPCL i.e., respondent No.2 on 06.02.2003 and her appointment was made permanent on 25.03.2004.
(b) The petitioner has thereafter acquired a Bachelor's degree in Engineering and as a consequence, her post was upgraded to that of an Assistant Engineer (Electrical) on 04.05.2004.
(c) As already stated above, the petitioner was initially appointed as a Junior Engineer in the KPCL and while she worked as an Assistant Engineer, the petitioner was sent on deputation to KREDL on 20.05.2009, for a period of one year.
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NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021
(d) During the period in which she was on deputation, KPCL had recalled the order of deputation and had called upon the petitioner (along with a few others) to report to duty at the KPCL. However, KREDL informed KPCL--the parent department of the petitioner that the services of the petitioner were essential and that they intend to absorb the petitioner, and in this regard, sought the approval of KPCL.
(e) The petitioner also submitted a representation dated 25.02.2011 to the Additional Chief Secretary, requesting the Government to order her absorption into the services of KREDL. In the said letter, the petitioner stated that she had already given her consent to be absorbed into the services of KREDL.
(f) Pursuant to the said request, the petitioner's Representation was also followed up with a Communication dated 28.10.2011 issued by the KREDL to the Additional Chief Secretary, indicating that the Board had resolved to absorb the services of the petitioner into
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NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 KREDL and requested consideration of the plea of the Board to absorb the petitioner.
(g) The Government, by an Order dated 28.01.2012, accorded its approval for the absorption of the petitioner into KREDL and accordingly, KREDL proceeded to issue an Office Order dated 21.04.2012 / 08.05.2012 absorbing the petitioner into the services of the KREDL. The operative portion of the Order under which the petitioner was absorbed, reads as under:
"DzÉñÀ ²æêÀÄw ©.Dgï.®°vÁA§, ¸ÀºÁAiÀÄPÀ C©üAiÀÄAvÀgÀgÄÀ («zÀÄåvï) PÉ.¦.¹.J¯ï EªÀgÀ ¸ÉêÉAiÀÄ£ÀÄß PÀ£ÁðlPÀ £À«ÃPÀj¸À§ºÀÄzÁzÀ EAzsÀ£À C©üªÈÀ ¢Þ ¤AiÀÄ«ÄvÀ ¸ÀA¸ÉÜAiÀÄ°è CªÀgÀ ¸ÀéAvÀ ªÉÃvÀ£À ±ÉæÃt 8835-250-9085-300-10585- 350-12335-400-14735-450-17435-500-19935 gÀ°è ¸ÀºÁAiÀÄPÀ vÁAwæPÀ C¢üPÁj ºÀÄzÉÝAiÀÄ°è ¢£ÁAPÀ:01.04.2012 jAzÀ eÁjUÉ §gÀĪÀAvÉ SÁAiÀÄA DV «°Ã£ÀUÆ É ½¸À¯ÁVzÉ.
²æêÀÄw ©.Dgï.®°vÁA§, ¸ÀºÁAiÀÄPÀ C©üAiÀÄAvÀgÀgÄÀ («zÀÄåvï) PÉ.¦.¹.J¯ï. gÀªÀgÄÀ ¹éEZÉÒ¬ÄAzÀ PÉ.Dgï.E.r.J¯ï. ¸ÀA¸ÉÜAiÀÄ°è ¸ÀºÁAiÀÄPÀ vÁAwæPÀ C¢üPÁj ºÀÄzÉÝAiÀÄ°è «°Ã£ÀUÆ É ¼ÀÄîªÅÀ zÀjAzÀ, EªÀgÀÄ PÉ.Dgï.E.r.J¯ï. ¸ÀA¸ÉÜAiÀÄ ¸ÀºÁAiÀÄPÀ vÁAwæPÀ C¢üPÁj ºÀÄzÉÝAiÀÄ eÉõÀ×vÁ ¥ÀnÖAiÀÄ°è PÉÆ£ÉAiÀĪÀgÁVgÀÄvÁÛgÉ ¸À»/-21.4.2012 ªÀåªÀ¸ÁÜ¥ÀPÀ ¤zÉÃð±ÀPÀgÀÄ"
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NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021
14. As could be seen from the Order of Absorption, the seniority of the petitioner was assigned the last ranking in the cadre of the Assistant Technical Officer, since the absorption was at the request of the petitioner, and she thereby lost the seniority that she enjoyed in her parent Department--KPCL. This loss of seniority was not disputed by the petitioner, and she continued to work as the junior- most Assistant Technical Officer at KREDL.
15. It may also be pertinent to state here that on this absorption, the allowances that the petitioner was entitled to, from her parent department were also transferred to KREDL and Settlement Form was also executed by the petitioner, in which it was also clearly mentioned that the petitioner has been deemed to have been relieved on 31.03.2012 and she was permanently absorbed into KREDL.
16. On 04.01.2018, the Seniority List of the existing employees in KREDL was published. In respect of the
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NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 cadre of the Assistant Technical Officers, the seniority list comprised of six officers and the petitioner was assigned the last ranking i.e., 6th ranking in the seniority list as on 31.03.2017. In this Seniority List, as against respondents 4 to 8, the following endorsement was made :
"©. ¢£ÁAPÀ 31-03-2017 gÀ°ègÄÀ ªÀAvÉ PÀ£ÁðlPÀ £À«ÃPÀj¸À§ºÀÄzÁzÀ EAzsÀ£À C©üªÀÈ¢Þ ¤AiÀÄ«ÄvÀzÀ°è ¸ÀºÁAiÀÄPÀ vÁAwæPÀ C¢üPÁj (¹-ªÀÈAzÀ) C¢üPÁjUÀ¼À eÉõÀ×vÁ ¥ÀnÖ :
1. ¸ÀºÁAiÀÄPÀ vÁAwæPÀ C¢üPÁj (¹-ªÀÈAzÀ)-ªÉÃvÀ£À ±ÉæÃtÂ:19055-
540-19595-650-22845-750-26595-860-31755-970- 37575-1070-43995 :
PÀæ ¤ªÀÈwÛ
ºÉ¸ÀgÀÄ d£Àä ¢£ÁAPÀ ¸ÉêÉUÉ ¸ÉÃjzÀ ¢£ÁAPÀ «ÄøÀ¯Áw µÀgÁ
¸ÀA. ¢£ÁAPÀ
UÀÄwÛUÉ DzÁgÀ SÁAiÀÄA UÀÄwÛUÉ DzsÁgÀzÀ°è
1. ²æÃ. gÀ«ÃAzÀæ JZï 15.04.1975 31.10.2001 01.07.2004 30.04.2035 ¸ÀA¸ÉÜUÉ ¸ÉÃjzÀ
PÉÆÃj ¢£ÁAPÀ ºÁUÀÆ
2. ²æÃ.r.PÉ.¢£Éñï PÀĪÀiÁgï 07.07.1971 01.07.2004 01.07.2006 31.07.2031 d£Àä ¢£ÁAPÀUÀ¼À£ÀÄß
3. ²æÃgÀ«ÃAzÀæ J¸ï Dgï 10.01.1974 10.01.2005 03.10.2006 31.01.2034 CzsÀj¹
4. ²æêÀÄw.gÁzsÁ 01.11.1976 01.01.2006 03.10.2006 31.10.2036 eɵÀ×vÉAiÀÄ£ÀÄß ¤UÀzÉ
PÉÆAqÀÄgÀÄ ¥Àr¸À¯ÁVzÉ.
5. ²æêÀÄw.¥À®è« JZï.¹ 04.03.1980 01.01.2006 03.10.2006 31.03.2010
6. ²æêÀÄw ®°vÁA§ 20.05.1980 - 01.04.2012 31.02.2010 PÀ£ÁðlPÀ «zÀÄåvï
©.Dgï ¤UÀªÀÄ ¤AiÀÄ«ÄvÀ
zÀ°è ¸ÀºÁAiÀÄPÀ
C©üAiÀÄAvÀgÀgÀÄ
(«zÀåvï)
ºÀÄzÉݬÄAzÀ
¤AiÉÆÃd£É
ªÉÄÃgÉUÉ PÉæqÀ¯ï
¸ÀA¸ÉÜAiÀÄ°è
¸ÀºÁAiÀÄPÀ vÁAwæPÀ
C¢üPÁjAiÀiÁV
¢£ÁAPÀ 3.6.2009
jAzÀ
¸ÉêÉAiÀÄ°èzÀÄÝ,
¸ÀzÀjAiÀĪÀgÀ
- 19 -
NC: 2023:KHC:41723
WP No. 13596 of 2016
C/W WP No. 10801 of 2021
PÉÆÃjPÉAiÀÄ ªÉÄÃgÉUÉ
CzÉñÀ
¸ÀA.PÉ°gïEqÉE¯ï/
01-
134/CqÀ½vÀ.©.Dgï
.E¯ï/2012/1344
¢.8.5.2012
gÀ¸ÀéAiÀÄ
¢.1.4.2012 jAzÀ
eÁjUÉ §gÀĪÀAvÉ
PÉæqÀ¯ï ¸ÀA¸ÉÜAiÀÄ°è
¸ÀºÁAiÀÄPÀ vÁAwæPÀ
C¢üPÁj
ºÀÄzÉÝAiÀÄ°è ¸ÉêÁ
«Ã°£ÀUÉƽ¹zÉ.
17. It was, thus, clear that the petitioner was aware of the fact that the services of respondents 4 to 8 had been absorbed and seniority had been assigned from the date on which they had been absorbed into the services of KREDL.
18. Thereafter, on 22.01.2020, a provisional list was published in respect of the employees as on 01.01.2020. In this seniority list, in respect of the cadre of Assistant Technical Officer, six officers were named i.e., Respondents 4 to 8 were assigned rankings of 1 to 5, while the petitioner was assigned Rank No.6.
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NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021
19. To this provisional list, it appears that there were no objections raised by any persons and a final seniority list was published on 11.02.2020. In respect of respondents 4 to 8, the following endorsement was mentioned in the final seniority list, while in respect of the petitioner, the following endorsement is made:
PÀæ CºÀðvÁ
ºÉ¸ÀgÀÄ d£À䢣ÁAPÀ ¸ÉêÉUÉ ¸ÉÃjzÀ ¢£ÁAPÀ µÀgÁ
¸ÀA. ¢£ÁAPÀ
UÀÄwÛUÉ DzÁgÀ ¸ÉêÁ
«°Ã£ÀUÉÆAqÀ
¢£ÁAPÀ
1. ²æÃ. gÀ«ÃAzÀæ JZï 15.04.1975 31.10.2001 01.07.2004 01.07.2004 MAzÉà ¢£ÁAPÀzÀAzÀÄ ¸ÉêÉ
PÉÆÃj «°Ã£ÀUÉÆAqÀ £ËPÀgÀgÀ
2. ²æÃ.r.PÉ.¢£Éñï PÀĪÀiÁgï 07.07.1971 01.07.2004 01.07.2006 01.07.2006 eÉõÀ×vÉAiÀÄ£ÀÄß UÀÄwÛUÉ
3. ²æÃgÀ«ÃAzÀæ J¸ï Dgï 10.01.1974 10.01.2005 03.10.2006 03.10.2006 DzsÁgÀzÀ°è ¸ÀA¸ÉÜUÉ ¸ÉÃjzÀ
4. ²æêÀÄw.gÁzsÁ 01.11.1976 01.01.2006 03.10.2006 03.10.2006 ¢£ÁAPÀ¢AzÀ ¸ÉêÁ CªÀ¢ü
PÉÆAqÀÄgÀÄ ¥ÀjUÀt¹ ¤UÀ¢ ¥Àr¸À¯ÁVzÉ
5. ²æêÀÄw.¥À®è« JZï.¹ 04.03.1980 01.01.2006 03.10.2006 03.10.2006 ºÁUÀÆ MAzÉÃ
¢£ÁAPÀzÀAzÀÄ ¸ÉêÉ
«°Ã£ÀUÉÆAqÀ £ËPÀgÀgÀ
eÉõÀ×vÉAiÀÄ£ÀÄß d£Àä
¢£ÁAPÀUÀ¼À£ÀÄß DzsÀj¹ ¤UÀ¢
¥Àr¸À¯ÁVzÉ.
6. ²æêÀÄw ®°vÁA§ 20.05.1980 - 01.04.2012 01.04.2012 PÀ£ÁðlPÀ «zÀÄåvï ¤UÀªÀÄ
©.Dgï ¤AiÀÄ«ÄvÀ zÀ°è ¸ÀºÁAiÀÄPÀ
C©üAiÀÄAvÀgÀgÀÄ («zÀÄåvï)
ºÀÄzÉݬÄAzÀ ¤AiÉÆÃd£É
ªÉÄÃgÉUÉ PÉæqÀ¯ï ¸ÀA¸ÉÜAiÀÄ°è
¸ÀºÁAiÀÄPÀ vÁAwæPÀ
C¢üPÁjAiÀiÁV ¢£ÁAPÀ
3.6.2009 jAzÀ
¸ÉêÉAiÀÄ°èzÀÄÝ, ¸ÀzÀjAiÀĪÀgÀ
PÉÆÃjPÉAiÀÄ ªÉÄÃgÉUÉ DzÉñÀ
¸ÀA.PÉDgïErJ¯ï/01-
134/DqÀ½vÀ.©.Dgï.E¯ï/201
2/1344 ¢.8.5.2012 gÀ£ÀéAiÀÄ
¸ÀA¸ÉÜAiÀÄ°è ¸ÀºÁAiÀÄPÀ
vÁAwæPÀ C¢üPÁj ºÀÄzÉÝAiÀÄ°è
¸ÉêÁ «°Ã£ÀUÉƽ¹zÉ.
- 21 -
NC: 2023:KHC:41723
WP No. 13596 of 2016
C/W WP No. 10801 of 2021
20. It is, therefore, clear that even as on 11.02.2020, the petitioner was aware that the services of respondents 1 to 5 had been regularized during the period from 01.07.2004 to 01.07.2006 i.e., six years prior to her absorption into KREDL and she, therefore, did not raise any objections regarding the seniority assigned to them.
21. The petitioner, thereafter, submitted a representation on 20.06.2020 requesting the KREDL to consider her case for promotion to the post of a Technical Officer.
22. It appears that thereafter, she made an application requesting a copy of the Experience Certificates furnished by respondents 4 to 8, who were seniors in the cadre of Assistant Technical Officers and in response to the said request, KREDL furnished her reply indicating the experience of respondents 4 to 8.
23. The petitioner had also sought for furnishing of the details of the file, including the note-sheet pertaining to
- 22 -
NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 the Departmental Promotion Committee ("the DPC", for short) Proceedings held in 2020 and she was furnished with a copy of the said Note-sheets as well. In the Note- sheets that are provided to her, a copy of the extracted proceedings dated 22.06.2020 were also furnished, in which it was stated as follows:
"PÉæqÀ¯ï ¸ÀA¸ÉÜAiÀÄ°è ¸ÀºÁAiÀÄPÀ vÁAwæPÀ C¢üPÁj ªÀÈAzÀ¢AzÀ vÁAwæPÀ C¢üPÁj ªÀÈAzÀPÌÉ §rÛ ¤ÃqÀ®Ä ¢£ÁAPÀ 26.02.2020 gÀAzÀÄ £ÀqÉzÀ E¯ÁSÁ ªÀÄÄA§rÛ ¸À«Äw ¸À¨ÉsAiÀÄ £ÀqÀªÀ½UÀ¼ÄÀ :
PÉæqÀ¯ï ¸ÀA¸ÉÜAiÀÄ ªÀÈAzÀ ªÀÄvÀÄÛ £ÉêÀÄPÁw ¤AiÀĪÀÄUÀ¼À ªÀÈAzÀ §®zÀ°è gÀÆ.46570-113810 ªÉÃvÀ£À ±ÉæÃtÂAiÀÄ 5 vÁAwæPÀ C¢üPÁj ºÀÄzÉÝUÀ¼À£ÄÀ ß UÀÄgÀÄw¹gÀĪÀÅzÀ£ÄÀ ß ºÁUÀÆ ¸ÀzÀj ºÀÄzÉÝUÀ¼ÄÀ SÁ°¬ÄgÀĪÀÅzÀ£ÄÀ ß ¸À«Äw UÀªÄÀ ¤¹vÀÄ.
¸ÀºÁAiÀÄPÀ vÁAwæPÀ C¢üPÁj ªÀÈAzÀ¢AzÀ vÁAwæPÀ C¢üPÁj ªÀÈAzÀPÌÉ §rÛ ¤ÃqÀ®Ä ¸ÀA¸ÉÜAiÀÄ ªÀÈAzÀ ªÀÄvÀÄÛ £ÉêÀÄPÁw ¤AiÀĪÀÄUÀ¼À°è PÀ°à¹gÀĪÀ F PɼÀPÀAqÀ CªÀPÁ±ÀªÀ£ÄÀ ß ¸À«Äw UÀªÀĤ¹vÀÄ :
Sl Designation Pay Scale Method of Minimum Qualification
No. Recruitment
1. Technical Officer 46570-113810 By Promotion from Graduate in Mechanical/
(AEE Grade) the cadre of Electrical/Civil/Chemical
Assistant Technical engineering with relevant
Officer experience of at least 5
years in setting
up/appraising/conducting
investigations on
feasibility etc.
- 23 -
NC: 2023:KHC:41723
WP No. 13596 of 2016
C/W WP No. 10801 of 2021
vÁAwæPÀ C¢üPÁj ªÀÈAzÀPÌÉ ¸ÀzÀj ªÀÈAzÀzÀ ¥ÉÆõÀPÀ ªÀÈAzÀªÁzÀ ¸ÀºÁAiÀÄPÀ vÁAwæPÀ C¢üPÁj ªÀÈAzÀ¢AzÀ §rÛ ¤ÃqÀ®Ä CªÀPÁ±À«zÀÄÝ, ¥ÉÆõÀPÀ ªÀÈAzÀzÀ CAwªÀÄ eÉõÀ×vÁ ¥ÀnÖAiÀÄ£ÀÄß ¢£ÁAPÀ 01.01.2020 PÉÌ C£ÀéAiÀĪÁUÀĪÀAvÉ ¢£ÁAPÀ 11.02.2020 gÀAzÀÄ ¥ÀæPÀn¸À¯ÁVzÀÄÝ, ¸ÀzÀj ªÀÈAzÀzÀ eÉõÀ×vÁ ¥ÀnÖAiÀÄ PÀæªÄÀ ¸ÀASÉå (1) jAzÀ (5) gÀªÀgÉUÉ EgÀĪÀ F PɼÀPÀAqÀ C¢üPÁjUÀ¼ÄÀ ¸ÁÜ£À¥À£ÀßgÁVgÀĪÀÅzÀ£ÄÀ ß, ¸À«Äw UÀ«Ä¤¹vÀÄ:
PÀæªÀÄ ºÉ¸ÀgÀÄ ¸ÀºÁAiÀÄPÀ vÁAwæPÀ ¸ÀºÁAiÀÄPÀ vÁAwæPÀ C¢üPÁj
¸ÀASÉå C¢üPÁj ªÀÈAzÀzÀ ªÀÈAzÀzÀ°è zÉÆgÉwgÀĪÀ CºÀðvÁ
eÉõÀ×vÁ ¥ÀnÖAiÀÄ°è ¢£ÁAPÀ
zÉÆgÉwgÀĪÀ eÉõÀ×vÉ
1 ²æÃ. gÀ«ÃAzÀæ JZï PÉÆÃj 1 01.07.2004
2 ²æÃ.r.PÉ.¢£Éñï PÀĪÀiÁgï 2 01.07.2006
3 ²æÃgÀ«ÃAzÀæ J¸ï Dgï 3 03.10.2006
4 ²æêÀÄw.gÁzsÁ PÉÆAqÀÄgÀÄ 4 03.10.2006
5 ²æêÀÄw.¥À®è« JZï.¹ 5 03.10.2006
¸ÀºÁAiÀÄPÀ vÁAwæPÀ C¢üPÁj ºÀÄzÉݬÄAzÀ vÁAwæPÀ C¢üPÁj ºÀÄzÉÝUÉ §rÛ ¤ÃqÀ®Ä ªÀÈAzÀ ªÀÄvÀÄÛ £ÉêÀÄPÁw ¤AiÀĪÀÄUÀ¼À°è ¤UÀ¢ü¥Àr¹gÀĪÀAvÀºÀ ¥ÀzÀ« «µÀAiÀÄUÀ¼À §UÉÎ ¸À«Äw ¥Àj²Ã°¹, ¥ÉÆõÀPÀ ªÀÈAzÀªÁzÀ ¸ÀºÁAiÀÄPÀ vÁAwæPÀ C¢üPÁj (£ÉÃgÀ £ÉêÀÄPÁw) §rÛ ªÀÈAzÀªÁzÀ vÁAwæPÀ C¢üPÁj ºÀÄzÉÝUÉ ªÉÄPÁ¤PÀ¯ï, J¯ÉQÖçPÀ¯ï, ¹«¯ï, PÉ«ÄPÀ¯ï «µÀAiÀÄUÀ¼À°è ©.E. ¥ÀzÀ« ¥ÀqÉAiÀĨÉÃPÁVgÀĪÀÅzÀ£ÄÀ ß ¸À«Äw UÀªÀĤ¹vÀÄ.
¥Àæ¸ÀÄÛvÀ ¸ÀºÁAiÀÄPÀ vÁAwæPÀ C¢üPÁj ºÀÄzÉÝAiÀÄ°è ¸ÁÜ£À¥À£ÀßgÁVgÀĪÀ gÀ«ÃAzÀæ ºÉZï PÉÆÃj., ¢£Éñï PÀĪÀiÁgï qÀ.PÉ., ºÉZï.¹.¥À®è« EªÀgÀÄUÀ¼À£ÄÀ ß ¸ÀA¸ÉÜAiÀÄÄ £ÉÃgÀ £ÉêÀÄPÁw ºÀÄzÉÝAiÀÄ JzÀÄgÀÄ ¸ÀA¸ÉÜAiÀÄ ¸ÉêÉAiÀÄ°è «°Ã£ÀUÉƽ¹gÀĪÀÅzÀ£ÄÀ ß ¸À«Äw UÀªÄÀ ¤¹vÀÄ. C®èzÉ, ¸ÀA¸ÉÜAiÀÄÄ
- 24 -
NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 ¸ÀzÀjAiÀĪÀgÀ£ÄÀ ß ¸ÉêÁ «°Ã£ÀUÆ É ½¸ÀĪÀ ¸ÀAzsÀ¨ÀsðzÀ°è ªÀÈAzÀ ªÀÄvÀÄÛ £ÉêÀÄPÁw ¤AiÀĪÀÄUÀ¼À°è ©.E.¥ÀzÀ« ¥ÀqÉ¢gÀĪÀÅzÀ£ÄÀ ß ¥ÀjUÀt¹ ¸ÉêÁ «°Ã£ÀUÆ É ½¹gÀĪÀÅzÀ£ÄÀ ß ¸À«ÄwAiÀÄÄ UÀ«Ä¤¹vÀÄ.
ªÀÄÄAzÀĪÀgÉzÄÀ , ªÉÄîÌAqÀ ªÀÄÆgÀÄ C¢üPÁjUÀ¼ÄÀ ¸ÀA¸ÉÜAiÀÄ°è ¸ÉêÁ «°Ã£ÀUÆ É AqÀ vÀgÄÀ ªÁAiÀÄ ¸ÀA¸ÉÜAiÀÄ°è 14 ªÀµÀðUÀ¼À PÁ® ¤gÀAvÀgÀ ¸ÉÃªÉ ¸À°è¹gÀĪÀÅzÀ£ÄÀ ß ºÁUÀÆ ¸ÉêÁ eÉõÀ×vÉ ¥ÀqÉ¢gÀĪÀÅzÀ£ÄÀ ß ¸À«ÄwAiÀÄÄ UÀªÄÀ ¤¹ £ÉêÀiPÁw ªÀÄvÀÄÛ §rÛUÉ ¤UÀ¢¥Àr¸À¯ÁzÀ ©.E. ¥ÀzÀ« «µÀAiÀÄUÀ¼À°è UÉÆAzÀ®«gÀĪÀÅzÀjAzÀ ¥Àæ¸ÁÛªÀ£ÉAiÀÄ£ÀÄß ªÀÄvÉÆÛªÄÉ ä ¥Àj²Ã°¹ ¸À«ÄwAiÀÄ ªÀÄÄAzÉ ªÀÄAr¸ÀĪÀAvÉ ¸ÀÆa¹ F ªÀÈAzÀzÀ §rÛ ¥Àæ¸ÁÛªÀ£ÉAiÀÄ£ÀÄß ¸ÀzåsÀ PÉÌ PÉÊ©qÀ¯Á¬ÄvÀÄ."
24. The petitioner, on receipt of these proceedings, proceeded to make representations requesting the KREDL to upgrade her absorption made on 01.04.2012 to the cadre of a Technical Officer retrospectively, as recommended in the DPC Proceedings conducted in 2020.
25. She also submitted a representation to promote her to the cadre of Technical Officer, as she was the only one duly qualified under the KREDL's C&R Rules.
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NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021
26. During the pendency of her request, it appears that the petitioner had submitted a representation to the Additional Chief Secretary directly, narrating her grievance and also making certain complaints about other officers as well. KREDL took cognizance of the said representation and proceeded to take the view that the act of the petitioner violated the official code of conduct and flouted all the protocols and therefore, she was liable to face disciplinary action. The KREDL, accordingly, proceeded to pass an order of suspension on 12.02.2021.
27. The petitioner submitted her reply to the said order of suspension and requested that all the charges made against her be dropped.
28. However, within five days of the order of suspension being passed, a subsequent order was passed on 17.02.2021 revoking the order of suspension.
29. Though the order of suspension had been revoked, the petitioner, for the reasons best known to her, had
- 26 -
NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 challenged both the order of suspension as well as the order by which the order of suspension has been revoked. It is obvious that this prayer would not survive for consideration since the order of suspension has been revoked and the petitioner was reinstated.
30. On 06.04.2021, KREDL issued a Notification, by which it notified an amendment to its C&R Rules pertaining to the Rule relating to the qualifications prescribed for the post of an Assistant Technical Officer/Project Engineer, according to which, as against the earlier requirement of having "an Engineering Graduation degree in Mechanical/Electrical/Civil/Chemical Engineering with at least three years of field experience", the qualification of being a "graduate in Mechanical/Electrical/Civil/Chemical/ Electronics and Communication/Industrial Production/ Instrumentation Technology Engineering and field experience of three years" was substituted.
31. The Notification also stated that the post of a Public Relation Officer was re-designated as 'Technical Officer'
- 27 -
NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 and the same could be filled by the Assistant Technical Officer upon promotion. The Notification also stated that the action taken by the Board while absorbing respondents 4, 5 and 8 as Assistant Technical Officers, who possessed an Engineering Degree in a subject which was different from the prescribed subject, was ratified as a one-time measure.
32. The petitioner is, therefore, before this Court challenging not only the publication of the seniority list, along with a declaration that the absorption of respondents 4 to 8 were contrary to the recruitment rules, but is also seeking quashing of the Notification by which the KREDL's C&R Rules were amended and the absorption of respondents 4 to 8 was ratified.
33. It is the contention of the petitioner that KREDL's C&R Rules, which was brought into effect from 25.01.2006, stated that there were nine posts of Assistant Technical Officers in the cadre and they were equivalent to the cadre of Assistant Engineer. The mode of recruitment
- 28 -
NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 under the said C&R Rules was that the person should be a graduate in Mechanical / Electrical / Civil / Chemical Engineering with at least three years field experience, and since respondents 4, 5 and 8 did not possess a degree in Mechanical / Electrical / Civil / Chemical Engineering, they were obviously not qualified to be appointed.
34. It is her further case that, as a consequence of the above, their absorption as Assistant Technical Officers in the year 2012 would be non est. It is also contended that the respondents could not be absorbed even under Clause (3) of KREDL's C&R Rules, because the absorption that was permitted under the Rules was only if the employee had satisfied the Rules of recruitment prescribed in respect of the qualification. It was contended that since respondents 4, 5 and 8 did not possess this essential qualification, they could not have been absorbed.
35. It is also contended that the appointment of respondents 4 to 8 was in contravention with the established selection norms and their services could not be
- 29 -
NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 regularized in light of the decision rendered in Umadevi's1 case.
36. The learned counsel contended that in order to get over these anomalies, the KREDL, after being informed by the DPC that respondents 4, 5 and 8 did not even possess the necessary educational qualifications, had proceeded to seek amendment of the KREDL's C&R Rules and also ratification of the absorption that had been made.
37. It is contended that the Government, in light of the Rules prescribed for absorption under the KREDL's C&R Rules, could not have ratified the absorptions made in contravention of the Rules as a one-time measure.
38. It is contended that the amendment to the C&R Rules could, at best, be prospective and this would not cure the fundamental ineligibility suffered by respondents 4, 5 and 8. It is also contended that since absorption of respondents 4, 5 and 8 were not done lawfully, the 1 Secretary, State of Karnataka vs. Uma Devi, (2006) 4 SCC 1.
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NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 seniority assigned to them in the seniority list, which was first published in the year 2018, would be of no consequence and therefore, would have to be quashed.
39. It is also contended that the DPC proceedings had not been conducted from the inception of the Board and the denial of the promotion to the petitioner on the ground that there was an enquiry against her was improper, essentially when there were several recommendations made.
40. It was also contended that by virtue of the interim order dated 10.11.2022 passed in this petition, a solemn statement had been made by the Corporation that not only the petitioner, but also respondents 4 to 8 would be promoted to the post of Assistant Technical Officers and despite this statement, the Board had gone on to only promote respondents 4 to 8 and resorted to a sealed cover procedure in respect of the promotion of the petitioner on the ground that a departmental enquiry was contemplated against the petitioner.
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NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021
41. The learned counsel appearing for the respondent- Board, per contra, contended that the petitioner could not maintain a writ petition in respect of the absorption which had been made in favour of respondents 4 to 8 nearly six years prior to her absorption into KREDL. It is contended that the petitioner, who was deputed to KREDL in the year 2009, was aware of the fact that respondents 5 to 8 were acquired as Assistant Technical Officers and their services had been regularized for the period from 2004 to 2006 and yet, the petitioner sought her services to be absorbed by giving consent and making a representation to the Government.
42. It is also contended that the Government acted upon the request of the petitioner and also that of the KREDL while absorbing the petitioner. However, it is their specific condition that she would be assigned the lowest ranking in the cadre of Assistant Technical Officer and this condition of assigning the lowest ranking in such cadre was accepted without any demur, and therefore, the petitioner could not
- 32 -
NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 be permitted to contend that the seniority assigned to her in the seniority list was improper, or that the persons who had been absorbed or her seniors who had been absorbed ought not to have been absorbed.
43. It is also specifically contended that for the seniority lists published in the years 2018 to 2020, the petitioner had not objected to the assignment of rankings to respondents 4 to 8 above hers and therefore, her entire contention raised in the writ petition does not warrant acceptance and were devoid of merits.
44. It is lastly contended that the petitioner has chosen to make a claim of not only the seniority above respondents 4 to 8, but also about the ineligibility of respondents 4 to 8 being absorbed only after the DPC made an observation regarding the educational qualifications of respondents 4 to 8. It is contended that the petitioner is basically making a speculative claim after noticing that there was some incongruity regarding the educational qualifications of respondents 4 to 8. It is also
- 33 -
NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 contended that the Board has the absolute power not only to amend its C&R Rules, but it also has the absolute right for rectification of the absorption made.
45. The learned counsel contended that the KREDL, being the employer, had the prerogative to choose an employee who possessed the qualifications required for the post and it was not open for a co-employee to contend that the educational qualification(s) possessed by another employee was not commensurate with the recruitment Rules.
46. It is contended that the essential requirement for the post of an Assistant Technical Officer was that a candidate should possess a Bachelor's Degree in Engineering and though specific subjects were mentioned in the recruitment notification, it was open for the employer, keeping in mind the exigencies of service, to appoint a candidate whom it found suitable. It is also contended that since the primary requirement of a degree in Engineering was possessed by respondents 4, 7 and 8, the mere fact
- 34 -
NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 that they did not possess a degree in a specific subject as specified in the recruitment notification would be an insignificant factor which did not undermine their basic educational requirement. It is contended that KREDL, on taking into consideration the services rendered by respondents 4 to 8, had taken a decision to absorb them. It is also contended that the work rendered by respondents 4 to 8 as contractual Assistant Technical Officers with KREDL had exposed them to a rich and invaluable experience and having regard to that factor, it was resolved to absorb them. It is contended that this order of absorption which was made in favour of respondents 4 to 8 nearly six years prior to absorption of the petitioner could not be challenged by the petitioner.
47. In light of the above contentions, the points that arise for consideration in these writ petitions are :
(a) Whether the petitioner has a right to challenge the absorption of respondents 4 to 8 and also the ratification of the absorption
- 35 -
NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 made by KREDL by amending the C & R Rules?
(b) Whether the petitioner, who acceded to be lowest in the rank of Assistant Technical Officers as a condition for her absorption, can be permitted to challenge the earlier absorption made in favour of other co-employees i.e., respondents 4 to 8?
(c) Whether the petitioner could claim seniority over respondents 4 to 8 on the ground that their absorption was irregular?
(d) Whether the petitioner would be entitled to claim promotion to the post of Technical Officer ahead of respondents 4 to 8?
(e) Whether the petitioner is justified in contending that initiation of disciplinary proceedings against her was vitiated by legal malafides?
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NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021
48. It is not in dispute that the petitioner was initially appointed as a Junior Engineer in KPCL and because she acquired a degree in Engineering, her post was upgraded to that of an Assistant Engineer. It is also not in dispute that the petitioner was sent on deputation to KREDL for a year and thereafter, on the request of both the petitioner and the KREDL, the Government accorded permission for her absorption and she was, ultimately, absorbed into the service of KREDL on 28.01.2012. The said order of absorption passed in favour of the petitioner reads as follows:
"ªÉÄîÌAqÀ «µÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ, ²æêÀÄw ©.Dgï.®°vÁA§, ¸ÀºÁAiÀÄPÀ C©üAiÀÄAvÀgÀgÀÄ, PÀ£ÁðlPÀ «zÀÄåvï ¤UÀªÀÄ ¤AiÀÄ«ÄvÀ, EªÀgÀÄ PÀ£ÁðlPÀ £À«ÃPÀj¸À§ºÀÄzÁzÀ EAzsÀ£À C©üªÀÈ¢Þ ¤AiÀÄ«ÄvÀzÀ°è ¤AiÉÆÃd£É ªÉÄÃ¯É PÁAiÀÄ𠤪Àð»¸ÀÄwÛzÀÄÝ, EªÀgÀ ¸ÉêÉAiÀÄ£ÀÄß SÁAiÀÄA DV PÀ£ÁðlPÀ £À«ÃPÀj¸À§ºÀÄzÁzÀ EAzsÀ£À C©üªÀÈ¢Þ ¤AiÀÄ«ÄvÀzÀ°è «°Ã£ÀUÉƽ¸ÀĪÀ PÀÄjvÀÄ, ¢£ÁAPÀ:30.09.2011gÀAzÀÄ £ÀqÉzÀ PÉ.Dgï.E.r.J¯ï.£À 63£Éà DqÀ½vÀ ªÀÄAqÀ½AiÀÄ ¸À¨sÉAiÀÄ°è, PÀ£ÁðlPÀ «zÀÄåvï ¤UÀªÀÄ ¤AiÀÄ«ÄvÀ ºÁUÀÆ PÀ£ÁðlPÀ £À«ÃPÀj¸À§ºÀÄzÁzÀ EAzsÀ£À C©üªÀÈ¢Þ ¤AiÀÄ«ÄvÀzÀ ªÀåªÀ¸ÁÜ¥ÀPÀ
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NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 ¤zÉÃð±ÀPÀgÀÄUÀ¼ÀÄ vÀªÀÄä ¸ÀºÀªÀÄw ¤ÃrzÀ »£É߯ÉAiÀÄ°è, DqÀ½vÀ ªÀÄAqÀ½AiÀÄÄ EªÀgÀ ¸ÉêÉAiÀÄ£ÀÄß PÀ£ÁðlPÀ £À«ÃPÀj¸À§ºÀÄzÁzÀ EAzsÀ£À C©üªÀÈ¢Þ ¤AiÀÄ«ÄvÀzÀ°è «°Ã£ÀUÉƽ¸À®Ä ¤tð¬Ä¹zÉ. CzÀgÀAvÉ, PÉ.Dgï.E.r.J¯ï.£À ªÀåªÀ¸ÁÜ¥ÀPÀ ¤zÉÃð±ÀPÀgÀÄ ¢£ÁAPÀ:28- 10-2011gÀ ¥ÀvÀæzÀ°è ²¥ÁgÀ¸ÀÄì ªÀiÁrzÀAvÉ, ²æêÀÄw ©.Dgï.®°vÁAA§, ¸ÀºÁAiÀÄPÀ C©üAiÀÄAvÀgÀgÀÄ, PÀ£ÁðlPÀ «zÀÄåvï ¤UÀªÀÄ ¤AiÀÄ«ÄvÀ EªÀgÀ ¸ÉêÉAiÀÄ£ÀÄß PÀ£ÁðlPÀ £À«ÃPÀj¸À§ºÀÄzÁzÀ EAzsÀ£À C©üªÀÈ¢Þ ¤AiÀÄ«ÄvÀzÀ°è SÁAiÀÄA DV vÀPÀët¢AzÀ eÁjUÉ §gÀĪÀAvÉ «°Ã£ÀUÉƽ¸À®Ä ¸ÀPÁðgÀzÀ C£ÀĪÉÆÃzÀ£É ¤ÃqÀ¯ÁVzÉ JAzÀÄ w½¸À®Ä ¤zÉÃð²vÀ£ÁVzÉÝãÉ."
49. As could be seen from the said order of absorption, the petitioner was to be placed in the last position in the cadre of Assistant Technical Officer, by the very order under which she was absorbed. Admittedly, the petitioner was working in KREDL from 2009 and was definitely conscious of the fact that respondents 4 to 8 had already been absorbed even while she was on deputation. It is, therefore, clear that considering the fact that the services of respondents 4 to 8 were regularized during the period between 2004 and 2006, the petitioner, being a person
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NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 working only on deputation from the KPCL, could not obviously claim seniority in the cadre of Assistant Technical Officer.
50. Moreover, once the order of absorption categorically stated that she would be assigned the lowest rank in the cadre of Assistant Technical Officer and the said term was accepted by her, fundamentally, the petitioner cannot now contend that she was entitled to be considered as being senior to respondents 4 to 8.
51. However, it is the contention of the petitioner that she is entitled to be considered as senior to respondents 4 to 8 by virtue of the fact that their services were absorbed in contravention of the KREDL's C&R Rules.
52. It cannot be in dispute that KREDL is a Company incorporated under the provisions of Companies Act and it was not governed by any statutory enactment. It is, no doubt, true that KREDL is a Government of Karnataka undertaking and it has framed Cadre & Recruitment Rules
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NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 prescribing the manner in which the employees have to be recruited to KREDL. The C&R Rules, admittedly, was approved by the Administrative Board on 30.07.2001 and was sent to the State Government for its concurrence and approval, and the State Government conveyed its approval only on 20.01.2006 and thereafter, a notification was published on 25.01.2006 notifying the framing of Cadre, Recruitment, Probation, Promotion & Seniority Rules, 2001. Admittedly, respondents 4 to 8 were appointed on contractual basis temporarily between the period of 2004 to 2006. As already noticed above, the C&R Rules were only notified on 25.01.2006 and the appointments of respondents 4 to 8 on contractual basis were made when the C&R Rules were yet to be notified.
53. In the absence of the notified C&R Rules, the KREDL had obviously appointed respondents 4 to 8, having regard to the exigencies of service. Thus, the appointment made, when there were no notified C&R Rules in force, cannot be found fault with merely because the subsequent
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NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 notification of the C&R Rules prescribed a particular set of educational qualifications.
54. The KREDL, on the C&R Rules being notified, proceeded to exercise its right to absorb the employees who were working in the Company for two years as on the date of commencement of the Rules, either on deputation or on ad-hoc basis. The relevant Rule regarding absorption, being Rule 3.8 of the C&R Rules, 2001, reads as follows:
"3.8 ABSORPTION:
It shall be competent for the Board to absorb all such employees who are working since two years and above in the Company as on the date of Commencement of the rules either on deputation basis or on adhoc basis.
However no such employee who has not
satisfied the rules of recruitment
prescribed in these rules, or whose
services are not satisfactory, or who has not given consent for his absorption in the
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C/W WP No. 10801 of 2021
services of the Company, shall be
absorbed in the services of the Company."
55. It is, no doubt, true that the employees who were working in the Company as on the date of the commencement of the Rules, were required to satisfy the Rules prescribed in the notified C&R Rules. However, the Company, notwithstanding the fact that respondents 4, 7 and 8 did not possess the Engineering degree in the subject indicated in the C&R Rules, nevertheless, proceeded to absorb respondents 4, 7 and 8.
56. It is to be stated here that KREDL, who is the employer, having appointed respondents 4, 7 and 8 on contract basis, had proceeded to absorb them, since their services were found to be beneficial to the Company. This absorption of the employees, who did not satisfy the educational qualification insofar as it related to such candidates possessing a degree in a particular subject, would be an irrelevant factor because the candidates who were absorbed did possess a basic degree in Engineering.
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NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 The KREDL, having employed the services of respondents 4, 7 and 8 for more than a year, was obviously satisfied with the services that they had rendered and had chosen to absorb them, notwithstanding the fact that they did not possess a degree in the subjects specified in the C&R Rules, which came into force after respondents 4, 7 and 8 were recruited.
57. In my view, the decision of KREDL to absorb those employees who were working on ad-hoc basis, even though they did not adhere to the specific requirement of the C&R Rules, insofar as it related to the specific subject in which they had to obtain a degree in Engineering, would be an insignificant factor and the KREDL, having regard to the work discharged by respondents 4, 7 and 8, was entitled to absorb them.
58. It is to be borne in mind that when there were no C&R Rules notified, obviously, the KREDL was not under any compulsion to appoint only those candidates who had a degree in the subjects specified in the proposed C&R
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NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 Rules. If the KREDL was of the view that respondents 4, 7 and 8, who had been appointed on ad-hoc basis when there were no C&R Rules notified, deserve to be absorbed, the same cannot be held to be arbitrary or irrational.
59. It is also to be noticed here that the petitioner was not even in the service of KREDL when respondents 4 to 8 had been absorbed as permanent employees in the year 2006 (01.07.2004 to 03.10.2006). In other words, when the petitioner was still working at the KPCL, the services of respondents 4 to 8 had been absorbed into KREDL and the petitioner, being an employee of the KPCL, cannot obviously be entitled to contend that the absorption of respondents 4 to 8 was illegal while she was still admittedly working at the KPCL. It is also to be kept in mind that the petitioner had voluntarily sought deputation to KREDL and despite being notified in the year 2011 that the KPCL was not inclined to continue this deputation, the petitioner preferred to be on deputation at the KREDL.
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60. In fact, the KPCL, by letter dated 22.09.2011, had informed the petitioner that in order to be considered for promotion to the post of an Assistant Executive Engineer, she was required to render service of at least five years in KPCL and by being on deputation at KREDL, she would lose the prospect of being promoted. The petitioner, notwithstanding this communication, gave her consent to be absorbed into the services of KREDL and also requested the Government to pass necessary orders for absorption. The Government, accordingly, accorded permission and the KREDL, thereafter, categorically absorbed her with a condition that she would lose the seniority that she had gained during her service at the KPCL and she would be assigned the lowest rank in the cadre of Assistant Technical Officer, in which she would be absorbed. As on the date on which she was absorbed, respondents 4 to 8 had already been absorbed and the petitioner was conscious of the fact that she would be placed below them in the cadre of Assistant Technical Officer. The petitioner, having accepted this condition imposed while absorbing
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NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 her, will fundamentally be estopped from challenging the seniority of respondents 4 to 8.
61. As already held above, it is for the KREDL to decide as to whether the employees that it had appointed prior to the notification of the C&R Rules deserved to be absorbed or not. If KREDL chose to come to the conclusion that the services of an employee deserve to be absorbed, notwithstanding the fact that the said employee did not possess a degree in the appropriate subject, the same cannot be challenged at the behest of a person (like the petitioner herein) who came into the services of the KREDL six years thereafter.
62. The argument of the petitioner that the KREDL and the Government have committed a serious error in permitting the amendment of C&R Rules and ratifying the absorption of respondents 4, 7 and 8 as one-time measure, cannot also be accepted.
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NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021
63. The educational requirement of an employee of the KREDL would lie within the exclusive domain of the KREDL. An employee of KREDL cannot really have a right to question the prescription of an educational qualification by the employer.
64. In the instant case, it is obvious that KREDL, keeping in mind the services rendered by respondents 4, 7 and 8, had come to the conclusion that it was also desirable to allow recruitment of candidates who had obtained a degree in Engineering in the subjects opted by respondents 4, 7 and 8 as being beneficial to the KREDL, such decision cannot be questioned by an employee (such as the petitioner herein).
65. The KREDL, having regard to the objections raised by the DPC regarding discrepancies in the educational qualification of respondents 4, 7 and 8 vis-à-vis the notified C&R Rules, in order to ensure that there is no challenge to the same on the grounds of it being violative of the Rules, has chosen to seek approval of the
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NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 Government for ratification of the absorption that it had made. The KREDL was essentially seeking to cure the defect in the absorption and in order to ensure that this was done, a decision was taken to amend the C&R Rules and also to seek ratification of the absorptions made by them. The Government, which is the ultimate authority insofar as the KREDL is concerned, has concurred with the view taken by the KREDL and has granted its concurrence, both for the amendment of the C&R Rules and also for ratifying the absorptions made by KREDL.
66. Such a decision taken by the Government and the KREDL cannot be questioned by the petitioner having regard to the fact that admittedly, respondents 4 to 8 were appointed way back in the year 2004 to 2006 and their services were also regularized between 01.07.2004 and 03.10.2006. It is indisputable that they had entered into the cadre of Assistant Technical Officer in KREDL six years prior to the absorption of the petitioner and they were, therefore, obviously seniors and were entitled to be
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NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 placed above the petitioner. Therefore, the challenge to the seniority list also cannot be sustained.
67. It may also be pertinent to notice here that in order to steal a march over respondents 4 to 8, the petitioner has also made an attempt to seek retrospective promotion by filing W.P. No.13596 of 2016, four years after she was being absorbed into KREDL as an Assistant Technical Officer. It is obvious that the petitioner's claim for retrospective promotion in KREDL was to ensure that her status as an Assistant Engineer in KPCL would be upgraded to that of an Assistant Executive Engineer in the order of deputation and she could, therefore, stake a claim for absorption as a Technical Officer. The claim of the petitioner for retrospective promotion, having already been rejected by the order passed in W.P. No.13596 of 2016 (supra), her claim of her being a senior or be entitled to be absorbed in a cadre higher than that of respondents 4 to 8 cannot be considered.
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NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021
68. It is also clear from the record that the petitioner chose to agitate the invalidity in the appointment of respondents 4 to 8 and the absorption of respondents 4, 7 and 8 only after the DPC pointed out the discrepancies in the year 2020. The fact that the petitioner did not even file objections to the seniority list published in the years 2018 and 2020, in which it had been clearly stated that the services of respondents 4 to 8 had been absorbed six years prior to her absorption, is another factor which goes to show that the petitioner has accepted that she was junior to respondents 4 to 8 and she is, hence, estopped from challenging the two seniority lists published in the years 2018 and 2020.
69. In this view of the matter, there is no merit in the contentions urged by the petitioner, insofar as it relates to appointment, absorption or seniority assigned to respondents 4 to 8, and the petitioner would have to remain junior to them in the cadre of Assistant Technical Officer.
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NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021
70. Accordingly, points (i) to (iv) determined in W.P.No.10801 of 2021 are answered.
71. Before parting with the case, it would be necessary to notice that merely because the petitioner had addressed a communication to the Additional Chief Secretary narrating her grievance in the matter of promotion, a decision has been taken by KREDL to initiate disciplinary proceedings against the petitioner. This act of KREDL clearly indicates that it is acting against the petitioner with a sense of vendetta, only because she had approached the Government with her grievances. An employee of an organization cannot be accused of misconduct merely because she approached a higher authority for redressal of her grievances. An employee has a right to submit a representation to the proper authority as she deems appropriate and seek for redressal of her grievances. The action initiated by KREDL would give rise to an impression that the proposed disciplinary action was initiated because of the challenge laid by the petitioner to the absorption
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NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 made by KREDL in favour of respondents 4 to 8. It is, therefore, palpable that the entire proceedings which has culminated in the order of suspension, though it has been revoked, is vitiated, since the KREDL has stated that they proposed to take disciplinary action against the petitioner for approaching the Additional Chief Secretary.
72. It is hereby made clear that KREDL would not be entitled to initiate disciplinary action against the petitioner for mere reason of the petitioner approaching the Additional Chief Secretary with her grievances, as indicated in the Office Memorandum dated 12.02.2021.
73. The learned Senior Counsel appearing for the petitioner contended that in the order passed in the present case (W.P. No.10801 of 2021) on 10.11.2022, KREDL had made a solemn statement before this Court stating that the petitioner, along with respondents 4 to 8, would be promoted to the six vacant posts that were available in the cadre of Technical Officer after conducting DPC Proceedings and despite this statement given by the
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NC: 2023:KHC:41723 WP No. 13596 of 2016 C/W WP No. 10801 of 2021 KREDL, an order has been passed stating that her promotion would be stalled by virtue of the disciplinary proceedings contemplated.
74. In light of the fact that I have already held that the proposed initiation of disciplinary proceedings against the petitioner was vitiated and the KREDL has been injuncted from proceeding further with the disciplinary proceedings, it would be necessary to direct the 2nd respondent to promote the petitioner to the post of a Technical Officer. However, it is made clear that the petitioner will be placed below respondents 4 to 8 in the cadre of Technical Officer.
W.P.No.10801 of 2021 is, accordingly, disposed of.
Sd/-
JUDGE RK/ PKS CT: SN