B.K. UDAY KUMAR Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) By this appeal, the appellant who is the 3rd respondent in the writ petition has challenged the Judgment and Order dated 21st October, 2019 passed by the learned Single Judge in Writ Petition No. 33296 of 2019 filed by the 3rd respondent in the present appeal.

(2.) With a view to appreciate the submissions made across the Bar, a reference to the few factual details will be necessary. The 2nd respondent - the Karnataka Power Transmission Corporation Limited (for short 'KPTCL) - is a company owned by the State Government. Initially, it used to transmit power throughout the State. In 2002, the State Government formed four distribution companies including the fourth respondent - the Bangalore Electricity Supply Company Limited (BESCOM) - which distributes power to eight districts. The appellant entered into the service on the establishment of the 2nd respondent - KPTCL as an Assistant Engineer on 28th October 1985. On 21st July, 2008, he was promoted to the post of Chief Engineer. But, he was reverted to the post of the Superintending Engineer, in view of the decision in the case of B.K. Pavitra (I) and Others -vs Union of India and Others,2017 (4) SCC 620. In view of the Karnataka Act No 21 of 2017, the appellant claimed that his seniority was restored by a deeming provision. On 15th June, 2019, he was posted to work as the Managing Director of the Karnataka Vidyuth Karkhane Limited (for short, 'KAVIKA'), another State Government owned company. According to the case of the appellant, the 3rd respondent (writ petitioner) was deputed to work as the Director (Technical) of BESCOM and DIN number was allotted to 3rd respondent on 5th September, 2018. On 9th October, 2018, an order of deputation to work dated 16th August, 2018 was placed in 91st meeting of the Board of Directors. Subsequently, Form No. DR3 was filed. On 22nd July, 2019, the appellant was appointed as the Director (technical) of BESCOM and on the very same date, a declaration was filed by the appellant expressing his intention to become a Director in accordance with Section 149 of the Companies Act, 2013 ( for short, 'the said Act of 2013). On 22nd July, 2019, the 3rd respondent-writ petitioner was appointed as a Director of 'KAVIKA' and on 23rd July, 2019, the 3rd respondent-petitioner handed over the charge of the post of the Director (Technical) BESCOM to the appellant. According to the case of the appellant, in the Board meeting of the BESCOM dated 7th August, 2019, the transfer of shares of ex-directors was resolved and approved to be transferred to the newly appointed Director. The 3rd respondent-petitioner challenged the appointment of the appellant made on 22nd July, 2019 as the Director (Technical) of BESCOM by filing a writ petition being Writ Petition No. 33296 of 2019 before the learned Single Judge.

(3.) The statement of objections were filed by the present appellant to the writ petition filed by the 3rd respondent-petitioner. It was contended that the appointment of the appellant as the Director (Technical) of BESCOM cannot be challenged without impleading the BESCOM as a party to the writ petition, as it is a company incorporated under the provisions of the Companies Act, 2013. It was contended that the 3rd respondent-petitioner does not possess the requisite qualification to hold the post of the Chief Engineer (Electrical). It was contended that the appellant has been promoted as the Assistant Executive Engineer on 5th February, 1992, whereas, the 3rd respondent-petitioner was promoted to the said post subsequently on 29th January, 1999. It was pointed out that all subsequent promotions to the posts of Executive Engineer, Superintending Engineer, Chief Engineer and the Director (Technical) of BESCOM were granted earlier to the appellant and subsequently, the 3rd respondent-petitioner was promoted to the said posts. It is contended by the appellant that pursuant to the decision of the Apex Court in the case of B.K. Pavitra (II) -vs- Union of India and Others, 2019 SCC Online SC 694 , the provisional list was prepared and in the said provisional list, the name of the appellant was at serial number-2 in the cadre of the Chief Engineer. As far as the 3rd respondent-petitioner is concerned, no eligibility date was fixed, as he did not put in the requisite five years of service as on the date of his appointment as the Chief Engineer. It is submitted that before the Government passed the orders in exercise of its power under Article-74 (a) and (b) of the Articles of Association and Memorandum of Association of the BESCOM, all the procedural formalities including the passing of the Board resolutions were complied with. It was submitted that the appellant has assumed the charge of the post of the Director (Technical) BESCOM on 23rd July, 2019 and the 3rd respondent- petitioner, after handing over the charge of the said post to the appellant, filed the writ petition and this fact has not been incorporated in the writ petition. It was contended that under clauses (a) and (b) of Article-74 of the Articles of Association, the Government of Karnataka is empowered to nominate and appoint the Director (Technical) of BESCOM and at the same time the Government has its absolute discretion to remove the Director. The appellant reiterated that for making appointment to the post of the Chief Engineer, experience of five years as Superintending Engineer is mandatory and when the 3rd respondent-petitioner was appointed as the Chief Engineer, he did not possess the requisite experience.