Karnataka High Court
Sri.Gurusiddaiah vs The State Of Karnataka on 17 July, 2013
Bench: D.V.Shylendra Kumar, B.S.Indrakala
IN THE HIGH COURT OF KARNATAKA
AT BANGALORE
Dated this the 17th day of July, 2013
PRESENT
THE HON'BLE MR JUSTICE D V SHYLENDRA KUMAR
AND
THE HON'BLE MRS JUSTICE B S INDRAKALA
Writ Petition Nos. 11682-85 of 2010 (S-KAT)
C/w
Writ Petition Nos. 18775-76 of 2010
and 7424 & 16814-16 of 2011 (S-KAT)
IN WP NO. 11682/2010
BETWEEN:
SRI GURUSIDDAIAH
S/O LATE SIDDAIAH
AGED ABOUT 50 YEARS,
PRESENTLY WORKING
AS CHIEF LIBRARIAN,
ADVOCATE GENERAL'S OFFICE
HIGH COURT BUILDING
BANGALORE - 560 001
R/O NO. D-11, PWD QUARTERS
12TH CROSS, JAYAMAHAL EXTENSION
BANGALORE - 560 046 ... PETITIONER
[By Sri Ajoy Kumar Patil, Adv.]
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS SECRETARY,
DEPARTMENT OF LAW &
PARLIAMENTARY AFFAIRS,
VIDHANA SOUDHA,
BANGALORE - 560 001
2
2. THE ADVOCATE GENERAL
FOR KARNATAKA
HIGH COURT BUILDINGS,
BANGALORE - 560 001 ... RESPONDENTS
[By Smt S Susheela, AGA]
IN WP NO. 11683/2010
BETWEEN:
SRI GURUSIDDAIAH
S/O LATE SIDDAIAH
AGED ABOUT 50 YEARS,
PRESENTLY WORKING
AS CHIEF LIBRARIAN,
ADVOCATE GENERAL'S OFFICE
HIGH COURT BUILDING
BANGALORE - 560 001
R/O NO. D-11, PWD QUARTERS
12TH CROSS, JAYAMAHAL EXTENSION
BANGALORE - 560 046 ... PETITIONER
[By Sri Ajoy Kumar Patil, Adv.]
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS SECRETARY,
DEPARTMENT OF LAW &
PARLIAMENTARY AFFAIRS,
VIDHANA SOUDHA,
BANGALORE - 560 001
2. THE ADVOCATE GENERAL
FOR KARNATAKA
HIGH COURT BUILDINGS,
BANGALORE - 560 001
3. SRI T S NAGENDRASWAMY
S/O T M SHIVANNA
AGED ABOUT 67 YEARS,
RETIRED SECTION OFFICER,
ADVOCATE GENERAL'S OFFICE,
R/O NO. 3, 7TH CROSS, 1ST MAIN,
3
LAKSHMIDEVAMMA BLOCK,
GANGANAGAR EXTN.,
BANGALORE - 560 032
4. SRI RAJAPUROHIT P K
S/O LATE KRISHNA RAJAPUROHIT
AGED ABOUT 55 YEARS,
WORKING AS ASSISTANT
ADMINISTRATIVE OFFICER,
K.A.T. UNIT,
BANGALORE - 560 036
5. SRI ABBIGERE
AGED ABOUT 50 YEARS
ASSISTANT ADMINISTRATIVE
OFFICER,
ADVOCATE GENERAL'S OFFICE,
GULBARGA UNIT
GULBARGA
6. SMT G SUMANGALA
AGED ABOUT 59 YEARS
RETD. SECTION OFFICER,
R/O NO. 174, XI "A" CROSS,
III MAIN, PRASHANTHNAGAR,
BANGALORE - 560 079
7. SRI L AMARANARAYANACHARI
S/O LAKSHMANACHARI,
AGED ABOUT 60 YEARS,
RETD. SECTION OFFICER,
ADVOCATE GENERAL'S OFFICE,
R/O NO. 1978, 8TH MAIN,
E BLOCK, II STAGE,
RAJAJINAGAR,
BANGALORE - 560 010
8. SMT. NAGALAKSHMAMMA
AGED ABOUT 59 YEARS
RETD. SECTION OFFICER
ADVOCATE GENERAL'S OFFICE,
R/O NO. 15, 6TH "B" CROSS
MADAPPA GARDEN,
4
SRIRAMPURAM,
BANGALORE - 560 021 ... RESPONDENTS
[By Smt S Susheela, AGA for R1 & R2;
Sri Ranganath S Jois, Adv. for R4;
Sri P B Bajendri & Sri B B Bajentri, Advs. for R5;
R3, R6, R7 & R8 are served]
IN WP NO. 11684/2010
BETWEEN:
SRI GURUSIDDAIAH
S/O LATE SIDDAIAH
AGED ABOUT 50 YEARS,
PRESENTLY WORKING
AS CHIEF LIBRARIAN,
ADVOCATE GENERAL'S OFFICE
HIGH COURT BUILDING
BANGALORE - 560 001
R/O NO. D-11, PWD QUARTERS
12TH CROSS, JAYAMAHAL EXTENSION
BANGALORE - 560 046 ... PETITIONER
[By Sri Ajoy Kumar Patil, Adv.]
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS SECRETARY,
DEPARTMENT OF LAW &
PARLIAMENTARY AFFAIRS,
VIDHANA SOUDHA,
BANGALORE - 560 001
2. THE ADVOCATE GENERAL
FOR KARNATAKA
HIGH COURT BUILDINGS,
BANGALORE - 560 001
3. SRI CHALAPATHI B V
AGED ABOUT 60 YEARS
RETD. ASSISTANT
ADMINISTRATIVE OFFICER
5
ADVOCATE GENERAL'S OFFICE,
AND R/O NO.3, 7TH CROSS,
1ST MAIN, LAKSHMIDEVAMMA
BLOCK, GANGANAGAR EXTN.,
BANGALORE - 560 032
4. SRI K M SHIVAMOORTHAIAH
AGED ABOUT 67 YEARS,
RETD. ASSISTANT
ADMINISTRATIVE OFFICER
ADVOCATE GENERAL'S OFFICE,
R/O NO. 2800, 14TH "B" MAIN ROAD,
R.P.C LAYOUT, ATHIGUPPE
BANGALORE - 560 040
5. SRI BHARGAVA
AGED ABOUT 54 YEARS,
ASSISTANT ADMINISTRATIVE OFFICER,
ADVOCATE GENERAL'S OFFICE,
HIGH COURT BUILDING,
BANGALORE - 560 001
6. SRI M KRISHNAPPA
AGED ABOUT 58 YEARS,
ADMINISTRATIVE OFFICER,
ADVOCATE GENERAL'S OFFICE
HIGH COURT BUILDING,
BANGALORE - 560 001 ... RESPONDENTS
[By Smt S Susheela, AGA for R1 & R2;
Sri S M Babu, Adv. for R6;
R3 to R5 are served & remain unrepresented]
IN WP NO. 11685/2010
BETWEEN:
SRI GURUSIDDAIAH
S/O LATE SIDDAIAH
AGED ABOUT 50 YEARS,
PRESENTLY WORKING
AS CHIEF LIBRARIAN,
ADVOCATE GENERAL'S OFFICE
HIGH COURT BUILDING
BANGALORE - 560 001
6
R/O NO. D-11, PWD QUARTERS
12TH CROSS, JAYAMAHAL EXTENSION
BANGALORE - 560 046 ... PETITIONER
[By Sri Ajoy Kumar Patil, Adv.]
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS SECRETARY,
DEPARTMENT OF LAW &
PARLIAMENTARY AFFAIRS,
VIDHANA SOUDHA,
BANGALORE - 560 001
2. THE ADVOCATE GENERAL
FOR KARNATAKA
HIGH COURT BUILDINGS,
BANGALORE - 560 001
3. SRI M KRISHNAPPA
AGED ABOUT 58 YEARS,
ADMINISTRATIVE OFFICER,
ADVOCATE GENERAL'S OFFICE
HIGH COURT BUILDING,
BANGALORE - 560 001
4. SRI P K RAJAPUROHIT
S/O LATE KRISHNA RAJAPUROHIT
AGED ABOUT 55 YEARS,
WORKING AS ASSISTANT
ADMINISTRATIVE OFFICER,
K A T UNIT
BANGALORE - 560 036
5. SRI C KRISHNAPPA
AGED ABOUT 62 YEARS,
RETD. SECTION OFFICER
ADVOCATE GENERAL'S OFFICE
R/O VILLAGE &
POST: DODDAGANJUN
CHINTHAMANI TALUK,
KOLAR DISTRICT
7
6. SRI N DHRUVA
AGED ABOUT 53 YEARS,
ASST. ADMINISTRATIVE OFFICER
ADVOCATE GENERAL'S OFFICE
DHARWAD UNIT,
DHARWAD
7. SRI B N SRINIVASA BHATRACHAR
AGED ABOUT 58 YEARS,
SECTION OFFICER,
ESTABLISHMENT SECTION
OFFICE OF THE ADVOCATE GENERAL
HIGH COURT BUILDING,
BANGALORE - 560 001
8. SRI P . THIPPERUDRAPPA
AGED ABOUT 55 YEARS,
ASST. ADMINISTRATIVE
OFFICER ON DEPUTATION
WORKING AS
EXECUTIVE OFFICER,
TALUK PANCHAYAT,
SIRAGUPPA TALUK,
BELLARY DISTRICT
9. SMT C CHANDRAPRABHA
AGED ABOUT 54 YEARS,
WORKING AS SECTION OFFICER,
WRIT SECTION, OFFICE OF THE
ADVOCATE GENERAL
HIGH COURT BUILDING,
BANGALORE - 560 001
10. SRI H SHANKAREGOWDA
AGED ABOUT 53 YEARS,
WORKING AS SECTION OFFICER,
OFFICE OF THE ADVOCATE
GENERAL FOR KARNATAKA,
HIGH COURT BUILDING,
BANGALORE - 560 001
11. SRI T C MUNIRATHNAM
AGED ABOUT 60 YEARS
RETD. SECTION OFFICER,
ADVOCATE GENERAL'S OFFICE,
8
R/O D. NO. 700, 2ND MAIN ROAD,
"D" BLOCK, II STAGE,
RAJAJINAGAR
BANGALORE - 560 010
12. SRI B G JAGADISH
AGED ABOUT 48 YEARS
WORKING AS SECTION OFFICER
OFFICE OF THE ADVOCATE GENERAL
HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT
GULBARGA UNIT
GULBARGA
13. SRI R S ABBIGERI
AGED ABOUT 50 YEARS
ADMINISTRATIVE OFFICER
OFFICE OF THE ADVOCATE GENERAL
HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT
GULBARGA UNIT
GULBARGA
14. SRI A HANUMANTHARAJU
AGED ABOUT 50 YEARS
SECTION OFFICER,
OFFICE OF THE ADVOCATE GENERAL
HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT
GULBARGA UNIT,
GULBARGA
15. SMT M PUSHPA
AGED ABOUT 48 YEARS
SECTION OFFICER,
TAPPAL SECTION
OFFICE OF THE ADVOCATE GENERAL
OLD K.G.I.D BUILDING,
BANGALORE - 560 001
16. SRI G MADESH
AGED ABOUT 53 YEARS
SECTION OFFICER,
OFFICE OF THE ADVOCATE
GENERAL FOR KARNATAKA
9
HIGH COURT BUILDING,
BANGALORE - 560 001 ... RESPONDENTS
[By Smt S Susheela, AGA for R1 & R2;
Sri S M Babu, Adv. for R3;
Sri Ranganath S Jois, Adv. for R4;
Sri O Shivarama Bhat, Adv. for R9;
Sri P B Bajentri, Adv. for R13;
R5 to R8, R10 to R12, R14 to R16 are served
but remain unrepresented]
THESE PETITIONS ARE FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER DATED 18.01.2010, PASSED BY THE KARNATAKA
ADMINISTRATIVE TRIBUNAL AT BANGALORE IN APPLICATION
NO.2358/1999 C/W APPLICATIONS NO.6383/2001, 9088/2003 &
6520/2005 PRODUCED AT ANNEXURE - A AND ETC.,
IN WP NO. 18775/10
BETWEEN:
SRI M KRISHNAPPA
S/O LATE R MUNISWAMAPPA
AGED ABOUT 59 YEARS
PRESENTLY WORKING AS
ADMN. OFFICER,
O/O ADVOCATE-GENERAL
DR AMBEDKAR ROAD,
BANGALORE - 560 001
BANGALORE DISTRICT ... PETITIONER
[By Sri S M Babu, Adv.]
AND:
1. SRI GURUSIDDAIAH
S/O LATE SIDDAIH
AGED ABOUT 50 YEARS
CHIEF LIBRARIAN
ADVOCATE-GENERAL'S OFFICE
HIGH COURT BUILDINGS,
BANGALORE - 560 001
10
2. STATE OF KARNATAKA
DEPARTMENT OF LAW,
VIDHANA SOUDHA
BANGALORE - 560 001
REP. BY ITS SECRETARY
3. ADVOCATE-GENERAL
FOR KARNATAKA
HIGH COURT BUILDING,
BANGALORE - 560 001
4. SRI CHALAPATHY B V
AGED ABOUT 59 YEARS
FATHER'S NAME NOT
KNOWN TO PETITIONER
RETD. ASST. ADMN. OFFICER
A.G.'S OFFICE
NO.3, 7TH CROSS, 1ST MAIN,
LAKSHMIDEVAMMA BLOCK,
GANGANAGAR EXTN.,
BANGALORE - 560 032
5. SRI K M SHIVAMURTHAIAH
AGED ABOUT 67 YEARS
RETD. ASST. ADMN. OFFICER
A.G.'S OFFICE
R/O NO.2800, 14TH B MAIN ROAD
R P C LAYOUT, ATHIGUPPE
BANGALORE - 560 040
6. SRI BHARGAVA
AGED ABOUT 54 YEARS
ASST. ADMN. OFFICER
O/O ADVOCATE-GENERAL
HIGH COURT BUILDING,
BANGALORE - 560 001 ... RESPONDENTS
[By Sri Ajoy Kumar Patil, Adv. for R1;
Smt S Susheela, AGA for R2;
R3 deleted vide court order dated 19.7.2012;
R4 to R6 are served & unrepresented]
11
IN WP NO. 18776/10
BETWEEN:
SRI M KRISHNAPPA
S/O LATE R MUNISWAMAPPA
AGED ABOUT 59 YEARS
PRESENTLY WORKING AS
ADMN. OFFICER,
O/O ADVOCATE-GENERAL
DR AMBEDKAR ROAD,
BANGALORE - 560 001
BANGALORE DISTRICT ... PETITIONER
[By Sri S M Babu, Adv.]
AND:
1. SRI GURUSIDDAIAH
S/O LATE SIDDAIH
AGED ABOUT 50 YEARS
CHIEF LIBRARIAN
ADVOCATE-GENERAL'S OFFICE
HIGH COURT BUILDINGS,
BANGALORE - 560 001
2. STATE OF KARNATAKA
DEPARTMENT OF LAW,
VIDHANA SOUDHA
BANGALORE - 560 001
REP. BY ITS SECRETARY
3. ADVOCATE-GENERAL
FOR KARNATAKA
HIGH COURT BUILDING,
BANGALORE - 560 001
4. SRI. P K RAJAPUROHIT
S/O LATE KRISHNA RAJAPUROHIT
AGED ABOUT 55 YEARS
ASST. ADMN. OFFICER,
A.G.'S OFFICE
NO.3, 7TH CROSS, 1ST MAIN,
LAKSHMIDEVAMMA BLOCK,
GANGANAGAR EXTN.,
BANGALORE - 560 032
12
5. SRI. C KRISHNAPPA
AGED 62 YEARS
RETD. SECTION OFFICER,
A.G.'S OFFICE,
R/O VILLAGE & POST:
DODDAGANJUN,
CHINTAMANI TALUK,
KOLAR DISTRICT
6. SRI. N. DHRUVA,
AGED 53 YEARS
ASST. ADMN. OFFICER
O/O ADVOCATE-GENERAL,
DHARWAD UNIT,
DHARWAD
7. SRI. B.N. SRINIVASA BHATRACHAR,
AGED 58 YEARS
SECTION OFFICER,
ESTABLISHMENT SECTION,
O/O ADVOCATE-GENERAL
HIGH COURT BUILDING
BANGALORE - 560 001
8. SR. P. THIPPERUDRAPPA
AGED 55 YEARS
ASST. ADMN. OFFICER
ON DEPUTATION WORKING AS
EXECUTIVE OFFICER,
TALUK PANCHAYAT
SHIRGUPPA TALUK,
BELLARY DISTRICT
9. SMT. C CHANDRAPRABHA
AGED 54 YEARS
SECTION OFFICER
WRIT SECTION,
O/O ADVOCATE- GENERAL
HIGH COURT BUILDING,
BANGALORE - 560 001
10. SRI. H SHANKAREGOWDA
AGED 53 YEARS
SECTION OFFICER
O/O ADVOCATE- GENERAL
13
HIGH COURT BUILDING
BANGALORE - 560 001
11. SRI. T.C. MUNIRATHNAM
AGED 61 YEARS
RETD. SECTION OFFICER
R/O NO. 700,
2ND MAIN ROAD, D BLOCK,
II STAGE, RAJAJINAGAR
BANGALORE - 560 010
12. SRI. B G JAGADISH
AGED 53 YEARS
SECTION OFFICER
O/O ADVOCATE-GENERAL
HIGH COURT CIRCUIT
BENCH BUILDING
GULBARGA UNIT,
GULBARGA
13. SRI. R.S. ABBIGERI,
AGED 45 YEARS
ASST. ADMN. OFFICER,
O/O ADVOCATE-GENERAL
HIGH COURT CIRCUIT
BENCH BUILDING
GULBARGA UNIT,
GULBARGA
14. SRI. A HANUMANTHARAJU
AGED 45 YEARS
SECTION OFFICER,
O/O ADVOCATE-GENERAL
HIGH COURT CIRCUIT
BENCH BUILDING
GULBARGA UNIT,
GULBARGA
15. SMT. M PUSHPA
AGED 45 YEARS
SECTION OFFICER,
TAPPAL SECTION
O/O ADVOCATE-GENERAL
HIGH COURT BUILDING
BANGALORE - 560 001
14
16. SRI. G MADESH
AGED 59 YEARS
SECTION OFFICER,
WRIT SECTION
O/O ADVOCATE-GENERAL
HIGH COURT BUILDING
BANGALORE - 560 001 ... RESPONDENTS
[By Sri Ajoy Kumar Patil, Adv. for R1;
Smt S Susheela, AGA for R2;
R3 deleted vide court order dated 19.7.2012;
Sri O Shivarama Bhat, Adv. for R9;
R4 to R8, R10 to R16 are served & unrepresented]
THESE PETITIONS ARE FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED COMMON ORDER DATED 18.01.2010 MADE IN
APPLICATION NO. 9088/2003 C/W A.NO. 6520/2005 BY THE
HON'BLE KARNATAKA ADMINISTRATIVE TRIBUNAL, BANGALORE
VIDE ANNEXURE - A AND ETC.,
IN WP NO. 7424/11
BETWEEN:
1. THE STATE OF KARNATAKA
REP. BY ITS SECRETARY,
DEPARTMENT OF LAW &
PARLIAMENTARY AFFAIRS,
VIDHANA SOUDHA,
BANGALORE - 560 001
2. THE ADVOCATE GENERAL
FOR KARNATAKA
HIGH COURT BUILDING
BANGALORE - 560 001 ... PETITIONERS
[By Smt S Susheela, AGA]
AND:
SRI GURUSIDDAIAH
S/O LATE SIDDAIAH,
AGED ABOUT 40 YEARS,
15
PRESENTLY WORKING AS
CHIEF LIBRARIAN,
ADVOCATE GENERAL'S OFFICE
HIGH COURT BUILDING,
BANGALORE - 560 001
& R/AT NO. D-11,
PWD QUARTERS, 12TH CROSS,
JAYAMAHAL EXTENSION,
BANGALORE - 560 046 ... RESPONDENT
[By Sri Ajoy Kumar Patil, Adv.]
IN WP NO. 16814/11
BETWEEN:
1. THE STATE OF KARNATAKA
REP. BY ITS SECRETARY,
DEPARTMENT OF LAW &
PARLIAMENTARY AFFAIRS,
VIDHANA SOUDHA,
BANGALORE - 560 001
2. THE ADVOCATE GENERAL
FOR KARNATAKA
HIGH COURT BUILDING
BANGALORE - 560 001 ... PETITIONERS
[By Smt S Susheela, AGA]
AND:
1. SRI GURUSIDDAIAH
S/O LATE SIDDAIAH,
AGED ABOUT 40 YEARS,
PRESENTLY WORKING AS
CHIEF LIBRARIAN,
ADVOCATE GENERAL'S OFFICE
HIGH COURT BUILDING,
BANGALORE - 560 001
& R/AT NO. D-11,
PWD QUARTERS, 12TH CROSS,
JAYAMAHAL EXTENSION,
BANGALORE - 560 046
16
2. SRI. T.S. NAGENDRASWAMY
S/O T.M. SHIVANNA,
AGED ABOUT 68 YEARS,
RETIRED SECTION OFFICER,
ADVOCATE GENERAL'S OFFICE,
& R/AT NO.3, 7TH CROSS,
1ST MAIN, LAKSHMIDEVAMMA BLOCK,
GANGANAGAR EXTENSION,
BANGALORE - 560 032
3. SRI RAJAPUROHIT P K
S/O LATE KRISHNA RAJAPUROHIT
AGED ABOUT 56 YEARS,
WORKING AS SECTION OFFICER,
WRIT UNIT, ADVOCATE
GENERAL'S OFFICE,
BANGALORE - 560 001
4. SRI SAMPANGIRAMA
AGED ABOUT 63 YEARS
WORKING AS SECTION OFFICER
TAPPAL SECTION,
ADVOCATE GENERAL'S OFFICE
HIGH COURT BUILDING,
BANGALORE - 560 001
5. SRI ABBIGERE
MAJOR
SECTION OFFICER
SUPREME COURT SECTION,
ADVOCATE GENERAL'S OFFICE
HIGH COURT BUILDING,
BANGALORE - 560 001
6. SMT. SUMANGALA
MAJOR
SECTION OFFICER
CIVIL & MISC. SECTION
ADVOCATE GENERAL'S OFFICE
HIGH COURT BUILDING,
BANGALORE - 560 001
7. SRI L. AMARANARAYANACHARI
S/O LAKSHMANACHARI,
AGED ABOUT 62 YEARS,
17
WORKING AS SECTION OFFICER,
ESTABLISHMENT SECTION
ADVOCATE GENERAL'S OFFICE
HIGH COURT BUILDING,
BANGALORE - 560 001
8. SRI GIDDAVEERAPPA
MAJOR
SECTION OFFICER,
WRIT SECTION,
ADVOCATE GENERAL'S OFFICE,
HIGH COURT BUILDING,
BANGALORE - 560 001
9. SMT. NAGALAKSHMAMMA
MAJOR
SECTION OFFICER,
STENOGRAPHERS SECTION
ADVOCATE GENERAL'S OFFICE,
HIGH COURT BUILDING,
BANGALORE - 560 001 ... RESPONDENTS
[By Sri Ajoy Kumar Patil, Adv. for R1;
R2, R3, R5, R6, R7 are served & unrepresented;
R4 & R8 are deleted vide court order dated 19.07.12]
IN WP NO. 16815/11
BETWEEN:
1. THE STATE OF KARNATAKA
REP. BY ITS SECRETARY,
DEPARTMENT OF LAW &
PARLIAMENTARY AFFAIRS,
VIDHANA SOUDHA,
BANGALORE - 560 001
2. THE ADVOCATE GENERAL
FOR KARNATAKA
HIGH COURT BUILDING
BANGALORE - 560 001 ... PETITIONERS
[By Smt S Susheela, AGA]
18
AND:
1. SRI GURUSIDDAIAH
S/O LATE SIDDAIAH,
AGED ABOUT 40 YEARS,
PRESENTLY WORKING AS
CHIEF LIBRARIAN,
ADVOCATE GENERAL'S OFFICE
HIGH COURT BUILDING,
BANGALORE - 560 001
& R/AT NO. D-11,
PWD QUARTERS, 12TH CROSS,
JAYAMAHAL EXTENSION,
BANGALORE - 560 046
2. SRI CHALAPATHI B V
FATHER'S NAME NOT KNOWN
AGED ABOUT 61 YEARS
WORKING AS ASSISTANT
ADMINISTRATIVE OFFICER,
O/O ADVOCATE GENERAL
K A T UNIT, BDA COMPLEX,
OLD MADRAS ROAD,
INDIRANAGAR
BANGALORE
3. SRI K M SHIVAMOORTHAIAH
FATHER'S NAME NOT KNOWN
AGED ABOUT 67 YEARS
RETD. ASST. ADMINISTRATIVE OFFICER,
O/O ADVOCATE GENERAL
HIGH COURT BUILDING
BANGALORE
R/O NO.2800, 14TH 'B' MAIN ROAD,
RPC LAYOUT, ATTIGUPPE
BANGALORE - 560 040
4. SRI BHARGAVA
FATHER'S NAME NOT KNOWN
AGED ABOUT 55 YEARS
WORKING AS ASSISTANT
ADMINISTRATIVE OFFICER,
O/O ADVOCATE GENERAL
HIGH COURT BUILDING
BANGALORE - 560 001
19
5. SRI M KRISHNAPPA
S/O LATE R MUNISWAMAPPA
AGED ABOUT 60 YEARS
WORKING AS ADMN. OFFICER
O/O ADVOCATE GENERAL
HIGH COURT BUILDING
BANGALORE - 560 001 ... RESPONDENTS
[By Sri Ajoy Kumar Patil, Adv. for R1;
R2, R3, R4 are served but unrepresented]
IN WP NO. 16816/11
BETWEEN:
1. THE STATE OF KARNATAKA
REP. BY ITS SECRETARY,
DEPARTMENT OF LAW &
PARLIAMENTARY AFFAIRS,
VIDHANA SOUDHA,
BANGALORE - 560 001
2. THE ADVOCATE GENERAL
FOR KARNATAKA
HIGH COURT BUILDING
BANGALORE - 560 001 ... PETITIONERS
[By Smt S Susheela, AGA]
AND:
1. SRI GURUSIDDAIAH
S/O LATE SIDDAIAH,
AGED ABOUT 40 YEARS,
PRESENTLY WORKING AS
CHIEF LIBRARIAN,
ADVOCATE GENERAL'S OFFICE
HIGH COURT BUILDING,
BANGALORE - 560 001
& R/AT NO. D-11,
PWD QUARTERS, 12TH CROSS,
JAYAMAHAL EXTENSION,
BANGALORE - 560 046
2. SRI M KRISHNAPPA
S/O LATE R MUNISWAMAPPA
20
AGED ABOUT 60 YEARS
WORKING AS ADMN. OFFICER
O/O ADVOCATE GENERAL
HIGH COURT BUILDING
BANGALORE - 560 001
3. SRI SAMPANGIRAMA
AGED ABOUT 63 YEARS
WORKING AS SECTION OFFICER
TAPPAL SECTION,
ADVOCATE GENERAL'S OFFICE
HIGH COURT BUILDING,
BANGALORE - 560 001
4. SRI RAJAPUROHIT P K
S/O LATE KRISHNA RAJAPUROHIT
AGED ABOUT 56 YEARS,
WORKING AS SECTION OFFICER,
WRIT UNIT, ADVOCATE
GENERAL'S OFFICE,
BANGALORE - 560 001
5. SRI C KRISHNAPPA
FATHER'S NAME NOT KNOWN
AGED ABOUT 63 YEARS
WORKING AS SECTION OFFICER
O/O ADVOCATE GENERAL
HIGH COURT BUILDING
BANGALORE - 560 001
6. SRI N DHRUVA
FATHER'S NAME NOT KNOWN
AGED ABOUT 54 YEARS
WORKING AS SECTION OFFICER
O/O ADVOCATE GENERAL
HIGH COURT BUILDING
BANGALORE - 560 001
7. SRI P S SRINIVASA BHATTACHARYA
FATHER'S NAME NOT KNOWN
AGED ABOUT 59 YEARS
WORKING AS SECTION OFFICER
O/O ADVOCATE GENERAL
HIGH COURT BUILDING
BANGALORE - 560 001
21
8. NOTE: NO PERSON HAS BEEN SHOWN AS R8 IN THE
MEMORANDUM OF WRIT PETITION. AFTER R7 THE NAME OF
NEXT RESPONDENT IS SHOWN AS R9. HENCE IT IS TYPED AS
IT IS.
9. SRI P THIPPERUDRAPPA
FATHER'S NAME NOT KNOWN
AGED ABOUT 56 YEARS
WORKING AS SECTION OFFICER
O/O ADVOCATE GENERAL
HIGH COURT BUILDING
BANGALORE - 560 001
10. SMT CHANDRAPRABHA
FATHER'S NAME NOT KNOWN
AGED ABOUT 55 YEARS
WORKING AS SECTION OFFICER
O/O ADVOCATE GENERAL
HIGH COURT BUILDING
BANGALORE - 560 001
11. SRI H SHANKARE GOWDA
FATHER'S NAME NOT KNOWN
AGED ABOUT 54 YEARS
WORKING AS SECTION OFFICER
O/O ADVOCATE GENERAL
HIGH COURT BUILDING
BANGALORE - 560 001
12. SRI T C MUNIRATHNAM
FATHER'S NAME NOT KNOWN
MAJOR
RETIRED SECTION OFFICER
O/O ADVOCATE GENERAL
HIGH COURT BUILDING
BANGALORE - 560 001
13. SRI B G JAGADISH
FATHER'S NAME NOT KNOWN
MAJOR
WORKING AS SECTION OFFICER
O/O ADVOCATE GENERAL
HIGH COURT BUILDING
BANGALORE - 560 001
22
14. SRI R S ABBIGERI
MAJOR
WORKING AS ASST.
ADMINISTRATIVE OFFICER
O/O ADVOCATE GENERAL
HIGH COURT BUILDING
BANGALORE - 560 001
15. SRI A HANUMANTHARAJU
AGED ABOUT 49 YEARS
WORKING AS SECTION OFFICER
O/O ADVOCATE GENERAL
HIGH COURT BUILDING
BANGALORE - 560 001
16. SMT M PUSHPA
MAJOR
WORKING AS SECTION OFFICER
O/O ADVOCATE GENERAL
HIGH COURT BUILDING
BANGALORE - 560 001
17. SRI G MADESH
AGED ABOUT 60 YEARS
WORKING AS SECTION OFFICER
O/O ADVOCATE GENERAL
HIGH COURT BUILDING
BANGALORE - 560 001 ... RESPONDENTS
[By Sri Ajoy Kumar Patil, Adv. for R1;
R2, R4, R5, R6, R7, R9 to R17 are
served but unrepresented;
R3 deleted vide court order dated 19.07.12;]
THESE PETITIONS ARE FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER DATED 18.01.2010 PASSED BY THE KARNATAKA
ADMINISTRATIVE TRIBUNAL, IN APPLICATION NOS. 2358/1999
CONNECTED WITH APPLICATION NO. 6383/2001, 9088/2003 &
6520/2005 VIDE ANNEXURE - A AND ETC.,
THESE PETITIONS COMING ON FOR ORDERS, THIS DAY,
SHYLENDRA KUMAR J., MADE THE FOLLOWING:
23
ORDER
Writ petitioner in W.P. Nos. 11682-11685/10 is a person who is presently working as Chief Librarian in the Office of the Advocate General, High Court Building, Bangalore. In these writ petitions, the petitioner has questioned the legality of the common order dated 18.1.2010 passed by the Karnataka Administrative Tribunal, Bangalore in Application No.2358/1999 c/w Application Nos.46/1999, 6383/2001, 9088/2003 and 6520/2005. All these applications were presented by the very writ petitioner and the respondents in these writ petitions were mainly the State of Karnataka being the common respondent in all the cases so also impleaded the Advocate General of Karnataka in all the applications and the private respondents were all persons who are/were working in the office of the Advocate General of Karnataka who attained the level of Assistant Administrative Officer and above.
24
2. The writ petitioner had been periodically filing applications before the Karnataka Administrative Tribunal and as we notice, the earliest was in the year 1999 and the last of the application was in the year 2005.
3. The writ petitioner had joined the services of the State Government in the Office of the Advocate General of Karnataka in the year 1986 i.e. on 14.4.1986 as Sr. Librarian through KPSC under direct recruitment. The post is governed by what is known as Karnataka General Services (Advocate General Branch Recruitment) Rules, 1984 [for short, the Rules] which was notified on 15.2.1985 by a Government notification. On the very day was issued another Notification II No.LAW 140 LAG 83, supplementing the Rules by indicating the cadre strength, in the sense, category of posts, nature of posts, as to whether it is permanent or temporary and the scales of pay. The promotional avenue to the post of Sr. Librarian is to aspire for promotion to what is known as a Section Officer. The post of Section Officer was to be filled up only by way of 25 promotion from different streams of First Division Assistants, Stenographers, Stenographer-cum-Legal Assistant and Sr. Librarian. Filling up of the posts to these different streams was by way of rotation and the roster provided that the 1st, 3rd, 5th and 9th vacancies in the post of Section Officer were to be filled up by according promotion to First Division Assistants and 4th, 6th and 10th vacancies by Stenographers and 7th vacancy by Stenographer-cum-Legal Assistant and 8th vacancy by Sr. Librarian, with certain educational qualification prescribed and also the number of years they must have put in the feeder post. It is with regard to the promotion or to be more precise non-promotion of the petitioner to the post of Section Officer when the 8th vacancy in the roster point opened up which was available to a person who was a Sr. Librarian and it is in this background the entire litigation has developed.
4. The present writ petitions filed by the petitioner in WP Nos.11682-11685/2010 has yet another background, viz., 26 that when the vacancies arose at roster point Nos.7 and 8 during the year 1995, some persons working as First Division Assistants or Stenographers at the office of the Advocate General approached the Karnataka Administrative Tribunal by filing applications in Application Nos.2129-2131/1995. These applicants had questioned the correctness or otherwise of giving by way of promotions to stenographer-cum-legal assistant at the seventh roster point to the post of Section Officer and likewise promotion of Senior Librarian to the post of Section Officer when the vacancies arose at the eighth roster point. They had pointed out to the pay scales of stenographer-cum-legal assistant which was almost on par with the pay scale of a Section Officer and had therefore urged that there cannot be promotion to the same pay scale etc.
5. Insofar as roster point No.8 is concerned, these applicants had contended before the Tribunal that the post of Senior Librarian was a single post; that the pay scales though more than that of First Division Assistants, he was 27 far junior to the applicants when taken into consideration the length of service and therefore it is only proper that according of promotion when vacancies arose at the seventh roster point in favour of stenographer-cum-legal assistants and likewise according promotion as section officer when vacancy arose at eighth roster point in favour of Senior Librarian is not justified or proper, but, it is capable of creating anomalies and should be done away with and the Tribunal should quash the provision of such roster point for promotions to the posts of stenographer- cum-legal assistant and senior librarian and a direction issued to the state government to amend the law governing the same.
6. The Tribunal which examined the prayer of the applicants noticed that the direction as sought for by the applicants to the State Government to change the roster point or to do away promotional opportunities to persons who are holding the post of stenographer-cum-legal assistant and senior librarian was not possible in law; that 28 if there are any anomalies, it is for the State Government to take note of it and it is not possible for the Tribunal to declare the status of persons who were in such posts and who become eligible for promotion on the occurrence of vacancies on the seventh and eighth roster point, nevertheless, allowed the applications to direct the State Government to amend the Rules, so as to take care of the grievance of the applicants, but no declaration was given as was sought for by the applicants and disposed of the applications as per order dated 18.11.1996 and the prayer for issue of mandamus to do away the post was declined.
7. Though the State Government did not take any steps to amend the Rules or to effect any changes in the roster point, it appears, when the vacancies arose at the seventh and eighth roster points, particularly, when the vacancies arose at the eighth roster point and so also ninth roster point, the State Government did not consider the case of the petitioner as well as that of stenographer-cum-legal assistants, but instead accorded promotions to the three 29 applicants in Application Nos.2129-2131/1995 before the Tribunal as against the vacancies in respect of seventh, eighth and ninth roster point in the roster.
8. The writ petitioner in WP Nos.11682-11685/2010 questioned the order of the State Government dated 6.6.1996 where under the State Government had placed the applicants in Application Nos.2129-2131/1995 independent charge of the post of section officer in the office of the Advocate General and that to quash the order of the State Government dated 6.6.1996 or to keep the petitioner also in independent charge of the post of section officer with effect from the date on which these applicants had been given post as independent charge of the post of section officer and for all consequential benefits etc.
9. The applicant in Application No.3859/1997 before the Tribunal was resisted by private respondents contending that the arrangement of placing those private respondents independent charge was a stopgap arrangement and due to 30 exigencies of public services and that for such temporary arrangement, seniority did not matter; that the private respondents were not being given the pay scale of the post of section officer, but were only being given an allowance as charge allowance and therefore was not a promotion and was only an administrative arrangement and did not give rise to the applicants to claim any posting or promotion on the basis of vacancies at the eighth roster point.
10. The State Government on its part, took up the stand that in the application that had been filed earlier by the private respondents, the Tribunal had directed the Government to consider the amendment of the recruitment Rules and that was for consideration before the State Government; that in the meanwhile due to exigencies, it became necessary for the State Government to pass such administrative orders to keep the private respondents in additional charge of the post of section officer and it did not amount to according promotion to these respondents and therefore prayed for dismissal of the application and on the 31 other hand, the stand was that there was proposal sent to the Government from the office of the Advocate General to promote or upgrade the post of senior librarian and this proposal was also pending consideration before the Government and the Government was yet to take a decision on this aspect and pending decision on the amendment to the recruitment rules as also upgradation, the temporary arrangement had been made and therefore there is no occasion for the applicant to question this arrangement.
11. The Tribunal noticed that though such resistance is offered, it is only such persons who were eligible, who can be placed additional charge of higher post and that private respondents who had been placed in additional charge were not entitled for promotion as against the vacancies in respect of seventh and eighth vacancies in the roster point; that it was not done in accordance with Rule 16-A of the Rules, by the competent authority and therefore was of the opinion that filling up of eighth vacancy by posting incompetent persons, such as one private respondent does 32 not stand to reason and is not legal; that it was not in accordance with the rule to post a person incharge or additional charge who was not eligible for the post and therefore set aside the order of the State Government forcing incompetent officer to be independent incharge of the eighth vacancies of the roster in the post of section officer and directed the State Government and the Advocate General to consider the case of the applicant before the Tribunal for posting independent charge of eighth vacancy if he was otherwise found eligible to hold the post and the Government to take a decision on the recommendations made by the second respondent.
12. It is thereafter the State Government while did not necessarily obey this order of the Tribunal, but resorted to passing of an order dated 30.12.1998 upgrading the post of stenographer-cum-legal assistant to that of Assistant Administrative Officer and also upgrading the post of senior librarian to the post of Chief Librarian and thereby ensuring that the writ petitioner was no more a Senior 33 Librarian with a possibility of seeking promotion to the post of section officer when the vacancy arose at the eighth roster point.
13. Even prior to this, the private respondents, i.e., respondents 3, 4 and 5 in Application No.3859/1997 which had resulted in the order of the Tribunal dated 11.08.1998 questioned this order of the Tribunal before this court by filing writ petition Nos.27263-27265/1998 and had sought for quashing this order of the Tribunal and the interim order to stay the order of the Tribunal. This court as per interim order dated 18.9.1998 though did stay the operation of the order of the Tribunal, clarified that the interim order however will not prevent the respondent - State Government and the office of the Advocate General from giving promotion to the post of section officer on regular basis in accordance with the provisions applicable in the case and if such promotions are made on regular basis, the petitioners would not have any claim to the said post despite the stay order etc. 34
14. It is subsequent to the passing of this order by the High Court, the State Government had come up with the order of upgradation dated 30.12.1998 and as noticed above.
15. In the wake of the subsequent development namely the order dated 30.12.1998 having been passed by the State Government upgrading the post of Stenographer- cum-Legal Assistant and the post of Senior Librarian as Assistant Administrative Officer and Chief Librarian respectively, the writ petitioners in W.P.Nos.27363- 65/1998 sought permission to withdraw the writ petitions and the writ petitions were dismissed as withdrawn as per the order dated 4.1.1999 recording the submission of the Counsel on the memo filed before the Court seeking for permission to withdraw the writ petitions.
16. It appears, the order of upgradation issued by the State Government on 30.12.1998 which was in general terms in respect of the post was factually given effect to by 35 the subsequent notification issued by the State Government dated 27.2.1999 in respect of post of the Senior Librarian being upgraded to that of the Chief Librarian in mentioning the pay scales and purporting to be pending amendment to the Rules, and the writ petitioner Gurusiddaiah, who was Senior Librarian was appointed as Chief Librarian with the corresponding pay scale with immediate effect until further orders. Likewise, the order of upgradation of the post of Stenographers-cum-Legal Assistants to that of Assistant Administrative Officer, Office of the Advocate General by the Government was given effect to as per further notification dated 28.4.1999 by notifiying the pay scales in the upgraded post and the upgradation of post of senior most Section Officer to the post of Assistant Administrative Officer was also given effect to by the Government by notifying the pay scales. The pay scales in the upgraded post of Assistant Administrative Officer was indicated to be in the pay scale of Rs.7,400-13,120/- and Mr. M. Krishnappa, Stenographer-cum-Legal Assistant was 36 identified as the person eligible for the benefit of this upgradation and so also Mr. M. Narayanaswamy, senior most Section Officer was identified as a person eligible for the benefit of the promotion and appointment to the post of Assistant Administrative Officer in the pay scale referred to above.
17. Writ Petitioner being aggrieved that a legitimate promotion due to him to the post of Section Officer on the opening of the vacancy against 8th vacancy in the roster point which remained stale and that the State Government having not effected any amendment to the Rules chose to file Application No. 2358/1999 before the Karnataka Administrative Tribunal, though, in the meanwhile, he had been appointed and had assumed charge as Chief Librarian in terms of the order of upgradation. In this application, the petitioner had questioned the legality of the order of upgradation dated 30.12.1998 and also the implementation of the order of upgradation as per a further Government notification dated 27.2.1999. It was basically contended by 37 the applicant that the Government Order dated 30.12.1998 and further Government Notification dated 27.2.1999 were bad in law for being in violation of the Rules; that the Government by issue of executive orders cannot either create a new post or extinguish an existing post; that the order of upgradation was not a valid or a bonafide order particularly in the wake of the ruling given by the Tribunal in the earlier applications of not only the writ petitioner/applicant but also by some FDAs and Stenographers, who had questioned the legality of maintaining the 7th and 8th vacancies in the roster point earmarked for the persons mentioned therein and the order of upgradation was preemptive of the possibility of the applicant/writ petitioner being considered against the vacancy against the 8th roster point and therefore, was bad in law. A direction was also sought for to the State Government and the 2nd respondent in the application to consider the case of the applicant for promotion to the post of Section Officer as against the 8th vacancy as per the 38 Rules from the year 1995, when the vacancy had arisen in the cadre of Section Officers or in the alternative from 6.6.1996 when the Stenographers and FDAs were placed in the independent charge of this vacancy in the post of Section Officer under Rule 32 of the Karnataka Civil Services Rules [for short, KCSR] or with effect from 18.9.1998 when an interim order was passed by this Court in W.P.Nos. 27363-65/1998 permitting the Government to consider the regular promotions with effect from 30.12.1998 from the date on which the vacancy against 8th roster point was filled up by upgrading or re-designating the post of Senior Librarian as Chief Librarian and with further prayer of amendment or in the alternative a prayer was sought for to declare that the applicant has been a Section Officer from 30.12.1998 - the date of upgradation of post of Senior Librarian and for a further declaration that the duration during which the applicant held the post of Chief Librarian i.e., starting from 30.12.1998 to be treated as qualifying service in the post of Section Officer for the 39 purpose of promotion to the next higher cadre of Assistant Administrative Officer as per the Rules.
18. The application was resisted by the respondents/State Government and the Advocate General of Karnataka and the order of upgradation was defended by the State Government and the consequential notifications giving effect to the same. It was contended that the order of upgradation was subsequent to order passed by the Tribunal in the applications filed by the FDAs and Senior Stenographers and to provide for a just position after taking into consideration the possibilities in respect of all persons, who were aspiring for promotion to the post of Section Officer under the roster point and also having taken into consideration the anomalies in the pay scales and they are from different streams etc. It was also contended that the application on the premise that the applicant has lost a chance of future promotion was not tenable since a chance of promotion is not a right or condition of service and notwithstanding the existence of 40 the Rules, the State Government also had the power to upgrade any post pending amendment to the Rules and to meet the exigencies of the situation etc. In view of such defence, it was urged on behalf of the State Government in its statement that the application should be dismissed to meet the ends of justice etc.
19. While this application was pending consideration before the Tribunal, the State Government went ahead with according further promotions to eight stenographers and FDAs as Section Officers and such promotions given to these persons as Section Officers and FDAs on 30.6.2001 was again questioned by the writ petitioner by filing Application No. 6383/2001 before the Tribunal contending that such promotions are again overlooking his claim for promotion to the post of Section Officer when the vacancy had arisen at the 8th roster point and as by promoting the Stenographers or FDAs, later the applicant will be losing his seniority etc. 41
20. In this application, the promotions accorded to these 8 persons as per the order dated 30.6.2001 was sought to be quashed and a further direction to the State Government to consider the case of the applicant as per the vacancy at the 8th roster point and as per the Recruitment Rules and also to promote him to the next higher cadre of Section Officer with effect from the date on which respondent Nos. 3 to 10 - the persons, who had been promoted to the post of Section Officer and from the same date with all consequential benefits etc.
21. In this application also the State Government contended that all posts of the applicant have already been upgraded, he cannot aspire for promotion from being a Chief Librarian to that of Section Officer and cannot have a grievance in respect of promotion accorded to respondent Nos. 3 to 10 who were given promotion in their turn and as per the Rules etc. It was also contended on behalf of the State Government that the State Government was required to consider the grievance of FDAs and Stenographers, who 42 had earlier approached the Tribunal with the stand that according promotions to Stenographer-cum-Legal Assistant to the Advocate General and to Senior Librarians as Section Officer against roster point of 7th and 8th vacancy respectively, was not tenable and the Tribunal had observed in their applications that the State Government to consider all the grievances etc. It was further contended that the State Government had only acted in accordance with the observations made by the Tribunal in the earlier orders and following the order of upgradation etc and prayed for dismissal of the writ petitions.
22. Some of the private respondents also resisted the applications and defended their position and promotion.
23. This Application No. 6383/2001 was also pending before the Tribunal and in the year 2003, the Stenographer-cum-Legal Assistant to the Advocate General whose post had been upgraded to that of Assistant Administrative Officer as per the Government Order of the 43 year 1998 and was functioning in that post from 28.4.1999 was promoted to the post of Administrative Officer as per the Government Order dated 17.4.2003. In this application (Application No. 6383/2001), the writ petitioner also impleaded three persons, figuring as respondents who had come to be promoted as Assistant Administrative Officer as per the Government Order of even date i.e., 17.4.2003 and the notification promoting the 6th respondent in this application Mr. M. Krishnappa as Administrative Officer was also questioned.
24. This application was resisted by respondent Nos. 1 and 2 - State and the Advocate General - so also the 6th respondent, who had been promoted as Administrative Officer. The application was mainly resisted on the premise that in so far as the 6th respondent is concerned, it was contended that the application was hit by limitation and even on merits the challenge was not tenable and the order of upgradation which was the foundation for questioning 44 the order of promotion was claimed to be valid order and therefore, the application was sought to be dismissed.
25. This application was also pending before the Tribunal and subsequently on 17.2.2005, 15 more persons from the ranks of Section Officers were promoted to the post of Assistant Administrative Officers. The writ petitioner was agitating all promotions accorded either as Section Officer or as Assistant Administrative Officer or even as Administrative Officer subsequent to overlooking his claim for promotion from the post of Senior Librarian to that of Section Officer as against the 8th vacancy in the roster point under the Rules, questioned these promotions also either to the post of Assistant Administrative Officer from the cadre of Section Officer or to the post of Section Officer from FDAs and Stenographers by filing yet another application before the Tribunal in Application No. 6520/2005. To this application, the State Government figured as the 1st respondent; the Advocate General of Karnataka figured as the 2nd respondent; Mr. M. 45 Krishnappa figured as the 3rd respondent, who is working as Administrative Officer, Mr. Sampangiram figured as the 4th respondent and Mr. P.K. Rajapurohit is shown as the 5th respondent - the persons who had been promoted to the post of Assistant Administrative Officer in the office of the Advocate General and other persons, who were promoted as Assistant Administrative Officers or the Section Officers figuring as respondent Nos. 6 to 17.
26. In this application, while challenge to these promotions was on the very grounds as has been urged in the previous applications and that it also affects the petitioner/applicant's interest, the prayer in the application was to quash the promotions accorded to respondent Nos. 4 and 5 as Assistant Administrative Officers and also to quash the promotion of respondent Nos. 6 to 11 as Section Officers as per the orders of even date i.e., 17.2.2005 and a further prayer was sought for to issue directions to the State Government and the Advocate General to accord promotions only in consonance with un-amended 1984 46 Recruitment Rules and a prayer for issuing directions in favour of the applicants promoting against the 8th vacancy in the roster point and the 3rd respondent to promote him as Section Officer with effect from 6.6.1996 i.e., in the 7th vacancy said to have been arisen under the roster point and to prepare a common seniority list on such premise etc. A further prayer was sought for to promote the applicant as Section Officer with effect from 6.6.1996 and also as Assistant Administrative Officer with effect from 17.4.2003 on the premise on the date on which the 3rd respondent had been promoted to the post of Administrative Officer had given a cause of action to the applicant to seek for this relief also etc.
27. This application was also resisted by the State Government by filing a written statement defending the action mainly contending that pending implementation of the directions that had been issued by the Tribunal in the order passed on application Nos. 2129-31/1995 dated 18.11.1996 for amending the Rules and meanwhile to 47 implement the decision of the Tribunal mainly the amendment of the Rules by the Government and to meet the administrative exigencies and for proper functioning, such arrangements were being made and promotions were given as and when the vacancies had arisen and therefore, no exception can be taken to such orders nor the Government's action found fault with the question of examining the seniority did not arise while making such arrangements pending consideration of the amendment to the Rules by the Government.
28. It was also contended that the applicant had no locus to question such promotions to the post of Assistant Administrative Officer and Administrative Officer, as the applicant was not even a Section Officer from which post alone he can aspire and seek for promotion to the next higher post and therefore, he cannot claim to be aggrieved by the promotions accorded to respondent Nos. 3 to 11. It was also urged that the Rules had become unworkable even as had been observed and declared by the Tribunal earlier 48 and in the light of the order of upgradation, the question of earmarking the 7th and 8th vacancies in the roster point had become unworkable, as the post itself did not exist any more and obviously the promotions were being given to other eligible persons for promotion from the grade of Stenographers and FDAs even as against 7th and 8th vacancies and no fault can be found in respect of such promotions and that the application is more on surmises and assumptions than based on any legal right, and urged for dismissal of the same.
29. The 3rd respondent also joined issue, pointing out that the applicant having not questioned the appointment as Assistant Administrative Officer or as Administrative Officer and in the present application, there is no need to implead him as party respondent, and on merits, the objections as had been raised on behalf of this respondent in the earlier Application No. 9088/2003 was reiterated and of course preliminary objection of the limitation or in the alternative delay and laches was also maintained. The 49 promotions accorded to the 3rd respondent were all defended with reference to his initial appointment and the qualifications that he had acquired and also the length of service and the pay scales that the 3rd respondent was drawing even while holding the post of Stenographer-cum- Legal Assistant to the Advocate General. The 3rd respondent also defended the action of the Government and particularly made in favour of the 3rd respondent first upgrading the post to Asst. Administrative Officer and later promoting him as Administrative Officer and sought for dismissal of the application.
30. All these four applications came to be clubbed together and examined by the Tribunal by hearing the learned counsel for the applicant, learned Government Advocate appearing for the State and the Advocate General for Karnataka - respondent Nos. 1 and 2 - and some of the private respondents in Application No. 6383/2001 being not represented and Mrs. G.S. Jambagi, advocate appearing for the 3rd respondent in Application No. 50 9088/2003, Mr. M.A. Vijay, Advocate appearing for the 4th respondent in this Application and Sri S.M. Babu, Advocate appearing for the 5th and 6th respondents in this application and likewise the Government Advocate Sri M. Nagarajan for respondent Nos. 1 and 2 in Application No. 6520/2005 and 3rd respondent being represented by the advocate Sri S.M. Babu, 7th respondent being represented by the advocate Sri T.S. Mahantesh, 13th respondent represented by Sri Dhananjaya, advocate and rest of the private respondents remaining unrepresented.
31. The Tribunal though initially observed that an order passed by the Court or Tribunal should be given effect to and obeyed and on failure there will be anarchy and also denial of justice and break down of the system in the wake of the earliest order passed by the Tribunal on 18.11.1996 in Application Nos. 2129-31/1995 commenting that the observations contained in this order in issuing direction to the State Government to ensure amendment to the Rules to make the promotions to different categories of feeder 51 channel to be promoted as Section Officer was made workable and practicable and the State Government was dragging its feet and had not done the same, instead had gone on making other arrangements in passing upgradation orders and also according promotions and therefore, the applications were required to be examined in this background etc.
32. The Tribunal, noticing such developments, in the first of the four applications filed by the writ petitioner as and when they had taken place and noticed the pleadings and contentions urged in each of these four applications and the counters to the applications, both by the State Government and the private respondents and after noticing the various authorities relied upon by the applicant as well as the respondents, proceeded to formulate as many as nine points for its determination, as under:
"(1) Whether the claim of the Applicant is barred by delay and laches?52
(2) Whether the Applicant has locus standi to challenge the Order of Upgradation of the post of Stenographer-cum-Legal Assistant to that of Assistant Administrative Officer and also the order of promotion of Respondent No.3 in Applications No. 2129 to 2131/1995 to the post of Administrative Officer?
(3) Whether the upgradation of the post of Senior Librarian and Stenographer-cum-
Legal Assistant by means of Executive Orders is valid?
(4) Whether the Applicant having accepted the upgraded post of Chief Librarian is estopped from challenging the Order upgrading the post of Senior Librarian to that of Chief Librarian?
(5) Whether the action of the Government in not amending the Rules despite the Order of this Tribunal is justified and whether the promotions of the private Respondents to the Cadre of Assistant Administrative Officers and Administrative Officer without amending the Rules and without determining the status of Respondent No.3 in Applications No. 2129 to 2131/1995 requires to be reviewed after amendment of the Rules?
(6) Whether by upgrading the post of Senior Librarian to that of Chief Librarian the Applicant has been deliberately kept out of the cadre of Section Officers and whether this has affected his promotional prospects?
53(7) Whether the Government Order of 1979 providing for Roster Points is applicable to the 7th vacancy of Section Officers?
(8) Whether Review Application No. 46/1999 is maintainable?
(9) What Order or Direction?"
33. The first question relating to the application since being barred by delay and laches was examined and it was held that Application No. 2358/1999 to challenge the order dated 30.12.1998 was not barred by delay or limitation and is well within time and within short time of issuing of this order and so also held that the Application No. 6383/2001 was not barred by time as the applicant had questioned the promotional orders made in favour of private respondents in this application as per the Government Order dated 30.6.2001 and therefore, it was not barred and well within time. The third Application No.9088/2003 to question the validity of the promotions accorded to respondent Nos. 3 to 5 as Assistant Administrative Officers and 6th respondent as Administrative Officer were all dated 17.4.2003 and 54 therefore, also it was well within time. Likewise Application No. 6520/2005 was also held to be in time as the order in question was dated 17.2.2005.
34. The Tribunal noticed that the applicant has been questioning the legality of the orders passed as and when the developments were taking place and applications were filed during the period from 1999 and 2005 and therefore, rejected the preliminary objection on behalf of the respondents that the applications were hit by delay and laches.
35. With regard to the second point viz., the locus standi of the applicant to challenge the order of upgradation and also the order of promotion accorded to the 3rd respondent in Application No. 9088/2003 to the post of Administrative Officer etc., and so also the challenge to the promotion of private respondents in Application No. 6520/2005 were all held to be orders affecting the interest of the applicant and therefore, the Tribunal opined that the applicant had locus 55 to question the order of upgradation as well as the order of promotions.
36. The third question as to whether the upgradation of posts of senior librarian and stenographer-cum-legal assistant by means of an executive order is valid or otherwise, as contended by the learned counsel for petitioner-applicant, the tribunal noticed that the area of service conditions being governed by the Karnataka State Civil Services Act, 1978 [for short, the Act] and the Rules framed thereunder, having framed the recruitment rules, the qualifications for persons to be appointed to different posts in the cadres, pay scales have also been fixed by appropriate orders, but the rules framed under the Act having taken the field as per the Rules, in exercise of power conferred under Article 309 of the Constitution of India, any modification or alteration such as upgradation of posts, extinguishing of posts or variation of the service conditions such as pay scales etc etc., all can be done only by amendment to the Rules; that the executive order 56 upgrading the post of senior librarian to that of chief librarian, in the case of applicant-writ petitioner, and the order upgrading the post of stenographer-cum-legal assistant, in the case of Sri Krishnappa, to the post of assistant administrative officer, virtually upsetting the Rules and therefore it is in violation of the Rules and the Act. The tribunal noticed the settled position that executive orders cannot get over or supplant the Rules and only can supplement the Rules, and therefore opined that the order of upgradation is contrary to law. The tribunal, placing reliance on the authorities in this regard in the case of K KUPPASWAMY vs STATE OF TAMIL NADU [(1998) 8 SCC 439], in the case of M V DIXIT vs STATE OF KARNATAKA [ILR 2004 KAR 3803] and also placing reliance on the other decisions cited at the Bar and noticing the observations in these rulings, noticed that such orders had been issued, purporting to be for implementing the directions that had been issued by the tribunal earlier, but noticed that what the tribunal had directed was to amend 57 the Rules and not by doing such things and by resorting to administrative or executive orders. It is no doubt true that the rule making process is a little more time consuming or elaborate process, but the state government not having acted for more than 12 years on the passing of the earliest order by the tribunal, that cannot be a defence to hold that in view of some exigency, orders had been issued without amending the Rules and that it in the nature of corollary should have been quashed the order of upgradation, it is, nevertheless taking note of the developments for the 12 years or more, while again issuing directions to the government to amend the Rules within a reasonable time and thereafter to review the promotions to the cadres of section officer, assistant administrative officer and administrative officer.
37. Point No 4 is as to whether applicant was estopped from questioning the order of upgradation for the reason that the applicant had by assuming the office of chief librarian after having got the benefits under the order 58 cannot turnaround and challenge that order and being fully aware of the same, joined the post of chief librarian and therefore he cannot challenge the same and after examining the contentions, the tribunal opined that the applicant had no other option but to accept the post, as otherwise, he would have been subjected to ire of the higher officers and may even be dealt with departmental proceedings and denial of further promotions and therefore was under the compulsion to accept the post and that cannot be put against the applicant and accordingly point No 4 was answered in favour of the applicant.
38. With regard to fifth point, as to the action by the government in according promotions to private respondents to the cadres of section officer, assistant administrative officer and administrative officer without amending the Rules and without determining the status of third respondent in Application Nos. 2129-31 of 1995 before the tribunal i.e. a person who had been promoted to the post of administrative officer in the year 2003, the tribunal noticed 59 that the government had not precisely done this though such a direction had been issued as long back as in 1996 i.e. as per the order dated 18-11-1996 and therefore opined that the action is virtually in the teeth of the orders and directions issued by the tribunal earlier and that order of the tribunal not having been got over by any method known to law and following the ratio of the decision of the Supreme Court in the case of COMMISSIONER, KARNATAKA HOUSING BOARD vs C MUDDAIAH [(2007) 2 SCC (L&S) 748], cited at the Bar, and also noticing that the tribunal time and again having come on heavily on the state government in issuing executive orders for upgradation and abolition of posts, though the field was covered by statutory Rules and provisions, opined that such action cannot be approved by the tribunal and disapproved the same. The tribunal also held that amending rule is a solution and not by passing executive orders etc., and answered this point accordingly. 60
39. In so far as sixth point is concerned, on the question as to whether the upgradation of post of senior librarian to chief librarian in the upgradation order passed by the government in the year 1998, the tribunal opined that it cannot be accepted, as contended by the applicant, that it was done only to deprive the applicant of other promotional opportunities and answered the point against the applicant.
40. With regard to seventh point, providing roster points as per the government order of the year 1979 to the seventh vacancy in the cadre of section officer, the tribunal opined that the government order dated 27-4-1978 covers this issue and not the government order of the year 1979, under which seventh and eighth vacancies were unreserved and on the aspect as to whether the seventh vacancy is not reserved for SC category and as on the date, the seventh vacancy of assistant administrative officer was filled on 17- 4-2003 when the 1978 government order providing reservation in promotion was upheld and that was 61 unreserved and therefore held this point against the applicant.
41. The eighth point as to determination of the Review Application No 46 of 1999 and dismissal of this revision application is not seriously challenged by the petitioner before the tribunal and therefore there is no consequence.
42. With regard to last point i.e. point No 9, as to what order or direction is required to be passed or issued in the wake of answer to earlier points by the tribunal, the tribunal, keeping in mind the earliest of the orders that had been passed by the tribunal, noticed the developments i.e. the order dated 18-11-1996 passed in Application Nos 2129-31 of 1995, to which the present writ petitioner was a respondent, and found that the order passed by the tribunal in these applications declining to declare the status of third respondent in those applications had attained finality and though certain directions had been issued, that having not been done so far and on the other 62 hand the government had gone about issuing executive orders upgrading the post and promoting officials even without deciding the status of third respondent in the applications and even without amending the rules and opined that the state government by issue of an executive order could not upgrade the post relating to seventh and eighth vacancies indefinitely and could not have effected further promotions without undertaking proper course of action as directed by the tribunal. The tribunal noticed that not only the third respondent in the applications was a beneficiary under the executive order upgrading the post, in fact, even got further promotions to the post of administrative officer as on 17-4-2003, even without determining the status and even without amending the Rules, which were all to the detriment of the applicant who had been compulsorily stagnated in the post of senior librarian and chief librarian and upgradation of the post and on the other hand persons who were juniors to him in the feeder cadre, in the sense, who had been recruited 63 later, have had obtained promotions to the posts of section officers, assistant administrative officer and administrative officer also. While all the while applicant stagnated as chief librarian, it will only result in great injustice, the right to promotion in terms of the recruitment rules was a right given to any service appointed employee, particularly to the state government employees and denial of such expected promotions is nothing short of violation of the fundamental rights guaranteed under Article 16(1) to the Constitution of India and amounts to gross deprivation of the applicant vis- à-vis other promotions. The tribunal also opined that the grievance of the applicant was well founded, both on legal and factual, and has the legal basis.
43. But with all such observations by the tribunal, the tribunal opined that, if the executive order is to be quashed, persons who had the benefit of the order will not only lose their benefits, but taking note of the lapse of time, yet again directed the state government to act and to amend the Rules and to review the positions thereafter and 64 as such though the promotions and other benefits provided to the private respondents were required to be redone, instead of doing so, directed the parties to maintain status quo pending examination of the amendment to the Rules and the actual amendment taking place and disposed of the applications with a direction to amend the Rules as per the earliest directions of the tribunal and thereafter the government to review the orders of promotions made in the cadres of chief librarian, section officer, assistant administrative officer and administrative officer and such exercise should be completed within a period of six months from the date of receipt of a certified copy of the order.
44. It is this common order passed by the tribunal on 18- 1-2010, disposing of the four applications referred to above and also the review application, being dismissed, the present writ petitions by the applicant and also sixth respondent in Application No 9088 of 2003 and third respondent in Application No 6520 of 2005 in WP Nos 18775-76 of 2010, the former petition relating to the order 65 in Application No 9088 of 2003 and the latter petition relating to the order in Application No 6520 of 2005, on the premise that the tribunal should have dismissed the applications in toto, both were hit by limitation, delay and laches and also on merits, in so far as they relate to challenge to the executive order of the government upgrading the posts in the year 1998; that the applications were hit by limitation in view of Section 21 of the Administrative Tribunals Act, 1985.
45. The state government on its part has also filed WP No 7424 & 16814-16 of 2011, challenging the common order passed by the tribunal on all the four applications, mainly to contend that the tribunal has committed an error in passing observations on points 1 to 4, which is clarified by Ms S Susheela, learned AGA, as relating to points 1 to 4 are not proper, though the state government is prepared to abide by the final directions with regard to amendment of the Rules; that the executive order is well within the executive powers of the state government under Article 162 66 of the Constitution of India and also within the power of state legislature in terms of Entry 41 of list No 2 to seventh schedule to the Constitution and therefore there was no question of reviewing the promotions or going back from the order of upgradation and to that extent, the order of the tribunal should be set aside. The state government has sought for issue of a writ of certiorari to quash the common order dated 18-1-2010 in so far as it relates to the order passed in Application No 2358 of 1999 and connected cases, but is not making an issue of abiding by the directions to amend the Rules.
46. In the main writ petitions of the original applicant before the tribunal, state government and the second respondent have filed statements of objections, reiterating the stand taken before the tribunal and urging for dismissal of the writ petitions, mainly defending the validity of the order dated 30-12-1998 issued by the state government upgrading the post of senior librarian to the post of chief librarian to ensure that he was also conferred 67 with the pay scales similar or on par with section officer and being issued pending amendment to the Rules and is a beneficial order, and the petitioner cannot find fault with it; that the writ petitioner having not questioned the promotions and other things as and when they occurred, particularly the upgradation order in favour of the sixth respondent in Application No 9088 of 2003, as and when it had happened, is also put against the petitioner-original applicant, and urges for dismissal of the writ petition.
47. Likewise, statement of objections has been filed on behalf of the sixth respondent, raising all contentions regarding maintainability of the writ petitions and the applications; that the fact that the applicant before the tribunal, who is writ petitioner before this court, had put up a total service of 24 years and was holding only posts which were in the 'C' group category prior to his upgradation to the post of chief librarian, which is a group 'B' post, and who has passed LLB degree during the year 2000, is pointed out that in comparative length of service 68 and status in the position of the post that the applicant- writ petitioner vis-à-vis sixth respondent is comparatively one of junior status and therefore cannot aspire or compete to claim parity with that of sixth respondent. Other factual points are also pointed out in the statement of objections to urge that the petitioner has not come out with clean hands; that he has not given full particulars and facts; that the promotion of sixth respondent to the post of assistant administrative officer was not against the seventh roster vacancy, but against sixth roster vacancy and therefore the order of reservation in promotion did not affect this respondent for further promotion. This respondent has also urged for dismissal of the writ petitions on the ground of delay and laches and also on merits and also on the plea of estoppel and want of commensurate merit in the petitions.
48. It is in the wake of such pleadings, contentions urged in these three batches of writ petitions and in the light of 69 the submissions made at the Bar, the present writ petitions are to be examined.
49. Rejoinders are also filed reiterating the contentions and pointing out the factual position.
50. Sri Ajoy Kumar Patil, learned counsel for petitioner in WP Nos 11682-85 of 2010, has urged that the order of upgradation dated 30-12-1998 passed by the state government apart from being in violation of the recruitment rules and trying to virtually supplant and rewrite the recruitment rules, is also an order which is in the teeth of Section 3 of the Act; that this order is not even a bona fide order, but an order issued by the state government to cover up its lapses, if any, in bringing about necessary or suitable amendment to the Rules; that the order is also in the teeth of the order dated 11-8-1998 passed by the tribunal in Application No 3859 of 1997 filed by the writ petitioner; that the directions issued therein were virtually flouted and to get over the act of defiance, the state 70 government had come up with the order dated 30-12-1998; that it was an order suffering from legal mala fides only to save its skin, issued by the state government; that it is a settled position of law that by an executive order, a post can neither be created nor extinguished; that the post is just regulated by rules framed under Article 309 of the Constitution of India and holding the field and the rules framed under the plenary legislation exercising the delegated power and therefore submits that in the wake of the Act and the Rules of the year 1984 occupying the field, the executive order is in the teeth of the same and cannot be sustained. In this regard, Sri Patil has placed reliance on the judgment of a Division Bench of this court in the case of M V DIXIT [supra] to submit that this decision is only following the rulings of the Supreme Court on this aspect earlier and squarely applies to the present facts. Reliance is also placed on the decision of the Supreme Court in the case of K KUPPASWAMY [supra] wherein it has been held that the state government cannot act 71 contrary to the rules framed, which are statutory in nature, on the pretext that the state government is in the contemplation of amending the rules and in the interregnum has issued an executive order. It is submitted that the Supreme Court ruling is that this cannot be accepted at all so long as the statutory rules govern the field and the statutory rule cannot be overwritten by executing order or executive practice, even assuming that the state government is in the contemplation of amending the rules. It was emphatically ruled that pending amendment to the Rules, the rules hold the field and any action contrary to the rules cannot be sustained and Sri Patil submits that to the factual position in the present case applies is covered by this judgment.
51. Learned counsel for petitioner has also submitted that it is not within the competence of either tribunal or court to direct the state government to make or enact laws or even to frame rules in a particular manner and amend the rules in a particular manner. What is urged is that the 72 tribunal should not have directed the state government to amend the rules and be that as it may the state government cannot take this as an excuse; that it was in the contemplation of amending the rule and pending amendment to the rules, issuing of an executive order to fill in the gap is justified.
52. It is also submitted that the tribunal even after recording a finding that an executive order issued by the state government for upgradation was not legal or valid and even answering point No 3 on this aspect and also in upgrading the post, which is found to be illegal, has, nevertheless, failed in giving effect to these observations in the form of a commensurate order or direction and that has resulted in grave injustice to the petitioner. In support of this submission, Sri Ajoy Kumar Patil has relied on the decision of the Supreme Court in the case of MALLIKARJUNA RAO vs STATE OF ANDHRA PRADESH [AIR 1990 SC 1251 - PARA-9].
73
53. Placing reliance on the observations made in paras-13 and 23 of the decision of the Supreme Court in the case of ALL INDIA FEDERATION OF CENTRAL EXCISE vs UNION OF INDIA [(1999) 1 SCALE 612] submission of Sri Patil is that when the post of section officer is earmarked for filling up by way of promotion from the post of senior librarian as against the vacancy that arose at 8th roster point, it will have to be given effect to so long as the Rules provide for the same; that it is virtually in the nature of reservation in respect of persons coming from this cadre and that cannot be worked to the detriment of the applicant, which is a denial of a right or consideration for promotion and it is pointed out that it is more so a denial and injustice in the case of the writ petitioner, as the petitioner was the only person holding this post and was bound to be promoted in the vacancy that arose as against the 8th roster point exclusively earmarked for promotion to senior librarian and which did happen during the year 1995.
74
54. Sri Patil has also submitted that the writ petitioner was the only senior librarian at that point of time and a right had been accrued which has been denied to him and therefore also the order of upgradation is also not a bona fide or valid legal order.
55. Sri Patil submits that the argument relating to the application filed in the year 2003 being hit by limitation and therefore should have been dismissed, was not a valid argument for the reason that the writ petitioner got cause of action to question the order of promotion accorded to sixth respondent by way of promotion to the post of administrative officer in this year only, as by then he had also become eligible for being promoted to the post of assistant administrative officer on the premise that he should have been given a deemed promotion and he would have got promotion in the year 1996 if not earlier and as section officer and thereafter was being eligible to be considered for promotion to the post of assistant administrative officer and later for promotion to the post of 75 administrative officer on the premise that it was a single post and as per the government order providing for reservation in promotion also, writ petitioner was also eligible to be considered for the said post of administrative officer after occupying the post of assistant administrative officer and therefore the application of the year 2003 was not barred by limitation etc.
56. Sri Patil has also urged that the tribunal having noticed the great injustice that had caused to the writ petitioner and instead of providing suitable relief in law and just entitlement, having denied such relief, the view of the tribunal is not in consonance with the view taken by the Supreme Court in the case of COMMISSIONER, KARNATAKA HOUSING BOARD [supra], in particular the observations contained in para-33 of this judgment, observing that where a person has been denied his just promotional benefits and entitlement, by untenable and unreasonable stand and notwithstanding repeated representations for extending the same, it is only proper for 76 the court to issue necessary directions keeping in view the larger interest of justice and principles of justice, equity and good conscience in a situation where injustice has been meted out to an employee in spite of his best efforts to get justice and all his representations and requests have been turned down illegally, grave injustice is meted out to him and he has been deprived of the benefits, court should, in such circumstances, direct the authority to extend all benefits which such an employee would have been otherwise entitled to and had been deprived of the same illegally and notwithstanding the authorities urging that the person not having worked in the post, and he would be entitled for benefits etc., and upholding such a plea or defence would amount to perpetuating injustice on the person. Placing reliance on this judgment, Sri Patil submits that the writ petitioner who became eligible for consideration to promotion to the post of section officer way back in the year 1995 has been constantly denied and on the other hand was put on a wrong track by the order of 77 upgradation, which ensures that he is not able to move up in the normal stream, as was the case earlier, should, nevertheless, be given such benefits, which he had otherwise got had he been promoted in the vacancy arose on the 8th roster point for promotion to the post of section officer and subsequent promotions as and when the petitioner had become eligible and at any rate not less than the benefits which persons who had got promotions to the post of section officer much later i.e. beyond the 8th roster point vacancy and they should all be extended to the petitioner.
57. It is also urged by Sri Patil that as a consequence of declaring the upgradation order of the year 1998 issued by the state government as invalid, the promotion to the petitioner as well as sixth respondent will be governed only by the recruitment rules and the roster points and therefore sixth respondent, though, is entitled for being considered against the vacancy at 7th roster point and the writ petitioner against the vacancy of 8th roster point and 78 promotion will be only to the post of section officer and when once the sixth respondent and the writ petitioner got promotions as section officer, they lose their identity or birthmark in the feeder channel and he will be in the common seniority list of section officers and from the post of section officer, further promotion to the post of assistant administrative officer; that the government order providing for reservation in promotional post up to the last class-I or group 'A' posts, which, under the recruitment rules in the present situation, is the assistant administrative officer and this government order dated 27-4-1978 having provided for reservation in promotion and having earmarked the 7th roster point vacancy and as per the amendment carried out to the roster point on 30-8-1979, the first vacancy in the order after 7th, 14th, 21st and 27th being reserved in favour of SC employees, the 7th vacancy to the post of assistant administrative officer from section officer, against which the sixth respondent has been promoted, was not valid in law and instead, the writ petitioner should have been promoted 79 as assistant administrative officer, in which event, he would have become eligible for promotion to the post of assistant administrative officer on the date when the sixth respondent had been promoted to the post of assistant administrative officer. It is on such premise, the benefits are sought to be extended, if not factual promotion on the strength of the ratio of the decision of the Supreme Court in the case of COMMISSIONER, KARNATAKA HOUSING BOARD [supra]. Learned counsel for petitioner, therefore, urges for allowing the writ petitions in such terms.
58. On the other hand, Sri S M Babu, learned counsel for petitioner in WP No 18775-76 of 2010, also questioning the very common order of the tribunal, but in so far as it relates to the order passed in Application No 9088 of 2003, as not only by way of reply to the writ petitions of the original applicant, as above, but also by way of independent contentions urged in these writ petitions; that the arguments which are virtually common, has, firstly and by way of preliminary objection, contended that the 80 application should have been dismissed in limine by the tribunal as being out of time and being hit by limitation. It is urged that there is no element of discretion left on a question of limitation to the tribunal or court, unless the applicant or the writ petitioner had explained as to how the limitation does not apply or had come up with an application seeking for condoning the delay in terms of Section 21 of the Administrative Tribunals Act, 1985. What is urged is that in application challenging the promotion/upgradation of the petitioner as per 1998 government order, though it was given effect in the year 1999 itself, the application itself was filed in the year 2003 questioning the same, i.e. almost after four years from the date of upgradation/promotion and even without an application seeking for condoning the delay and as such the application should have been dismissed only on this ground without going into the merits and the tribunal having glossed over this matter and not having specifically 81 met the same, the order of the tribunal is not sustainable on this aspect.
59. In so far as the challenge relates to promotion of this writ petition in the very application is concerned, it is urged that the applicant has no locus to question such a promotion, as the applicant was not even promoted as section officer and also never promoted as assistant administrative officer and the promotion being to the writ petitioner from the post of assistant administrative officer to the post of administrative officer, the present challenge in an application of the year 2003 before the tribunal was not tenable at all, but the tribunal nevertheless examined the merits of this application, the writ petitioner herein is aggrieved by the same and he submits that the corresponding writ petition of the applicant before the tribunal should be dismissed and the writ petition filed by the present petitioner in WP Nos 18775-76 of 2010 should be allowed on such premise.
82
60. In support of such submissions, Sri Babu has placed reliance on the decision of the Supreme Court in the case of STATE OF TAMIL NADU vs SESHACHALAM [(2007) 10 SCC 137], wherein the Supreme Court held that long delay in seeking for benefit questioning an order of the government is hit by delay and laches and such claim should not be entertained and in that case a retired employee seeking for certain benefits, was held not entitled to persons who had retired long back and at any rate question of seeking for such entitlement after the person being within the knowledge of the benefit extended, even 10 years earlier, was held to be a claim hit by delay and laches and the Supreme Court disentitled such relief to the person.
61. Sri Babu has also, for the same proposition, relied upon the decision of the Supreme Court in the case of UNION OF INDIA vs A DURAIRAJ [(2010) 14 SCC 389] wherein it is held that a belated challenge to promotion given to a fellow employee cannot be sustained. 83
62. Yet another decision relied upon for the very purpose by Sri Babu is in the case of Y RAMAMOHAN vs GOVERNMENT OF INDIA [(2001) 11 SCC 537]. Specific attention is drawn to the provisions of Section 21 of the Administrative Tribunals Act, 1985.
63. Sri Babu has also pointed out the distinction as had been indicated in the judgment of a Division Bench of this court in the case of M V DIXIT [supra] to submit that an order of upgradation is neither creation of a post, in the present case chief librarian, nor extinguishing of an earlier post, in the present case senior librarian and in particular, has sought to place reliance on the observations contained in para-24 of this judgment, wherein a distinction had been made between a notification that had been issued under Article 162 of the Constitution of India and later Rules governing the issue and the notification which was issued earlier, unless it is expressly so done by rules. It is also submitted that what is frowned upon is creation and 84 abolition of posts and not an order for upgrading of a post on the premise that it is in violation of the statutory rules.
64. It is also submitted by Sri Babu that 1984 recruitment rules had virtually become unworkable in the wake of the pay scales of stenographer-cum-legal assistant and the section officer being on par and the posts having become virtually one and the same pay-scale-wise and there cannot be a promotion from the post of stenographer- cum-legal assistant to the post of section officer and it is this anamoly which was required to be corrected and even as directed by the tribunal on earlier occasion and virtually the rules has become unworkable and it is sought to be set right by issue of the government order supplementing the rules by issue of the executive order and such a course has been upheld and approved by the Supreme Court in the case of STATE OF SIKKIM vs DORJEE TSHERING BHUTIA [(1991) 4 SCC 243].
85
65. Reliance is also placed on the decision of the Supreme Court in the case of O P SINGLA vs UNION OF INDIA [(1984) 4 SCC 450], specifically the observations contained in para-43, and on which decision, Sri Ajoy Kumar Patil has also placed reliance on behalf of the writ petitioner in WP Nos 11682-85 of 2010, to submit that the Supreme Court has observed that if the state government desires to restore a balance caused with the judgment of the Supreme Court in that case, it is for the government to do so by appropriate rules by framing them and therefore pending such exercise, for supplementing the rules, issued an administrative order to achieve the purpose, that cannot be found fault with, as it is only supplementing the existing rules etc.
66. Sri Babu has also contended that with no legal infirmity in the order of upgradation, that it being only to get over the situation in the wake of the existence of exigencies and also virtually in the nature of supplementing the rules, and by the upgradation order, petitioner having 86 become assistant administrative officer, it is not open to the applicant before the tribunal to question, not only this but also further promotion to the post of administrative officer and urges for allowing the writ petitions.
67. Ms S Susheela, learned AGA, appearing for the state- petitioner in WP No 7424 of 2011, has raised three points:
that the order of upgradation was issued only to get over the unworkable situation under the rule; that it was necessitated in view of the earlier order of the tribunal dated 18-11-1996 passed in Application No 2129-31 of 1995; that a perusal of the order of upgradation only shows that it is fully in consonance with the directions issued by the tribunal earlier; that it is a valid order having been issued in the exercise of executive powers of the state under Article 162 of the Constitution of India; that the order of upgradation is not in violation of or conflicting with the rules, but only supplementing the rules.87
68. On the other hand, state government is specifically aggrieved by certain observations against the state government on the validity of the upgradation order and therefore filing of the writ petitions became necessary; that there was absolutely no mala fide intention or any malice towards the applicant or the present writ petitioner in WP Nos 11682-85 of 2010 and therefore no fault can be found with the order of upgradation.
69. It is also submitted with reference to the provisions of Entry 41, List II of the seventh schedule to the Constitution of India read with Articles 246 and 162, that as it is well settled proposition that executive powers of the state are coextensive with the legislative power and if the creation of post or extinguishing of a post or upgradation orders etc., all are being within the legislative power of the state and if the area is not covered by an express statutory rules, it can be supplemented by executive order and in a situation where there was no coverage of upgradation of posts under the rules, that being supplemented by executive order is a 88 perfect and valid act in terms of Article 162 of the Constitution of India and well within the powers of the state government and no exception can be taken and the upgradation order cannot be found fault with. In support of such submissions, learned AGA has placed reliance on the decision of the Supreme Court in the case of SMT RAM SHARMA vs STATE OF RAJASTHAN [AIR 1967 SC 1910], particularly para-7 of this judgment and also in the case of RAM JAWAYA KAPUR vs STATE OF PUNJAB [AIR 1955 SC 549], expanding the scope of executive power of the state and therefore submits that the upgradation order is in order.
70. Sri P B Bajentri, learned counsel appearing for seventh respondent in WP Nos 11672-85 of 2010, arising out of Application No 6383 of 2001 before the tribunal, has supported the order of upgradation and points out that it is in two parts, viz., upgradation by redesignation of the post of stenographer-cum-legal assistant to post of Asst. Administrative Officer and creating a new post of Chief 89 Librarian by submitting that a post can be newly created even by an executive order so long as it is not covered by the Rules; that the post of chief librarian was not a post covered and therefore upogradation is supplementing the Rules and cannot be found fault with and it is secondly contended that creation of a post, abolition of a post etc., are all within the policy domain of the state government and it cannot be interfered with by courts; that his client, who is a beneficiary of the order of upgradation, will be adversely affected if the order of upgradation is to be interfered with at this point of time. In support of his submission, Sri Bhajanthri has placed reliance on the decision of the Supreme Court in the case of P U JOSHI vs UNION OF INDIA [AIR 2003 SC 2156], particularly in para-10 and also the decision in the case of OFFICIAL LIQUIDATOR vs DAYANAND [(2008) 10 SCC 1 - Paras 59 & 60], and submits that setting aside of the upgradation order will not only affect the cause of his client 90 but also a large number of other employees and has therefore urged for dismissal of the writ petitions.
71. It is in the background of such submissions and the material placed before the Court, these writ petitions are required to be examined.
72. In the writ petitions filed by the applicant before the tribunal, further questions arise as to whether this Court is required to examine the prayer sought for by modifying the orders of the tribunal and by issuing commensurate directions to the State Government even in the wake of the findings recorded by the tribunal and if any, such directions are issued, what further relief the petitioner will be entitled and is required to be ordered in the writ petitions by this Court.
73. In the writ petition filed by the 3rd respondent i.e., W.P.Nos. 18782-18776/10, whether these writ petitions are required to be allowed in the wake of the contentions urged by the learned counsel for the petitioner and if so, in what 91 manner and as to how it can have a bearing on the Writ Petitions 11682-685/10. We are also required to examine the contentions urged on behalf of the State Government in its Writ Petition Nos. 7424/2011 & 16814-16/2011 and as to whether any part of the order of the tribunal requires to be modified in the wake of the contentions urged by the learned Government Advocate appearing for the petitioner/State in these writ petitions.
74. The cause brought before the tribunal in the Application No.2358/99, which was the earliest in this batch of applications filed before the tribunal through this application, was again in the context and the background of not only the earlier applications that had been filed by the three applicants in Application Nos.2129-2131/1995 by order dated 18.11.1996 passed on these applications wherein the present writ petitioner figured as the 4th respondent and a further order dated 11.8.1998 passed by the Tribunal in Application No.3859/97 which was in the earlier round when the first application was filed by this 92 writ petitioner before the tribunal. It is the orders in these two applications which had paved way for the Government to pass or issue the order dated 30.12.1998, the validity of which had come to be questioned by filing Application No.2358/99 i.e., the first application.
75. A perusal of the orders only indicate that the subject matter of controversy amongst the parties and employees working in the Office of the Advocate General of Government of Karnataka was the promotional opportunities available to the post of Section Officer from four different channels which are the feeder posts viz., persons working as FDA, persons working as Stenographers, persons working as Stenographer-cum- Legal Assistant and persons working as Senior Librarian. The Rules provided the respective entitlement of persons working in these feeder channels by devising what is known as the roster system and is part of the Rules, the relevant portion of which is as under:
93
2. Method of recruitment and minimum qualifications:-
Schedule Category of Posts Method of Recruitment Minimum Qualification 1 2 3 Administrative By Promotion from the For Promotion:
Officer cadre of Assistant 1) Must be put in not
Administrative Officer less than three years
Or of service in the
By deputation of an cadre Assistant
officer holding a post of Administrative
equivalent grade from Officer
any other State Civil
Services.
Assistant By promotion from the Must have put in not
Administrative cadre of Section Officers. less than three years
Officer in the cadre specified
in column (2).
Section Officers By promotion from the For promotion:
cadres of First Division 1) Must have put in Clerks, Stenographer- not less than five cum-Legal Assistant and years of service in Senior Librarian. the cadre of First The roster of vacancies Division Clerks, for promotion is an Stenographers, follows: Stenographer-cum-
a) First, third, fifth and Legal Assistant and ninth vacancies by Senior Librarian. First Division Clerks.
b) Second, fourth, sixth 2) Must have passed and tenth vacancies S.S.L.C. or by Stenographers: equivalent.
c) Seventh vacancy by
Stenographer-cum- 3) In the case of
Legal Assistant. Stenographers, they
94
d) Eight vacancy by must have worked
Senior Librarian. for not less than one
year as First Division
Clerks and in the
case of Senior
Librarian, he must
have undergone
training in the
Administration and
Litigation Sections of
the office for not less
than one year, as
may be instructed by
the Administrative
Officer.
Xxx
Category of Posts Method of Recruitment Minimum Qualification
1 2 3
Note: The Stenographers should be posted to work as First Division Clerks in the order of seniority.
Stenographer- By promotion from the For promotion:
cum-Legal cadre of Stenographers. 1. Must have put in Assistant not less than two years of service in the cadre of Stenographers.
2. Must be holder of a Degree in Law.
Senior Librarian By promotion from the For promotion:
cadre of Library 1) must have passed Assistant. If no suitable S.S.L.C. or equivalent person is available for examination.
promotion, by direct
recruitment. 2) Must be holder of a
Diploma in Library
95
Science or posses
equivalent
qualification.
3) Must have put in
not less that five years
of service in the
Library Section as
Library Assistant.
For Direct
Recruitment:
1. Must be holder of a
Degree.
2. Must be holder of a
degree or diploma in
Library Science or
possess equivalent
qualification.
76. A perusal of this Rule 2 of the Schedule at once reveals that the ten point roster for promotion by the FDA and Stenographers between themselves cornered 4 vacancies each in the post of Section Officer - promotional post, the Stenographer cum Legal Assistant which was a single post got an opportunity for promotion to the higher post of Section Officer at the 7th vacancy in the roster point 96 and the Senior Librarian which again was a single post got the promotional opportunity at the 8th roster point.
77. It is feeling aggrieved by this provision for promotional opportunity as per the roster point, 3 persons i.e., FDA and Stenographers had approached the tribunal earlier by filing Applications 2129 to 2131/1995 seeking for issue of a writ of mandamus to do away this reservation at the 7th and 8th roster point and in the alternative to direct the State of Karnataka to amend the Rules governing this method of promotion.
78. The tribunal while found that it cannot issue a mandamus to declare the status as sought for, and found that the Rules is not workable etc. nevertheless allowed the applications to direct the State Government to amend the Rules. The Tribunal directed not by way of direction but by indicating that the only possibility of the applicants seeking relief is only if the State Government ensures that the Rules were amended.
97
79. Even while the State Government had not amended the Rules but nevertheless according promotions to these three applicants in Application Nos.2129-2131/95 before the tribunal and as issued by the Advocate General of the State which gave rise to a cause to the present writ petitioner viz., Mr Gurusiddaiah, the then Senior Librarian to go before the tribunal questioning this order of promotion accorded to the three applicants as per the order of the Advocate General dated 6.6.1996 impleading them as party respondents and State of Karnataka as 1st respondent and Advocate General as 2nd respondent by filing an Application. This application after contest came to be allowed in favour of the applicant - the present writ petitioner - holding that the Government not having accorded or modified the Rules under which the method of promotion has been indicated and has been devised as per the ten point roster system, even the Advocate General acting on behalf of the State without following the Rules, could not have taken the decision in anticipation of the 98 Rules etc. being amended, and also holding that even for placing an additional charge, persons who are eligible has to be placed in charge and particularly challenge being promotion to the post of the 8th vacancy in the roster point, the availability of the applicant who is not otherwise disqualified, held that filling up of this 8th vacancy in the roster system by persons other than the applicant was illegal and therefore, set-aside the order relating to filling up of the 8th vacancy in the roster system by a incompetent person and directed that the applicant should be put in independent charge of the 8th vacancy till the Government takes a decision on the basis of certain recommendations that had been made by the Advocate General.
80. This order of the tribunal though came to be challenged before this Court by three applicants by filing Writ Petition Nos.27363-65/1998 while an interim order came to be passed earlier to the effect that while the order passed by the tribunal is stayed, that order did not necessarily come in the way of the respondent/State and 99 others for making promotion to the post of Section officer on regular basis in accordance with the provisions applicable and the petitioner could not have any claim on such promotion made on regular basis notwithstanding the stay order etc. Ultimately, the writ petition came to be dismissed as withdrawn and the result is that the order passed by the Administrative Tribunal remained concluded as per this order dated 24.11.1998 passed in Application No.6509/98. The Government neither gave effect to the orders passed by the tribunal nor obeyed the same but to get over the same, it appears, issued the Government Order dated 30.12.1998, to the following effect:
"Sanction is accorded to the upgradation of the posts in the office of the Advocate General as follows:
i) Stenographer-cum-Legal Assistant in the pay scale of Rs.2050-3950 to that of Assistant Administrative Officer in the pay scale of Rs.2375-4450.
ii) One post of Section Officer held by Senior most Section Officer in the pay scale of Rs.2050-3950 to that of Assistant Administrative Officer on the pay scale of Rs.2375-4450.100
iii) The post of Senior Librarian in the pay scale of Rs.1900-3700 to the pay scale of Rs.2050-3950 and it is redesignated as Chief Librarian.
This order issued with the concurrence of Finance Department, vide its Note No. FD 1452/Exp.7/98 dated 15th December 1998.
81. It is this order of the Government which has come to be challenged by filing the earliest of the 4 applications before the tribunal.
82. The order was challenged on several grounds interalia that it is at variance with the recruitment rules; that the executive order cannot modify or vary the recruitment rules; that the order is issued only to tide over a difficult situation that was being faced by the Government without resorting to a proper method or procedure by doing the same in the manner as permitted in law and at any rate the applicant was aggrieved because of the upgradation of the post of Senior Librarian by redesignating it as Chief Librarian; the applicant was being removed from the main 101 stream of promotional opportunity as a Senior Librarian which had the opportunity to be promoted as Section Officer and thereafter as Assistant Administrative Officer and further as an Administrative Officer provided he had the sufficient and requisite qualification and therefore, amounted to an executive order altering the service condition to the detriment of the applicant and at variance with the Recruitment Rules, and therefore, bad in law.
83. The relief of setting aside this order was sought for as it amounts to dislodging the applicant from the main stream of hierarchy posts serving as feeder channel to the next promotion of Section Officer much against the purpose of the rules.
84. On the other hand, the application was totally defended by the State Government contending that it has the authority to issue such an order; that it was necessitated due to the impracticality of the Rules in providing for promotion etc. 102
85. One aspect we may notice incidentally is that the present writ petitioner who was successful in his Application No.3859/1997 before the tribunal and with the dismissal of Writ Petitions filed by respondents 3,4 and 5 against this application by the High Court as withdrawn, had sought for execution of the order of the tribunal dated 11.8.1998 by filing another application before the tribunal.
86. During the pendency of this execution application, the order impugned in Application No.2358/1999 i.e., the order of upgradation dated 30.12.1998 came to be passed by the State Government. It obviously appears that the State Government was under pressure to some how get over this order and this order of 30.12.1998 gives an impression that it is a device adopted by the State Government to get over the situation and to save its skin.
87. In the above writ petitions, extensive arguments as noticed above are addressed questioning the legality of this order i.e., 30.12.1998 issued by the State Government by 103 the learned counsel appearing for the writ petitioners in W.P.Nos.11682-685/2010 by Mr Ajoy Kumar Patil and equally spirited arguments are addressed to defend the validity of this order by learned counsel for private respondents in the writ petitions filed by Mr S M Babu, learned counsel who appeared for the 6th respondent in Writ Petition No.11683/2010 and also in his Writ Petition Nos.18775-776/10 and so also by Smt Susheela, learned Addl. Government Advocate appearing for the State in all these writ petitions and also as the counsel for the petitioner in Writ Petition of the State Government bearing Nos.7424/2011 and 16814-16/2011.
88. While on merits, the order is defended by the State Government and Sri S M Babu, learned counsel for the 3rd respondent has raised preliminary objections to contend that the challenge to this order insofar as it relates to the upgradation of the post of Stenographer-cum-Legal Assistant to that of Asst. Administrative Officer cannot be entertained as it is hit by delay and laches by filing an 104 application before the tribunal only in the year 2003 and even without any application for condonation of delay under Section 21 and on the authority of the Judgments of the Supreme Court holding that delay and laches disentitles the relief, the challenge should be rejected at the threshold.
89. On the other hand Sri Ajoy Kumar Patil, learned counsel for the writ petitioner has tried to explain that at the first instance, there is no delay and that the cause of action according to the writ petitioner arose for questioning the other part of the Government Order during the year 2003 when promotional opportunity opened up as per the new promotions sought for by the applicant before the tribunal to the post of Assistant Administrative Officer and therefore, it cannot be said that it is hit by delay and laches, nor the limitation would apply. It is also urged placing reliance on the decision of the Supreme Court in the case of COMMISSIONER, KHB [supra], particularly on the observations made in para-33 of this judgment, to 105 submit that on technicalities relief cannot be deprived if the writ petitioner was otherwise entitled for the same and in the name of technicality an illegality should not be overlooked but commensurate relief should be given to the applicant/writ petitioner.
90. While Mr Babu has relied upon the Judgment of the Supreme Court in the following cases to urge that the application is highly delayed and should be dismissed on the ground of limitation, delay and laches which are as under:
(1) STATE OF TAMIL NADU vs SESHACHALAM reported in (2007) 10 SCC, 137 (2) UNION OF INDIA & ORS vs A D DORAIRAJ (DEAD) BY LRS reported in (2010) 14 SCC 389 and (3) RAMAMOHAN & ORS vs GOVERNMENT OF INDIA reported in (2001) 10 SCC 537
91. On the other hand, Sri Ajoy Kumar Patil - learned counsel for the petitioners submitted that before the Tribunal he has also placed reliance on the Judgment of the Division Bench of this Court in the case of M G 106 MAHESHWARA RAO & ORS vs STATE OF KARNATAKA & ORS (2002(7) SLR 332 wherein it has been explained that when a cause of action arises to challenge a particular promotion or order and while, challenging the same, at the same time it is also open to the same party to question another order earlier which forms a basis or foundation of the order under challenge and therefore, has submitted that when the cause of action arise for the writ petitioner to question the promotion at the same time, the applicant was enabled to question the very order of upgradation of the post of the Stenographer cum Legal Assistant to the post of Assistant Administrative Officer. The submission is though the 1998 order of the State Government was questioned which had already been questioned earlier but insofar as it related to the upgradation of the post of Senior Librarian to the post of Chief Librarian and upgradation to the post of Assistant Administrative Officer from the post of Stenographer cum Legal Assistant as it opened up a fresh 107 cause of action the petitioner could question the entire order of upgradation etc.
92. Rejection of a cause or an application seeking for any relief before the tribunal or the High Court in the writ petition on the ground of delay and laches is a well known principle and is based on equitable principle that a belated or stale cause if examined would unsettle settled position particularly vis-à-vis against whom the relief is sought for. The necessity of examination of the question to determine whether the delay in presenting the application having regard to the facts and circumstances, should be treated as fatal or as delay which could be explained is also a well known principle accepted by the Courts and Tribunals.
93. In the present case we notice that it is not as though the Government Order dated 30.12.1998 was questioned for the first time before the tribunal. It had been questioned earlier even in the application filed in the year 1999. In the application filed in the year 2003, where 108 private respondents also figured particularly 6th respondent therein, which was well within time even on the period of limitation, the challenge to the other part of the very order in fact can be taken as a clear challenge but by an earlier application and on the premise that the cause of action arose earlier, cannot in our view said to be impossible and if the tribunal had taken the view that the application cannot be said to be barred by delay and laches, we do not like to disturb it to preempt any examination in the present writ petitions and therefore, the preliminary objection regarding the application being hit by delay and laches is rejected. We agree with the answer given by the tribunal on this Point No.1.
94. With regard to the other preliminary objection about the locus standi of the writ petitioner/applicant before the tribunal to challenge the upgradation of the Stenographer cum Legal Assistant to that of Assistant Administrative Officer and also the further promotion of the 6th respondent in Application No.9088/2003 to the post of Administrative 109 Officer from the post of Assistant Administrative Officer, we find that if the applicant has locus to challenge the order of upgradation, then he has also the locus to challenge the further promotion based on the order of upgradation. Whether the applicant succeeds or not is a different thing but we are of the view that it cannot be held at the threshold the applicant does not have even the locus to question the order of upgradation and the further promotion based on the order of upgradation. While dismissing the question of limitation, we have noticed that the applicant got cause of action in the year 2003 to question the order of upgradation insofar as it benefitted the 6th respondent and if that is accepted, then on the same logic the applicant has locus to question the order of upgradation and the further promotions based on the order of upgradation. We are also of the opinion that the tribunal is correct in holding that the applicant had the locus to question such upgradation and further promotions particularly when the Government had failed to obey the 110 orders of the tribunal to first determine the status of the 6th respondent in Application No.9088/2013 and even without amending the Rule, they have accorded virtually a promotion in the guise of upgradation which in fact as noticed insofar as the 6th respondent is concerned was holding the post of Stenographer-cum-Legal Assistant and as per the Recruitment Rules has to be first a Section Officer and thereafter, to the post of Assistant Administrative Officer, the order of upgradation is virtually a double promotion though in the name of upgradation of the post and a promotion not in consonance with the Rules and by a devise and through an executive order in our considered view is definitely in the teeth of the Rules and the Executive Order cannot over-reach the Rules by resorting to such methodology.
95. The applicant was an aggrieved person in the background of non-implementation of the earlier orders of the tribunal and it was in his favour and to get over it alone, had issued the order of upgradation and therefore, 111 also it has to be necessarily held that the applicant was an aggrieved person both in respect of the order dated 30.12.1998 upgrading the post as well as the later order dated 17.4.2003 promoting the 6th respondent in Application No.9088/2013 in the post of Assistant Administrative Officer to Administrative Officer.
96. One other preliminary objection raised on behalf of the private respondents in the application and also the State Government's contention is that the applicant who had the benefit of the order of upgradation in the post of Senior Librarian to the post of Chief Librarian and who had enjoyed the benefit of higher post and higher pay scale till the order came to be questioned by him by filing Application No.2358/99 and who has continued to remain in the higher post even as on the date has to be considered to have acquiesced with his order of promotion and is estopped from questioning the promotions of the respondents and his own upgradation. It is pointed by Sri Ajoy Kumar Patil that the applicant had while accepting 112 the post and reporting for duty had taken care that he is joining duty from 11.3.1999 without prejudice to his right as and are available under the Rules particularly, one of providing promotion to the cadre of Section Officer etc. We also notice that he is a Government servant. The applicant had no choice but to accept the order or otherwise he is not only likely to lose all other promotions but also may have the prospect of facing disciplinary proceedings for disobedience. In the background that the Rules while providing for promotional opportunity only through the post of Section Officer to the post of Administrative Officer excluded to the Chief Librarian the said opportunity and by doing so it has the effect of taking him out of the main stream and positioning the post of Administrative Officer beyond his reach, thereby depriving the promotional opportunity available to the main stream of officers. Therefore, the applicant was in fact feeling aggrieved and the additional fact of applicant having remained in the post of Chief Librarian without any further promotion from the 113 post for more than 15-16 years while persons who had joined even as FDAs, Stenographers much later have stolen a march over the applicant is also an indicator that the plea of estoppel cannot be put against the applicant to decline examination of his cause which complains of his being condemned for good to remain for ever in the post of Chief Librarian without any possibility of further promotion etc.
97. That leaves us with the question as to the validity of the order of upgradation on the merits of the matter and in this area also, several shades of arguments have been addressed by the learned counsel for the parties.
98. Mr Patil has addressed on behalf of the applicant/writ petitioner who has questioned the validity of the order of upgradation that it is an amendment to the Rules by way of issue of an executive order which is not permissible; that upgradation of the post of Senior Librarian to the post of Chief Librarian is virtually creating a new post which is not 114 provided for in the Rules and also upgrading the post of Stenographer cum Legal Assistant to the post of Assistant Administrative Officer is again according a double promotion independent of the Rules and Government cannot achieve the same through an executive order purporting to exercise its power under Article 162 of the Constitution of India, when it is at variance with the Rules. Reliance is placed by Mr Patil on the Judgment of the Division Bench of this Court in the case of M V DIXIT [supra] so also on the decision of the Supreme Court in the case of KUPPUSWAMY [supra].
99. On the other hand on this aspect, learned Government Advocate appearing for the State on behalf of the respondents in Writ Petition Nos.7424/11 and connected matters has placed reliance on the Judgment of the Supreme Court in SANT RAM SHARMA [supra] to urge that in areas where Rules could not occupy the field, it can be supplemented by an executive order while the Government cannot amend or set-aside the statutory Rules 115 by showing administratiave action. Reliance is also placed by learned Government Advocate on the Judgment of the Supreme Court in the case of RAI SAHIB RAM JAWAYA KAPUR [supra] to indicate the extent of the executive powers is co-extensive with the power placed by the Legislature.
100. The question really is one as to whether the Recruitment Rules have covered the field or the area. For the same proposition Sri S M Babu, learned counsel appearing for the petitioners in W.P.Nos.18775-776/2010 has placed reliance on the Judgment of the Supreme Court in the case of DORJEE TSHESSING BHOTIC [supra] to urge that the executive power of the State under Article 162 is co-extensive with the legislative powers.
101. Reliance is also placed on the observations of the Supreme Court that where statutory provisions which are unworkable and inoperative cannot achieve the objectives, such provisions are nonest till made operational and it is 116 the operative statutory provisions which have the effect of ousting executive power of the State from the same field and submitted that in the present case also the statutory provision providing for filling up of the 7th roster point had become unworkable as the pay scale of Stenographer-cum- Legal Assistant and that of Section Officer had become one and the same in view of the pay scale being the same ever since the creation of the post of Stenographer-cum-Legal Assistant which was on par with that of the Section Officer.
102. Insofar as the proposition that an executive order cannot either undo a statutory Rule or forego a statutory Rule or can be issued at variance with the statutory Rule; there is no dispute or ambiguity but what is explained by the learned Government Advocate that having regard to the extent of the executive power, it is co-extensive with the legislative power; it can be on par with the legislative power of making the Rule etc. 117
103. This argument will hold the field only in a situation where the field is not occupied by a rule. In the instant case, having regard to the provisions of Section 3 of the Act, under which Rules are enabled to be framed and a Rule made under Article 162 being inoperative under the statute even assuming under Article 162, statutory orders can be issued, it can be so only as long as the field is not occupied. We notice that as contended by Mr. Patil, the field is occupied in the present case under Section 3 of the Act and the Rules framed thereunder by the State Government which is 1984 Rules. Reliance placed on DIXIT'S CASE (Supra) supports this proposition. Now the argument that the statutory Rules has become unworkable even as observed by the tribunal, the tribunal or this Court did not strike down the Rule as having become unworkable or inoperative, it holds the field. But that apart, the tribunal had earlier directed and even in the present situation the Government can only amend the Rule while direction to amend the Rule is perse not permissible to be 118 issued by the Courts or the tribunal, it is only for the State Government to devise the ways and means to get over the unworkable Rule or inoperative Rule assuming that there is one such. We notice that the Rule as prevailing in the position i.e, roster point promotion method was in existence ever since the inception of the Rule in the year 1985 and even assuming for argument sake that the Rule was unworkable and to supplement it, it can only be to the extent of making it workable and not in the exercise of upgradation of the posts and more so, if it has the effect of taking out the promotional opportunity which was otherwise available to the applicant. Insofar as the observations of the tribunal is concerned, it was if at all only with regard to the 7th vacancy in the roster point and not with reference to the 8th vacancy in the roster point the anomaly with the Rule assuming that it is unworkable for the purpose of examining the validity of the executive order, it has not been made workable by the executive order but a different method is adopted by upgrading the post, one by 119 giving a double promotion and the other by removing the post from the main stream and further promotional opportunity. This in our considered opinion cannot be said to be a method for working out or making a Rule workable but at tangent to the same. The solution if at all for removing the anomaly at the 7th roster point to declare the post of Stenographer-cum-Legal Assistant equivalent or on par with the Section Officer so that further promotional opportunity opens up but not by giving further promotion in the name of upgradation of the post. Be that as it may, We find the order of upgradation is not precisely for the purpose for which it proclaims to have been done viz., to remove the unworkability and inoperativeness of 7th roster point but other things also. Therefore, we are of the opinion that the protection which is carved out in the decision of the Supreme Court in the case of DORJEE TSHESSING BHOTIC [supra] cannot be called in aid to save the order of upgradation, in the present situation. 120
104. The tribunal infact has also found fault with the order of upgradation and has observed that it is illegal. It is precisely because of this finding and observation the State Government has filed the writ petitions so also the private respondent no.6 in W.P. No. 11683/2010 who had earned the position as administrative officer by the time the order of upgradation sofar as it benefitted him had been questioned in the tribunal in the year 2003.
105. We find on the strength of the decisions relied upon by Mr S M Babu, learned counsel for the petitioner in Writ Petition Nos.18775-776/2010, an executive order at variance with the statutory Rule cannot be saved so also the argument on behalf of the State Government cannot be accepted just because the executive power of the State under Article 162 is co-extensive with the legislative power and it is therefore, co-extensive with the Rule making power itself and can be exercised by issuing an executive order. While the proposition is accepted only when the field is not occupied by a statutory Rule, it is also required 121 that if any power is to be exercised, it has to be exercised in a reasonable manner and in a befitting manner and on relevant considerations. If it is not on relevant considerations and not in proper manner in the sense for the intended purpose, then also the order is vitiated. The order of upgradation fails on this front also as it is not relevant in the context of upgradation of the post of Senior Librarian to the post of Chief Librarian which squarely deprives the Senior Librarian from further promotional opportunities otherwise available under the Rules and also according double promotion in the guise of upgradation for the person in the post of Stenographer-cum-Legal Assistant to the post of Assistant Administrative Officer. For this reason also the order is bad and illegal as characterized by the tribunal.
106. That leaves us with the argument that is addressed by Mr P B Bajentri who has submitted that any interference with the order of the upgradation at this point of time has the effect of affecting the promotions which his 122 client has already got i.e., 5th respondent in Writ Petition No.11683/2010 and has placed reliance on the Judgment of the Supreme Court in the case of P V JOSHI [supra] to submit that the tribunal or Courts have no role to play in the policy matters and that intention of the Courts is within the domain of policy matters and therefore, the tribunal cannot interfere with the same nor this Court in exercise of power under Articles 226 and 227 of the Constitution of India.
107. While, it is true that Courts and tribunal cannot interfere with the policy matters but the implementation of the policy matter in the form of an executive order or even in the form of legislation is always subject to judicial review and judicial review of administrative action or legislative action as the case may be. It is not the policy that has been examined but the result of framing of a particular policy and in what manner it is implemented and whether it is in any way violative of any existing statutory provision or constitutional provision. It is settled on authority or 123 even as submitted by Mr Ajoy Kumar Patil for a civil servant in the services of the State, a promotional opportunity is the legitimate expectation particularly if so provided as per the Rules. A Senior Librarian in the office of the Advocate General was under Rules entitled for seeking promotion to the post of Section Officer and thereafter, further promotions. If under the impugned order that opportunity is denied to the person, a Senior Librarian by redesignating the post as Chief Librarian and which post is not found in the Rules, on the other hand is isolated from the promotional avenues open to the Senior Librarian, the mere fact that it has higher pay scale cannot come in the way as it is noticed in the present case the higher pay scale is on par with the pay scale of the Section Officer, the next promotional post and thereafter there is stagnation. This virtually is in violation of Article 16 of the Constitution of India as the further opportunities are denied and therefore, it cannot be contended that it is a matter of policy and no interference is called for. 124
108. On such premise we can definitely hold that the order of upgradation issued by the State Government dated 30.12.1998 is definitely not sustainable at any rate in sofar as it relates to the upgradation of the post of Senior Librarian to that of Chief Librarian. One other argument of Mr.Patil appearing for the applicant/writ petitioner is that if the applicant who having been promoted as against the 8th vacancy in the roster point to that of the Section Officer and thereafter after attaining the eligibility, the applicant particularly belonging to the Scheduled Caste, and there being a reservation provided for Scheduled Caste even in promotions and up to the lowest post in Class-I which is in the present situation that of the post of Assistant Administrative Officer and the feeder channel being that of the Section Officer and as per the roster point deviced for such promotion in the 7th roster point the vacancy in Assistant Administrative Officer is reserved for a Scheduled Caste person and the 6th respondent having been promoted as against this vacancy, the applicant has a right for being 125 considered as he is a Schedule Caste and he would have got the post of Assistant Administrative Officer in preference to the 6th respondent and therefore, the further promotion is also bad in law as the 6th respondent could have become the Assistant Administrative Officer only after the applicant/Writ Petitioner etc.
109. In response Mr Babu has submitted that the 6th respondent - his client even otherwise will be senior in the post of Section Officer as he is entitled for promotion in the 7th roster point itself whereas the applicant/writ petitioner got the opportunity in the 8th roster point and apart from this aspect, the upgradation of the post from Stenographer- cum-Legal Assistant to that of Assistant Administrative Officer and the 6th respondent occupied the post of Assistant Administrative Officer at the 6th vacancy in the roster point of Stenographers for promotion and thereafter reservation cannot be an issue coming in the way of the order being implemented insofar as the upgradation of the post etc. 126
110. If at all, what the applicant/writ petitioner is deprived at all is the consideration for promotion from the post of Senior Librarian to that of Section Officer in the opening that arose at the 8th roster point which was available to the applicant. Even before this, the 6th respondent would have been promoted at the 7th roster itself and therefore, even if the roster point should have been worked the applicant/writ petitioner would have remained junior to the 6th respondent in the promotional post of Section Officer but, all others would have been promoted as Section Officers on and after the 9th roster point, necessarily will have to be below the applicant/writ petitioner in the order of seniority even in the post of Section officer.
111. Insofar as the argument relating to the reservation of post, we find there is no foundation and it is more based on an assumption though Mr Patil has drawn our attention to the roster point reserving 7th vacancy in the post of Section Officer in favour of Scheduled Caste candidates. Therefore, we are not inclined to examine this contention for holding 127 that the applicant is entitled for a promotion against the reserved vacancy when the whole thing is on a deemed or possible promotions and not actual.
112. If, as noticed above if the order of upgradation is not maintainable on legal basis and to the detriment of the applicant, it is to be necessarily declared so, as while it is bounden duty of the Courts and tribunals to give effect on the legal position even on the strength of the Judgment of the Supreme Court in the case of COMMISSIONER, KARNATAKA HOUSING BOARD [supra] as noticed in paragraph 33 of the Judgment at Page 757 as under:
"33. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equityand good conscience. Take a case, where ex facie injustice has been meter out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been 128 illegally and unjustifiably turned down. He finally approaches a court of law. The court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The court, in the circumstances, directs the authority to extend all benefits which he would have obtained had he not been illegally deprived tf them. Is it open to the authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged".
113. If the applicant/writ petitioner had been wronged by denying him the legitimate promotion when the vacancy arose at the 8th roster point in the name of delay and laches or unworkability or difficulty in providing the same to the applicant, not correcting the illegality and not providing relief to the affected person in the name of delay and laches or affectation to others as observed by the Supreme Court amounts to perpetrating injustice rather than doing justice to a wronged person. It is therefore, that we have no choice but to declare that the Government Order dated 129 30.12.1998 upgrading the post etc. is illegal and has to be quashed. Even at this point of time however, we hasten to add that 6th respondent it appears who is promoted in the year 2003 in the post of Administrative Officer has since been retired on 30.4.2012 and is now drawing pension etc. and that cannot be affected by this order as the person has already worked in the post and has drawn salary and the pension being commensurate to the services rendered would in no way alter or diminish his benefits at this point of time.
114. This observation normally applied to all others who derived the benefit but the order of declaration declaring the upgradation of the year 1998 is illegal and quashing the same can only result in the applicant/petitioner being placed above those employees in the office of Advocate General who be given promotion to the post of Section Officer against the 9th roster point i.e., immediately after the deemed promotion to the applicant against the 8th roster point and thereafter and to that extent the seniority 130 of such persons has to yield in favour of the applicant. We issue directions to the State Government to consider the case of the applicant to accord promotion against the 8th vacancy in the roster point promoting to the post of Section Officer as and when it arose as we find he is the only person available and is not found otherwise ineligible or unfit.
115. The writ petitioner all along has been working as Chief Librarian and drawing salary in the pay scale as is provided to the post of Chief Librarian in the order of upgradation in the pay scale of Section Officer. It is therefore, in future he will be entitled after he becomes eligible for further promotions thereafter and it is for the Government to work out such benefits by fixing the date of further promotions in the post of Section Officer and to extend the consequential benefits to the applicant/writ petitioner from that date onwards.
131
116. In the result, Writ Petition Nos.11682-11685/2010 are allowed to the extent indicated above. Rule issued made absolute to this extent. Consequently, Writ Petition Nos.18775-18776/2010 and Writ Petition Nos.7424/2011 and 16814-16/2011 stand dismissed.
117. The State Government to give effect to this order within a period of six months from today.
Sd/-
JUDGE Sd/-
JUDGE Brn/-, AN/-, Nsu/-, *pjk