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2022 DIGILAW 1349 (KAR)

T. R. Srinivasa v. B. S. Dalayath

2022-10-12

ALOK ARADHE, S.VISHWAJITH SHETTY

body2022
JUDGMENT Alok Aradhe, Actg. C.J. - These two appeals arise from an order dated 26.07.2019 passed by learned Single Judge, by which in a writ petition preferred by the respondent No. 1, notification dated 22.12.2015 has been quashed and Bangalore Water Supply Sewerage Board (hereinafter referred to as 'the Board' for short) has been directed to give effect to notification dated 13.05.2013 and Circular dated 01.09.2014 and consider the name of respondent No. 1 for promotion to the cadre of Executive Engineer from the date of his eligibility. W.A. No. 3148/2019 has been preferred by respondent No. 3 in the writ petition, whereas W.A. No. 3249/2019 has been filed by the Board. Since, common questions of law and fact arise for adjudication in these appeals, they were heard analogously and are being decided by this common judgment. 2. Facts leading to filing of these appeals briefly stated are that Board was constituted under Bangalore Water Supply and Sewerage Act, 1964 (hereinafter referred to as 'the Act' for short). In exercise of powers under Section 88 of the Act, Bangalore Water Supply and Sewerage Board, Recruitment and Promotion Regulations, 1981 hereinafter referred to as 'the Regulations' for short) were framed. The aforesaid Regulation was amended in the year 2004 viz., by BWSSB Cadre Recruitment and Promotion (Amendment) Regulations, 2004. The respondent No. 3 was appointed on 24.09.1998 as Assistant Engineer in the Board and was promoted on 11.08.2010 as Assistant Executive Engineer. 3. By way of constitution 98th Amendment Act, 2012, Article 371J was introduced in the Constitution. Clause 1(c) of Article 371J provides that President may by an order made with respect to State of Karnataka, provide for any special responsibility of the Governor for equal opportunities and facilities for the people belonging to Hyderabad-Karnataka region in the matters of public employment, education and vocational training subject to requirements of the State as a whole. The State Government made an order viz., Karnataka Public Employment (Reservation and Appointment for Hyderabad-Karnataka Region) Order, 2013 hereinafter referred to as 'the Order' for short). Para 13 of the aforesaid Order provides that 8% of the posts in the state level offices or state level institutions or apex institutions shall be reserved for local persons of the region. Under Para 13(j) of the aforesaid Order, Board is included. 4. Para 13 of the aforesaid Order provides that 8% of the posts in the state level offices or state level institutions or apex institutions shall be reserved for local persons of the region. Under Para 13(j) of the aforesaid Order, Board is included. 4. On 20.01.2014, a notification was published amending Karnataka Public Employment (Reservation in Appointment for Hyderabad-Karnataka Region) Order, 2013. The Board thereafter, by a notification dated 13.05.2013 identified 8% of the posts for promotion. The Board thereafter, issued a Circular on 01.09.2014 furnishing the number of officials who had exercised their option for reservation under Hyderabad-Karnataka Reservation Order. However, on 28.10.2005, the Regulations were amended and only Schedule 2 dealing with method of recruitment was amended. The appellant in W.A. No. 3148/2019 as well as others filed a writ petition, in which validity of notification dated 13.05.2014 and 01.09.2014 issued by the Board was challenged. 5. During the pendency of the writ petition, teh Board withdrew the notification dated 13.05.2013 and Circular dated 01.09.2014. A learned Single Judge of this court by an order dated 06.11.2015 permitted withdrawal of the writ petition and granted respondent No. 3 to challenge the order of withdrawal, by which notification dated 13.05.2013 and Circular dated 01.09.2014 were withdrawn. 6. The respondent No. 3 thereafter filed a writ petition viz., W.P. No. 31490/2016, in which notification dated 22.12.2015 withdrawing the notification dated 13.05.2013 and Circular dated 01.09.2014 was challenged. The respondent No. 3 also sought promotion to the post of Executive Engineer from 01.09.2014 and sought a direction to the Board to implement the notification dated 13.05.2013 and Circular dated 01.09.2014. 7. The learned Single Judge by an order dated 26.07.2019 has quashed the impugned notification dated 22.12.2015 and has directed the Board to give effect to notification dated 13.05.2013 and circular dated 01.09.2014. The Learned Single Judge further directed the Board to consider the case of respondent No. 3 for promotion to the cadre of Executive Engineer from the date of his eligibility and to pass orders. In the aforesaid factual background, these appeals have been filed. 8. Learned Senior counsel for the appellant in W.A. No. 3148/2019 submitted that learned Single Judge has granted the relief not even claimed by the petitioner. In the aforesaid factual background, these appeals have been filed. 8. Learned Senior counsel for the appellant in W.A. No. 3148/2019 submitted that learned Single Judge has granted the relief not even claimed by the petitioner. Attention of this court has also been invited to communication dated 08.06.2015 sent by Government of Karnataka to the Chairman of the Board and it has been pointed out that there is no provision to provide for reservation in promotion to the post of Executive Engineer with effect from 03.12.1998. Therefore, the learned Single Judge erred in granting the relief to respondent No. 3. 9. Learned counsel for the appellant in W.A. No. 3249/2019 has submitted that the notification dated 08.01.2015 has a retrospective operation and would operate from the date of the commencement of Regulation i.e., in the year 1981. It is further submitted that respondent No. 1 was promoted to the post of Assistant Engineer on 11.08.2010 and therefore, would complete four years of service on 10.08.2014 and therefore, cannot question the withdrawal of the notification dated 13.05.2013 and the Circular dated 01.09.2014. 10. Learned counsel for respondent No. 3 submitted that Schedule 1 of the Regulations is not amended till 08.01.2015. It is further submitted that respondent No. 3 was eligible to be promoted under Hyderabad-Karnataka Reservation Order. It is further submitted that respondent No. 3's right is guaranteed under Article 371J of Constitution of India and the Regulations, which cannot be taken away by an executive order. It is further submitted that State Government has no authority to issue clarification dated 08.06.2015. 11. We have considered the submissions made on both sides and have perused the record. The right of promotion is conferred on the employees under the Regulation. The right of promotion had accrued to the petitioner prior to amendment of the regulations. The right of consideration for promotion is also available to the petitioner under Karnataka Public Employment (Reservation in Appointment for Hyderabad-Karnataka Region) Order, 2013. The right of consideration for promotion, which has accrued to respondent No. 3 under para 13 of the said order cannot be taken away by an executive order viz., an order dated 08.06.2015, which has been issued by way of a communication sent by Government of Karnataka to the Chairman of the Board. 12. The right of consideration for promotion, which has accrued to respondent No. 3 under para 13 of the said order cannot be taken away by an executive order viz., an order dated 08.06.2015, which has been issued by way of a communication sent by Government of Karnataka to the Chairman of the Board. 12. The submission made on behalf of learned Senior counsel for the appellant that learned Single Judge has granted the relief, which is not even claimed by respondent No. 3 is without any basis. The reliefs prayed for by the respondent No. 3 and operative portion of the order passed by learned Single Judge read as under: (a) Call for the records pertaining to Notification bearing No. Aa Ka/Mu Aa Aa-Ka/23-32-2014/3259/2015-15 dated 22/12/2015 at Annexure-L of the first Respondent and peruse the same; (b) Issue a writ of certiorari or any other appropriate order or direction, as the case may be, quashing the Notification bearing No. Aa Ka/Mu Aa Aa-Ka/23-32-2014/3259/2015-15 dated 22/12/2015 at Annexure-L of the first Respondent. (c) As a consequence of quashing the impugned Notification at Annexure-L direct to the first Respondent to implement the Notification dated 13/5/2014 and Circular dated 1/9/2014 and to promote the petitioner to the post of Executive Engineer from 1/9/2014 by issue of writ of mandamus; (d) Grant such other suitable reliefs as this Hon'ble Court deems fit, in the circumstances of the case. (e) Direct the 1st respondent Board to treat the effective dated of promotion of the petitioner to the cadre of Executive Engineer as 10.08.2014 and grant all consequential benefits including arrears of salary, seniority and future promotion etc., (i) Writ petition stands allowed. (ii) In the light of discussion on factual and legal aspects, impugned notification dated 22.12.2015 vide Annexure-L is set aside. (ii) BWSSB-respondent is hereby directed to give effect to the Notification dated 13.5.2014 and Circular dated 1.9.2014 and consider the name of the petitioner for promotion to the cadre of Executive Engineer from the date he was eligible and to that effect pass orders. Such Exercise be undertaken within a period of two months from today. (iii) Rule is made absolute on the aforesaid terms. Costs made easy. Thus, it is evident that the reliefs, which have been sought for by respondent No. 3 had been granted. The aforesaid contention therefore, does not deserve acceptance. Such Exercise be undertaken within a period of two months from today. (iii) Rule is made absolute on the aforesaid terms. Costs made easy. Thus, it is evident that the reliefs, which have been sought for by respondent No. 3 had been granted. The aforesaid contention therefore, does not deserve acceptance. For the aforementioned reasons, we do not find any ground to interfere with the order passed by the learned Single Judge. In the result, the appeals fail and are hereby dismissed.