Karnataka High Court
Sri N S Prasad vs State Of Karnataka on 2 July, 2010
Bench: V.G.Sabhahit, A.S.Bopanna
| IN THE HIGH COURT OF BARNATAKA, BANGALORE, | DATED THIS THE 2% DAY OF -5, 2010 wn 3 PRESENT _ | | | THE HON'BLE MR. JUSTICE daa | | | THE HON'BLE MR. sustcE A. S. 'BOPANNA | WRIT APPEAL Nos. 1637-3 1643 1 of 201018: -RES) BETWEEN: 1. Sri. N.S: » Fase, Aged about: 57 yea Superinténadens: DS 1 Section, Bangalore Dey 'lopment utority: T. Chowdat: uy Road, Kunare Park W est Iextevisiort, ; Bangalore - 560 020. 2. St, G. 2. Huchegowda, ~ Aged beat 56 vears, First Division Assistant -ALAO See dion, Bangalore Development Aut thority. WY. Chowdaiah Road. * Kuynara Past West _ Extensions Bangalore ~ 560 020. Searing Sri BL R, Siddaganvaiah Aged about 58 Veu Irs, First Division Assistant ALAO Section, Bangalore Development Authority, ?. Chowdaiah Road, Kumara Past West. Extensions Bangalore ~ 560 020. Sri. G.V. Ch: andrashekaraiah, Aged about 55 years, First Division Assistant. DSI Section, Barigalore Deve jiopment Authorit Ivy. TC howde iah: Road, Kumara. Past West . extensions _ Bangalore - 560 020. Sri Balaraiu Ll Aged about 3h Vear Ss. First Division Assixt fant. DS HI See von, Bangalore Deve opment Auth Lerily, . PL Cho nwetatia ut Road, Ku tara Past 'West . - 27 NMEETISIONS Bangalore | 560 020, ori). Vv. Veerupakshappa, Ager labout 52 years, a irst Division Assistant SALAO See tion, 'Bangalore Deve lopment Aut thority. VT. Chowdaiah Road, Kumara Past West . Extensions Bangalore ~ 560 020 Sri. B.S. Ravishankar Aged about 52 years, First Division Assistant ALAO Section, _-- Bangalore Development Authority, T. Chowcdaiah Road. Kumara Past West. Extensions Bangalore ~ 560 020. ~] _ APPELLANTS (By Sri: B.G, Sridharan, Or, Counsel ter Sri: A.C. Balaraj. Ady | Ba ny AND : I. The State of Karnataka: . Represenied by iS Secret ary. Nousing and Urban Developirent Lo Jepartnier 1. M.S. Bui Iding. Bea galore - "560 00r. 2. The Banuotore. Developivent-Aait horit ty, oT). Chowdaiieh. Road, . Ruriar a Past West . Extensions, Bangalore -- 20, Rep 'esented. by its ©. Connttissianier. 3. "Smi. 1D. Mah ladevamma, Aged 'about 56 years Superintendent, -- BS TV Section, ~ Bangalore Development Authority, T. Choweaiah Road. Kumara Past West . EeXterisions Bangalore ~ 560 O20, , LO. Sri, Siddaramegowda, Aged about 59 years, First Division Assistant DS | Section, Bangalore De velopment Authority. T. Chowdaiah Road: Kumara Past West . extensions Bangalore -- 560 020 Sri. Bhojaiah, Aged about OF Vee Ins, First Division Assistant DS I (EST) Seet tion, Bangalore Development Authority, T. Chowe sti alt. Road:. Nuimare Past West. [Extensions Bangalore. 560 020» Sri oC. Pay duane. Aged cthout GU Veers:. First Division ASSisI fart UP -RO-Section: Bang: lore Development | ~. Authority? Chowdaiah Road, Ruarriz Ae Ps 1S West. . OE Xtensions. - Bangalore -- 260 020 Sri Do Ss. Nagaraj a Murthy, Aged about 56 Years, Fiest Division Assistant "DS I Section, Bangalore Deve lopment Authority.T. Chowdaiah Road. Kumara Past We St. EXLe TSIOVS Bangalore ~ 560 620 ori, M.S. dnanesh, Aged about 44 vears, First Division Assistant SALAO Section, Bangalore Development Authority, T. Chowdaiah Road: Kumara Past West , Extensions Barigalore ~ 560 020 om PT. Pejakuimari, Aged about 42 years First Division Assistie at DS Hl Section. Bangalore Development. Authority. tT Chowe laiahy Road. Kumara Past West a extensions Banga'ore: 5 BGO < 020° Sri LN. Ck hagad! nar, Age cd alot a. vears, First Biv ISiOll ASS sist: anny, West \ Viaje wanagar., , Barigalore Me velop: ne ru Autority. 1 Chowdaiah Road, Kanan: a Past West EEXte risiores ~ Bangalore - ~ 560 020 Sri. 13. M. Krishnamurthy. "Aged ahout 57 years, Fiest Wivision Assistant Re North (Kalvanagar Ward Office), Bangalore Developmertt os, Authority. T. Chowd: liah Roac. ere Past West. extensions Bangalore ~ 560 O20 .. RESPONDENTS (Dv Sri, Navanand. Sr. Counsel] for Sori, N.S. Sanjay Gowda. Ady. Sy. Vijayvkuariar, Adv.. for Stale} These Writ Appeals are filec| tiled Uss a of "ihe. Karnataka High Court Act Praying to set aside theordé: Passed in the Writ Petition No, 16623- 39/2008 cated 09: 7 OF 2010, , These appeals having been hedra arr reserved. for orders arid coming on for pronvt: PCCMCNL OF flragemersi this cle AY, Sabhahit WJ, delivercs aI ttre lollowings, mo : JUDGMENT
These appeals are filed. lay che Wisueeess fii petitioners in wp Nos, (6623. zor 5/08 being agerieved by the order dated dg 110 wher re ai the fearne d Single Judge of this Court has decline: 1 tO quash the final gradation list dated = 24081 2668. isstied by responderit-2-Barnigalore Development Authorivy Gn short BDA) as per Arnmexure-P to We writ petitien and tias dismissed the writ pelitions, The "appell ants herein filed WP Nos. 16523-35/08 sonia wis 'quashing ol the Vinal gradation fist dated
24. 1.2008 issued by the second respondent-BDA vide "Anmexure-H to the writ. petition and direct respondent-2 to me place petitioners above respondents 3 ta 13 in the post of
- First Division Assistant and LO re-Hx the scmoriy of the peuuioners and to issue such other writ. order ar direction 4, as this Horble Court Nay deem fii in the facts" and circunistances of the case.
3. His the contention of the appellants inthe writ petilion that they are employees of BDA. and | he. petitioners were directly Appointed to the post of First Division Assistant in the BDA ~ The list petition ler is concurrently working as Superintendent: whereas petitioners 20 13 are working as First, Division Assistants-in thie 2" respondent- BDA. The pelltioners are goveriied under ihe provisions of ilic Bangalore "Development Authority Cadre -- and Recruitment and Conditions of Service Regulations, | 995. Lis the case oF ihe appellants Wat respondents 3 io 15 are appointed. int the BDA under Various categories like Group- Beemployees, Second Division Assistants anc Respondent-
15 Swas promoted as First Division Assistant woe.
B.1O1997 apa Respondents Nos, 3 to & were promotect as I First Jivision Assistants Wwe.l 2.911.199) and Respondent NOS. 10 14 were promoted as First Division Assistants wet 28.17.1997, 40H is further averrec (hat in pursuanee of (he order { Passed by the Mon'ble Supreme Cort laving down (he \o Principle of "Equal pay for equal work' in the vear 1986, ihe Government of Karnataka by Us order dated 3.41986 © directed several authorities inehiding the get. respondent that all the employees working under ihe seid authorities be granted the same Pay ard allowances as are. avowed to» regular errployees of the respective cadres: WoC 1.11986 as per Annexure-A lo the Writ Petition and on the basis of said direction, the BDA cleciced LO extend the pay scales applicable te "Fegular employees lor all non-technical Sradiates Weh 1.1. 1986 by air offieta mMeniorancdiam dated bol, LOS? as her Annesiire 3 Lo the WHE petition. However, in the: said office' memorandum, the condiiion was incorporated: (hat the employees claiming berefits tinder *, the. Said official lneniorandum would vive an undertaking 2 that they wonld Not stake any claim for semlority over Second Division Clerks borne on regular and permanent + caelre : ag on 1,1.1986. Henee. the petilioriers were constrained fo give such an iidertaking before ihe Qne respondent as per Annexure-C to the wrif petition, 5S. Pursuant to the decision of the Horvble Supreme Court in Dharwad District Public Works Department io Literate Daily Wages Employees Association and Others -vs. Oo oaey > ' state of Karnataka and others reported in AIR 1990-SC BEB employees who have been appointed on or heloré LF LOR and who have completed. lOvears 'of service as, on S1.12.1989 shall be regularised weed. 1.1. r996, Acting upon the direction of the Hobie Supreme. Court, the BDA regularized the services of the petitioners' w.e.f.1.1.1990 and issued ari official commnimication/arder on 31.3.1997.
6. When tings stood thus. the Qu resporilent BDA, by noiitication "dated, 412,2001 published a provisional gradation"list of First Division Assistants as on December 2000 ard as per ihe said) provisional vracdation lst, ; respondents 8, and % were placed above resporicdents 3 to . 15. Having noticed this ¢lerical error, the BDA respondent- arranged | he semority list and published the final gradation "ist on 34.2002. Respondents 3.5 aud 7 being aggrieved of the. said final gradation list dated 3.4.2009. preferred Writ a Potition No.24526/2002 before this Couri and all the peliioners herein were arraveel as co-respordenis im the said writ petition. This Court, by order daied 13.3.2008 was WA pleased 16 allow the said writ peution in part and, quashed the final gradation list dared 3.4,2002 and retnanded. tire inalter Lo Respoudents 1 and 2 to issue the hiraleracdarion list afler hearing respondents 3. 5 ane 7 and" all other concerned. Subsequent to (hevremand Gf the proceeds, ihe second respondent issued ve. provisiortal gradation list cated 13.6,.2008 vide Anesxure-F, Mitel: to the shoelk and surprise of the petitioners, ames CH resperiderits 3 to 15 were placecl above that of Wie petitioners, Coming to know olf the aforesaid tacts, petitioners, I. Sand 9 Nled a deiailed staterrent of apiection as per Amiexure-6. Despite bringing Ihe above fact lo the hiotiee Of 2" respondents about the glaring defers S In {ie "provisional gradation list whieh has . beeir published on 24 "11,2008 virtually being replica of the © provisional gradation list and wherefore, the wri pelitiors for- abovesaid reliels. The eoriterntion -- of the Wes filec] © pelitioners was Uat 288 respondent was pot Justified in ~, Placirey respondents 4 to 15 above the petitioners, f. The petition was resisted by the respouderts. Learned Single Judge after considering the cortention of the leartied coinsel appearing for the parties, DV order Us deed 94.2010 hele that the appellants were hot recruited as per rules however. in view of the decision ofthe Hovebie Supreme Court, the pay seale was given on the: prineipte of "Equal pay for equal work' extending the reguiar salary to the petitioners ane services were revizlai fed! on iA, 1987 by treating mon-technical graduiites as Pirsi Division Clerks in ex-cadre posts. The si ordes tiselr specified that First Division Clerks in ex-cadre posts will cank below the permanent Sectrd Division : Clerks borne ou BDA establishment as on bil, i586 and all the petitioners gave individual Undertakings as per Arexure-R6 produced Mong WH objection. statement that they will not stale Claim of seurority over ihe Second Division Clerks working in BUA cadee as on P11 986.
mo 8. Stace respondents 3 to 1S were appointed in cadre of Second 'Division Clerks against sanetioned Vaeant posts between 41976 ard 1986. petitioners were appointed on NM R basis and on daily wages frorn 197] orwards. In view er undertakine given by the petitioners thai they will rot Clann seniority over the Second Division Assistants working in regular BDA cadre ov i.1.996. the semloriy list has heen \yw Fe) prepared and accordingly following the Judgment of Homble Supreme Court in Ram Ganesh Tripathi. and others vs. State of UP and others (AIR [email protected]. 1448) . held that the regularisation is cnily prospective and rot refrospeclive and seniority bis to be counted itp the cadre ancl net earlier to it and in view of decision of the Horvble Supreme Courrt the regular'sation of 'the services of the pelitioners on 2. 12. 1991 is. prospective in lature arid the same will nok aifeci the sertiority of respondents. Thus the learned Single Judge held thas the wil petitions are devoid oFinerit and-dismissed the same accordingly.
OQ Beir agarieved by the dismissal of the writ petifions, the writ petitioners have preferred these appeals.
"We have heard the learned Sr.Counsel appearing for the Cappellanits. earned Sr.Counsel appearing lor caveator Respondent-8 and the learned Govt.Advocate -- Tor "Respondent-State.
1O. The learned Sr.Counsel appearing for the appellants submitted that the services of the petitioners were regularised however, they were forced to give \ > 14 undertaking that they will not claim SCMHOTIIY (over che regular BDA cadre Seconc Division ASSISLaNIS "as. Cn > 1.4.1986 and the appointment of responaerits. 3 to 15 is subsequent to the date on Which The pefitiqner-anypetlaris * were appointed) and the learned Single Jadige was not fustified in relying pen the lecision of Hon'ble Supreme Court in Ram Ganesh Tripathi and others vs. State of UP and others (AIR 1997 SC 1446). "Phe leamed Single Judge ought to "have allowed "he writ: petitions and the order of dismissal of writ petitions is liable to be set aside. LP, On the other tiand. learned Sr,Counsel Appearing:
Subimiittect Lac ex-cacdre for Ce We "u Ol- respo dent designation £0 the Firs Division Clerk post was given "sabjest to "ihe undertaking which was given by thie petitioners. thay they will not claim SCINOPIY Over respondeniae 3 la iS anc the learned Sr. Course) further "submitted (hat in Writ Petition 24526/02 filed by responeents O10 15 order was passed on 13.38.2008 and
- he matter was remanded alier quashing the final gradation ist dated 3.4.2002 and therein i is elearly stated that + Placement of respondents 3 to 38 shal Nol He disturbed is until final gradation fist is issued DV Lhe respondents, and since the petitioners are not appointed in the regular cadre and were given promotion tO ex-casire "Bests and respondents 3 to 15 were appointed tay regular posts in the cadre and were promote, The seniority jist published py the seeond respondent js justified and does not call for interference fr this Appel and the jearred Single Judge is justified and the appeals are devoid of merit: i2.
We have given careteal consideration to the contentions fal the learned counsel for the parties and scrutinized? the mderiaf anreesed.
13. The material on record wold clearly show that . the appellants hereiiy were appomted in different cadres on . NMR. basis and they were placed in NMR whereas respondents 2 to iO were appointed in regular posits and "were promoted in the seniority lst of Second Division O Assistants as on 11.1986. In view of decision of the Hon'ble Supreme Court regarding "Equal Pay lor Equal Work' 0 the ex-cadre POSES were created and petitioners were promoted to the ex-cadre PpOSLtS aie petitioners have oy fe given undertaking that they will not elaing seniority ever the Persons who are in the official gradation lis of Second Division Assistants as on 1d, i986. Though it iss contended that the said Undertaking was given Oily 16: get promotion, and obtained with force, the Said contention Is net at all subsiantiated. Even otherwise, if Js.well settled in View of decision of the Hom'bie, 'Supre he Couiet relie d upor by the learned Single Judge iy, M idalainnithar Vs. State of famil Nada (AIR 2006. SC 2662) 'auth. we 0 in the light of the Principles raid down? by. the Hon'ble Supreine Court in the Case A Seerdsiuy State . OL Karniatake & Others -.vs-
Umadevi§ Others {AIR 2006 SC LS06). that respondents 3 fo 15 who have been appointed In the regular substantive . posis availible in the cadre and they have been promoted tet) Te posi « or e inst Division Assistants who we re Borne on the 'hal erachation list of Second Division Assistants as ori cae i 1986 ere eniitled to SCrHOriLy Over the peltioners who ow ere appoint ed in the ex-cadre POSES ara not appointed io "the cadre and they were appointed as NMR and iheir os services were regutarised only in the year 1986 and were Promoted. All of them have been appointed iy the ex-cacdre we ie, posts and therefore. regularisation world always : be Prospective anc rot retrospective, Respondents 5 to 15 whe are appointed according to Rules, in ihe cadre ior the substantive posts and were promoted: to the FDA post should be given SCMMOVILY over the petitionets whe are not appointed to the cadre in the eadre for Substantive posts and were promoted in the ex-eadse post-and they are later regularised which is clear from the' order 'passed by the icarned Single Jndge upholding he fitial seniority list is Justified arc it Cannét-at ail said fo be sultering fram error or Heevality Fs to Call tor Gur ioberfererice iy this tnitra-court appeal. Accordingly. the vappellanis are not entitled for the relich sought for ja these appeals, ban rhe AW rit Appeals are dismissed.
Sd/-
JUDGE Sd/-
JUDGE