K DIVAKAR Vs. COMMISSIONER B D A

JUDGEMENT

(1.) THE facts of the case are:-It is the petitioner's case that he was appointed as a Typist in Grade ii by the first respondent namely, the Commissioner, Bangalore development Authority, on 7-11-1974. There was a change in his cadre on his promotion to the cadre of Second Division Assistant with effect from 7-4-1978. The petitioner states that by an Official Memorandum dated 2-12-1991, he was promoted to the cadre of First Division Assistant on seniority-cum-merit basis against an existing vacancy. He was placed at Serial No. 3 in the seniority list. On the other hand, the petitioner contends that the second respondent had joined the first respondent as a peon on 2-3-1977 and was promoted as Second Division Assistant on 30-6-1982 and thereafter promoted as a First Division Assistant along with the petitioner under the Official Memorandum dated 2-12-1991 and he was placed at Serial No. 10 in the seniority list. There was an officiating period of one year in the cadre of First Division Assistant, which has been declared in respect of the petitioner in the year 1993, whereas it was not so declared in the case of the second respondent. Notwithstanding this, the second respondent has been placed in independent charge of the post of Accounts Superintendent by an Official Memorandum dated 13-8-1992, purportedly under Rule 32 of the Karnataka Civil Services Rules and was posted to the Accounts Section. This was done at the instance of the second respondent, who had made an application seeking promotion for the post of Accounts Superintendent on the ground that he had passed the subordinate Accounts Service examinations ('s. A. S examination' for short ). It is the petitioner's case that he has passed the Departmental examination in the year 1994, namely P. W. D. Higher I and II and S. A. S. Part I, II and iii. The State Government, in exercise of the powers conferred by subsection (1) of Section 70 of the Bangalore Development Authority Act, 1976 (hereinafter referred to as 'the Act' for brevity), had approved the regulations relating to Cadre and Recruitment (Conditions of Service)Regulations, 1995 of the Bangalore Development Authority, pursuant to which the first respondent had published a seniority list of First Division assistants in terms of the Notification dated 3-10-1996. Under the same, the petitioner was at Serial No. 44 and the second respondent was at serial No. 51. By a Circular dated 2-12-1997, the first respondent had sought the option of the First Division Assistants working in the department to work as Accounts Assistants as against 45 posts of First division Accounts Assistants subject to conditions stipulated therein. Since the petitioner had the requisite qualifications, he had submitted his option to consider his case as First Division Accounts Assistant. Considering his seniority and merit, the first respondent had transferred the petitioner from the cadre of the First Division Assistant to the cadre of First Division accounts Assistant by an office memo dated 3-2-1998. As things stood thus, the first respondent, by a Notification dated 9-11-2001, had published the provisional list of Accounts Officers and First Division Accounts assistants. Under the provisional list, the petitioner was placed at Serial no. 2 The petitioner had filed his objections to the said Notification. Thereafter, the first respondent had published the final seniority list of account Officers and First Division Accounts Assistants by a Notification dated 3-4-2002. It was found that the second respondent, whose name did not figure in the provisional seniority gradation list published as on 9-11-2001, was inexplicably found in the final seniority list and he was placed above the petitioner at Serial No. l. In this regard, the petitioner had immediately submitted a representation, pointing out the mistake which was apparent. The fact that the second respondent was placed in charge of the post of Accounts Superintendent, appears to be the consideration on which the first respondent had recommended the second respondent for regular promotion to the post of Accounts Superintendent. This, on the face of it, is illegal and discriminatory.

(2.) DURING the pendency of the present writ petition, the first respondent, by an Office Memorandum dated 3-7-2001, had promoted the petitioner as well as the second respondent to the post of Accounts superintendent. Notwithstanding the same, the Counsel for the petitioner would contend that the final gradation list of Accounts Officers and First division Accounts Assistant published by the first respondent on 3-4-2002, is illegal and contrary to law. He would point out that the petitioner was senior to the second respondent as well as to the other respondents. The justification and placing the second respondent above the petitioner in the final gradation list is on the footing that the date of entry into the cadre by the said respondent was as on 13-8-1992. This is misconceived. The Counsel would contend that the second respondent was placed in independent charge of the post of Accounts Superintendent under Rule 32 of the Karnataka Civil Services Rules (hereinafter referred to as 'the rules' for brevity ). Such placement in independent charge, cannot be equated to promotion. The pay scale applicable to the promotional post, is not available to the person put in independent charge of the post. The second respondent, while in such independent charge, was only entitled to charge allowance in addition to his normal pay scale under Rule 68 of the Karnataka Civil Service Rules. Therefore, the first respondent was not justified in placing the second respondent above the petitioner. And, the final gradation list to that extent, is not sustainable. Secondly, he would contend that the second respondent before completing his officiating period of one year in the cadre of First Division Assistant, was placed in independent charge of Accounts Superintendent and since he has not completed the minimum period required in the cadre of First Division assistant, he was not eligible for promotion for the post of Accounts superintendent in accordance with the Cadre and Recruitment Regulations and Conditions of Service Regulations of 1995 of the Bangalore development Authority. The second respondent, therefore, had no legal right to claim seniority above the petitioner. The first respondent having placed the second respondent as an Accounts Superintendent on independent charge with effect from 13-8-1992, ought to have reviewed the same after coming into force of the Cadre and Recruitment Regulations, 1995. Further, the first respondent having fixed the pay scale of the second respondent with effect from 2-12-1996, which pay scale is not available even under the Cadre and Recruitment Rules of 1995 for the post of accounts Superintendent, the same could not have been fixed on a deeming fiction that the second respondent had completed his service of five years as First Division Assistant. And, therefore, would seek the quashing of the final gradation list at Annexure "n" and for an appropriate direction to re-do the final gradation list of First Division Assistants in accordance with the Regulations of 1995 and to quash Annexure "d" consequently.

(3.) PER contra, the Counsel for the first respondent, would submit that the averments as regards the service particulars of the petitioner and the second respondent are not in dispute. In so far as his grievance that he is not shown as senior over and above the second respondent is concerned, he would submit that the second respondent had been placed in independent charge as Accounts Superintendent under Rule 32 of the rules, as stated. That though the second respondent had not completed one year period of officiation in the cadre of First Division Assistant as on 13-8-1992, Section 50 of the Act confers power on the Commissioner in the matter relating to appointment and promotion, amongst other things. And, he would submit, that Section 70 of the Act enables the Authority to frame Rules and Regulations in the matter of appointment and conditions of service of officers and servants of the Authority and in exercise of the said power, the Bangalore Development Authority (Cadre and recruitment) Rules and Conditions of Service Regulations came to be framed in the year 1995 and was published in the official gazette on 23-9-1995 and therefore, in the absence of these Regulations as on the date when the second respondent was placed in independent charge by the commissioner in exercise of power under Section 50 of the Act, there is no irregularity or illegality in the same. The Counsel would further submit that the cadre of Accounts Superintendent is a promotional post and the feeder cadre is the First Division Accounts Assistant. The eligibility prescribed for promotion from First Division Accounts Assistant to the accounts Superintendent is that of feeder cadre, should have passed the s. A. S. , examination and must have put in three years of service in the cadre of First Division Assistant. While admitting that if such a condition were to be applied, the second respondent would not be entitled to be placed under Rule 32 of the Rules in the cadre of Accounts Superintendent for want of three years of minimum service in the cadre of First Division assistant. Having regard to the fact that the Commissioner having exercised his power under Section50 of the Act, is presumed to have relaxed the requirement of three years experience in the cadre of First Division assistant and having found that the second respondent being the only eligible person having passed the SAS examination, was found fit to be promoted and was accordingly placed in independent charge under Rule 32 of the Rules and hence, it would not suffer from any illegality. And, even if it could be said that the order dated 13-8-1992 is not in accordance with law, the defect, if any, stood cured on completion of the one year officiation in the cadre of First Division Assistant on 2-12-1992 and as such, the second respondent is certainly eligible to be placed under Rule 32 of the Rules from 3-12-1992 onwards. The petitioner having been fully aware of these circumstances as early as in the year 1992, has not chosen to raise any such objection and hence, would be precluded and estopped from questioning the same at this remote point of time. The other aspect that requires consideration is that, the petitioner, who was promoted from the cadre of Second Division Assistant to the cadre of First Division assistant on 2-12-1991 had requested to be posted as legal consultant in the Law Department on the ground that he is a Law Graduate and considering such a request, by an order dated 6-6-1992, he was posted as legal consultant. Subsequently he had requested for continuation in such position as a legal consultant and he was so continued in the Law Section, pending approval of the C and R Rules. The Rules eventually came into force as aforesaid in the year 1995 and as on the date of commencement of the said Rules, the petitioner continued to work in the Law Section. Therefore, the fact that the petitioner having been appointed in the Legal section on his request and the second respondent having been placed in independent charge as Accounts Superintendent, were events which occurred during the 'no rule zone period' and it is only by an order dated 3-2-1998 the petitioner was posted as First Division Accounts Assistant. Therefore, the date of entry into service of the petitioner in the cadre of first Division Accounts Assistant is 3-2-1998 and since the second respondent continued to work in the Accounts Department from 13-8-1992 onwards as Accounts Superintendent, the above circumstances would demonstrate that the second respondent has entered into the cadre of first Division Accounts Assistant six years prior to that of the petitioner and it is these circumstances which required the second respondent to be placed over and above the petitioner in the seniority list. Therefore, no infirmity can be found in the seniority list. In so far as the contention that the second respondent's name was not found in the provisional gradation list, would have no bearing in view of the fact that it was a provisional list, and did require reconsideration before finalisation and the case of the respondent has been appreciated in placing him above the petitioner in the final list. The other contention that in terms of the 1995 regulations, the cadre of Accounts Superintendent is to be filled up to an extent of 50% from the cadre of First Division Accounts Assistants of the b. D. A. and such a First Division Accounts Assistant must have put in five years of service in the cadre of First Division Accounts Assistants, and since the second respondent, who was placed in independent charge under Rule 32 in the cadre of Accounts Superintendent as on 13-8-1992, therefore he did not have the minimum five years experience prescribed under the Regulations is concerned, the second respondent continued in the post of Accounts Superintendent from 13-8-1992 when the Regulations prescribing the same came into force. But however, excluding the services rendered by the second respondent in the cadre of Accounts superintendent till such time he completes five years in the cadre of First division Accounts Assistant, the financial benefits came to be conferred in pursuance of the Karnataka Civil Services RPP Rules and Rule2 (3) of the said Rules which provides for promotion, reads as follows:-