Karnataka High Court
Shri.K.Jayashankara Murthy vs The Principal Secretary on 29 November, 2010
Author: V.Jagannathan
Bench: V.Jagannathan
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated the 2931 day of November 2010
:BEFORE: '""
HONBLE MRJUSTICE :
WRIT PETITION No. 27958 / 2oo.9a{S§:3Ro) Vi"
BEIWEEN:
Shri K.Jayashankara Murthyfi»
Aged about 60 years,__
S / o M.S.Kumarappa '__Charjj Retired Secretary,
Karnataka Legislative" 'Co-u.riur_:_iV1:';<. S»ecrettaria1t,
Vidhana Souclha, Bangalore; ' . " ..
R/o 1669/A, 'Nidhi' :Lst ix/1-gin," 7.?i?__Sect«j)r'V,
HSR Layout" Be;jngaIore¥56O O12."
' " ...Petitioner
QQQQ G' at Advocate. }
ANDz':«V"--V V G G G K
1. _ v The 41:31-jjicipaal Asevefetary,
~ Karnataka. Legislature,
V1'dhai_1a Soudha, Bangalore--560 O01.
.- G' Tfiet'I~Ion'.b1e Board,
G Ka1'iTa.tTaka Legislative Council Secretariat,
.. l:_>y'i1;s' Principal Secretary,
.. Vifihana Soudha, Banga1ore--56O 001.
A The Special Board,
'G Karnataka Legislative Council Secretariat.
by its Secretary, Vidhana Souclha,
Bar1ga}ore-560 O01.
.. Respondents
( By Sri Raghavendra Gayatri, Govt. Pleader. J
f\.)
Writ Petition filed praying to quash the impugned
endorsement dated 16.7.2009 issued by R4e3:"e.Vide
Annexure-V, etc.
This petition coming on for pre1imi.nar'y_hearingin,'
'B' group this day, the court made the "
oRDEEOO"" "'"
The promotion given to-tthe petiti.or1er'fas'Secretary,V
Karnataka Legislative' 1"y'...r.ivt1i__ effect from
23.3.2006 by the
petitioner? to the respondent
and {the 'wya's"'dV§turned down by the
respoindentd dated 22.9.2006
(AnneXure'¥'R):V and thesaid endorsement was the subject
'2 V' ;n'atte:1,~...,pf"'i'the writddddpvetition before this court in W.P.No.
the matter was remitted to R3 herein
fo1-'._reconsideration. Again the petitioner was issued
with.' tiie endorsement dated 16.7.2009 [Ar1nexure-V]
2 {stating that the petitioner cannot be given promotion to
" ~-the post of Secretary with retrospective effect from
1.12.2003. Assaiiing the said endorsement as per
Annexure--V, this petition is presented.
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2. I have heard learned counsel Shri B.B.Baje'r1tri for
the petitioner and learned Government
Raghavendra Gayathri for the State.
3. The submission of the
the petitioner, though joined
Assistant, he was promoted_it'to the pf Under
Secretary and then he"':mo\ted,- ladder and became
Deputy Seere't,.ar3I and thereafter,
following of"Ǥ,f0irit_ falling Vacant on
accoijintnf attaining the age of
superfannuation,"A,_ithe.._ije.titioner was appointed to the
said. ,posta"'of_fJointdseeretary with independent charge
'0 diiriiig thetvsaid period, the post of Secretary also
29.11.2003 and the petitioner was
ap~poinvtedi.:'to be in-charge of the post of Secretary from
the date as per AnneXure--F.
0' Thereafter, the petitioner was promoted to the post
'V Joint Secretary with retrospective effect i.e., from
1.10.2002 though the promotion order was issued on
31.1.2004. Therefore, it is contended by the petitioner
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that when he was given promotion to the post of Joint
Secretary though retrospectively with €ff€C{E:"'<<_,Tfi70II1
1.10.2002, the petitioner, who was
charge Secretary, Was, there_fore.,4 for
promoted to the post of Secretary7'.frorn
such, the endorsement nowfissued as per 'AnneXure--V'
denying him promotion wit1"1"re,troVspective"effect has led
to the petitioner =__two additional
increnients, «fl'h.ough has since retired
from servit:"e»,d"'"'lé_is if effected from
retrospecti*.z.e:gpf,pp fro_rri"dl.l2.2003, would only
benefituhiiml the extent of he getting two
additional increments.
R§1"@,_I'1'ir1§'"to----«"the aforesaid facts, the learned
"-the petitioner submitted that in the
that was given to the petitioner, at the first
instance, it was stated that giving effect retrospectively
cost the respondent Rs.4,00,000/- by way of
, pvexpenditure. However, in the endorsement that is now
impugned in this writ petition, the reasoning given is
that, following the new rules coming into effect from
iv
an
2003, the petitioner cannot be given retrospective
promotion by applying the 1998 rules. Th.e'~._l'e«aI=ned
counsel also argued that in respect of the
of Secretary held by the petitionwer,ptheHpe'ti'tio.r1elr~_w'asit'
also given in--charge allowance pg
6. The submission of the.,_llea_rned' £3o'vern:n'entPleader'
for the State is that the post"'of fell vacant only
in the year 2003 the petitioner
had not ._ to be
eligible Secretary. In this
regard, my drawn to the relevant rules of
2003 tolpost of Secretary can only be
by __prornotion from the post of Additional
' ;S'eoretary'an'd._,_ as the petitioner was not holding the said
'post as he was given the promotion
prospectively from the actual date of promotion i.e.,
A 2313,2006. Moreover, promotion cannot be sought as a
lmatter of right.
" The learned Government Pleader for the State also
referred in this connection to two decisions of the Apex
EL
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Court, reported in (2009]1 SCC (L828) 671 and (200731
SCC (L&S) 594, to contend that there CE1i1v_v:'1£i'€~w.xI1O
automatic promotion and occurrence of the--'iJaca11§cy
not relevant. Therefore,
impugned order at AnneXur'e--~V1""'fdoes:'~.
interference and moreover,-.e_th.e petitioner '~.ha.d"acc'epted'
the promotion given. to him--.."as"'~per th'e--..G.overnment
Order dated 23.11.2604 (ini;saI--¢.i::5;i and, as such,
the questioijl promotion to the
post of 0
8. in ._ ppofjthe' -aforesaid submissions put
forward the reiVeV'aTfit'ru1es referred to by the learned
coufirisei for thepvartiies, whether the petitioner is entitled
» for_ti1e_ prornotion from retrospective date is the point for
'coi1side'1"a:t-ioiiidi
'£'he*i'acts which are not in dispute will have to be
mentioned at first to narrow down the area of
.co'ntroversy.
" * The petitioner was given the independent charge of
Joint Secretary with effect from 1.10.2002. He
$5
continued to function in the said post till he was put in
charge of the post of the Secretary which
vacant and since 29.11.2003, the
continued to work as in--charge_ Seaeretary.
petitioner was given retrospective
of Joint Secretary fromV'1.;i'Q.2OAC2..__ said'.
communication was (An1iexure--G). It
is thus clear that heahvvfias post of Joint
Secretary was given
Nevertheless, for all
practVieal' vvaWs""iV§cieerned to have been
appoin-ted'. to Secretary from 1.10.2002
onwards. "
1 vpromotion to the post of Secretary took
"Dh"};V"~on..24.3.2006. But, in the meanwhile, the
'jvas already put in charge of the post of
Secretary and in the said post he continued for more
a year.
__32. With the aforesaid facts in view, let us look to the
relevant rules. As per the Karnataka Legislative
n
if
Council Secretariat (Recruitment and Conditions of
Service) Rules, 1998, the post of Secretary
filled up by the following modes:
Category Pay Scale No. of Method of Recr'uitn'1ent'1 4 ~ ._ 'Qualifications
posts .. y " ' renuirlzwi'
o2 03 04 1 05. ' , '~ , «. .o€~.
Secretary 5825-6000 1 ya} _ By promotion by For Promotion-
_ "se1ectio11"~from. ._ --
Additional/Jointrv.y a}"g Must be holder of
Secretary '~ g :33. decree in law of
_ 0' recognized
15] If no 'suitable officer University; and
'_ isavailaiale for
gj»re;motio:1'tander {a} b} Must be
. Vattovexv _ conversant with
" . * A ' V' the practice and
E3) ,If'no'-stiitable officer procedure of the
éissavailablefor (aj Legislature and
gablove. then by must have a good
* i'Iansi'e.: or knowledge of
._ "deptitation of a Constitutional
.... .. ' -. .,Jndi(:iaI Officer in Law
the cadre of District
_' J ucige For Transfer or
Deputation:
Must have put in a
service not less than
five years in the cadre
of District Judge
clear from the aforesaid rules that, in
considered for the post of Secretary, a person
gwill "h:a?a/e to be from the post of either Additional
Vl.g'VSec:r'etary or Joint Secretary. Therefore, the petitioner
__l1aving already been put in charge of the post of
Secretary and as he was also holding the post of Joint
fir
a a
Secretary at the relevant time as per 1998 rules, he was
eligible for the post of Secretary.
13. Now, let us look to the 2003 rulesyearidi
said rules, which are annexed to_th,e"«_w*rit-_peI;i.tion_at
Anr1exure--R3, the post of.=Secretary"--was1to
the following method:
Si. Category Pay Scale . Method of Reciuitrnent Qualifications
No. posts ,V ' ' W.» required
1. Secretary E4960». 3, . a} "By'p1'omotlon by F or Promotion:
20'Z?_.0.' _ ' ' 2 selection from
3 I Additionaé--~=' a] Must be holder of
"Secretary a decree in law of
-- be _ a recognized
' ._ b}'{'i} If no suitable University:
.... .. ' -- ..officer is available
_ for promotion under b) Must be
. [a] above, then by conversant with
deputation of the practice and
Secretaxy from procedure of the
Legislative Legislature and
Assembly must have a good
Secretariat knowledge of
Constitutional
----- -- i ii} If no suitable officer Law
is available under
[b}[i} above then by c) Must have put in
deputation of an
officer in the rank
of District Judge
from Judicial
Service.
a service of not
less than one
years as
Additional
Secretary
For Degutation:
Must have put in a
service of not less
than five years as
District Judge
Thus, it is clear that, to be eligibie for
the post of
Secretary even under 2003 rules, apart from being
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E0 Additional Secretary, a person must also be putcin not less than one year service as Additional Secreta1~'y}-.._l'-w.vv
14. Keeping the aforesaid rules in view, ifiwef the case of the petitioner, as o_n~~the put in charge of the post of Seicreltaify, llllievlplwlasll functioning as Joint Secre't-agryV_pand"the' releVa_nt"1'1iles of 1998 also provided for post-i.of'3Secretary either from that of VA eevl:l_S¢e,§v(':1*etary or Joint Secretary. also had put in more ::l;:islJoint Secretary at the time ._ci'1arge of the post of Secretary. i\/lerelyllbecauvse' rules made a provision for the posit' of~Secre't'aryVlv_'laeing filled up from the cadre of Joint . ;secretVary;«..A:t'hat does not disentitle the petitioner from H for the post of Secretary from the date onllwtilichllhe was actually put in charge of the post of it iS'e'Lretary. The further fact that the petitioner was permitted to draw in--charge allowance of the post of Secretary also goes to show that the petitioner had fulfilled all the requirements needed to be promoted to the post of Secretary. {\ an Secretary was also found vacant and the petitioner had also filled up the said post, though by way of. arrangement, and at the same time, he requisite qualification for being lltliejqtpostl ' . of Secretary as per the then "rules such, the decisions referiied to, by ",the4l"""iearneti' Government Pleader have nio"alp;pllicationlltothejfacts and circumstances of this ca_s'e
17. For petition is aliowed and llAnneXure-V granting prornation modified by holding that the promotion' tolthel secretary shall be given effect reti_%§ospective'iyi...lvvith: effect from 1,l2.2003, with all » benefits. The respondents shall ensure H that' consequential benefits are given to the petitionervvithin two months, as the petitioner has since ~ retired from service.
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