Karnataka High Court
Sri.C.J.Prakash vs The State Of Karnataka on 23 September, 2019
Bench: L.Narayana Swamy, R Devdas
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF SEPTEMBER, 2019
:PRESENT:
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
AND
THE HON'BLE MR. JUSTICE R.DEVDAS
WRIT PETITION NOs.49640-49648 OF 2017 (S-KAT)
BETWEEN
1. SRI.C. J. PRAKASH
S/O JAVAREGOWDA C D
AGED ABOUT 53 YEARS,
WORKING AS SELECTION
GRADE LECTURER (CIVIL)
GOVERNMENT CPC POLYTECHNIC
MYSORE-570 001.
2. SRI. H. P. SHIVA SWAMY
S/O PUTTAMADAPPA,
AGED ABOUT 41 YEARS,
WORKING AS SELECTION
GRADE LECTURER (CIVIL)
GOVERNMENT CPC POLYTECHNIC
MYSORE-570 001.
3. SRI. B. L. GOVINDARAJ SINGH
S/O R. BALAJISINGH
AGED ABOUT 57 YEARS
WORKING AS SELECTION GRADE
LECTURER (MECH)
GOVERNMENT CPC POLYTECHNIC
MYSORE-570 001.
4. SRI. M. PRAKASH
S/O LATE D MADA NAIK
AGED ABOUT 51 YEARS,
WORKING AS SELECTION
GRADE LECTURER (MECH)
GOVERNMENT CPC POLYTECHNIC
MYSORE-570 001.
-2-
5. SRI. B. J. SIDDEGOWDA
S/O JAVARAIAH
AGED ABOUT 53 YEARS,
WORKING AS SELECTION
GRADE LECTURER
(ELECTRICAL ENGINEERING)
GOVERNMENT POLYTECHNIC
MYSORE-570 007.
6. SRI. AMARNATH G
S/O LATE GANGADHARAIAH
AGED ABOUT 54 YEARS,
WORKING AS SELECTION GRADE
LECTURER (CIVIL ENGG)
GOVERNMENT CPC POLYTECHNIC
MYSORE-570 007.
7. SRI. G. JAYAPPA
S/O G HANUMANTHAPPA
AGED ABOUT 54 YEARS
WORKING AS SELECTION
GRADE LECTURER (CIVIL)
GOVERNMENT POLYTECHINC
HARAPANAHALLI
DT. DAVANAGERE-577 004.
8. SRI. G. PRAKASH
S/O G. GANGADARAPPA,
AGED ABOUT 49 YEARS,
WORKING AS SELECTION
GRADE LECTURER (MECH)
DRR GOVERNMENT POLYTECHINC
DAVANAGERE-577 004.
9. SRI. GAJENDRA SINGH K
S/O KRISHNA SINGH K
AGED ABOPUT 52 YEARS,
WORKING AS SELECTION GRADE LECTURER
(NON ENGINEER BRANCHES)
GOVERNMENT POLYTECHINC FOR WOMEN
BANGALORE-560 001.
... PETITIONERS
(BY SRI. RANGANATHA S. JOIS, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF HIGHER EDUCATION
-3-
6TH FLOOR, M. S. BUILDINGS
BANGALORE-560 001.
2. THE DIRECTOR OF TECHNICAL EDUCATION
IN KARNATAKA
SESHADRI ROAD,
BANGALORE-560 001.
3. NAGABHUSHAN K G
AGED ABOUT 48 YEARS
S/O KAILASAM B.G.
PRINCIPAL GRADE-I
GOVERNMENT POLYTECHNIC
CHANNAPATNA-571 501.
RAMANAGARA DISTRICT.
4. KRISHNAPPA P
AGED ABOUT 50 YEARS,
S/O PUTTAIAH, PRINCIPAL GRADE-I
GOVERNMENT POLYTECHNIC
TURUVEKRE-572 227.
TUMKUR DISTRICT.
5. SMT. MANJULA S
AGED ABOUT 50 YEARS,
D/O SHIVANNA, PRINCIPAL GRADE-I,
GOVERNMENT POLYTECHNIC
CHAMARAJANAGAR-571 313.
6. SRI. PRAKASH S INAMDAR
AGED ABOUT 50 YEARS,
S/O SAIDAPPA
SELECTION GRADE LECTURER
GOVERNMENT POLYTECHNIC
BANGALORE-560 001.
7. SRI. GANGARAM
S/O LATE VENKATAPPA
AGED ABOUT 55 YEARS, PRINCIPAL,
GOVERNMENT POLYTECHNIC,
NELAMANGALA-571 113.
MANDYA DISTRICT.
8. SRI. H. T. THYAGARAJ
S/O LATE THIMMAPPA
AGED ABOUT 54 YEARS,
WORKING AS PRINCIPAL
GOVERNMENT POLYTECHNIC,
COLLEGE MIRLE K.R. NAGAR -570 112
MYSORE DISTRICT.
-4-
9. SRI. M. SRINIVASA
S/O M MUNIVENKATAPPA,
AGED ABOUT 52 YEARS,
GOVERNMENT POLYTECHNIC
CHINTAMANI -563 125.
10. MR. CHANDRAPPA S
S/O SALLAPPA,
AGED ABOUT 39 YEARS,
LECTURER MECHANICAL ENGINEERING
GOVERNMENT POLYTECHNIC
KGF-563 118, KOLAR DIST.
... RESPONDENTS
(BY SRI. T. P. SRINIVAS, AGA FOR R1 & R2;
SRI. JOSEPH ANIL KUMAR, ADVOCATE FOR R4, 5 & 9;
SRI. H. MOHAN KUMAR, ADVOCATE FOR R7;
SRI. VIJAY KUMAR, ADVOCATE FOR R8;
R3 H/S V.O.DTD. 1.10.2018;
R6 & 10 ARE SERVED)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
CALL FOR THE RECORDS RELATING TO THE IMPUGNED
ORDER DATED 7.9.2017 PASSED BY THE HON'BLE KARNATAKA
STATE ADMINISTRATIVE TRIBUNAL IN A.NO.358-390/2015 VIDE
IN (A 359, 360, 363, 366, 374, 383-385 & 390/2015 ARE
CONCERNED) ANEX-A PERUSE AND QUASH THE SAID ORDER
AS ERRONEOUS, UNSUSTAINABLE IN LAW AND CONTRARY TO
THE EARLIER DECISIONS OF THIS HON'BLE COURT AND THE
LAW LAID DOWN IN B.K. PAVIRA'S CASE IN SO FAR AS
PETITIONERS AND RESPONDENTS ARE CONCERNED AND ETC.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED ON 18.09.2019 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS, THIS DAY, DEVDAS J., MADE
THE FOLLOWING:
-5-
ORDER
The petitioners are Selection Grade Lecturers working in various Government Polytechnic Colleges, under the Technical Education Department. The main contention of the petitioners is that the policy of reservation cannot be made applicable for promotion to the post of Principal Grade-I. The said contention seems to be based on a decision in the case of K.Narayana And Others Vs. The State of Karnataka and Others, wherein the order dated 23.07.2009 which was passed by the Karnataka Administrative Tribunal, at Bangalore, was upheld by a co-ordinate Bench of this Court in W.P.No.28744/2010 and connected matters, which were decided on 14.08.2014.
2. Sri Ranganatha S. Jois, learned Counsel appearing for the petitioners, with reference to the decision in K.Narayana and Others (supra) submitted that a similar question arose for consideration wherein the policy of reservation in the matter of promotion from the cadre of Selection Grade Lecturers to the cadre of Principals Grade-I was questioned. In that case, the -6- State Government downgraded the posts of Lecturer from Group 'A' to Group 'B' with retrospective effect, by passing an executive order. This Court held that the down-grading of posts of Lecturers and giving retrospective operation for the purpose of implementing reservation policy could not be sustained. It was also held that roster points could not be made applicable in the matter of assigning higher grade, which is not a 'promotion' as provided under the CCA Rules. It was held that application of roster is permissible only during initial entry into service or at the time of promotion.
3. The learned Counsel for the petitioners submits that the posts of Principal Grade-I and Grade-II are above Group 'A' junior scale and therefore in terms of the reservation policy of the State Government reservation in promotion can be made applicable only to the lowest cadre in Group 'A' post, while the posts of Principal Grade-I and Grade-II not being the lowest cadre in Group 'A', reservation in promotion is not applicable to the said posts. It is in the light of the above that the notification No.ED 97.DTE 2002, dated -7- 12.10.2004 as well as the notification No.ED 97.DTE 2000, dated 16.10.2004 were challenged before the Tribunal, which provided promotion by way of reservation to respondents No.4 to 17, before the Tribunal, in Application Nos.712-716/2005 and similarly in Application Nos.358-390/2015, a declaration was sought to the effect that reservation for promotion to the cadre of Principal Grade-I in the Technical Education Department is unconstitutional and violative of the decision in K.Narayana and Others (supra).
4. Per contra, Sri Vijay Kumar, learned Counsel appearing for the private respondents would submit that the decision in K.Narayana and Others (supra) is not applicable to the facts and circumstances of this case and therefore, the Tribunal rightly rejected the Applications of the petitioners herein. The learned Counsel submits that there is a categorical finding that the private respondents are seniors to the petitioners herein and there is no dispute on that aspect. It is submitted that promotions to the higher grades have to -8- be regulated in terms of relevant C & R Rules and drew attention of this Court to a decision of this Court in M.V.Dixit and Others Vs. State of Karnataka and Others, reported in ILR 2004 KAR 3802. It is further submitted that unlike the position in K.Narayana's case, it is an admitted fact that insofar as the Technical Education Department is concerned, the post of Lecturers, according to the C & R Rules is Group 'B' post. The learned counsel, while drawing the attention of this Court to the preamble of the Government Order No.ED 2 DTE 2001, dated 29.8.2002, submits that the State Government has considered all the above aspects before passing the Government Order. The learned counsel places reliance on a judgment of the Hon'ble Supeme Court in the case of Dr.Rashmi Srivastava Vs. Vikram University and others, reported in (1995) 3 SCC 653.
5. The learned Additional Government Advocate takes support from the arguments of the learned counsel for the private respondents and seeks to sustain the impugned order passed by the Tribunal. -9-
6. Heard Sri Ranganatha S. Jois, learned counsel for the petitioner, Sri Vijay Kumar, learned counsel for the private respondents and Sri T.P.Srinivas, learned Additional Government Advocate for the respondent - State Government.
7. In our opinion, the preamble to the Government Order dated 29.08.2002 will present a clear picture of the reservation policy of the State Government in the matter of promotions and the legal position surrounding the controversy. In terms of G.O. dated 27.4.1978, the policy of the Government is framed with regard to reservation in the matter of promotion of employees belonging to the Schedules Castes and Scheduled Tribes, under the services of the State. According to the said policy, reservation in promotion is available upto the lowest cadre in Group-A posts. Until the revision of pay scales in terms of AICTE norms, in the Department of Technical Education, the pay scale of Principal Grade-I was Rs.3700-5700 and Rs.4500-7300 for Principal Grade-II. Consequent to the revision of -10- pay scales in terms of AICTE norms, the pay scales were revised and the pay scale of Principal Grade-I was revised at Rs.12000-18300 and the pay scale of Principal Grade-II was revised to Rs.16400-20000. Until 01.04.1993, in the teaching posts there were three cadres namely, Lecturers, Divisional Officers and Principals. The posts of lecturers were filled by direct recruitment. The posts of Principals were filled by promotion to the Divisional Officers. The system of naming the concerned Divisional Officers of the respective Polytechnics, who were having seniority, as Principals was in existence. Prior to 01.04.1993, while giving promotion to the cadre of Divisional Officers and Principals, reservation system was being followed. After coming into force of AICTE pay scales, the posts in the cadre of Divisional Officers and Principal were abolished. At that time, the Senior Lecturers (having AICTE pay scales) had been placed in-charge as Principals of the respective Polytechnic. Consequently, the posts were re-designated as Lecturer, Lecturer -11- (Senior Scale), Lecturer (Selection Scale), Principal Grade-I and Principal Grade-II.
8. A further reading of the preamble to the G.O. dated 29.08.2002 makes it clear that advancement to a higher grade by virtue to time bound advancements did not amount to promotion. As the AICTE pay scales were more than the State pay scales, at the same time there was no reclassification brought about in the Karnataka Civil Service (CCA) Rules, 1957, the roster system was not adopted while giving promotion to the post of Principal Grade-I. At that juncture, representations were given by the associations of SC/ST Employees to apply reservation while giving promotion to the cadre of Principal Grade-I.
9. The State Government noticed that the classification of posts and cadre were based on the State pay scales, in terms of the KCS (CCA) Rules and even after the AICTE pay scales were extended to the teaching staff of the Technical Education Department, relevant changes were not brought about to the KCS (CCA) Rules. Therefore, the State Government -12- considered the situation and decided that the posts of Lecturers shall be considered as Group 'B' and posts of Principal Grade-I shall be considered as further higher scale {excluding the time bound level lecturers (Senior Scale) and Lecturer (selection scale)}. The State Government accordingly arrived at a conclusion that in terms of the policy of reservation as found in G.O. dated 27.04.1978, if reservation in promotion was provided upto Group-A Junior Scale (upto and including it), then the posts of Lecturer was required to be considered as Group-B and application of reservation for promotion to the post of Principal Grade-I was required to be held as lowest in Group-A posts and therefore reservation to the said posts was required to be given in promotion.
10. Whereas, in the case of K.Narayana and others (supra) the factual matrix was different. There, in the Department of Collegiate Education, the posts of Principals Grade-I and Grade-II were well above the class-I senior grade posts and not the lowest in the cadre of Group-A. While, by an executive order, the State Government sought to down-grade the posts of -13- lecturer from Group-A to Group-B post. Therefore, reliance sought to be placed on the decision in K.Narayana and others (supra) is misplaced.
11. Moreover, as rightly pointed out by the learned counsel for the private respondents, time bound advancement and acquisition of higher pay scale cannot be construed as promotion in terms of the CCA Rules. The posts of Lecturer, Lecturer (Senior Scale) and Lecturer (Selection Scale) fall under the cadre of "Lecturer". The next promotional avenue is the cadre of "Principal", where again there are two scales, viz., Principal Grade-I and Principal Grade-II. In Dr.Rashmi Srivastava (supra), it has been held that while the promotees under the merit promotion scheme stand outside the cadre and fill no posts as such, since no posts are created. The promotions given to them are purely personal and the posts to which they are upgraded do not survive their service career. The posts vanish with the incumbent person like the shadow vanishing with the substance. Such a promotee fills up no vacancy in the promotional avenue since no posts is -14- available by promotion. Reliance sought to be placed by the learned Counsel for the petitioners on State of Rajasthan Vs. Fateh Chand Soni, reported in (1996) 1 SCC 562, is not applicable to the facts of this case, since the issue therein was whether seniority in the Selection Scale is to be fixed on the basis of date of appointment to the Selection Scale or on the basis of seniority in the Senior Scale irrespective of the date on which appointment is made to the Selection Scale.
12. With respect to the contention of the petitioners that just because the AICTE pay scales with effect from 01.04.1993 was extended to Diploma holders, they cannot be equated with Degree holders and seniority list should have been prepared on the basis of the date of entry into service as lecturers, the Tribunal has held that while striving for excellence in higher education is laudable objective, the said objective cannot be attained abruptly or by issue of any specific orders. The competence enhancement in capability through higher educational qualification and experience required for different posts and purposes have to be -15- brought about in a harmonious manner. It was further held that though the area of career progression is governed by prescription of qualifications in the C&R Rules of the Department, the issue of executive instructions is not altogether barred. The abolition/ reduction of the posts of less qualified personnel and its substitution by more qualified persons is a process that has to come in a continuous and sustained manner and it is not practically feasible to bring in the same by complete denial of promotional benefits to persons appointed earlier. We are in respectful agreement with the Tribunal.
13. For the reasons stated above, we do not find any infirmity in the impugned order passed by the Tribunal. As a consequence, the writ petitions are dismissed.
SD/-
JUDGE SD/-
JUDGE JT/KLY