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2015 DIGILAW 1283 (KAR)

Director, Health and Family Welfare Services Department, Bangalore v. Kusuma P. Veerkar

2015-11-25

B.VEERAPPA, MOHAN M.SHANTANAGOUDAR

body2015
ORDER : Mohan M. Shantana Goudar, J. 1. The order dated 25-2-2014 passed by the Karnataka Administrative Tribunal, Bangalore, in Application No. 2428 of 2013 and the order passed by the very Tribunal dated 28-7-2015 in Contempt Petition No. 191 of 2014 are called in question in this writ petition. The records reveal that the respondent was appointed as a Staff Nurse on 11-11-1992. On the request of the respondent, she was permitted to change the cadre. Consequently, she was appointed as First Division Assistant by change of cadre on 21-7-1998. In the year 2012, the respondent made a request to the petitioner-Department to grant the benefit of Time Bound Advancement under the Karnataka Civil Services (Time Bound Advancement) Rules, 1983 and the benefit of special promotion to senior scale of pay as per the Karnataka Civil Services (Automatic Grant of Special Promotion to Senior Scale of Pay) Rules, 1991. The said request of the respondent was rejected by the petitioner on 9-11-2012. The said order was questioned by the respondent before the Karnataka Administrative Tribunal (hereinafter referred to as 'the Tribunal' for brevity) in Application No. 2428 of 2013, which came to be allowed on 25-2-2014 by the impugned order. Consequently, the endorsement issued by the petitioner rejecting the prayer of the petitioner was quashed. Since the petitioner did not obey the order passed by the Tribunal in Application No. 2428 of 2013, the respondent moved the Tribunal by filing Contempt Petition No. 191 of 2014. On 28-7-2015, the Tribunal framed charges against the petitioner herein. Challenging the order of framing of charges in contempt petition as well as the order passed by the Tribunal, allowing the claim of the respondent and remitting the matter to the Department are questioned before this Court in this writ petition. 2. While passing the impugned order dated 25-2-2014 in Application No. 2428 of 2013, the Tribunal has relied upon the judgments of the Hon'ble Supreme Court, wherein it is concluded by the Hon'ble Supreme Court that the eligibility for promotion cannot be confused with seniority as they are two different and distinct factors. 2. While passing the impugned order dated 25-2-2014 in Application No. 2428 of 2013, the Tribunal has relied upon the judgments of the Hon'ble Supreme Court, wherein it is concluded by the Hon'ble Supreme Court that the eligibility for promotion cannot be confused with seniority as they are two different and distinct factors. Where an employee is transferred from one unit to another on compassionate grounds and is placed at the bottom of seniority list, the service rendered by him at the earlier place from where he has been transferred, being a regular service, has to be counted towards experience and eligibility for promotion. Even in the cases relating to request transfers, the Apex Court has held that the past service will count for eligibility for certain purposes though it may not count for seniority (as per the judgments rendered by the Apex Court in the cases of Scientific Advisor to Raksha Mantri and Another v. V.M. Joseph, AIR 1998 SC 2318 : 1998 SCC (L and S) 1362 : (1998)5 SCC 305 ; Union of India v. C.N. Ponnappan, AIR 1996 SC 764 : 1996 SCC (L and S) 331 : (1996)1 SCC 524 and Dwijen Chandra Sarkar and Another v. Union of India and Others, AIR 1999 SC 598 :1999 SCC (L and S) 486 :1999-I-LLJ-338 (SC): (1992)2 SCC 119). 3. In view of the aforementioned verdicts of the Apex Court, the Tribunal quashed the order of refusal passed by the Government with a direction to reconsider the request of the original applicant-respondent herein for grant of benefit of time bound advancement and special promotion to senior scale of pay. Since the impugned order is just and proper, we do not find any ground to interfere with the impugned order dated 25-2-2014. As the learned Government Advocate submits that the Government would be reconsidering the matter within three months, we also do not propose to direct the Tribunal to continue the contempt proceedings. It is always open for the respondent to file fresh petition for contempt, if need be in future, if the order of the Tribunal dated 25-2-2014 is not complied with. With these observations, the writ petition stands disposed of.