Karnataka High Court
Sri T Puttaswamy vs Karnataka Power Transmission ... on 7 February, 2020
Author: S.Sujatha
Bench: S.Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7th DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MRS.JUSTICE S.SUJATHA
WRIT PETITION No.16398/2018 c/w
W.P.No.12589/2018 (S - PRO)
IN W.P.No.16398/2018:
BETWEEN:
1. SRI T.PUTTASWAMY
S/O LATE THIMMAIAH
AGED 44 YEARS
ASSISTANT EXECUTIVE ENGINEER (ELEC)
K3 SUB DIVISION, BESCOM,
KAGGALIPURA, BANGALORE - 560116
2. SRI C.UMESH
S/O LATE CHIKKAGOWDA
AGED 49 YEARS
O & M SUB DIVISION,
V.V.MOHALLA, MYSORE - 577002
3. SRI RAJU H.G.,
S/O Mr. GAVI RANGAPPA
AGED 46 YEARS
O & M CESC SUB DIVISION
BILIKERE, HUNSUR TALUK
MYSORE - 571103
4. SRI KUMAR R.,
S/O Mr. RAMANNA, AGED 53 YEARS
220 K.V. HOODY RECEIVING STATION
MAHADEVAPURA POST,
BANGALORE - 560048 ... PETITIONERS
[BY PROF. RAVIVARMA KUMAR, SENIOR COUNSEL FOR
SMT.G.SHARADA BAI, ADV..]
-2-
AND:
1. KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED
REP BY THE MANAGING DIRECTOR
CORPORATE OFFICE, KAVERI BHAVAN
K.G.ROAD, BANGALORE - 560009
2. KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED
REP BY THE DIRECTOR (ADMIN & HR)
CORPORATE OFFICE, KAVERI BHAVAN
K.G.ROAD, BANGALORE - 560009
3. SRI RAGHAVENDRA PRASAD BABU
AGED ABOUT 40 YEARS
ASSISTANT EXECUTIVE ENGINEER (ELEC)
220KV MUNIRABAD POWER HOUSE,
KPTCL, MUNIRABAD - 583234
4. SRI KIRAN M.S.,
AGED ABOUT 37 YEARS
ASSISTANT EXECUTIVE ENGINEER (ELEC)
BMRCL (DEPUTATION),
DEEPANJALI NAGAR
BANGALORE - 560026
5. SRI PHANI RAJESH
AGED ABOUT 39 YEARS
ASSISTANT EXECUTIVE ENGINEER (ELEC)
C & M GESCOM, HOSPET - 583201
6. SRI MATHAPATI MURAGHENDRAYYA
AGED ABOUT 41 YEARS
ASSISTANT EXECUTIVE ENGINEER (ELEC)
O & M CITY SUB DIVISION,
GESCOM, GULBARGA - 585101
7. SRI NATARAJ H.M.,
AGED ABOUT 38 YEARS
ASSISTANT EXECUTIVE ENGINEER (ELEC)
HT RATING SUB DIVISION GESCOM
HOSPET - 583201
-3-
8. RAMESH KUMAR P.C.,
S/O P.V.GOVINDA CHETTY
AGED ABOUT 43 YEARS
ASSISTANT EXECUTIVE ENGINEER
WORKS UNIT, BESCOM
KANAKAPURA DIVISION,
KANAKAPURA-562117
9. SADASHIVA N.,
S/O NANJAPPA,
AGED ABOUT 39 YEARS
ASSISTANT EXECUTIVE ENGINEER
O/O CHIEF ENGINEER (ELEC)
SLDC, KPTCL,
RACE COURSE ROAD,
A.R.CIRCLE,
BENGALURU-560009
10. NAVEEN B.C.,
S/O CHIKKAMUDDAIAH B.C.,
AGED ABOUT 35 YEARS
OFFICE OF THE ASSISTANT
EXECUTIVE ENGINEER (ELECL)
S-12, O & M SUB DIVISION
1ST A CROSS, GOURAVNAGAR
J.P.NAGAR, 7TH PHASE,
BESCOM, BENGALURU-560078
11. NAGARAJU H.M.,
S/O MARIGOWDA,
AGED ABOUT 40 YEARS
OFFICE OF THE ASSISTANT EXECUTIVE
ENGINEER (ELECL)
S-19, O & M SUB DIVISION,
ANUGRAHA LAYOUT, 60 FEET ROAD,
VIJAYA BANK LAYOUT,
BESCOM, BENGALURU-560076
12. RAGHU T.,
S/O THIMMAIAH B.,
AGED ABOUT 37 YEARS
OFFICE OF THE CGM (PROJECTS)
CORPORATE OFFICE,
K.R.CIRCLE, BESCOM, BENGALURU-560001
-4-
13. LOKESH B.C.,
S/O CHIKKEGOWDA B.P.,
AGED ABOUT 36 YEARS
OFFICE OF THE ASSISTANT EXECUTIVE
ENGINEER
S-7, O & M SUB DIVISION
3RD CROSS, ASHWATHNAGAR,
MARATHALLI, BENGALURU-560007
14. K.H.MURALIDHARA
K.S.HANUMANTHE GOWDA,
AGED ABOUT 36 YEARS
WORKING AS ASSISTANT EXECUTIVE
ENGINEER
S-15 SUB DIVISION, BESCOM,
BMTC BUS COMPLEX,
SRI VIDHYANAGARA BUS STOP
BANASHANKARI III STAGE,
BENGALURU-560085.
15. S.VINAY KUMAR
S/O B.SHIVALINGAIAH
AGED ABOUT 40 YEARS
WORKING AS ASSISTANT EXECUTIVE
ENGINEER, F-10 SUB DIVISION
BESCOM, PAI LAYOUT,
MAHADEVAPURA POST,
BENGALURU-560016.
16. B.G.MANAMOHANA PRIYANKA
AGED ABOUT 35 YEARS
WORKING AS ASSISTANT EXECUTIVE
ENGINEER (ELE)
O/O CHIEF ENGINEER (ELEC)
PRASARANA BHAVAN,
FTS COMPOUND, KPTCL, MYSORE
17. D.INDRANI,
AGED ABOUT 40 YEARS
O/O SEE, Tr. (W & M) CIRCLE,
FTS COMPOUND, KPTCL, MYSORE
18. T.HEMALATHA
AGED ABOUT 40 YEARS
-5-
AIDC, C/O SEE, Tr. (W & M) CIRCLE,
FTS COMPOUND, KPTCL, MYSORE
19. K.B.SHIVAKUMAR
AGED ABOUT 34 YEARS
WORKING AS ASSISTANT EXECUTIVE
ENGINEER (ELEC) O & M DIVISION
CESC, HOLENARASIPURA.
20. Y.K.SANTHOSH KUMAR
AGED ABOUT 36 YEARS
CHAMARAJANAGARA MAJOR
WORKS SUB DIVISION
FTS COMPUND, KPTCL, MYSORE.
(CAUSE TITLE AMENDED VIDE
COURT ORDER DATED 30.10.2019) ...RESPONDENTS
[BY SMT.SHUBHA S., ADV. FOR R-1 & R-2;
SRI D.N.NANJUNDA REDDY, SENIOR COUNSEL FOR
SRI REUBEN JACOB, ADV. FOR R-3, R-5, R-6, R-8 TO R-13;
SRI K.C.SHANTHAKUMAR, ADV. FOR R-4;
SRI SHIVAPRASAD SHANTHAN GOWDAR, ADV. FOR R-14 - R-20;
R-7 IS SERVED.]
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
REVISED FINAL SENIORITY LIST AS ON 01.05.2017 PUBLISHED
ON THE WEBSITE OF RESPONDENT CORPORATION DATED
27.10.2017 (VIDE ANNEXURE-A), INSOFAR AS IT PLACES ALL
THE 325 DIRECT RECRUITS (STARTING FROM RESPONDENTS
3-7) ABOVE THE PETITIONERS AND SIMILAR CIRCUMSTANCED
PROMOTEES PROMOTED ON AND AFTER THE DIRECT
RECRUITMENT OF THE AFOREMENTIONED PERSONS, IN THE
CADRE OF ASSISTANT EXECUTIVE ENGINEERS (ELEC)
(GRADUATE) AS BEING ILLEGAL, VOID AND INOPERATIVE.
IN W.P.No.12589/2018:
BETWEEN:
1. PRABHAKAR M.S.,
S/O SEETHAIAH M.B.,
-6-
AGED ABOUT 47 YEARS
WORKING AS
ASSISTANT EXECUTIVE ENGINEER
PIN NO.11702
MT SUB DIVISION, BESCOM
DAVANAGERE-577004
2. RAVI KIRAN
S/O SHANKAR PAWAR
AGED ABOUT 47 YEARS
WORKING AS
ASSISTANT EXECUTIVE ENGNIEER
PIN NO:11693 AEE (WORKS)
WORKS SUB DIVISION
BESCOM, DAVANGERE-577004
3. NAGARATHAMMA T.,
D/O T.THIMMAPPA
AGED ABOUT 46 YEARS
WORKING AS
ASSISTANT EXECUTIVE ENGINEER
PIN NO:11692
O & M SUB DIVISION
HIRIYUR BESCOM
CHITRADURGA-572143
4. SHANMUKHA M.,
S/O MAHESHWARAPPA
AGED ABOUT 46 YEARS
WORKING AS
ASSISTANT EXECUTIVE ENGINEER
PIN NO:11685
MAJOR WORKS DIVISION, KPTCL
DAVANAGERE-577004
5. SIDDARAJU T.,
S/O THIMMAIAH
AGED ABOUT 41 YEARS
WORKING AS
ASSISTANT EXECUTIVE ENGINEER
PIN NO:13037, C1 SUB DIVISION
BESCOM, BENGALURU-560010
6. KRISHNAMURTHY
S/O VENKATAIAH ]
-7-
AGED ABOUT 46 YEARS
WORKING AS
ASSISTANT EXECUTIVE ENGINEER
PIN NO: 11701, HAROHALLI SUB DIVISION
KANAKAPURA DIVISION
BESCOM, BENGALURU-562135
7. KANTHARAJ R.,
S/O LATE REVANNA
AGED ABOUT 53 YEARS
WORKING AS
ASSISTANT EXECUTIVE ENGINEER
PIN NO: 11725, MT DIVISION, BMAZ
BESCOM, BENGALURU-560051
8. B.N.SATISHKUMAR
S/O LATE NANJUNDAIAH B.V.
AGED ABOUT 52 YEARS
WOKING AS
ASSISTANT EXECUTIVE ENGINEER
PIN NO:11894, MAJOR WORKS DIVISION
FTS COMPOUND, N.R.MOHALLA
MYSORE-570007
9. PARAMESHWARAPPA R.,
S/O M.RAMANNA
AGED ABOUT 56 YEARS
WORKING AS
ASSISTANT EXECUTIVE ENGINEER
PIN NO:12161, CITY SUB DIVISION,
CESC, MALAVALLI, MANDYA-571430
10 . SUMITHRA D.,
D/O DAMODHARAN
AGED ABOUT 45 YEARS
WORKING AS
ASSISTANT EXECUTIVE ENGINEER
PIN No.11688, CABLE DIVISION
NORTH CIRCLE, BESCOM
BANGALORE-560003
11 . B.S.BASAVARAJAIAH
S/O SANNALINGAIAH
-8-
AGED ABOUT 49 YEARS
WORKING AS
ASSISTANT EXECUTIVE ENGINEER
PIN NO:14363
BESCOM VIGILANCE POLICE STATION
RAJAJINAGAR, BENGALURU-560010
12 . B.K.HEMALATHA
D/O SHARANAPPA K.,
AGED ABOUT 38 YEARS
WORKING AS
ASSISTANT EXECUTIVE ENGINEER
PIN NO: 14343
S E E RAMANAGARA CIRCLE,
BESCOM, TPMC BUILDING,
MYSORE ROAD, KENGERI
BENGALURU-560060
13 . NUZARATH A.,
D/O T.M.ABDULLA
AGED ABOUT 39 YEARS
WORKING AS
ASSISTANT EXECUTIVE ENGINEER
PIN NO: 14557
OFFICE OF THE EXECUTIVE ENGINEER
C O & M , RAJAJINAGAR DIVISION
BESCOM, WEST OF CHORD ROAD,
RAJAJINAGAR, BENGALURU-560010
14 . MAMATHA K.S.,
D/O K.G.SRIKANTAIAH
AGED ABOUT 39 YEARS
WORKING AS
ASSISTANT EXECUTIVE ENGINEER
PIN NO: 14585
OFFICE OF THE SUPERINTEDING
ENGINEER (ELE), 220 KV R/S KPTCL
TRANSMISSION & MAINTENANCE
RAMANAGAR CIRCLE
220KV, V.V. VALLEY STATION
1ST FLOOR, NEAR R R NAGAR ARCH
MYSORE ROAD, BENGALURU-560039
15 . PUTTAPPA B.S.,
S/O BHARAMANNA
-9-
AGED ABOUT 45 YEARS
WORKING AS
ASSISTANT EXECUTIVE ENGINEER
PIN NO: 14366
SHANDAPURA SUB DIVISION
BESCOM, CHANDAPURA,
ANEKAL TALUK,
BENGALURU-560099 ... PETITIONERS
[BY SRI VIKAS ROJIPURA, ADV.]
AND:
1. KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED
KAVERI BHAVAN, K.G.ROAD
BANGALORE-560009
REP BY MANAGING DIRECTOR.
2. THE STATE OF KARNATAKA
REP BY THE PRINCIPAL SECRETARY
GOVERNMENT OF KARNATAKA
DEPARMENT OF ENERGY
VIKASA SOUDHA
BANGALORE-560001
3. ANANDAKUMAR K.,
S/O KRISHNA REDDY M.,
AGED ABOUT 37 YEARS
ASSISTANT EXECUTIVE ENGINEER (ELEC)
C8 SUB DIVISION, BESCOM
BANGALORE.
4. JAGADEESH M.H.,
S/O HONNAGIRIYAPPA
AGED ABOUT 40 YEARS
ASSISTANT EXECUTIVE ENGINEER (ELEC)
C5 SUB DIVISION, BESCOM
BANGALORE
5. NATARAJ L.,
S/O LAKKEGOWDA
AGED ABOUT 40 YEARS
ASSISTANT EXECUTIVE ENGINEER (ELEC)
- 10 -
S11 SUB DIVISION, BESCOM
HSR LAYOUT, BANGALORE.
6. PRIYA JAKKANNAVAR
D/O KALLAPPA JAKKANAVAR
AGED ABOUT 39 YEARS
ASSISTANT EXECUTIVE ENGINEER
BESCOM INTEGRATED CONTROL CENTRE
BANGALORE.
7. LOHITH M.,
S/O MADARAJA,
AGED ABOUT 40 YEARS
ASSISTANT EXECUTIVE ENGINEER
BESCOM CORPORATE OFFICE
ALDC SECTION, K.R.CIRCLE
BANGALORE.
(CAUSE TITLE AMENED VIDE
COURT ORDER DATED 30.10.2019) ...RESPONDENTS
[BY SRI S.SRIRANGA, ADV. FOR R-1;
SRI M.V.RAMESH JOIS, AGA FOR R-2;
SRI K.C.SHANTHAKUMAR, ADV. FOR R-3 TO R-7.]
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE
THAT THE AMENDMENT VIDE NOTIFICATION DATED
29.11.2005 PRODUCED HEREWITH AS ANNEXURE-A, HAS
RESULTED IN DENIAL OF EQUITABLE OPPORTUNITY TO THE
PROMOTED ASSISTANT EXECUTIVE ENGINEER TO BE
PROMOTED TO THE CADRE OF EXECUTIVE ENGINEERS IN
PROPORTION TO THEIR STRENGTH AND THEREFORE, HAS
VIOLATED THEIR FUNDAMENTAL RIGHTS UNDER ARTICLE 14
AND 16 OF THE CONSTITUTION OF INDIA.
THESE PETITIONS HAVING BEEN HEARD AND
RESERVED, IS COMING ON FOR PRONOUNCEMENT OF ORDER
THIS DAY, THE COURT PASSED THE FOLLOWING:
- 11 -
ORDER
These petitions involving similar and akin issues, have been heard together and are disposed of by this common order.
2. The petitioners in W.P.No.16398/2018 have challenged the revised final seniority list as on 01.05.2017 published on the website of the respondent-Corporation vide notification dated 27.07.2017 insofar as it places all the 325 direct recruits [starting from respondents 3-7] above the petitioners and similarly circumstanced promotees promoted on and after the direct recruitment of the aforementioned persons, in the cadre of Assistant Executive Engineer [Electrical] [Graduate] inter alia seeking a direction to the respondent Nos.1 and 2 to the fixation of the 75% and 25% quota for [a] promoted Assistant Executive Engineers and [b] directly recruited Assistant Executive Engineers respectively, in the cadre of Executive Engineers.
- 12 -
3. The petitioners in W.P.Nos.12589- 12603/2018 have sought for a declaration that the amendment, vide Notification dated 29.11.2005 has resulted in denial of equitable opportunity to the promoted Assistant Executive Engineers to be promoted to the cadre of Executive Engineers in proportion to their strength and, therefore, has violated their fundamental rights under Articles 14 and 16 of the Constitution of India and to direct the 1st respondent to consider the representation dated 22.11.2017 Annexure-H and fix 75% and 25% quotas in the cadre of Executive engineers and above to the promoted Assistant Executive Engineers and directly recruited Assistant Executive Engineers, respectively.
4. It is submitted that the method of recruitment prescribed under Chapter-VI of the Karnataka Electricity Board [Recruitment and Promotion] Regulations, Employees [Probation],
- 13 -
Regulations and Employees [Seniority] Regulations ['Regulations' for short] prescribes the method of recruitment under Chapter-VI as under:
"45% of the posts shall be filled up by promotion of Assistant Engineer, elec. [Graduate] on the basis of Seniority-cum- merit.
25% of posts shall be filled up by direct recruitment [both from open competition and inservice employees] on the basis of the marks secured in the academic qualification, Technical Aptitude Test [TAT] and interview in the ratio of 50:30:20. Interview shall be conducted by a committee constituted by the Board from time to time."
The remaining 30% of the posts of AEEs were to be filled up by promotion of non-graduate Assistant Engineers.
5. It is submitted that the respondent - Corporation vide notification dated 29.11.2005 amended the Regulations in a manner that the total number of Assistant Executive Engineers to be filled by direct recruitment shall be 25% of the "sanctioned
- 14 -
posts" as against "vacancies". In accordance with the amendments carried out to the Regulations, a bulk total of 325 Assistant Executive Engineers [direct recruitment] were appointed during the year 2006-2007 by the respondent - Corporation.
6. It is submitted that the respondent - Corporation has uploaded on its website the impugned revised final seniority list placing all the direct recruits [starting from the respondent Nos.3 - 7] above the petitioners and similarly circumstanced persons in the cadre much against the quota rule. The several representations given by the petitioners and similarly circumstanced promotees have not been considered by the respondent - Corporation. Hence, the writ petitions.
7. Learned Senior Counsel representing the petitioners submitted that the quota fixed as per the Regulations, 45% of the posts by promotion, 25% direct recruitees, 30% from the promotion of non-graduate
- 15 -
engineers has been given a go-bye in the present seniority list impugned. Learned Senior Counsel placing reliance on the judgment of the Hon'ble Apex Court in the case of V.B.Badami and Others V/s. State of Mysore and Others1, submitted that as long as the quota rule remains, neither promotees can be allotted to any of the substantive vacancies of the quota of direct recruitees nor direct recruits can be allotted to promotional vacancies. It was submitted that following the principles enunciated by the Hon'ble Apex Court in V.B. Badami's case supra, the Government of Karnataka issued guidelines to determine the seniority between direct recruits and promotees. As per Clause [6] of the said Official Memorandum dated 05.07.1976 issued by the Government of Karnataka, as long as the quota rule remains, neither promotions can be allotted to any of the substantive vacancies falling within the quota of direct recruits nor can direct recruits could be 1 [1976] 2 SCC 901
- 16 -
allocated to promotional vacancies. In terms of Clause[3] [d], for purposes of classifying and calculating the vacancies between direct recruits and promotees on the basis of the quota fixed in the Cadre and Recruitment Rules, the period which will form a block will be from the date of commencement of the Cadre and Recruitment Rules to the dates on which direct recruits were first appointed.
8. Learned Senior Counsel drawing the attention of the Court to the judgment of the Hon'ble Apex Court in the case of Gonal Bihimappa V/s. State of Karnataka and Others2, submitted that where recruitment is from two sources to a service, a quota rule can be applied fixing the limits of recruitment from two sources. Thus, it was contended that quota rule has to be strictly adhered to. The impugned seniority list issued in violation of the quota rule requires re-consideration. 2 1987 [Supp] SCC 207
- 17 -
9. Learned senior counsel Sri.Nanjunda Reddy representing the respondent Nos.3, 5 and 6, 8 to 13 submitted that in terms of the order dated 22.11.2007 issued by KPTCL provision was made for change of cadre from Assistant Executive Engineer [[non-graduate] to Assistant Executive Engineer [graduate], who have acquired BE/AMIE qualification. The petitioners were all appointed as junior engineers and were promoted as Assistant Executive Engineers [non-graduate]. KPTCL has allowed the petitioners to change the cadre from AEE [non-graduate] to AEE [graduate] subject to the condition that the seniority of the said non-graduate Assistant Executive Engineer will have to be fixed below the junior most graduate AEE and having accepted the same, the petitioners cannot now seek for being placed above the Graduate AEE's who were already in the said cadre when the petitioners entered the said cadre. It was contended that no pleadings are forthcoming
- 18 -
inasmuch as the violation of quota rule; no whisper is made by the petitioners in this regard in the writ petitions. The reliefs sought in the writ petitions is nothing but seeking for amendment to recruitment and promotion Regulations which amounts to seeking direction to legislate which is not permissible. The learned senior counsel has placed reliance on the judgment of Hon'ble Apex Court in the case of The State of Jammu and Kashmir V/s. Shri Triloki Nath Khosa and Others3.
10. Learned counsel for the respondent Nos.1 and 2 submitted that provisional seniority list was published seeking objections from any of the persons likely to be affected but the petitioners have not objected to the same. It was submitted that the question of determining the dates of eligibility in respect of the direct recruits does not arise since their seniority is determined in accordance with Rule 5 of the Karnataka State Civil Service Rules, 3 [1974] 1 SCC 19
- 19 -
1957 keeping in mind the Government order dated 05.07.1976. Reference was made to the Order dated 22.11.2007 issued by the KPTCL.
11. Learned counsel for the impleading applicant/proposed respondent supported the arguments of the learned counsel for the petitioners.
12. Adverting to the submissions made by the learned counsel for the parties and perusing the material on record, the points that arise for consideration are, -
1. Whether the revised final seniority list dated 01.05.2017 published vide notification dated 25.10.2017, insofar as placing all the 325 direct recruits above the petitioners and similarly circumstanced promotees promoted on and after the direct recruitment of the respondents, in the cadre of Assistant Executive Engineers [Electrical][Graduate] is valid?
2. Whether the amendment to the Regulations vide notification dated 29.11.2005 is legally valid?
- 20 -
13. The recruitment and promotions in the respondent-Corporation is governed by the Regulations. As per the said Regulations, the post of AEs, AEEs, and Executive Engineers [EE] are filled up in the following manner:
Method of Post Recruitment Qualification Remarks JE[E] 40% - DR Diploma -
JE[E] 10% - DR In-service & Diploma -
Meter
Readers/Operators/Oversee
JE[E] 10% - PR Diploma
rs/Assistant Store Keepers
Minimum 6 years service
Meter
Readers/Operators/Oversee
JE[E] 35% - PR ITI
rs/Assistant Store Keepers
Minimum 5 years service
Foreman/Senior
JE[E] 5% - PR 10th Std Mechanic/Hotline Mechanic
Grade-I with minimum 5
years service
Allocation of Posts
Functions Direct Promotion
Recruitment
AE[E] DR + a] JTAs in all O&M 75% 25%
Gradu Promotion Sub-Dvns. Of B'lore
ate Qualificatio Circle and if the Sub-
n is BE Dvns of City Category
Graduate in
Electrical
Engineering
b] Section Officers of 75% 25%
O&M Sections in
Bangalore City
c] JTAs in O&M Sub 50% 50%
Dvns other than City
Category
d] Section Officers of 50% 50%
urban Semi Urban [O
- 21 -
& M] Sections & City O
& M Sections other
than Bangalore City
e] All posts of Asst. 100% -
Engrs. Not Covered by
a to d supra
a] JTAs in all O&M 75% 25%
Sub-Dvns. Of B'lore
Circle and if the Sub-
Dvns of City Category
b] Section Officers of 75% 25%
O&M Sections in
Bangalore City
Method of
Recruitmen Qualification Remarks
t
Post Post
AE[E]
Promotion
Non- Minimum 8 AE[E] Non-
from JE- Diploma
Gradu years service Graduate
Diploma
ate
First Class
BE Degree
Minimum 8
Years service
25% - DR I Class BE Minimum 11
AEE
45% - PR AE[E] [Graduate] years service AEE [E]
[E]
30% - PR AE[E] [Non Graduate] for diploma
holders and
20 years for
certificate
holders
Minimum 7
100% AEE[E]
EE[E] years of EE[E]
Promotion Graduate
service
14. The petitioners appointed as junior
engineers/Assistant Engineers were promoted as
AEEs [non-graduate]. As the petitioners in
W.P.No.16398/2018 have acquired engineering degree [graduate], KPTCL accorded approval for change of
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cadre in terms of the order dated 22.11.2007. It is not in dispute that the seniority list was notified during 2011, 2014, 2017 wherein the petitioners were placed below the direct recruits. The petitioners having accepted the said seniority list without any demor now challenging the revised final seniority list mainly on the ground of breach of quota rule without a foundation cannot be countenanced. No edifice can be built without the foundation.
15. It is significant to note that no objections were filed by the petitioners to the provisional seniority list issued on 8.5.2017 and 22.7.2019 inviting objections (if any). Seniority cannot be fixed on the basis of block periods by giving notional dates of promotion before such person was born in the cadre. Admittedly, the respondent Nos.3 to 7 and 8 to 13 had all entered the cadre of Assistant Executive Engineers on 5.2.2007, much before the promotion of the petitioners. In terms
- 23 -
of the regulations, promotion to the cadre of Executive Engineer is from amongst Assistant Executive Engineer (graduates) who have completed seven years of service on the basis of seniority-cum-merit. It is not in dispute that all the private respondents have completed seven years of service. The promotion of Assistant Executive Engineer is provided from both Assistant Executive Engineer (graduates) and Assistant Executive Engineer (non graduates) in the ratio of 45% and 30% respectively. In the cadre of Assistant Executive Engineer, 25% is for direct recruitment with minimum qualification of degree. At Assistant Executive Engineer cadre level both graduate and non graduate cadres are available. The next higher cadre is Executive Engineer which has to be filled up by 100% promotion from amongst graduates. Assistant Executive Engineer (graduate) cadre consists of both promoted as well as directly recruited Assistant Executive Engineers and once they enter Assistant Executive Engineer (graduate)
- 24 -
cadre, they merge into one single cadre. Hence, the request of the petitioners to fix 75% and 25% quota for promotion as Assistant Executive Engineers and directly recruitees as Assistant Executive Engineers respectively would result in discrimination violating Articles 14 and 16 of the Constitution of India.
16. In Badami's case, supra, no doubt, the Hon'ble Apex Court has held that no promotees can be allotted to any of the substantive vacancies of the quota of direct recruits nor direct recruits can be allotted to promotional vacancies as long as the quota rule remains. In working out the said quota rule, data has to be placed before the court to substantiate the breach of quota rule. No such material is made available before the court by the petitioners except arguing the violation of quota rule.
17. In Gonal Bihimappa's case, supra, the Hon'ble Apex Court referring to Badami's case and
- 25 -
several other Authorities of the Hon'ble Apex Court has categorically held that quota rule had to be strictly enforced and no authorities could meddle with it on the ground of administrative exigencies. However, the burden lies on the petitioners to establish the non compliance of the quota rule. In the absence of such data made available before the court, no adjudication on this quota rule is warranted.
18. In the case of R.K.Sabharwal & others Vs. State of Punjab and others4, while interpreting the expressions 'post' and 'vacancies', often used in the executive instructions providing for reservations, the Hon'ble Apex Court has held that the word 'post' means an appointment, job, office or employment; a position to which a person is appointed. 'Vacancy' means an unoccupied post or office. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be 4 (1995)2 SCC 745
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claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of 'vacancy' has no relevance in operating the percentage of reservation. There is no quarrel on this legal proposition.
19. It is the grievance of the petitioners, they being the prospective candidates for the post of Assistant Executive Engineers in the respondent Organization by filling all the 325 posts in bulk and at a time, these petitioners lost an opportunity for promotion from the cadres of Assistant Executive Engineers (Elecl) to Executive Engineers (Elecl). Admittedly, there was no direct recruitment to the post of Assistant Executive Engineer from 1975 to 2007. The backlog post accumulated during this long period has been filled up once in 2007. As such, merely for the reason that the promotional avenues of the petitioners are blocked, the
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final seniority list impugned cannot be held to be unjustifiable. As aforesaid, there appears to be no breach of any block period. Even if so, that has to be established by the petitioners providing the substantial material before the court. In the absence of such data, no arguments made merely on the legal issues cannot be countenanced.
20. In Shri Triloki Nath Khosa case, supra, the Hon'ble Apex Court referring to Roshan Lal's case has held that direct recruits and promotees lose their birth marks on fusion into a common stream of service and they cannot thereafter be treated differently by reference to the consideration that they were recruited from different sources. Their genetic blemishes disappear once they are integrated into a common class and cannot be revived so as to make equals unequals once again. In the absence of the pleadings, it is
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unrealistic to expect the material from the respondent No.1-KPTCL to rebut the arguments now advanced.
21. As regards the challenge made to the notification dated 29.11.2005, it is significant to note that some of the petitioners had preferred W.P.No.10617/2007 which were clubbed with W.P.No.17901/2006 and allied matters challenging the amendment made to the Regulations [Amendment 2005] vide notification dated 29.11.2005 and the same have been disposed of observing that the petitioners were not aggrieved by the amended recruitment proceedings except in the matter of inter-se seniority. However, no inter-se seniority is challenged in W.P.No12589/2018. Hence, the challenge to Notification dated 29.11.2005 by some of the petitioners in W.P.No.12589/2018 is hit by the principles of res judicata. The petitioners having not questioned the impugned notification at the time of their promotions to the cadre of AEE, they are estopped
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from challenging the same at the length of time after being duly implemented for long years.
22. The challenge to the Regulation 2005 amendment on the ground that the same has resulted in denial of equitable opportunity to the promoted Assistant Executive Engineers to be promoted to the cadre of Executive Engineers in proportion to their strength is violative of fundamental rights guaranteed under Article 14 and 16 of the Constitution of India cannot be accepted for the reason that Article 14 which guarantees equality before the law or the equal protection of the laws provides for equality among equals only. Article 16[1] contemplates equal opportunity for citizens relating to employment. The classification based upon the consideration of two categories of employees, one direct recruits while other promotees is permissible classification since both these categories of employees constitute two separate and
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distinct classes. Article 14 forbids Class legislation but not the reasonable classification. There is no infringement of rule of equality as contended by the petitioners in W.P.No.12589/2018. The said petitioners had the equal opportunity to compete in the selection of direct recruit AEEs [Ele] as the petitioners were in the cadre of Assistant Engineers on the date of promalgamation of the notification for amendment. Moreover, no reservation can be made in promotion.
23. It appears some of the petitioners in W.P.No.12589/2018 have already been promoted in terms of the impugned notification more than seven years back. They have accepted the said promotion and are working as Assistant Executive Engineers. Having been promoted under the said amended Regulations, the said petitioners challenging the amendment, 2005 to the Regulations cannot be appreciated.
24. It is well settled law that the employer has got every right and discretion to prescribe qualifications
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for appointment keeping the particular needs of the particulars of posts or service. The discretion of the employer being utmost significance in the matters pertaining to the prescription of service eligibility, it cannot be presumed that the first respondent has amended the qualification only to accommodate the candidates through direct recruitment. The en-masse direct recruitment to the cadre of Assistant Executive Engineers after a long period if made pursuant to the amended Regulations, on the ground of such appointments are blocking the promotion of the petitioners to higher cadres, the amendment to the Regulations or the appointment of the Assistant Executive Engineers cannot be held to be unjustifiable. Fixing of quotas and prescribing qualification is in the domain of the respondent - Corporation of course, following the roster policies of the Government of Karnataka. It is not in dispute that the respondent - Corporation does not provide quota for promotion to the
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higher cadres. Quotas are available to the cadres of Assistant Executive Engineer but to the cadre of Executive Engineer, promotion is on the basis of seniority cum merit.
25. Moreover, infusing of new employees by direct recruitment is equally important in order to increase the efficiency of the organization and also to aid the larger public interest.
Writ petitions are devoid of merits.
For the aforesaid reasons, writ petitions stand dismissed Sd/-
JUDGE NC./Dvr: