Karnataka High Court
Sri Rama G vs The Managing Director on 3 March, 2022
Author: R Devdas
Bench: R Devdas
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF MARCH, 2022
BEFORE
THE HON' BLE MR.JUSTICE R DEVDAS
WRIT PETITION NO.2469 OF 2021 (S - PRO)
BETWEEN
SRI RAMA G
S/O LATE GIRIYAPPA,
AGED ABOUT 59 YEARS,
WORKING AS ACCOUNTS OFFICER,
KARNATAKA POWER TRANSMISSION
CORPORATION LTD,
OFFICE OF THE FINANCIAL ADVISOR ( A & R)
CORPORATE OFFICE,
KAVERI BHAVAN, BENGALURU,
RESIDING AT NO.15, 14TH MAIN,
2ND CIRCULAR ROAD,
FTI COLONY , NANDINI LAYOUT,
BENGALURU-560096. ... PETITIONER
(BY SRI. CHANDRAKANTH R GOULAY, ADVOCATE)
AND
1. THE MANAGING DIRECTOR
KPTCL CORPORATE OFFICE,
KAVERI BHAVAN,
K.G.ROAD, BENGALURU-560009
2. THE DIRECTOR ( A & HR)
KPTCL CORPORATE OFFICE,
KAVERI BHAVAN,
K.G.ROAD, BENGALURU-560009 ...RESPONDENTS
(BY SMT. SHOBHA.S, AGA FOR R1 & R2)
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THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ENDORSEMENT DATED 07.03.2020
PASSED BY THE R-2 VIDE ANNEXURE-L, AS ARBITRARY
ILLEGAL AND IN VIOLATION OF THE ORDER OF THIS AND
ETC.
THIS WRIT PETITION COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
R.DEVDAS J., (ORAL):
The petitioner who has since retired as Accounts Officer of the respondent-Karnataka Power Transmission Corporation Limited (hereinafter referred to as 'respondent-Corporation') filed this writ petition on 14.07.2020, while still in service, with a prayer to quash the endorsement dated 07.03.2020 at Annexure-L and seeks direction to the respondents to grant retrospective promotion with effect from 21.08.2009 with all consequential service and monetary benefits, including the payment of arrears along with interest.
2. It is not disputed that earlier the petitioner along with two other persons was before this Court in W.P.No.25871-873/2009 seeking a direction to the -3- respondent-Corporation to consider the case of the petitioners for promotion to the post of Accounts Officer in pursuance and as a consequent of the decision taken in the Departmental Promotion Committee (hereinafter referred to as 'DPC') dated 23.07.2009, and the petitioner exercising the option as per the communication dated 21.08.2009 and for issuance of orders of promotion. During the course of those proceedings, several interim directions were given by this Court. Three posts were directed to be kept reserved for the petitioners therein. However, by a subsequent interim order dated 14.12.2009, this Court felt it would be unfair that 3 vacancies are kept open without allowing the promotions to be given effect to.
3. Learned Counsel for the petitioner submits that it is clear from the material available on record, including the contents of the impugned endorsement at Annexure-L, that a DPC proceedings was scheduled to be held on 25.08.2009. However, due to the bye- election and code of conduct issued by the Election -4- Commission, the DPC proceedings could not be held. However, immediately thereafter in the next DPC proceedings held on 31.12.2009 taking note of the backlog vacancies and in terms of the Government Order dated 24.06.1997, decision was taken to consider 99 eligible Assistant Accounts Officers for filling up of 25 clear vacancies as on 30.11.2009. The learned Counsel for the petitioner would submit that if a decision was taken in the DPC proceedings, which was required to be held on 23.07.2009 or immediately after the code of conduct came to an end, several of the other persons who were under the reserve category, who were not eligible to be considered for the post of Accounts Officer at that point of time, would not have got an opportunity to seek promotion to the cadre of Accounts Officer. Nevertheless, learned Counsel for the petitioner submits that since promotion is admittedly given to other persons on 09.04.2010, the case of the petitioner for promotion from the said date at least should be considered. Learned Counsel nevertheless, points out -5- form the interim orders passed by this Court and the final order passed by this Court in W.P.No.25871- 873/2009, dated 27.06.2012 that the proceedings of the DPC was in fact held on 23.07.2009, when the petitioner was eligible for promotion. Thereafter, vide communication dated 21.08.2009, the petitioner along with other persons was asked to exercise their option online and the petitioner had indeed exercised that option. This submission is made since it was pointed out by the learned Counsel for the respondent-Corporation that promotion was granted only from 09.04.2010 and nothing happened prior to that, even if the proceedings of the DPC had taken place on 23.07.2009. Learned Counsel for the petitioner submits that the petitioner has attained the age of superannuation during the month of February, 2022 and if this benefit of retrospective promotion is granted, if not for the sake of arrears of salary, at least for fitment, the petitioner would be benefited.
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4. Per contra, learned Counsel for the respondent- Corporation draws the attention of this Court to the interim order dated 14.12.2009, passed by this Court in W.P.No.25871-873/2009. Learned Counsel submits that the development that happened consequent to the DPC proceedings dated 23.07.2009 and the subsequent DPC proceedings held subsequent to the bye-election and code of conduct issued by the Election Commission has been noticed by this Court. Material was placed before this Court and this Court took note of the fact that 99 eligible Assistant Accounts Officers were considered for filling up of 25 clear vacancies as on 30.11.2009, out of which DPC cleared 22 posts from amongst which 11 belonging to General Merit and 9 to Scheduled Caste and 2 to Scheduled Tribe category, while 3 posts have not been filled up in terms of the interim directions given by this Court. Most importantly, it is pointed out that at that point of time it was noticed that the petitioners were found at Sl.No.26, 29 and 31 in the Seniority List and therefore, they do not fall within zone -7- of consideration for promotion. The learned Counsel for the respondent-Corporation therefore submits that when the petitioner did not fall within the zone of consideration for promotion, there was no occation for the DPC to consider the case of the petitioner for promotion. Nevertheless, immediately after the petitioner became eligible for promotion, the petitioner has been promoted as on 01.02.2011.
5. Learned Counsel for the respondent-Corporation would also place reliance on a decision of the Hon'ble Supreme Court in the case of Union of India and Others Vs. K K Vadera and Others, AIR 1990 SC 442, wherein at paragraph No.5, it was held as follows:
"We do not know of any law or any rule under which a promotion is to be effective from the date of creation of the promotional post. After a post falls vacant for any reason whatsoever, a promotion to that post should be from the date the promotion is granted and not from the date on which such post falls vacant. In the same way when additional posts are created, promotions to those posts can be granted only after the Assessment Board has met and made its recommendations for promotions being granted".-8-
6. Heard the learned Counsel for the petitioner, learned Counsel for the respondent-Corporation and perused the petition papers.
7. What falls out of the submissions of the learned Counsels and from the material available on record is that the petitioner has waited for too long and has not been prompt in getting the orders of this Court executed. W.P.No.25871-873/2009, which was filed by the petitioner along with two other persons was disposed of 27.07.2012, with a direction to the respondent-management to consider the claim of the petitioners for retrospective promotion with effect from 21.08.2009 and as expeditiously as possible and at any rate within the period of six weeks from the date of receipt of a copy of the order. The petitioner has slept over the rights that he was granted by this Court consequent to the directions issued in the earlier round of litigation. It is now by well settled that law does not come to rescue of the person who sleeps over his rights. -9-
8. Even on merits, what this Court finds is that when the case of the petitioner was considered along with other eligible candidates for promotion as per the DPC, which was held subsequently, he was not within the zone of consideration for promotion. This is because the respondent-Corporation was required to consider the filling up of the backlog posts in terms of the Government Order dated 24.06.1997 and adopted by the respondent-Corporation. No doubt, the petitioner has contended that if the DPC had taken place on 23.07.2009, and in fact it had taken place on 23.07.2009, when the petitioner was admittedly eligible for promotion and subsequently was called upon, the petitioner had exercised his option online on 21.08.2009, the petitioner would have been benefited. Nevertheless, what is evident is that the petitioner has accepted the said position and did not challenge the subsequent DPC proceedings and thereafter it is now too late in the day for the petitioner to contend that as per the DPC held on 23.07.2009, the petitioner should have -10- been promoted. The petitioner has accepted the decision of this Court as per the order dated 27.06.2012 and in fact never pursued the directions given by this Court to the respondent-Corporation.
9. This Court is also not in a position to accept the contention of the learned Counsel for the petitioner that if not for the arrears of salary, the case of the petitioner could be considered for retrospective promotion only for the purpose of fitment and retrial benefit of the petitioner, since the learned Counsel for the respondent- Corporation is right in her submission that if such an order is passed, it opens a Pandora's box.
10. For the reasons stated above, this Court is of the opinion that the prayer made in this petition cannot be granted. Accordingly, the writ petition stands dismissed.
11. In view of disposal of the main petition, I.A.No.1/2021 stands disposed of.
Sd/-
JUDGE DL