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2016 DIGILAW 459 (KAR)

Ashok R. Kalal v. State of Karnataka

2016-06-16

ANAND BYRAREDDY, L.NARAYANA SWAMY

body2016
JUDGMENT : Anand Byrareddy, J. Heard the learned Counsel for the appellant. 2. It is the case of the appellant that he and the third respondent were working as Assistant Executive Engineers under the Control of Director of Municipal Administration, Bangalore. By a Government Order dated 4th December, 2012, fifteen posts of Executive Engineers were created and the same was a promotional cadre to the cadre of Assistant Executive Engineers. A Departmental Promotion Committee was said to have been convened on 28th February, 2014 to consider promotion to the cadre of Executive Engineers. Twenty-six Assistant Executive Engineers, as per seniority list, were listed for consideration. Out of those, ten candidates were found to be involved in criminal cases and therefore they were disqualified. The third respondent is one of the candidates against whom there was a criminal case before a Sessions Court, instituted under the provisions of Prevention of Corruption Act, 1988. Therefore, it is pointed out that he was disqualified and his case was not considered. The Departmental Promotion Committee had adopted a sealed cover procedure insofar as the third respondent was concerned. The order sixteen candidates were promoted including the present appellant and he was posted to the vacant post in the office of the second respondent. He was then transferred to Raichur Urban Development Authority and continued there. It transpires that insofar as the sessions case instituted against the third respondent, it culminated in acquittal, by judgment dated 23rd July, 2014. However, an appeal was preferred by the Lokayukta, in Criminal Appeal No. 200107 of 2014, before this Court, which is stated to be pending. 3. The third respondent, on his acquittal, had preferred a writ petition before the Dharwad Bench of this Court on the plea that he was acquitted in the criminal proceedings and therefore he ought to be promoted to the cadre of Executive Engineers from the date his juniors were promoted to that cadre, by opening the sealed cover. The learned Single Judge, had however, dismissed the writ petition on the ground that the judgment in the sessions case against the third respondent had not attained finality as there was an appeal pending. The learned Single Judge, had however, dismissed the writ petition on the ground that the judgment in the sessions case against the third respondent had not attained finality as there was an appeal pending. Against that order in Kanthappa Jaliberi v. State of Karnataka and Others Writ Appeal No. 100006 of 2015, dated 21-1-2015, having been filed before the Division Bench, relying on a judgment of the Hon'ble Supreme Court in the case of Union of India v. K.V. Jankiraman AIR 1991 SC 2010 , the Division Bench, had taken a different view in the following words: "5. However, the case of the appellant in any event requires consideration by implementing the decision taken by the DPC by opening the sealed cover. The only question however is as to whether such benefit should be denied to the appellant merely because the appeal in Cri. A. No. 200107 of 2014 is pending consideration. In our opinion when at the first instance, the Trial Court has considered the case in S.C. No. 9 of 2010 and has acquitted the appellant of the charges levelled against him, such benefit cannot be denied to the appellant merely because the appeal is pending consideration. Hence, for the present on the acquittal being made in S.C. No. 9 of 2010, the appellant is entitled to the benefit flowing out of the decision taken by the DPC on the sealed cover being opened and if ultimately the appeal filed by the respondents is allowed and if any contrary order is passed, certainly at that stage, the decision taken presently to promote the appellant if he is entitled to would be reversed with an appropriate order in that regard, at that stage. 6. Therefore, keeping these aspects in view the order dated 3-12-2014 passed by the learned Single Judge is set aside. The respondents are directed to open the sealed cover pursuant to the DPC meeting held on 28-2-2014 and thereafter implement the decision taken by the DPC in respect of the consideration made relating to the appellant herein. Such decision shall be taken by the appellants in an expeditious manner but not later than three weeks from the date on which a copy of this order is furnished to the respondents." 4. In the light of the above, the third respondent was promoted and the present appellant was reverted to his earlier cadre. Such decision shall be taken by the appellants in an expeditious manner but not later than three weeks from the date on which a copy of this order is furnished to the respondents." 4. In the light of the above, the third respondent was promoted and the present appellant was reverted to his earlier cadre. The present appellant having preferred a writ petition before this Court in Writ Petition No. 202892 of 2015, the same has been dismissed by an order dated 10th August, 2015 referring to the opinion expressed by the Division Bench as above. It is that, which is under challenge in the present appeal. 5. The learned Counsel appearing for the appellant would submit that the law is well-settled, in that, the question of promoting a candidate when there is a criminal case pending against him and if it has not attained finality, is impermissible. Hence the said judgment has been over looked by the Division Bench and the learned Single Judge, who has passed the impugned order, has also committed an error in not applying the law when the Division Bench judgment relied upon, was rendered per incuriam. It is contended that there was no impediment for the learned Single Judge to have accommodated the petitioner by an appropriate order. It is also pointed out that appellant Was not a party in the appeal where the Division Bench has passed such an order which directly affected his interest, as he has been reverted pursuant to the said judgment. Therefore, it is contended that he was left with no alternative remedy and hence was before this Court and the learned Single Judge's order has resulted in a miscarriage of justice and therefore, seeks that the same be set aside and appropriate relief be granted. 6. It is to be kept in view that a Division Bench of this Court does not have any superior jurisdiction over a Single Judge. The Division Bench only takes a re-look at the matter under Article 226 of the Constitution of India in an intra-Court appeal. 6. It is to be kept in view that a Division Bench of this Court does not have any superior jurisdiction over a Single Judge. The Division Bench only takes a re-look at the matter under Article 226 of the Constitution of India in an intra-Court appeal. However, it is to be also kept in view that though the view expressed by the Division Bench as referred to herein above may be erroneous as sought to be pointed out by the learned Counsel for the appellant, it would not be for this Bench, which is of a co-ordinate jurisdiction, to review or correct the said judgment unless the appellant takes recourse to such a measure. The fact that the appellant was not a party to the proceedings before the Division Bench would not preclude him from approaching the same Division Bench seeking correction of its view, as he is directly affected by the opinion expressed therein and it would be for the Division Bench to consider taking a re-look at the said judgment. Neither the learned Single Judge nor this Bench would be in a position to review or correct the opinion expressed by the Division Bench. It is not merely applying the law settled by Hon'ble Supreme Court, since the Division Bench as well as the learned Single Judge were considering the factual matrix involving the petitioner and the third respondent and if it requires a course correction in the opinion taken in respect of the facts, it would be necessary for the very Bench to take corrective measures, if it is warranted. We are not expressing any view as to the correctness or otherwise to the propositions put forth by the learned Counsel. It is for him to take an appropriate measure which the law and procedure provide. Accordingly, we find no reason to intervene in the order of the learned Single Judge. The appeal is dismissed without prejudice to any right or privilege which the appellant may have.