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2003 Supreme(Kar) 206

Karnataka High Court
H.M.NATESH - Appellant
Versus
THE KARNATAKA LAND ARMY CORPORATION LTD. - Respondent
Decided On : 02-26-03
W.A. : 4821 of 1999

Advocates:
B.B.BAJENTRI, K.SUBBA RAOK.R.BHAVANI SHANKAR, S.V.NARASIMHAN

Headnote:Promotion by seniority

       Appointment by seniority -cum -suitability -Provisional seniority list prepared - petitioner topped -respondent/incumbents placed below him -respondents promoted -Departmental Promotion Committee -petitioner not declared as unsuitable by -directed to promote the petitioner from the date on which the respondents were promoted.

       [S. R. Nayak & K. Ramanna, JJ.] - It is the burden of the first respondent-Corporation particularly, in the context of the specific allegation made by the appellant, to satisfactorily convince the Court that before promoting respondents 2 to 5 on regular basis to the post of Assistant Director with effect from 01.11.1989, the DPC constituted by it, in fact, considered the candidature of the appellant and he was overlooked for some valid and cogent reasons. The records of the DPC would have thrown light on the question whether the DPC had considered the candidature of the appellant or not? But curiously and for the reasons best known tot he management of the first respondent-Corporation, an affidavit dated 20.02.2003 was filed before the court on 25.02.2003 at the time of hearing, pleading its inability to trace and place the records of the DPC before the Court. The averments in the affidavit are totally unconvincing. The Corporation does not even fix accountability for loss of records on any official. However, Counsel for the fifth respondent drew the court s attention to the observation made by the learned Single Judge in paragraph-7 of the order impugned in the writ appeal and would point out that the learned Single Judge had occasion to peruse the original records and according to the learned Single Judge, the committee constituted by the Management had scrutinized the case of all the eligible candidates and evaluated them on the basis of seniority-cum-merit before selecting respondents 2 to 5 for appointment in incharge capacity in the post of Assistant Director.

       Case Referred: AIR 1974 SC 2271.

NAYAK, J.

( 1 ) THIS Writ Appeal is directed against the order of the learned single Judge dated 7th April 1999 in Writ Petition No. 28182 of 1998. The appellant herein filed the said Writ Petition calling in question the action of the Management of the Karnataka Land Army corporation Limited, the first respondent herein, in promoting the respondents 2 to 5 herein as Assistant Directors on incharge basis with effect from 29. 04. 1989 and on regular basis with effect from 01. 11. 1989.

( 2 ) THE events that lead to the filing of the Writ Petition be noted briefly as under: the appellant-Writ Petitioner was appointed as TASK FORCE commander (TFC) on 30 July, 1984 on temporary basis. The respondents 2 to 5 were also similarly appointed to the post of the tfc on temporary basis by the first respondent management. Subsequently, the services of the writ petitioner as well as respondents 2 to 5 in the post of TFC were regularized with effect from 15. 05. 1987. Admittedly, among the writ petitioner and respondent 2 to 5 in the cadre of TFC, the petitioner was placed above respondents 2 to 5 both in provisional seniority list dated

( 3 ) 03. 1991 and final seniority list dated 01. 04. 1998. When the matter stood thus, the Management of the first respondent Corporation placed respondents 2 to 5 oh incharge basis in the post of Assistant director with effect from 29. 4. 1989. Subsequently, respondents 2 to 5 were promoted on regular basis to the said post with effect from 01. 11. 1989. 3. After the above event, the appellant filed Writ Petition No. 8891 of 1993. One Sri M. S. Manjunath, also filed Writ Petition No. 8890 of 1993. In both the Writ Petitions, the appellant and Sri M. S. Manjunath prayed for the following reliefs:"i) Issue writ in the nature of mandamus directing the first respondent to consider the case of the petitioners for promotion to the cadre of Assistant Director from the date when Respondents No. 2 to 6 have been promoted and direct the first respondent to give all consequential benefits flowing therefrom, including seniority, monetary benefits etc. , and ii) Pass such other orders as may be deemed just and expedient in the circumstances of the case, including the award of costs of these writ petitions, in the interest of justice and equity. "

( 4 ) IN response to Rule nisi issued in those Writ Petitions, the first respondent-Corporation put in appearance and submitted to the Court that the seniority list on the basis of which respondents 2 to 5 were promoted to the cadre of Assistant Director was only a provisional seniority list and they would consider the objections filed by the writ petitioners thereby meaning the appellant herein and sri Manjunath and, after preparation of the final seniority list, they would review the promotions already made and they would make regular promotions on the basis of such final seniority list. In view of this submission made on behalf of the first respondent- corporation, a learned Judge of this Court disposed of the Writ petition Nos. 8890 and 8891 of 1993 on 18th August 1997. Paragraphs 2 and 3 of the Writ Order read as follows:"2. I have heard Mr. K. Gopal Hegde, learned Counsel for respondent No. 1. He submits that Annexure-B is a provisional seniority list and that the objections filed by the petitioners will be considered. 3. In the light of the fact that the seniority list relied on by the petitioners for claiming seniority over respondents Nos. 2 to 6 is a provisional seniority list, and direction is given to the 1 respondent to finalise the seniority list and make a final seniority list within 4 months from the date of receipt of this order and make regular promotions to the higher cadre of Assistant Directors in accordance with final seniority list. With this direction, the Writ petition is disposed of. "

( 5 ) LATER, the appellant complaining that the Management of the first respondent-Corporation did not comply with the directions of the Court issued in W. P. Nos. 8890 an















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