Karnataka High Court
Sri M Sripathy vs Sri H B Venugopal on 3 October, 2012
Bench: N.Kumar, H.S.Kempanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 03RD DAY OF OCTOBER, 2012
PRESENT
THE HON'BLE MR. JUSTICE N.KUMAR
AND
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
W.P. NOs.19184/2012 & 19329/2012 (S-KAT)
C/W
W.P. NOs.19185/2012 & 19330/2012 (S-KAT)
W.P. NOs.19184/2012 & 19329/2012 (S-KAT)
BETWEEN
SRI M SRIPATHY
S/O B.M. MALLAIAH
AGED ABOUT 44 YEARS
LECTURER / HEAD OF THE SECTION
HEAT, POWER, TECHNOLOGY SECTION,
SR. JAYACHAMARAJENDRA
GOVT. POLYTECHNIC,
SESHADRI ROAD,
BANGALORE - 560 009 ... PETITIONER
(BY SRI.P.S.RAJAGOPAL - SR. COUNSEL FOR
SRI. B B BAJENTRI - ADV.)
AND
1. SRI H B VENUGOPAL
S/O LATE J.T.BETTAIAH
AGED ABOUT 50 YEARS
SELECTION GRADE / HEAD OF THE SECTION
DEPT. OF AUTOMOBILE ENGINEERING
SRI.JAYACHAMARAJENDRA
GOVT. POLYTECHNIC
SHESHADRI ROAD,
BANGALORE - 560 009
2
2. SRI.L CHANDRASHEKAR
S/O LATE SRI. C. LINGAIAH
AGED ABOUT 53 YEARS
SELECTION GRADE LECTURER
CPC GOVERNMENT POLYTECHNIC
MYSORE-570007
3. THE STATE OF KARNATAKA
BY ITS PRINCIPAL SECRETARY
HIGHER EDUCATION, EDUCATION DEPT.
M.S. BUILDING
BANGALORE-01
4. THE DIRECTOR
DEPARTMENT OF TECHNICAL EDUCATION
PALACE ROAD
BANGALORE-01
5. SRI S VIJAYKUMAR
S/O SIDDAIAH,
AGED ABOUT 43 YEARS,
HEAD OF SECTION,
CHMICAL ENGINEERING DEPT.,
SRI JAYACHAMARAJENDRA
GOVT. POLYTECHNIC,
SHESHADRI ROAD,
BANGALORE - 560 009
6. ALL INDIA COUNCIL FOR TECHNICAL
EDUCATION, I.G. SPORTS COMPLEX,
I.P. ESTATE, NEW DELHI - 110 002
(R-6 IS IMPLEADED VIDE COURT ORDER
DATED 01.08.2012) ... RESPONDENTS
(BY SRI.S V NARASIMHAN- ADV. FOR C/R2,
SMT.REVATHY ADINATH NARDE - HCGP FOR R-3 & R-4
SRI.SUBRAMANYA JOIS - SR. COUNSEL FOR
SRI.RANGANATH S JOIS - ADV. FOR R-1,
SRI.P.S.DINESH KUMAR ADV. FOR R-6,
NOTICE NOT ORDERED IN R/O R-5)
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO QUASH THE ORDER DTD.13.6.12 PASSED BY
3
THE TRIBUNAL IN A.NO.727/2009 AND 414/2009 VIDE
ANNEX-A AND ETC.,.
W.P. NOs.19185/2012 & 19330/2012 (S-KAT)
BETWEEN
SRI S VIJAYKUMAR
S/O SRI G SIDDAIAH
AGED ABOUT 45 YEARS
LECTURER/HEAD OF THE SECTION
CHEMICAL ENGINEERING SECTION,
SRI JAYACHAMARAJENDRA ,
GOVERNMENT POLYTECHNIC,
SHESHADRI ROAD,
BANGALORE - 560 009 PETITIONER
(BY SRI. J PRASHANTH -ADV.)
AND
1. SRI H B VENUGOPAL
S/O LATE J T BETTAIAH
AGED ABOUT 49 YEARS
SECTION GRADE/HEAD OF THE SECTION
DEPARTMENT OF AUTOMATICALLY ENGINEERING
SRI JAYACHAMARAJENDRA, GOVERNMENT
POLYTECHNIC, SHESHADRI ROAD,
BANGALORE- 560 009
2. SRI L CHANDRASHEKAR
S/O LATE SRI C LINGAIAH
AGED ABOUT 53 YEARS
SELECTION GRADE LECTURER
CPC GOVERNMENT POLYTECHNIC
MYSORE- 570 007
3. THE STATE OF KARNATAKA
BY ITS PRINCIPAL SECRETARY
HIGHER EDUCATION , EDUCATION DEPT.,
M S BUILDING,
BANGALORE- 01
4. THE DIRECTOR
DEPARTMENT OF TECHNICAL EDUCATION
PALACE ROAD,
4
BANGALORE- 560 001
5. M SRIPATHI ,LECTURER
AGED ABOUT 44 YEARS,
HEAD OF SECTION, HEAT POWER
TECHNOLOGY DIVISION,
SRI JAYACHAMARAJENDRA GOVERNMENT
POLYTECHNIC, SHESHADRI ROAD,
BANGALORE-9.
6. ALL INDIA COUNCIL FOR TECHNICAL
EDUCATION, I.G. SPORTS COMPLEX,
I.P. ESTATE, NEW DELHI - 110002
(R-6 IS IMPLEADED VIDE COURT ORDER
DATED 01.08.2012) ... RESPONDENTS
(BY SRI.S V NARASIMHAN- ADV. FOR C/R2,
SRI.SUBRAMANYA JOIS - SR. COUNSEL FOR
SRI.RANGANATH S JOIS - ADV. FOR C/R-1,
SMT.REVATHY ADINATH NARDE - HCGP FOR R-3 & R-4,
SRI.P.S.DINESH KUMAR- ADV. FOR R-6)
NOTICE NOT ORDERED IN R/O R-5)
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO QUASH THE ORDER DTD.13.6.12 PASSED BY
THE TRIBUNAL IN A.NO.727/2009 AND 414/2009 VIDE
ANNEX-A AND ETC.,.
THESE WRIT PETITIONS COMING ON FOR ORDERS
THIS DAY, N. KUMAR J., MADE THE FOLLOWING:-
ORDER
These two writ petitions are preferred challenging the common order passed by the Tribunal setting aside the notification dated 15.12.2008 issued by the first respondent according retrospective promotion to these 5 petitioners with effect from 22.9.1987 and granting the consequential reliefs.
2. For the purpose of convenience the parties in these petitions would be referred to by their rankings as they are arrayed in the application before the Tribunal.
3. Sri.H.B.Venugopal, the applicant in Application No.727/09 and Sri.L.Chandrashekar, the applicant in Application No.414/09 are holders in diploma in Automobile Engineering. On selection by the Karnataka Public Service Commission, they joined service as Asst. Lecturers on 27.2.1987 & 3.9.1987 in the Government polytechnic. Later after completion of 5 years service as Asst. Lecturer, they were promoted as lecturers with effect from 15.4.1993 and 3.9.1992 respectively. Subsequently, they were promoted as Senior Grade Lecturers and thereafter as Selection Grade Lecturers.
3.1. Respondent No.3- Vijaykumar joined the services as lecturer in Government Polytechnic on 27.12.1993 in Chemical Engineering, whereas, respondent No.4 - Sripathy joined the service as 6 Lecturer in Govt. Polytechnic on 4.4.1994 in Heat power technology. By an order dt.18.9.1997, respondent No.4- M.Sripathy was placed in charge of the post of Head of Section in Heat Power Technology under Rule 32 of the KCSR. Similarly, third respondent- Vijaykumar was also placed in charge by an order dated 19.9.1997 as head of Section- Chemical Engineering under Rule 32 of KCSR. Accordingly, both of them reported for duty on 22.9.1997. Thereafter, by an order dated 15.12.2008, they were promoted to the aforesaid post with retrospective effect from 22.9.1997. This order was challenged by the applicants before the Karnataka Administrative Tribunal.
3.2. They contended when a Government order dated 18.7.1984 was passed extending the revised AICTE pay scale to the teachers of Govt. Polytechnic and Grant-in-aid Polytechnic in Engineering Subjects, Humanities and Science, the post of head of section was abolished. Therefore, by an order dated 15.12.2008 they could not have given retrospective promotion to these respondents. Secondly, it was contended the said 7 promotion is given under The Karnataka Education Department Service (Technical Education Department) (Recruitment) Rules 1987 (for short hereinafter referred to as '1987 Rules') prescribes the minimum qualification for posts not covered by AICTE. For such posts, the qualification as prescribed in the said Rules shall apply. Group B deals with Heads of Section Polytechnics. In that there are two categories. The second is, 'Head of Section (Specialised Courses in Engineering). The method of recruitment is by promotion from the cadre of Lecturer in the respective branch of Engineering. If no suitable person is available for promotion, by direct recruitment. Insofar as minimum qualification prescribed for promotion must have put in less than 5 years of service in the cadre specified in coloumn No.2. Though respondents 3 and 4 had not completed this minimum 5 years service in the cadre of lecturer, they were placed in charge of the said post under Rule 32 of the KCSR. Subsequently relying on Rule 2(3) of the Karnataka State Civil Services (Regularisation of Promotion, Pay and Pension) Rules, 1973 by an order 8 dated 15.12.2008 retrospective promotion was given from the day they were placed in charge in the said post under Rule. 32. However, on 26.3.2007, the said Rules of 1987 were repealed and the Karnataka Education Department Service (Technical Education Department) (Recruitment) Rules, 2006 was made. In the said Rules the aforesaid designation was omitted. In other words, on the day the retrospective promotion was given i.e. 15.12.2008, the post to which they gave retrospective promotion was not in existence and therefore, it was contended that such a retrospective promotion is illegal and requires to be set aside.
3.3. Respondents 3 and 4 defending the action of the authorities contended under 1987 Rules, as the subjects in which they had expertised, they were the only candidates available in the polytechnic and therefore, by a Govt. Order dated 26.11.1982 for the purpose of promotion, the period of qualifying service was reduced to three years and therefore, on the day they were placed in independent charge under Rule 32 they had completed three years of service and therefore, 9 the order placing them in independent charge under Rules 32 is valid and legal.
3.4. Rule 2(3) of the Rules, 1978 provides for retrospective promotion and accordingly, the order dated 15.12.2008 granting retrospective promotion is valid and legal. Placing them in independent charge under Rule 32 was never questioned by the applicants. Therefore, they are estopped from questioning the retrospective promotion dated 15.12.2008. That apart both of them are not graduates in Engineering. They are diploma holders and therefore, they have no locus standi to challenge the said retrospective promotion. It is their case that once retrospective promotion is given, in the seniority list they moved higher to that of the applicants. Therefore, though they joined the service much later than the applicants, by virtue of such promotion to the next higher grade they were seniors. Therefore, it was contended that the impugned order is valid and legal. It was also contended grant of pay scale by virtue of a Government Order according to the prescriptions of the AICTE is nothing to do with the 10 promotional opportunities and therefore, they cannot be mixed up together.
3.5. For the aforesaid reasons they contended that the impugned order was valid and legal and does not suffer from any legal infirmity.
3.6. The Tribunal on consideration of the rival contentions after taking note of the relevant provisions and the Rules as well as the Government order held that the respondents were not eligible for promotion to the post of Heads of Section as on the relevant dates on which they were placed on independent charge and also for not having put in stipulated number of years in the earlier cadre and therefore, confirmation of promotion in that cadre from that date is not valid. They did not find any justification to read down and consider retrospective promotion from the date respondents 3 and 4 became eligible as the very incharge arrangement was void and not in accordance with the C&R Rules in existence. It was also not in compliance with the provisions of the K.C.S (R-PPP) Act and therefore, they 11 quashed the impugned notification. However, they have also observed the post of head of the Section under the 1987 Rules cannot be bifurcated from the pay scale it carries and with the introduced of AICTE pay scales to the hierarchy of lecturers, the posts of head of sections as promotions posts were not available to the lecturers who have opted for AICTE pay scales. Admittedly, respondents 3 and 4 had been extended with AICTE pay scales and having opted with pay scales they cannot claim promotions to the said pay scale posts. Therefore, any promotion given to a post in the said pay scale or even in charge arrangement to a person who have opted for AICTE is void and is not recognisable for any benefit in law. It also held that the applicants have locus standi to challenge the impugned order as it affects their rights to promotion to the post of the Principal.
Aggrieved by the said order the respondents 3 and 4 have preferred these two writ petitions.
4. The learned Senior Counsel appearing for the petitioners contended though respondents 3 and 4 had not completed 5 years of service as lecturers which is 12 the qualification prescribed for being promoted to the post of head of section, as they were the only persons in the respective departments where they were working and as they belong to schedule caste and schedule tribe, by virtue of the Government order dated 26.11.1982 they were eligible to be considered for promotion. Therefore, it cannot be said that when they were placed in charge under Rule 32 they did not satisfy the minimum qualification prescribed. 1978 Rules provides for retrospective promotion. Admittedly, the order dated 15.12.2008 is passed giving retrospective promotion from the date he was placed in charge under Rule 32 and therefore, he submits there is no illegality in the impugned order.
4.1 Even if it is to be held that they had not completed five years of service as lecturers, on the day they were placed in charge, they were eligible for the said benefit after completion of five years and therefore, the retrospective promotion granted on 15.12.2008 instead of giving them promotion from the date they were placed in charge, it could be construed as the date they 13 completed five years of service. If such a course is adopted then, they would be seniors to the applicants and the applicants cannot have any grievance. He further contended though respondents 3 and 4 opted for AICTE pay scale i.e. only with reference to the pay scale it has no relevance insofar as the promotion is concerned. It is governed by 1987 Rules. In fact, in the earlier proceedings the Tribunal directed that the promotions have to be governed by the Rules notwithstanding the fact AICTE pay scale has been extended to these persons. Therefore, till the said Rules were repealed on 26.3.2007, a right accrued to respondents 3 and 4 was sought to be protected by the impugned order giving effect to that right. Under those circumstances, the Tribunal was not justified in setting aside the order. It is illegal and therefore, requires to be set aside.
5. Per contra, the learned senior counsel appearing for the applicants submitted admittedly respondents 3 and 4 could not have placed in charge of the next higher post under Rule 32 as they had not 14 possessed of requisite qualification of five years. Even though the Government Order was passed, the said Government order specifically stated that in terms of the Government order, amendment is to be carried out to the existing rules and only then the order would have effect. As admittedly no amendment was carried it is the Rules which governs the parties and not the Government order. Therefore, the initial promotion placing them in independent charge is void ab-initio which cannot be validated subsequently and retrospectively as held by the Apex Court and therefore, the order giving retrospective promotion is void ab initio and rightly the Tribunal set aside the order.
5.1. Once AICTE pay scale is made applicable, the said Government order categorically states that the post of head of sections stands abolished. In fact, respondents 3 and 4 were directly recruited after the said Government order and therefore, they could neither have been placed in charge under Rule 32 nor they could have been retrospectively placed relying on the Rule which has no application which stood repealed on 15 the date it was passed. Therefore, he submits that the order of the Tribunal is legal and valid and does not call for any interference.
6. From the aforesaid material on record and the rival contentions, the facts that emerge are as under :-
The applicants are diploma holders. They were recruited to the post of Asst. Lecturer on 15.4.1988 and 3.9.1987 respectively. On completion of 5 years of service in the cadre of Asst. Lecturer they were promoted on 15.4.1993 and 3.9.1992 respectively.
Respondents 3 and 4 were Direct Recruitees as they possessed degree in Engineering. They were recruited on 27.12.1993 & 4.4.1994 directly as lecturers. Therefore, the applicants were seniors to respondents 3 and 4 in the cadre of lecturer. On the day respondents 3 and 4 were recruited, subsequent to their appointment on 18.7.1984, the Government order extending AICTE scale was passed giving retrospective effect from 1.4.1993. The said scale is applicable only if the employees who have opted for it. It is not in dispute 16 that respondents 3 and 4 opted for AICTE scale. In fact, the scale was not initially made applicable to diploma holders. They had to approach the Tribunal alleging discrimination and ultimately the said scale was extended to them also. The effect of extending AICTE scale is the said scale of pay and schemes applies only to the teachers of Government and Aided Polytechnic/Institutions in the State Engineering Subjects, Humanities and Science. The scheme shall however not apply to those who specifically exercise an option in writing to remain out of it. All teachers of the above mentioned subjects appointed after the date from which the scheme has been given effect to will be governed by the provisions of the Scheme. The said pay scale was given effect from 1.4.1993. It is only after that date respondents 3 and 4 were appointed. Consequent upon introduction of the revised AICTE scales of pay, the existing staffing pattern in the Polytechnic Institutions underwent complete change and it consists of the following cadres with the pay scale noted against them.
17Sl. Designation Revised AICTE Pay Scale No. 1 Lecturer Rs.2200-75-2800-100-4000 2 Lecturer Rs.3000-100-3500-125-5000 (Senior Scale) 3 Lecturer Rs.3700-125-4950-150-5700 (Selection Grade) Consequently there will be no separate cadre of head of Section or Principal, carrying independent pay scales. The senior most Lecturer/Lecturer (Senior Scale), Lecturer (selection grade) scale, as per the inter se seniority being determined on the basis of their initial appointment in the respective cadres shall act as Principal. The next senior most Lecturer/Lecturer (senior scale)/Lecturer (selection grade) in each department/selection of the polytechnic shall act as Head of Department. The AICTE scales of pay was extended only to the teachers of engineering subjects and humanities and Science covered under AICTE scheme and the State scales of pay in the posts of Lecturers, Heads of Section, Principals and Senior Principals.
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6.1. Therefore, if once a lecturer opts for the AICTE scales then, he would be eligible for further promotion as mentioned therein with the pay scale attached to the said post. For the purpose of seniority it is the initial appointment in the respective cadre which has to be taken into consideration as the basis for selecting the Principal. No doubt, in pursuance of the said Government order, the existing Rules were not amended. It is because those who opted to remain out of AICTE scales are governed by the said Rules. It is after the application of the AICTE scales, respondents 3 and 4 were placed in charge as head of section under Rule.32.
Rule 32 of the KCSRs reads as under :-
32. Instead of appointing a Government servant to officiate, it is also permissible to appoint him to be in charge of the current duties of a vacant post. In such a case a "charge allowance" (additional pay) is payable as specified in Rule 68.
Note 1 appended to the said Rule reads as under 19 A Government servant can be appointed under this Rule to be in-charge of the current duties of a vacant post only if he is eligible to be promoted to officiate in that post according to the Cadre and Recruitment Rules applicable to that post or if he is holding a post in an equivalent or higher grade.
Therefore, according to the said Rule unless a Government servant is eligible to be promoted to officiate in the post, he cannot be placed in charge of the said post. 1987 Rules on which reliance is placed prescribes the eligibility criteria.
6.2. For the post of Head of Section (specialised post of engineering), the method of recruitment prescribed is by promotion from the cadre of lecturer in the respective branch of engineering if no suitable person is available, by direct recruitment. The minimum qualification prescribed for promotion is, must have put in not less than five years of service in the cadre specified in coloumn (2) i.e. 5 years of service as lecturer in the respective branch of engineering is the eligibility prescribed for promotion which condition is to 20 be satisfied if the Government servant is placed in charge of Rule 32 also.
6.3. Admittedly respondents 3 and 4 did not possess the qualification viz. five years of service. Therefore, placing them on independent charge on 18.9.1997 is per se illegal. They rely on the Government Order dt.26.11.1982 wherein the PWD Recruitment Rules relating to the post of Executive Engineers was modified by the introduction of a proviso to the effect that if the officers who have put in minimum service of five years are not available, an officer who has put in three years of service may be considered for promotion. Relying on the said provision, the Government order said it is necessary that similar amendment should be introduced in other departments also wherein it is not possible to fulfil the reservation quota in promotion.
6.4. In terms of the said Government Order it was open to the Government to have amended the 1987 Rules. Admittedly, no amendment to the said Rules incorporating the proviso to the above said effect was 21 effected. Therefore, the Rules continue to prescribe five years of service. Therefore, the said Government order is of no assistance to respondents 3 and 4. Their initial appointment is illegal and void ab initio.
6.5. When things stood thus, on 23.6.2007, instead of amending the said Rules, the said Rules were repealed by Karnataka Education Department Services (Technical Education Department) Recruitment Rules, 2006 under which the said post of Head of Section was omitted from the Rules.
6.6. Rule 3 of the said Rules stipulate that 1987 Rules were repealed provided that such repeal would not affect anything done or any action taken under the said Rules, any right accrued or any obligation. It is under the Repeal Rules, these respondents 3 and 4 were placed in independent charge relying on Rule 32 of the KCSRs. As the said order placing them incharge was contrary to Rule 32 even that was void ab intitio. No right accrued to respondents 3 and 4 under the old Rules. When that being the case by the impugned order dated 15.12.2008 as per Annexure-A8, these two 22 respondents were promoted to the post of Head of Section from 22.9.1997. On the day this retrospective promotion was given under the Rules governing the parties, there was no post of Head of Section. If under the said order they were retrospectively promoting respondents 3 and 4 from 22.9.1997 when they were placed in independent charge under Rule 32, the Rules of 1978 categorically provides, while being eligible according to the seniority in the list that was in force and otherwise fit for promotion according to the Cadre and Recruitment Rules have only been placed in independent charge and have been discharged duties in the said post, then only the retrospective effect to the said promotion can be given.
6.7. As set out above, respondents 3 and 4 were not eligible to be promoted on the date they were placed in independent charge and unless they were eligible, question of retrospectively promoting them under Rule 2(3) the 1978 Rules does not arise. It is in this context it is necessary to refer to the latest judgment of the Apex Court in the case of State of Orissa and another - vs - 23 Mamatha Mohanty reported in (2011) 3 SCC 436, at paragraph 37 it is held as under :-
37. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be nonest and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin. (Vide Upen Chandra Gogoi v.
State of Assam, Mangal Prasad Tamoli v.
Narvadeshwar Mishra and Ritesh Tewari V. State of U.P.) 6.8. Therefore, the initial order placing respondents 3 and 4 in independent charge under Rule 32 of the KCSRs on 18.9.1997 and 19.9.1997 is bad in law, void ab initio. By an order dated 15.12.2008 24 neither retrospective promotion could have been given nor it could have validated. Therefore, the Tribunal was justified in setting aside the said order on that score. No fault could be found with the order of the tribunal.
6.9. When the applicants approached the Tribunal challenging the order dt.15.12.2008, an interim order directing the respondents not to precipitate the promotion of respondents 3 and 4 was granted. It was extended from time to time. However, on 19.2.2009 it was modified to the effect that the promotions are granted, those promotions were subject to the decision of the application and accordingly, initially they were placed in charge arrangement to the promotional post and by the order dt.14.11.2001, they were promoted subject to the result of the application before the Tribunal. The Tribunal has set aside the order. We have upheld the said order. Therefore, what follows is, all the promotions given to respondents 3 and 4 are void ab initio and stand cancelled. Similarly as directed by the Tribunal, the seniority list of persons who are earlier holding the post of lecturer is to be redone in 25 accordance with the guidelines issued in the Government order extending AICTE pay scale. After preparing the gradation list in the aforesaid manner taking into consideration the initial appointment in the cadre as the basis, persosns who are eligible for promotion in accordance with the 2007 Rules shall be granted.
7. Accordingly, we do not see any merit in the writ petitions. The writ petitions are dismissed. Parties to bear their own costs.
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