MALATESH N. KODLIYAVAR Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) In this writ petition, petitioners are assailing the Endorsement dtd. 5/3/2020 (Annexure-Q) issued by the respondent No.3 interalia, seeking direction to the respondents to issue fresh seniority list in terms of the declaration of law by the Hon'ble Apex Court in the case of K.NARAYANAN AND OTHERS VS. STATE OF KARNATAKA AND OTHERS reported in 1994 Supp. (1) SCC 44 and in the case of P. SUDHAKAR RAO AND OTHERS VS. U.GOVIND RAO AND OTHERS reported in (2013) 8 SCC 693 and also in terms of the Board orders dtd. 16/8/1996 and 27/12/1996 and further, sought for direction to re-fix the seniority accordingly.

(2.) Relevant facts for the adjudication of the case are that, the Karnataka Electricity Board amended the Karnataka Electricity Board Recruitment and Promotion Regulation, 1969, incorporating the new policy of appointment called as "Appointment by transfer" (for short, hereinafter referred to 'ABT' Policy) of the in-service junior engineers who possess or acquires B.E. or AMIE (India) qualification as Assistant Engineers (Elec.). Copy of the approval of the Board dtd. 26/7/1986 is produced as Annexure-A to the writ petition. Paragraph 2 of the Annexure-A provides for transfer. The said Board approval provided for retrospective seniority over and above the existing Assistant Engineers was questioned before this Court in the case of GURUSRIPAD VS. KARNATAKA ELECTRICITY BOARD in WP No. 14622 of 1986. It is further stated in the writ petition that identical provision providing for retrospective seniority for appointment by transfer in the Public Works Department was challenged before the Hon'ble Apex Court in the case of K. Narayanan (supra). The Hon'ble Apex Court, struck down the provisions providing for retrospective promotion on the ground that undue benefit is being given to a class of employees over the other and the provisions providing for weightage of past service was upheld. It is contended by the petitioners that the dictum of the Hon'ble Apex Court was to highlight eligibility criteria only for in-service candidates while providing promotion. The Division Bench of this court following the dictum of the Hon'ble Apex Court in the case of K.Narayanan (supra) disposed of the writ petition in the case of Gurusripad (supra). Pursuant to the aforementioned judgments, respondent- Corporation was directed to prepare a fresh gradation list by holding the date of entry into service as Assistant Engineer (Elec.) from the cadre of Junior Engineers (Elec.) who were appointed by transfer. It is further stated in the writ petition that during the pendency of the aforementioned case, certain Assistant Engineers, who are appointed under Appointment By Transfer Policy on the condition that their interse seniority ranking would be fixed after the disposal of the writ petition and at the time of regularizing their service as officiating Assistant Engineers and such appointment orders were passed by the respondent-Board as per Official Memorandum dtd. 30/1/1992, 7/9/1993, 23/9/1994 and 20/3/1995 (Annexure-B1 to B4 respectively). It is the case of the petitioners that all the Junior Engineers, who were appointed by transfer to the post of Assistant Engineer Cadre were aware that their Seniority ranking in the Assistant Engineer cadre would be subject to outcome of court proceedings in K.Narayanan case and Gurusripad case (supra). Following the dictum of the Hon'ble Apex Court in K.Narayanan case, respondent- Corporation amended the Board order dtd. 26/7/1986 on 16/8/1996 and 27/12/1996. As per the amended Board order dtd. 16/8/1996, Junior Engineer, who is appointed by transfer as Assistant Engineer on or after 26/7/1986 shall be entitled to count one-third of the service rendered by him as Junior Engineer subject to maximum 4 years for the purpose of consideration of his eligibility for promotion to the post of Assistant Executive Engineer i.e., the Senior of such Junior Engineer is to be fixed in the cadre of Assistant Engineer from the date of transfer (Annexure-C). Subsequent amendment on 27/12/1996, it provides that a Junior Engineer to be appointed as Assistant Engineer under the 'ABT policy' should have put in minimum of 7 years service as a Junior Engineer (Annexure-D).

(3.) It is averred in the writ petition that the petitioners are appointed to the cadre of Assistant Engineer between 1988 and 1998. It is the grievance of the petitioners that the respondent-Corporation erroneously interpreting the law declared by the Hon'ble Apex Court in the case of K.Narayanan (supra), re-fixed the seniority of Junior Engineers i.e. the Senior of Junior Engineers appointed by transfer has been fixed in the Assistant Engineer cadre retrospectively over and above the seniority of existing Assistant Engineers by fixing their actual date of joining/reporting as Assistant Engineers much before they were able to get place in the cadre of Assistant Engineers and accordingly, Official Memorandum dtd. 4/11/2000 (Annexure-E) was issued by the respondent-Corporation. The said re-fixation was neither notified to the petitioners nor published in the website of the respondent-Corporation. The said Official Memorandum dtd. 4/11/2000 is contrary to the law declared by the Hon'ble Apex Court in the case of K.Narayanan. It is further amplified that, dictum of the K.Narayanan case was followed in the case of P.Sudhakar Rao (supra) by the Hon'ble Apex Court relating to Andra Pradesh Engineering subordinate service. It is also stated in the writ petition that the respondent- Corporation, notified the revised seniority list dtd. 27/10/2017 (Annexure-F), pursuant to the judgment of the Hon'ble Apex Court in the case of B.K.PAVITRA VS. UNION OF INDIA reported in (2017) 4 SCC 620. Thereafter, the petitioners have addressed representation dtd. 5/6/2017 (Annexure-G) to the respondent-Corporation and subsequently, the petitioners have filed WP No.35999 of 2019 before this Court, seeking consideration of the said representation and this Court, by order dtd. 4/12/2019 (Annexure-J), directed the respondent-KPTCL consider the same in accordance with law. Again the petitioners addressed one more representation dtd. 18/12/2019 (Annexure-K) to the respondent-Corporation and pursuant to the same, the respondent-Corporation has issued impugned Endorsement dtd. 5/3/2020 (Annexure-Q), rejecting the representation filed by the petitioners on the ground that the Seniority has been already re-fixed. Feeling aggrieved by the same, the petitioners have presented this writ petition.