Karnataka High Court
Sri Benakesha R vs The State Of Karnataka on 25 November, 2022
Author: S.G. Pandit
Bench: S.G. Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF NOVEMBER, 2022
BEFORE
THE HON' BLE MR. JUSTICE S.G. PANDIT
WRIT PETITION No.4493/2022 (S-RES)
C/W
WRIT PETITION No.4487/2022 (S-PRO),
WRIT PETITION No.4491/2022 (S-RES)
IN W.P.No.4493/2022:
BETWEEN:
SRI BENAKESHA R
S/O LATE RAMAPPA H.,
AGED ABOUT 55 YEARS,
ASSISTANT ENGINEER,
NAGAPURA SUB-SUB-DIVISION,
BBMP, 12TH MAIN, 11TH CROSS,
NAGAPURA,
MAHALAKSHMI LAYOUT,
BENGALURU-560 086.
...PETITIONER
(BY SRI. ARNAV A. BEGALWADI, ADVOCATE FOR
SRI HANUMANTHARAYA D, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY
DEPARTMENT OF URBAN DEVELOPMENT (BBMP),
VIKASA SOUDHA, BENGALURU-560 001.
2. CHIEF COMMISSIONER
BRUHATH BANGALORE MAHANAGARA PALIKE,
N.R. SQUARE, BENGALURU-1.
3. UPLOYUKTA-1
KARNATAKA LOKAYUKTA,
M.S. BUILDING, BENGALURU-560001
REPRESENTED BY REGISTRAR
2
4. THE ADDL. REGISTRAR OF ENQUIRIES-7
KARNATAKA LOKAYUKTA,
M.S. BUILDING, BENGALURU-560001.
...RESPONDENTS
(BY SRI M.V.RAMESH JOIS, AGA FOR R-1;
SRI B.S.KARTHIKEYAN, ADVOCATE FOR R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT
THE RESPONDENTS TO CONSIDER THE CASE OF THE
PETITIONER FOR PROMOTION TO THE POST OF ASSISTANT
EXECUTIVE ENGINEER (CIVIL) DIVISION-1 OR PLACE HIM
UNDER RULE 32 OF KARNATAKA CIVIL SERVICE RULES TO
THE POST OF ASSISTANT EXECUTIVE ENGINEER (CIVIL)
DIVISION-1 WITHOUT REFERENCE TO THE PENDING CASE
No.UPLOK-1/DE-249/2018/ARE-7 BEFORE HON'BLE
KARNATAKA LOKAYUKTA AS PER ANNEXURE-A TO C WITH ALL
CONSEQUENTIAL BENEFITS.
IN W.P.No.4487/2022:
BETWEEN:
SRI BENAKESHA R
S/O LATE RAMAPPA H.,
AGED ABOUT 55 YEARS,
ASSISTANT ENGINEER,
NAGAPURA SUB-SUB-DIVISION,
BBMP, 12TH MAIN, 11TH CROSS,
NAGAPURA, MAHALAKSHMI LAYOUT,
BENGALURU-560 086.
...PETITIONER
(BY SRI. ARNAV A. BEGALWADI, ADVOCATE FOR
SRI HANUMANTHARAYA D., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY
DEPARTMENT OF URBAN DEVELOPMENT (BBMP),
VIKASA SOUDHA, BENGALURU-560 001.
2. CHIEF COMMISSIONER
BRUHATH BANGALORE MAHANAGARA PALIKE,
N.R. SQUARE, BENGALURU-560001.
...RESPONDENTS
(BY SRI M.V.RAMESH JOIS, AGA FOR R-1;
SRI B.S.KARTHIKEYAN, ADVOCATE FOR R-2)
3
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO CONSIDER
THE CASE OF THE PETITIONER FOR PROMOTION TO THE POST
OF ASSISTANT EXECUTIVE ENGINEER (CIVIL) DIVISION-1 OR
PLACE HIM UNDER RULE 32 OF KARNATAKA CIVIL SERVICES
RULES TO THE POST OF ASSISTANT EXECUTIVE ENGINEER
(CIVIL) DIVISION-1, WITHOUT REFERENCE TO THE PENDING
CRIMINAL CASES WITH ALL CONSEQUENTIAL BENEFITS.
IN W.P.No.4491/2022:
BETWEEN:
SRI BENAKESHA R
S/O LATE RAMAPPA H.,
AGED ABOUT 55 YEARS,
ASSISTANT ENGINEER,
NAGAPURA SUB-SUB-DIVISION,
BBMP, 12TH MAIN, 11TH CROSS,
NAGAPURA,
MAHALAKSHMI LAYOUT,
BENGALURU-560 086.
...PETITIONER
(BY SRI. ARNAV A. BEGALWADI, ADVOCATE FOR
SRI HANUMANTHARAYA D., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY
DEPARTMENT OF URBAN DEVELOPMENT (BBMP),
VIKASA SOUDHA, BENGALURU-560 001.
2. CHIEF COMMISSIONER
BRUHATH BANGALORE MAHANAGARA PALIKE,
N.R. SQUARE, BENGALURU-560001.
...RESPONDENTS
(BY SRI M.V.RAMESH JOIS, AGA FOR R-1;
SRI B.S.KARTHIKEYAN, ADVOCATE FOR R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO CONSIDER
THE CASE OF THE PETITIONER FOR PROMOTION TO THE POST
OF ASSISTANT EXECUTIVE ENGINEER (CIVIL) DIVISION-1 OR
PLACE HIM UNDER RULE 32 OF KARNATAKA CIVIL SERVICES
RULES TO THE POST OF ASSISTANT EXECUTIVE ENGINEER
4
(CIVIL) DIVISION-1, WITHOUT REFERENCE TO THE CRIMINAL
CASES/ENQUIRY/REPORT OF THE COMMITTEE HEADED BY
JUSTICE SRI. H.N.NAGAMOHAN DAS (RETIRED) AND FOR THE
REASON THAT THE NAME OF THE PETITIONER FINDS PLACE IN
THE COMMUNICATION DATED 19.10.2019 WRITTEN BY
RESPONDENT No.1 TO RESPONDENT No.2 AS PER ANNEXURE-
A, WITH ALL CONSEQUENTIAL BENEFITS.
THESE PETITIONS COMING ON FOR ORDERS THROUGH
VIDEO CONFERENCE THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
The petitioner - Sri.Benakesha.R, working as Assistant Engineer in BBMP is before this Court in these three writ petitions under Article 226 of the Constitution of India praying for a direction to respondents to promote him or to place him under Rule 32 of Karnataka Civil Service Rules (for short KCSR) to the post of Assistant Executive Engineer (Civil) Division-1 without reference to the pending enquiries.
2. In W.P.No.4493/2022, the prayer of the petitioner is as follows:
"Issue writ or order in the nature of mandamus directing the respondents to consider the case of the petitioner for promotion to the post of Assistant Executive Engineer (Civil) Division-1 or 5 place him under Rule 32 of Karnataka Civil Service Rules to the post of Assistant Executive Engineer (Civil) Division-1, without reference to the pending case No.UPLOK-1/DE-249/2018/ARE-7 before Hon'ble Karnataka Lokayukta as per Annexure-A to C, with all consequential benefits, in the interest of justice and equity."
3. In W.P.No.4487/2022, similar prayer as made above is made to promote him to the next higher cadre of Assistant Executive Engineer (Civil) Division-1, without reference to the pending criminal cases.
4. In W.P.No.4491/2022, the prayer is to consider his case for promotion or to place him under Rule 32 of Karnataka Civil Service Rules to the post of Assistant Executive Engineer (Civil) Division-1, without reference to the criminal cases/enquiry/report of the committee headed by Justice Sri.H.N.Nagamohan Das (Retired).
5. As could be seen, in all the above writ petitions, the petitioner has sought for almost identical prayer.
6
6. Learned counsel for the petitioner would submit that the departmental enquiry is pending against the petitioner since very long. It is submitted that the enquiry was entrusted to third respondent - Upa Lokayukta under Government order dated 03.05.2018 (Annexure-A) and thereafter Articles of Charge on 28.07.2018 was issued (Annexure-C). Since the enquiry is pending from 2018, in case of the petitioner sealed cover procedure is followed while promoting his juniors. It is also further contended that the Charge sheet in Criminal case is also filed after more than four years. As there is delay in initiating and concluding the enquiry, the petitioner would be entitled for promotion and relies upon the decisions of the Hon'ble Apex Court in (1) STATE OF PUNJAB AND OTHERS V/S. CHAMAN LALGOYAL [(1995) 2 SCC 570], (2) State of Madhyapradesh V/s. Bani Singh [(1990) Supp SCC 738] and (3) P.V.Mahadevan V/s. Managing Director, Tamilnadu Housing Board [2005 (6) SCC 636] to contend that if there is delay in initiating the enquiry, the 7 Court will have to balance the situation and to examine as to whether the petitioner would be entitled for consideration of his case for promotion. Thus, he prays for allowing the writ petitions and to direct the respondents to consider his case for promotion to the next higher cadre of Assistant Executive Engineer (Civil) Division-1.
7. Per contra, learned counsels appearing for the second respondent - BBMP and Lokayuktha would submit that the petitioner would not be entitled for promotion during the pendency of departmental enquiry as well as criminal case. It is further submitted that the petitioner's case was considered by the DPC and sealed cover procedure is followed in respect of the petitioner. Once the enquiry and the criminal case are concluded, depending on the outcome of the cases, sealed cover would be opened and decision would be given effect to. Learned counsels would further submit that at the instance of the petitioner, enquiry is stayed in W.P.No.52546/2018 as well as in W.P.No.1087/2020. It 8 is the petitioner who is responsible for delay in conclusion of enquiry. In no way the respondent authorities are responsible for delay in conclusion of the enquiry of the petitioner. When the petitioner himself has got the enquiry stayed, it is not open for the petitioner to contend that there is delay in concluding the enquiry. Thus, they prayed for dismissal of the writ petitions.
8. The petitioner is working as Assistant Engineer in second respondent - BBMP. Admittedly, the departmental enquiry under Articles of Charge dated 28.07.2018 (Annexure-C) is pending. The enquiry is entrusted to the third respondent - Upa Lokayukta under Government order dated 03.05.2018, in pursuance to which the Articles of Charge is issued to the petitioner. It is also an admitted fact that a criminal case in Spl.C.C.No.477/2014 is pending against the petitioner.
9. The Government under O.M. dated 14.07.1993 has laid down the procedure to be followed 9 by the Departmental Promotion Committee, when a departmental enquiry/Court proceedings is pending against an employee or Government servant. Relevant portion of the O.M. reads as follows:
"2. Where a departmental enquiry or court proceeding is pending, the following course of action shall be taken:
3. The Departmental Promotion Committee (DPC) shall assess the suitability of the officer/official for promotion without taking into consideration the disciplinary proceedings/court proceedings pending against the officer/official. The assessment on the basis of records, the view of the DPC shall be kept in a sealed cover. In the subsequent DPCs also, if any, during the period of disciplinary/court proceedings, the DPC shall consider the officer's/official's case and record its findings which will again be kept in a sealed cover in the above manner.
4. On the conclusion of the disciplinary/court proceedings and in case the officer/official is exonerated, the sealed cover or covers may be opened at the carliest possible date of promotion but for the pendency of the disciplinary/court proceedings against him/her, may be determined with reference to the position(s) assigned to 10 him/her in the findings in the sealed cover/covers with reference to date of promotion of his/her junior on the basis of such position.
The officer/official concerned may then be promoted in accordance with rules if necessary by reverting the junior most officiating person.
5. If any penalty is imposed on the officer/official as a result of the disciplinary proceedings or if he is found guilty in the court proceedings, the findings in the sealed cover/covers shall not be acted upon. The officer's/official's case for promotion may be considered in the usual manner by the next DPC which needs in the normal course after conclusion of the disciplinary/court proceedings.
6. The scaled cover procedure contemplated herein above, shall be adopted only after the date of issuance of Charge Memo/Charge Sheet, that being the date from which the disciplinary proceedings can be taken to have been initiated."
10. A reading of the above O.M., makes it abundantly clear that if a Departmental Enquiry or Court proceedings are pending against a Government servant or employee, the DPC shall assess the suitability of the officer for promotion without taking into consideration the 11 Disciplinary Proceedings or Court Proceedings pending against the officer/official. The assessment and view of the DPC shall be kept in sealed cover. Depending on the outcome of the pending enquiry/Court proceedings, the decision of the DPC shall be given effect to. Therefore, no fault could be found with the action of the respondents in following the sealed cover procedure when both the Departmental Enquiry and Court Proceedings are pending against the petitioner.
11. Learned counsel for the petitioner relied upon the decisions stated supra and submits that since there is delay in concluding the enquiry, the petitioner would be entitled for consideration of his case for promotion to the next higher cadre of Assistant Executive Engineer (Civil) Division-1. The principles laid down in the decisions stated supra would have no application to the facts of the present case. The decisions relied on by the petitioner would observe that if there is delay in initiating enquiry or delay in conducting the enquiry, Court has to balance, to issue 12 appropriate direction. In the case on hand, the petitioner has failed to explain how the delay is attributable to respondents and how delay has prejudiced his case. The petitioner in the instant case approached this Court in W.P.No.No.52546/2018 as well as in W.P.No.1087/2020 challenging the Charge Memo and the order of Entrustment of enquiry to Upa Lokayukta and in those writ petitions, at the instance of the petitioner, interim order is passed staying the Charge Memo. When the enquiry is stayed at the instance of the petitioner, it is not open for the petitioner to contend that there is delay in concluding the enquiry.
12. Therefore, there is no merit in any of the contentions raised by the petitioner. It is open for the petitioner to request for giving effect to the decision in the sealed cover procedure followed on conclusion of the Departmental Enquiry/Criminal Proceedings.
With the above, writ petitions stand disposed of. 13 In view of disposal of the writ petitions, all the pending I.As stand disposed of.
Sd/-
JUDGE NC.