Karnataka High Court
Divakar S/O Shivappa Yaragoppa vs Karnataka State Road Transport ... on 11 October, 2018
IN THE HIGH COURT OF KARNATAKA
KALBURGI BENCH
DATED THIS THE 11 t h DAY OF OCTOBER 2018
BEFORE
THE HON'BLE MRS.JUSTICE K.S.MUDAGAL
WRIT PETITION No.80153 OF 2012 [S-RES]
C/w.
WRIT PETITION No.4409 OF 2008 [S-RES]
In WP No.80153/2012:
BETWEEN:
DIVAKAR S/O SHIVAPPA YARAGOPPA
OCC: ASST. EXECUTIVE ENGINEER,
NEKRTC BIDAR DIVISION,
BIDAR-585 401.
... PETITIONER
(By Sri. P VILASKUMAR ADV.)
AND:
1. KARNATAKA STATE ROAD TRANSPORT
CORPORATION, CENTRAL OFFICE,
K.H.ROAD, SHANTINAGAR,
BANGALORE-560027
REPRESENTED BY ITS VICE CHAIRMAN
AND THE MANAGING DIRECTOR.
2. THE DIRECTOR (PERSONNEL AND
ENVIRONMENT)
KARNATAKA STATE ROAD TRANSPORT
CORPORATION, CENTRAL OFFICE,
K.H. ROAD, SHANTINAGAR,
BANGALORE-560027.
:2: WP No.80153/2012
C/w. WP No.4409/2008
3. THE GENERAL MANAGER (PERSONNEL)
KARNATAKA STATE ROAD TRANSPORT
CORPORATION,
CENTRAL OFFICES,
K.H. ROAD, SHANTINAGAR,
BANGALORE-560 027.
4. NORTH EAST KARNATAKA ROAD
TRANSPORT CORPORATION,
THROUGH ITS MANAGING DIRECTOR,
SARIGE SADAN MAIN ROAD,
GULBARGA-585 105.
5. THE DIVISIONAL CONTROLLER,
NEKRTC BIDAR DIVISION,
BIDAR-585401.
6. A.N. SHIVAKUMAR
AGE: 46 YEARS,
OCC: ASST. EXECUTIVE ENGINEER,
KSRTC CE SUB-DIVISION,
HASSAN-573201.
7. CHANNANA BORAIAH
AGE: 45 YEARS,
OCC: ASST. EXECUTIVE ENGINEER,
KSRTC CE SUB-DIVISION,
YADGIR-585 201.
8. ERESH M.
AGE: 47 YEARS,
OCC: ASST. EXECUTIVE ENGINEER,
KSRTC CE SUB-DIVISION,
MANDYA.
9. M.S.VANI
AGE: 27 YEARS,
OCC: ASST. EXECUTIVE ENGINEER,
BMTC, CIVIL ENGINEERING DEPT.
BANGALORE.
:3: WP No.80153/2012
C/w. WP No.4409/2008
10. SMT. S.S. MALATHI
AGE: 44 YEARS,
OCC: ASST. EXECUTIVE ENGINEER,
NEKRTC, CE SUB-DIVISION,
BAGALKOT.
11. SRI. B.S. KRISHNAPPA
AGE ABOUT: 48 YEARS,
ASST. EXECUTIVE ENGINEER,
KSRTC, CHIKKABALLAPUR DIVISION,
12. KUTUBUDDIN
S/O HUSENSAB HAWALDAR
AGE: ,
OCC: ASST. EXECUTIVE ENGINEER,
BIJAPUR DIVISION,
BIJAPUR
... RESPONDENTS
(By Sri SUBHASH MALLAPUR ADV. FOR R1 TO R5;
R7-R10 SERVED;
R6 & R11 - NOTICE HELD SUFFICIENT;
SRI.KRUPA SAGAR PATIL ADV. FOR R12)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 277 OF THE CONSTITUTION OF INDIA PRAYING THIS
HON'BLE COURT TO:
(i) ISSUE A WRIT OF CERTIORARI FOR
QUASHING THE SENIORITY LIST DATED
10.10.2011 WHICH IS AT ANNEXURE-C.
(ii) ISSUE A WRIT OF MANDAMUS OR ANY
OTHER APPROPRIATE WRIT OR ORDER,
DIRECTING THE RESPONDENTS TO
GRANT DEEMED PROMOTION TO THE
PETITIONER WITH EFFECT FROM
22.05.1999 WITH ALL CONSEQUENTIAL
BENEFITS INCLUDING BACK-WAGES,
FIXATION OF PAY SCALE, ETC.
:4: WP No.80153/2012
C/w. WP No.4409/2008
In WP No.4409/2008:
BETWEEN:
1. SRI SURESH S PATTAR
S/O. SRI SHANKARA MONAPPA PATTAR
AGED ABOUT 43 YEARS
WORKING AS ASSISTANT ENGINEER
CHIEF CIVIL ENGINEER'S OFFICE
CENTRAL OFFICES, N.E.K.R.T.C., GULBARGA
2. SRI D S YERAGOPPA S/O SRI SHIVAPPA
AGED ABOUT 42 YEARS
WORKING AS ASSISTANT ENGINEER
CIVIL ENGINEERING SUB DIVISION
N.E.K.R.T.C., YADGIR DIVISION
DIST GULBARGA.
... PETITIONERS
(By Sri.P VILAS KUMAR ADV.)
AND:
1. KARNATAKA STATE ROAD
TRANSPORT CORPORATION
CENTRAL OFFICE, K.H. ROAD,
SHANTINAGAR
BANGALORE - 560027.
REP BY ITS VICE CHAIRMAN
AND THE MANAGING DIRECTOR.
2. THE DIRECTOR (PERSONNEL AND ENVIRONMENT)
KARNATAKA STATE ROAD TRANSPORT
CORPROATION, CENTRAL OFFICES
K.H. ROAD, SHANTINAGAR
BANGALORE - 560027.
3. THE GENERAL MANAGER (PERSONNEL)
KARNATAKA STATE ROAD TRANSPORT
CORPORATION, CENTRAL OFFICES
K.H. RAOD, SHANTINAGAR
BANGALORE - 560027.
:5: WP No.80153/2012
C/w. WP No.4409/2008
4. SRI B S KRISHNAPPA
AGED ABOUT 46 YEARS
WORKING AS ASSISTANT ENGINEER
SUB DIVISION K.S.R.T.C
KOLAR DIVISION,
KOLAR.
5. SRI S KUTBUDDIN HUSSAIN SAB
AGED ABOUT 42 YEARS
WORKING AS ASSISTANT ENGINEER
CENTRAL OFFICES
N.W.K.R.T.C.,
HUBLI.
6. SRI N V SHIVAMURTHY
AGED ABOUT 41 YEARS
WORKING AS ASST. ENGINEER
C.E. SUB DIVISION
N.W.K.R.T.C.,
HUBLI.
7. SRI SOMANNA V ANGADI
AGED ABOUT 42 YEARS
WORKING AS ASST. ENGINEER
C.E. SUB DIVISION
N.W.K.R.T.C., GADAG.
8. SRI B P RANGA RAJU
AGED ABOUT 42 YEARS
WORKING AS ASSISTANT ENGINEER
C.E. SUB DIVISION K.S.R.T.C.
CENTRAL OFFICES, K.H. ROAD
SHANTINAGAR,
BANGALORE -560027.
... RESPONDENTS
(By Sri. DEEPAK V BARAD ADV.FOR R1 TO R3;
R4-SERVED;
SR.B.R.PATIL & KRUPA SAGAR PATIL ADVS. FOR R5;
R6, R7 & R8--SERVED)
:6: WP No.80153/2012
C/w. WP No.4409/2008
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 277 OF THE CONSTITUTION OF INDIA PRAYING THIS
HON'BLE COURT TO :
(i) QUASH THE FINAL SENIORITY LIST DT.
16.02.2008 ISSUED UNDER NO.krt: KeKa :
VaSha (Admin) : 259 : 2007-2008 IN SO FAR
IT RELATES TO NON-CONSIDERATION OF
THE CASE OF THE PETITIONERS FOR GRANT
PROMOTION TO THE CADRE OF ASSISTANT
EXECUTIVE ENGINEER DIRECTLY FROM THE
CADRE OF JUNIOR ENGINEER IN PURSUANCE
OF THE GOVERNMENT ORDER DATED
05.10.1999, A TRUE COPY OF WHICH IS
PRODUCED AT ANNEXURE 'B';
(ii) DIRECT THE RESPONDENTS TO GRANT
DEEMED PROMOTION TO THE PETITIONERS
TO THE POST OF ASSISTANT EXECUTIVE
ENGINEER DIRECTLY FROM THE CADRE OF
JUNIOR ENGINEER IN PURSUANCE OF G.O.
DATED 05.10.1999 WITH ALL
CONSEQUENTIAL BENEFITS, A TRUE COPY
OF WHICH IS PRODUCED AT ANNEXURE 'B',
ETC.
Case heard and reserved on : 11th July 2018;
Judgment pronounced on : 11th October 2018.
These Writ Petitions coming on for Preliminary Hearing
in 'B' group on 11.07.2018 and the same having been heard
and reserved, this day through video conference at High
Court of Karnataka, Dharwad Bench the Court pronounced
the following:-
:7: WP No.80153/2012
C/w. WP No.4409/2008
ORDER
The petitioners in Writ Petition No.4409 of 2008 are seeking quashing of Annexure 'E'-the seniority list dated 16.02.2008 in the cadre of Assistant Engineers (Civil) (Class-II) and writ of mandamus against respondent Nos.1 to 3 to grant deemed promotion to the petitioners as per the Government Order dated 05.10.1999 to the post of Assistant Executive Engineer directly from the cadre of Junior Engineer.
Petitioner No.2 in Writ Petition No.4409 of 2008 has filed Writ Petition No.80153 of 2012 seeking quashing of Annexure 'C' to the said petition, namely the seniority list dated 10.10.2011 in the cadre of Assistant Executive Engineer (Civil) (Class-I) (Junior) and for writ of mandamus to grant deemed promotion to him with effect from 22.05.1999 with consequential benefits, back- wages, etc. :8: WP No.80153/2012 C/w. WP No.4409/2008
2. Petitioners were selected as Junior Engineers (Civil) (Class-III) as per the selection list dated 10.01.1992 under respondent No.1 namely Karnataka State Road Transport Corporation. At the intervention of the Government, that list was reviewed and therefore, the selection list dated 27.04.1992 was issued including several other candidates and modifying the seniority of the petitioners in the merit list.
3. The 2nd selection list was challenged before this Court in Writ Petition Nos.13728-730 of 1992. Those writ petitions came to be allowed on 27.09.1995 upholding the first list. However, since by that time, some candidates of the 2 n d list were already appointed and working, to protect their services, it was ordered that the candidates selected and working under the 2 n d list shall be juniors to the candidates selected and working under the 1 s t list. The said order was upheld by the Division Bench of this Court in Writ Appeal No.4054 of 1995 and :9: WP No.80153/2012 C/w. WP No.4409/2008 connected matters vide judgment dated 12.12.1997. Special Leave Petition No.9749-9753 of 1998 preferred before Hon'ble Supreme Court against the judgments in writ appeals and writ petitions were rejected by order dated 15.07.1998. Thereafter, the petitioners were appointed as Junior Engineers (Civil) on 22.05.1992 as Junior Engineers (Civil) (Class-III).
4. The service conditions of the employees of the KSRTC were governed by the Cadre and Recruitment Regulations, 1982 (for short 'Regulations') framed in exercise of the powers conferred under Section 45 of the Road Transport Corporation Act, 1950. As per the said Regulations, as they stood on the date of appointment of the petitioners, the post of Junior Engineers (Civil) (Class-III) was a direct recruitment post. Entry No.7 of Schedule A to Regulation No.3 which deals with the method of recruitment reads as follows: : 10 : WP No.80153/2012 C/w. WP No.4409/2008
"7. Category-Junior Engineer (Civil) Class-III:
By Direct Recruitment:
(a) Must have a Diploma in Civil Engineering from a Recognized Institution.
(b) Must have experience as Civil Engineering Department or reputed firm for not less than three (3) years."
5. As per entry No.5 of Schedule 'A', the Assistant Engineer (Civil) (Class-III) was a direct recruitment post. The qualification prescribed for the said post was a Degree in Civil Engineering from the University established by law in India or equivalent qualification and preference was given to the experienced persons.
6. As per entry No.3 of Schedule 'A', the post of Assistant Executive Engineer (Civil)(Class-II) was to be filled by direct recruitment as well as by promotion from the cadre of Assistant Engineers (Civil) / Junior Engineers (Civil) / Draftsman on Quota & Rota basis. The said Rule reads as follows: : 11 : WP No.80153/2012 C/w. WP No.4409/2008
"3. Category--Assistant Executive Engineer (Civil) Class-II:
Three vacancies a) (i) A Degree in civil out of every Engineering of a Four vacancies University established by by promotion on law in India or equivalent the basis of qualification Seniority-cum- (ii) Must have rendered merit from the not less than three (3) cadres of Asst. years service as Engineer (Civil) Assistant Engineer / Junior (Class-III) Engineers (Civil) b) (i) A Diploma in Civil / Draughtsman Engineering from a recognized Institution or equivalent qualification.
(ii) Must have rendered
not less than seven (7)
years service as
Assistant (sic! Junior)
Engineer (Class-III) /
Draughtsman.
AND
Every fourth A degree in Civil
Vacancy by Engineering of a
direct University established by
recruitment law in India or equivalent
qualification."
7. Thus, it is clear that the feeder cadre to the post of Assistant Executive Engineer by promotion was the Assistant Engineer (Class-III) with three years experience and Junior Engineer : 12 : WP No.80153/2012 C/w. WP No.4409/2008 (Class-III) / Draughtsman with seven years experience.
8. The respondent-Corporation prepared State level revised adhoc seniority list of Draughtsman / Junior Engineer (Civil)(Class-III) from 01.01.1996 to 31.12.2002 as per Annexure 'A'.
Petitioners have no grievance about that. They contend that Junior Engineers were given promotion to the post of Assistant Engineers notionally in pursuance of the Government Order dated 05.10.1999 vide Annexure 'B'. But, Annexure 'B' is not a Government Order; Annexure 'B' is only a communication issued by the Under Secretary to the Transport Department, to the Managing Director, KSRTC i.e., respondent No.1.
9. In Annexure 'B' it is stated that as per the Notification / letter under reference No.2 to the said document, saving 12 posts of Junior Engineers, the Government has approved the recruitment procedure of the employees as per the Schedule : 13 : WP No.80153/2012 C/w. WP No.4409/2008 appended to the said letter. The petitioners have not even produced the said notification / letter / Schedule along with Annexure 'B'.
10. At one breath, petitioners claim that as per the Circular under Annexure 'B' dated 05.10.1999, they were eligible for promotion to the post of Assistant Executive Engineer from the post of Junior Engineers (Civil) (Class-III) and they should have been given notional promotion to the post of Assistant Engineers and from there, they should have been given promotion to the post of Assistant Executive Engineers.
11. At another breath, petitioners claim that as per the Regulations, immediately on completion of seven years service in Junior Engineer (Civil) (Class-III) post, they were eligible for promotion to the post of Assistant Executive Engineers and should have given such promotion. Therefore, they contend that issuing a common seniority list of Junior Engineers and Assistant Engineers under : 14 : WP No.80153/2012 C/w. WP No.4409/2008 Annexure 'E' is illegal. Thereby their service conditions are affected.
12. Before issuing Annexure 'E', the respondent Corporation issued Annexure 'C' provisional Seniority list of Assistant Engineers (Civil) (Class-II) dated 17.01.2006 for the period from 11.06.1992 to 31.05.2007 calling upon objections of the affected persons, if any. The petitioners contend that they submitted objections to the said list and without considering the same, the final seniority list including them in the cadre of Assistant Engineers as per Annexure 'E' is issued. Thus, they seek quashing of Annexure 'E'. They claim that by giving notional promotion to them to the cadre of Assistant Engineers, they should have been given promotion to the post of Assistant Executive Engineers.
13. Learned counsel for the petitioner submits that the respondents withheld the material documents, therefore, adverse inference has to be : 15 : WP No.80153/2012 C/w. WP No.4409/2008 drawn against them. He further submits that promotion of respondent Nos.6 to 12 to the post of Assistant Executive Engineers prior to the petitioners (Junior Engineers), though they were appointed subsequent to the petitioners amounts to discrimination and violation of the doctrine of equality before law. In support of his contention, he seeks to rely on the following judgments:
(i) Management of State Bank of
India and V.M.Mahapurush, 1994
(69) FLR 1051;
(ii) Rajendra Yadav Vs. State of M.P. & Others, (2013) 3 SCC 73.
14. Per contra, the learned counsel for respondents oppose the petitions on the following grounds:
(i) Initially, the post of Assistant Executive Engineers as per the Regulation was to be filled up by promotion, direct recruitment and feeder cadre for the promotion was Assistant Engineer and Junior Engineers (Class-III) / Draughtsman;: 16 : WP No.80153/2012 C/w. WP No.4409/2008
(ii) By the resolution of the Corporation dated 22.12.1998, several posts mentioned in Schedule 'A' were upgraded / abolished / inserted with revision of method of recruitment and other requirements;
(iii) With amendment to Schedule 'A' in 1999, the structure of the cadre of Junior Engineers, Assistant Engineers and Assistant Executive Engineers was changed and only the post of Assistant Engineer was made feeder cadre for promotion to the post of Assistant Executive Engineers.
(iv) To consider a Junior Engineer for promotion to the cadre of Assistant Executive Engineer, he should have been first promoted to the cadre of Assistant Engineer and only a person having service of three years in the cadre of Junior Engineer (Spl. Grade) (Civil) was eligible for promotion to the post of Assistant : 17 : WP No.80153/2012 C/w. WP No.4409/2008 Engineer and only a candidate having service of three years in the cadre of Assistant Engineer was eligible for promotion to the post of Assistant Executive Engineer;
(v) While amending Regulations in 1999 to protect the service of Junior Engineers who were appointed prior to 1984 only those 12 Junior Engineers were saved from the operation of amending regulations. Since, the petitioners were appointed subsequent to 1984, they were not entitled for that benefit;
(vi) Respondent Nos.4 to 8 in Writ Petition No.4409 of 2008 and respondent Nos.5 to 12 in Writ Petition No.80153 of 2012 were directly recruited to the post of Assistant Engineers;
(vii) Having regard to the aforesaid restructuring of the cadre of Junior Engineer / Assistant Engineer, it was : 18 : WP No.80153/2012 C/w. WP No.4409/2008 necessary to bring the Junior Engineer / petitioners, first in the common seniority list of Assistant Engineers. Only after they putting into service of three years in that cadre, they became eligible for promotion to the post of Assistant Executive Engineer.
(viii) On considering all these aspects, the Corporation has issued Annexure 'E' in Writ Petition No.4409 of 2008 and Annexure 'C' in Writ petition No.80153 of 2012.
15. Having regard to these rival contentions, the question that arises for consideration is whether the petitioners claim that they should have been given promotion to the post of Assistant Executive Engineer soon after they completing 7 years of service as Junior Engineer or by notionally giving promotion to them to the post of Assistant Engineers without including them in the common seniority list of Assistant Engineers as per Annexure 'E' is sustainable.
: 19 : WP No.80153/2012C/w. WP No.4409/2008
16. As already pointed out, though the petitioners base their claim on the Order/Circular dated 05.10.1999 issued by the Government to contend that under that order / circular, the services of Junior Engineers who were already in service were protected / saved, they have not produced the said Government Order / Circular.
17. Annexure 'B' produced by the petitioners in Writ Petition No.4409 of 2008 itself refers to a letter No.HTD/20/TRA/99 dated 08.08.1998 issued by the Government. Even that letter dated 08.08.1998 is not produced by the parties to assist the Court. That the letter does not indicate that the service of the petitioners or Junior Engineers who were already appointed by that time is protected, but it states that for 12 posts, partial approval is given and except that for all other posts, the approval is given for procedure of appointment and other things as per the Schedule annexed to that. : 20 : WP No.80153/2012 C/w. WP No.4409/2008
18. Annexure 'C' Notification dated 17.01.2006 in Writ Petition No.4409 of 2008, the petitioners own document refers to the Notification dated 05.10.1999 and other Circulars. Petitioners do not dispute Annexure 'C' or its validity. Annexure 'C' states that as per the Government Order dated 08.06.1999 at reference No.2 the post of Assistant Executive Engineer (Civil) (Grade-II), Assistant Engineer (Civil) (Class-III) are upgraded to Class-I (Junior) and Class-II respectively.
19. Paragraph 2 of Annexure 'C' states that the Board of Directors in the meeting held in January 1999 resolved to upgrade the cadres of Assistant Engineers and Assistant Executive Engineers on par with the State Government employees in that cadre to Grade-II and Grade-I (Junior). It further says that the Board of Directors resolved to consider only the cadre of Assistant Engineers as feeder cadre for promotion to the post of Assistant Executive Engineer and the cadre of : 21 : WP No.80153/2012 C/w. WP No.4409/2008 Junior Engineer as it stood prior to the amendment shall continue as feeder cadre to the post of Junior Engineers (Special Grade) and the cadre of Junior Engineers (Special Grade) shall be feeder cadre for promotion to the cadre of Assistant Engineers and with these amendments, the Circular at reference No.1 namely Circular No.1200 dated 11.06.1999, amending the Cadre and Recruitment Regulation is issued.
20. Paragraph No.3 of Annexure 'C' states that to avoid injustice to the Junior Engineers, who were appointed in 1984 and prior thereto and not promoted, the amendment has protected 10 Junior Engineers from the operation of the amended regulations dated 11.06.1999 and they shall be promoted directly to the post of Assistant Executive Engineer and the Government has approved that proposal to the amendment.
21. Thus, it is clear that under the amended Rules under Circular No.1200 dated 11.06.1999, : 22 : WP No.80153/2012 C/w. WP No.4409/2008 only the services of the Junior Engineers who were appointed in 1984 and prior thereto were protected to enable them to get promoted directly to the post of Assistant Executive Engineer. Therefore, the petitioners cannot claim that benefit unless they challenge those Regulations as amended under the Government Order / Circular No.1200 dated 11.06.1999.
22. Paragraph 4 of Annexure 'C' states that to clarify the words "Junior Engineers presently having the service eligibility" referred under Annexure 'C' i.e., the Government Order/letter dated 05.10.1999 (Annexure 'B'), the Board resolved under Annexure 'C' that only 10 Junior Engineers who were appointed in 1984 and prior thereto and were in the range of consideration for promotion to the Assistant Executive Engineer shall be considered as Junior Engineers having service eligibility and for the rest of the Junior Engineers, the Regulations as amended in 1999 shall apply. : 23 : WP No.80153/2012 C/w. WP No.4409/2008 Therefore, under Annexure 'C', respondent Corporation clarified that the Junior Engineers who were appointed subsequent to 1984 were given notional promotion to the cadre of Assistant Engineers (Civil) following Quota and Rota and seniority list was prepared accordingly on that basis.
23. The petitioners have not challenged the notification Annexure 'C' dated 17.01.2006 nor the Regulations as amended under Circular No.1200 dated 11.06.1999. Without challenging those amended Regulations or Annexure 'C', the Notification dated 17.01.2006 or the Circular No.1200 dated 11.06.1999, petitioners cannot maintain writ only to quash the Notification Annexure 'E' dated 16.02.2008 under which the petitioners are brought under the common seniority list of Assistant Engineers (Civil) on notional promotion.
: 24 : WP No.80153/2012C/w. WP No.4409/2008
24. This view is fortified by the following judgments of the Hon'ble Supreme Court:
(i) Amarjeet Singh and others vs. Devi Ratan and others, 2010(11) SCC 90; and
(ii) Uttar Pradesh Power Corporation Limited and others VS. Amausi Textile Mills Limited and another, (2010) 11 SCC 90;
25. In Amarjeet Singh's case, the Hon'ble Supreme Court in paragraphs 27 to 29 has held as follows:
"27. The law permits promotion with retrospective effect only in exceptional circumstances when there has been some legal impediment in making the promotions, like an intervention by the Court. An officer cannot be granted seniority prior to his birth in the cadre adversely affecting the seniority of other officers who had been appointed prior to him. "The late comers to the regular stream cannot steal a march over the early arrivals in the regular queue."
(vide S.P. Kapoor (Dr.) vs. State of Himachal Pradesh AIR 1981 SC 2181; Shitala Prasad Shukla : 25 : WP No.80153/2012 C/w. WP No.4409/2008 vs. State of U.P. & Ors., (SCC p.190 para 10) AIR 1986 SC 1859; and Uttaranchal Forest Rangers' Assn. (Direct Recruit) & Ors. vs. State of U.P. & Ors., (2006) 10 SCC 346)].
28. In the instant case, promotions had been made by two different DPC's held on 19.12.1998 and 22.01.1999. Both the DPC's had made promotions under different rules on different criterion and their promotions had been made with retrospective effect with different dates notionally. In the writ petition before the High Court, the promotion of the appellants had not been under challenge. The seniority which is consequential to the promotions could not be challenged without challenging the promotions. Challenging the consequential order without challenging the basic order is not permissible. (vide P.Chithranja Menon & Ors. Vs. A. Balakrishnan & Ors., (1977) 3 SCC 255 : AIR 1977 SC 1720).
29. In Roshan Lal & ors. Vs. International Airport Authority of India & ors., AIR 1981 SC 597, the petitions were primarily confined to the seniority list and this Court held that challenge to appointment orders could not be entertained because of inordinate delay and in absence of the same, validity of consequential, : 26 : WP No.80153/2012 C/w. WP No.4409/2008 seniority could not be examined. In such a case, a party is under a legal obligation to challenge the basic order and if and only if the same is found to be wrong, consequential orders may be examined."
(Emphasis supplied)
26. In Uttar Pradesh Power Corporation Limited's case, the Hon'ble Supreme Court in paragraphs 7 & 8 has held as follows:
" 7. We have thoughtfully considered the submissions of the learned counsel. In our view, the writ petition filed by the respondents for setting aside orders dated 1.3.2008 and 26.3.2008 passed by the Consumer Forum and the Electricity Ombudsman as also the sale proclamation was nothing but was an abuse of the process of the court and the High Court committed serious error by entertaining and allowing the same. It is not in dispute that in none of the writ petitions filed by them, respondent No.1/respondents challenged order dated 10.07.2002 passed by General Manager, LESA, who held that respondent No.1 was liable to pay the dues amounting : 27 : WP No.80153/2012 C/w. WP No.4409/2008 to Rs.53,72,006.87. Therefore, the consequential action taken by the prescribed authority to issue recovery certificate/revised recovery certificate was not open to be challenged by the respondents and in any case, order dated 10.07.2002 could not have been indirectly nullified by the High Court by allowing the writ petition filed for quashing orders dated 01.03.2008 and 26.3.2008 passed by the Consumer Forum and the Electricity Ombudsman.
8. Unfortunately, the Division Bench of the High Court not only failed to notice this designed omission on the respondents' part to challenge order dated 10.7.2002 passed by General Manager, LESA but also ignored the starking facts that respondent No.1 failed to comply with order dated 7.10.2002 passed in Writ Petition No.6121 (M/B) of 2002 and that Writ Petition No.78 (M/B) of 2008 filed by it for quashing the revised recovery certificate dated 06.09.2007 was dismissed as not pressed. It is extremely difficult, if not impossible to fathom any reasons why the High Court appointed Justice K.S. Rakhra (Retd.) for settlement of dispute between the parties, the determination : 28 : WP No.80153/2012 C/w. WP No.4409/2008 of which, in its own opinion involved investigation into disputed questions of fact."
(Emphasis S upplied)
27. As per the petitioners own document Annexure 'C', which is not under challenge, petitioners are not entitled to promotion to the cadre of Assistant Executive Engineer bypassing cadre of Assistant Engineers. Therefore, Writ Petition No.4409 of 2008 is liable to be dismissed.
28. The merit of the clam in Writ Petition No.80153 of 2012 again depends upon the result of Writ Petition No.4409 of 2008. In the subsequent writ petition, the petitioner claims that, as per the Regulation dated 05.10.1999 soon after seven years of service as Junior Engineer from the date of his appointment, he was eligible to be promoted as Assistant Executive Engineer and respondent Nos.6 to 12 being appointed as Assistant Engineers were becoming eligible after serving three years in the said cadre.
: 29 : WP No.80153/2012C/w. WP No.4409/2008
29. Petitioner was appointed as Junior Engineer on 22.05.1992. Respondent Nos.6 to 9 and 11 were appointed as Assistant Engineers on 07.05.1997, respondent Nos.10 and 12 were appointed as Assistant Engineers on 13.12.1999 and 23.05.1999. As per the petitioner, he was eligible for promotion to the cadre of Assistant Executive Engineer on 22.05.1999 whereas respondent Nos.6 to 9 and 11 became eligible to the post on 07.05.2000 and respondent Nos.10 and 12 became eligible in December 2002 & May 2002, but they were given promotion as Assistant Executive Engineer earlier to his promotion. Therefore, he contends the same is bad in law.
30. But, this Court while discussing the merits of the Writ Petition No.4409 of 2008 has already held that challenge to the common seniority list to the cadre of Assistant Engineers on such grounds is untenable. Consequent to failure of their challenge : 30 : WP No.80153/2012 C/w. WP No.4409/2008 to the said list, subsequent challenge also does not sustain.
31. In view of the observations made above, the judgments relied upon by the learned counsel for the petitioners are not applicable to the facts of the case. There is no merit in the claim of petitioners. Therefore, both writ petitions are hereby dismissed.
Sd/-
JUDGE RK/-