2013 Supreme(Kar) 1158

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
N. Kumar and B. Manohar, JJ.
S. Rangaswamy Naik and H.R. Bhagwandas —Appellant
Vs.
B.R. Ravikanthe Gowda and Others —Respondent
AND
Sri B.S. Marthurkar and Sri B.Y. Malagatti —Appellant
Vs.
B.R. Ravikanthe Gowda and Others —Respondent
Writ Petition Nos. 26731 to 26742 of 2009 and 1822 to 1834 and 2786 of 2010
Decided on : 19-04-2013

Headnote:LABOUR & SERVICES - Promotion: [N. Kumar & B. Manohar, JJ] Entitlement of a civil servant for retrospective promotion - Civil Servant appointed on vacant post and placed in independent charge - Karnataka State Civil Services Act, 1978, Section 3(1) & 8 - Karnataka State Police Services Including Ministerial Services (Recruitment) Rules, 1994, Schedule, Column No. 4 (as inserted by Rules of 2000) - Karnataka Civil Service (Regulation of Promotion, Pay and Pension) Rules, 1978, Rule 2(3) - Karnataka Civil Service Rules, Rule 32 - Karnataka Civil Service (Seniority) Rules, 1957, Rules 2(a) & 3 - Held, A conjoint reading of Section 3 of the 1973 Act, Rule 2(3) of the Rules 1978, Rule 32 of the KCSR, Rule 3 of Rules 1957 and clause (a) of Rule 2 of KCS (Seniority) Rules, 1957 makes it clear that no civil servant shall be entitled to promotion from the retrospective date except and to the extent specified in the Rules made under the Act. Where ever Civil Servants are recruited to any service or class of post by promotion and direct recruitment, the Civil Servant directly recruited will take precedence over the promoted officers in case where the date of the appointment is the same. Civil Servants appointed substantively in clear vacancies shall be seniors to all persons appointed on officiating or any other basis in the same cadre of service or class of post. Though 1978 Rules provides for promotion of civil service w.e.f. retrospective date, the said Rules being an exception to the Act, it has to be construed strictly. The sub-rules (1) and (2) of Rule 2 of 1978 Rules sets out the circumstances under which the said retrospective effect could be given under the circumstances set out therein. However, when it comes to sub-rule (3), stringent conditions are prescribed for giving benefit of retrospective promotion. Firstly, a civil servant must be eligible according to his seniority list that is in force. Secondly, he must be fit for promotion according to the Cadre and Recruitment Rules. Thirdly, he should have been placed in independent charge of the post by a Competent Authority. Fourthly, he should have discharged duties in the said post. It has no application to a civil servant placed in-charge and it applies only to the person who is in independent charge of the post. When the said rule deals with the promotion from retrospective date, Court have to necessarily refer to the statutory provisions dealing with the placing of a civil servant in independent charge and the period for which he can be so placed. Rule 32 provides for appointment to be in independent charge. It is an appointment as a temporary measure for a period of six months and it is the Competent Authority alone who can place a Civil servant in independent charge. If he is to be continued beyond the period of six months, then the period could be extended by an order of the Government. Mere continuation and payment of charge allowance would not result in continuation. If a person is continued beyond six months without an order being passed to that effect by the State Government, it has no legal effect. Consequently, he cannot claim any benefit of promotion from the retrospective date. Therefore, a person who is appointed to a vacant post and placed in independent charge can claim benefit of promotion from the retrospective date for a period of six months or from the extended period, in accordance with law and nothing beyond.

        Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made following the procedure prescribed by the Rules for the appointment, the promotees should not be pushed down below the direct recruitees from the other service inducted in the service at a later date. However, in order to do justice to the promotees, it would not be proper to do injustice to the direct recruitees. Excess promotees occupying direct recruitment posts have to be pushed down and adjusted in later vacancies within their quota after due regularization. The result of pushing down the promotees appointed in excess of the quota may workout hardship, but it is unavoidable. No retrospective promotion can be given nor any seniority can be given on retrospective basis from a date when an employee has not been born.

        The proviso to column No. 4 of Schedule of 1994 Rules was in existence on the date when 1994 rules came into existence. That by itself would not make it retrospective and give benefit of seniority to the persons who were appointed as per the said proviso. The said proviso makes it clear that promotion given by virtue of proviso would in no way effect the vacancies filled by the direct recruitees made under the Notifications dated 7-1-1997, 14-7-1996 and 15-3-1997. Under the said three notifications, the direct recruitees were appointed to the substantive post. It is only those posts, which remained vacant after they being so appointed are sought to be filled up. The filling up of the said posts could be done only after the amendment and therefore any persons who were appointed in pursuance to these amended provisions have to be junior to the persons who were already appointed in substantive posts. The reason is simple. These posts were not available to the promotees for being filled up within their quota. It became available only after the impugned amendment. Seniority has to be reckoned from the date of vacancy within the quota. The vacancy arose after the appointment of the direct recruitees. On the date, when the direct recruitees were born in the cadre, the persons who were given the benefit of retrospective promotion were not born at all. Subsequent to the birth of the direct recruitees, these petitioners were born in the said cadre. In that view of the matter, the finding of the Tribunal that if these proviso is held to be retrospective, it would affect the interest of the direct recruitees and therefore, it requires to be struck down is not correct. The provision as is stands today would in no way affect the direct recruitees. Clause (a) of Rule 2 of 1957 Rules categorically declares that officers appointed substantively in clear vacancies shall be senior to all persons appointed on officiating or an any other basis in the same cadre of service or class of post. Therefore, in the 91 posts to be filled up by direct recruitment, 10 persons were directly recruited during the period 07.01.1993 to 15.03.1997. They were appointed substantively in clear vacancies. It is only in respect of the remaining 81 posts, which were un filled, rule is amended making provision for filling up the said posts by promotees in the year 2000. It is only after the said posts became available in 2000, the promotees were filled in the said post. By virtue of the said rule, direct recruitees shall be senior to them. That is the reason why in the amended rule it was made clear that the filling up of the unfilled vacancies by promotees would not in any way affect the recruitment made earlier to the said post. The said amendment is in consonance with the aforesaid rules. However, while preparing the seniority list, these provisions have been ignored. It is the wrong interpretation placed by the State Government, giving benefit to the promotees is the cause for the dispute. What is required to be done is to place an appropriate interpretation and not to strike down the proviso. Therefore the seniority list is to be struck down as being contrary to law. In fact, after the order of the Tribunal, the Government has understood the purpose of the provision in proper perspective and has implemented the order by publishing fresh gradation list. The said seniority list was also the subject-matter of the challenge before the Tribunal by the other applicants and again further directions were given. As per the said directions, yet another seniority list was prepared. In this seniority list, the direct recruitees are placed above the promotees, which is inconsonance with the amendment and in accordance with law.