L J PRAKASH Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) this judgment will dispose of W.P. No. 15082 and 15083 of 1986 as common question of law and facts arise in these petitions.

(2.) the relevant facts for the disposal of the writ petitions may be noticed. They are, petitioners are directly recruited as first division clerks in the office of corporation of city of Bangalore on 19th november, 1975 and on 17th october, 1975 respectively. Petitioners in the writ petitions seem to be aggrieved mainly because of the fitment given to respondents 3 to 6 above petitioners in the provisional seniority list of first division clerk prepared as on 1-1-1981 and published and circulated in the memo dated 20-6-1984. In the said list, 1st petitioner is placed at si. No. 47 and 2nd petitioner at si. No. 45 respectively, whereas respondents 3 to 6 are placed above petitioners at si. Nos. 3, 5, 7 and 25. According to the averments made in the writ petitions, respondents 3 to 6 had joined the services of the respondent-corporation as family planning extension educators. The appointment was purely temporary in the pay scale of Rs. 140-250. As extension educators, they were posted to the family planning Section in the health department of the corporation. The family planning Section in the corporation was established in the year 1966 with the aid of central government on the pattern prescribed by the ministry of health, government of india. An order of appointment issued to one of the respondents by 2nd respondent is extracted for better understanding of the case of the petitioners. It reads as under: "corporation of the city of Bangalore No. B 12(4)/pr 393/69-70 office of the commissioner corporation of the city of Bangalore, Bangalore, dated 27th may, 1970. Memo sub: filling up the posts of family planning extension educators in the family planning Section of the health department. Ref: health officer's report No. He(fp) 175/69-70, dated 26-2-1970. The following candidates of the employment exchange who have been interviewed and selected are appointed temporarily as family planning extension educators (male/female) on a pay of Rs. 140/- in grade Rs. 140-5-150-8-190-10-250 plus usual allowances and posted to family planning Section of the health department in the vacancies noted against each. They are directed to report themselves for duty to the health officer with their original educational certificates within 7 days from the date of receipt of this memo, failing which their claim will be passed over. Further they are also directed to produce physical fitness certificate and vaccination certificates before they join duty. Xxxx xxxx xxxx

(3.) Shri M.Ramakrishna, 112, 18th cross, 8th main, malle swaram, Bangalore-3.xxxx xxxx xxxx xxxx xxxx as male extension educator in the existing vacancy in rajajinagar family planning centre. Xxxx xxxx sd/-for commissioner, corporation of Bangalore". 3. The order of appointment issued to respondents would clearly indicate that the appointment of family planning extension educators was to family planning Section in the health department of the corporation, purely on temporary basis. Posts had been created on the pattern prescribed by government of India with its financial assistance. During march, 1976, government of India by its letter addressed to all state governments directed re-organisation of the family planning centres in accordance with the revised set up and staffing pattern as laid down therein. In the said letter, it was indicated to keep the posts extension educators, family welfare workers, etc., In the family planning Section vacant with effect from 1-4-1976 as no grants would be released by government of india. Clause (4) of the said letter provided for absorption in the suitable alternative posts of the staff that would be rendered surplus as a result of the re-organisation. It is the statement of respondents 25 to 28 before this court in their counter that the respondents viz., Extension educators had represented to the 2nd respondent to absorb the surplus staff in the equated posts in other departments of the corporation. The administrator of the corporation in its proceedings dated 28-2-1978 exercising his powers under standing orders (taxation and finance) resolved to absorb the surplus staff of the family planning Section in the equated posts of first division clerks. In the said order it had been made clear by the administrator of the corporation that eight posts of 1st division clerks which are vacant are to be filled up by direct recruitment and be filled up by absorbing the eight senior most extension educators as first division clerks by protecting their pay scale in the scale of first division clerks. It was also made clear in the said resolution that the erstwhile employees of family planning Section has to take seniority from the date on which they enter the new post in the sense that their seniority will be counted below the first division clerks as on the date of their absorption. In these writ petitions we are not concerned with family welfare workers, peons, attendants of family planning Section even though the proceedings of the administrator refers to them. Since proceedings dated 28-2-1978 involved change in the cadres of extension educators to that of first division clerks, the administrator made reference to state government for its approval. Simultaneously respondents and others aggrieved by that portion of the resolution which relates to counting of their seniority below the last first division clerk as on the date of their absorption, made representation to the government requesting to count their seniority from the date of their initial appointment and to include the post held by them in the cadre and recruitment rules. The housing and urban development department of the government of Karnataka after taking into consideration the opinion of dpar (service rules) and that of law department, the government by its order dated 15-9-1982, in partial modification of the proceedings of the administrator dated 28-2-1978 accorded sanction to the seniority of the extension educators in the cadre of the first division clerks from the date of their initial appointment and other consequential benefits flowing from such fixation, pursuant to the order of state government dated 15-9-1982, respondents and other extension educators of the family planning Section of the corporation were appointed as first division clerks by the corporation, exercising its powers under sub-section (1) of Section 84 of the Karnataka Municipal Corporations Act, 1976 by its memo No. B12(4) pr 403/82-83, dated 23rd november, 1983. The corporation in its memo No. Bil(3) grl/4/83-84, dated 20-6-1984, prepared and published a provisional seniority list of first division clerks as on 1-1-1981. In the said list the name of the petitioners are at si. Nos. 47 and 45 respectively whereas respondents 3 to 6 are placed at si. Nos. 3, 5, 7 and 25. Before finalising the provisional gradation list, petitioner and others represented to respondent 2 and pointed out that the government order dated 15-9-1982 is contrary to Rule 6 of seniority rules. In turn, commissioner of the corporation made a report to the state government to revise its order dated 15-9-1982 on the ground that the eleven extension educators were appointed by transfer from the family planning Section as first division clerks on their request and that consequently they have to be given seniority from the date of their appointment as first division clerks and not from the date of their initial appointment as family planning extension on educators. Pursuant to the report of the commissioner, the state government by its- order dated 12-6-1985 in No. Hud 59 hmu 85 has modified its earlier order dated 15-9-1982. While doing so, the government directed the corporation before the provisional gradation list is finalised to fix the seniority of the absorbed employees after verifying the factual position as to whether their appointments were made on transfer on their own requests or otherwise. Pursuant to the aforesaid order of the government dated 12-6-1985, the corporation prepared and published a revised provisional gradation list of first division clerks as on 1-1-1981 by a memo dated 24th september, 1985. In the said list it is stated by respondents themselves that the names of the respondents and other extension educators had not been included in the revised provisional gradation list. In the said memo, commissioner had specifically noticed that after detailed verification of the records, it is established that officials working in the family planning Section are absorbed and appointed as first division clerks in the other departments on their specific request and with a specific condition that their earlier service in the family planning section will not be counted for the purpose of seniority. In the memo it was also indicated that any employee aggrieved by the provisional gradation list of first division clerks prepared as on 1-1-1981, published and circulated on 24th september, 1985 may file their objections on or before 20-10-1985.