Karnataka High Court
Sri. Sabanna Galeppa Pujeri vs State Of Karnataka on 2 July, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2024:KHC-D:9028
WP No. 104849 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT PETITION NO.104849 OF 2023(S-PRO)
BETWEEN:
SRI SABANNA GALEPPA PUJERI,
AGED ABOUT 54 YEARS, CHIEF OFFICER,
ROWN PANCHAYAT SADALAGA,
TQ: CHIKODI, DIST: BELAGAVI.
(REVENUE OFFICER SR.RANK-245)
...PETITIONER
(BY SRI RAMACHANDRA A. MALI, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
REP. BY ITS SECRETARY,
DEPT. OF URBAN DEVELOPMENT,
VIKAS SOUDHA, BENGALURU - 01.
Digitally
signed by V N 2. THE DIRECTOR, DIRECTORATE OF MUNICIPAL
BADIGER
Location:
ADMINISTRATION, 9TH AND 10TH FLOOR,
High Court of
Karnataka
V.V.TOWER, AMBEDKAR VEEDHI,
BENGALURU - 01.
3. THE DIRECTOR OF PLANNING,
DISTRICT URBAN DEVELOPMENT CELL,
OFFICE OF DEPUTY COMMISSIONER,
BELAGAVI, DIST: BELAGAVI.
4. THE DEPUTY COMMISSIONER,
BELAGAVI, DIST: BELAGAVI.
...RESPONDENTS
(BY SRI P.N.HATTI, HCGP)
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NC: 2024:KHC-D:9028
WP No. 104849 of 2023
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO, ISSUE A
WRIT OF CERTIORARI OR ANY OTHER WRIT OR ORDER IN THE
LIKE NATURE QUASHING THE IMPUGNED ENDORSEMENT
DATED. 7-7-2023 MADE IN NO. 952196/ DMA / EST2/ KMAS/ 6/
2022/ 2381 ISSUED BY THE 2ND RESPONDENT HEREIN
PRODUCED AT ANNEXURE-J AS THE SAME BEING ARBITRARY,
ILLEGAL AND NOT SUSTAINABLE IN LAW & ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
- B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking quash of endorsement dated 07.07.2023 issued by the 2nd respondent produced at Annexure-J and for issue of writ of mandamus directing the respondents to consider the case of the petitioner for selection/promotion to the post of Chief Officer, Grade I as per the Karnataka Municipal Administrative Service (Cadre and Recruitment), Rules 2022 (hereinafter referred to as, 'the Rules 2022'), produced at Annexure-B and accordingly promote the petitioner to the said post with retrospective and on par with the date from which his juniors are selected i.e., with effect from 30.11.2022 as per Annexure-F. -3- NC: 2024:KHC-D:9028 WP No. 104849 of 2023
2. Case of the petitioner is that, he belongs to schedule caste category and was originally appointed as Bill Collector in the Municipal Council, Gokak and was thereafter promoted as Revenue Officer on 08.09.2015 and was posted to work in different capacities. That he has passed all departmental examinations and has discharged his duties without any blemish. That during the year 2022, the 1st respondent published the Rules 2022 on 07.07.2022 providing method of recruitment to the post of Chief Officer Grade I which is as under:
"CHIEF OFFICER GRADE-I i. By direct Recruitment 25% ii. By Promotion from the 20% Cadre of Chief Officer-Gr-II iii. By selection from the cadre of 21% Revenue Officers on seniority iv. By selection from the cadre 21% Office Managers.
v. By selection from the cadre of 10%
Office Assts of Corporations.
vi. By selection from the cadre of 03%
Managers of DMA on seniority.
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NC: 2024:KHC-D:9028
WP No. 104849 of 2023
3. Thus, 21% of the post of the Chief Officer Grade I are required to be filled by way of selection from the cadre of Revenue Officers of Urban Local Bodies having put in minimum qualifying service of 3 years with bachelors decree from the University on the basis of Seniority. That the requirement of holding bachelors decree was exempted for the Revenue Officers of Urban Local Bodies who have attained the age of 50 years on the commencement of the said the Rules, 2022. Thus, only the seniority is a basis for selection to the said post. Thus, the petitioner is eligible and qualified for the promotion.
4. In the proposal submitted by the Deputy Commissioners in the State of all the eligible candidates in the list of respective districts, name of the petitioner was included at Sl.No.37 with seniority ranking at 245 under Revenue Officers Category. Juniors of the petitioner were also included at Sl.Nos.41 and 43 and their seniority ranking is at 251 and 253 in the cadre of Revenue Officers. Even in the correspondence dated 16.08.2022, between the -5- NC: 2024:KHC-D:9028 WP No. 104849 of 2023 Deputy Commissioner and the 2nd respondent regarding eligible and qualified candidates for the promotion in the district of Bellary to the post of Chief Officer Grade I name of the petitioner was included. The respondent No.1 - Authority by its correspondence dated 09.09.2022 addressed to 2nd respondent had directed it to scrutinize the proposal received from the 4th respondent including the case of petitioner and to submit proposal for further action to be taken in the matter.
5. That, the respondent-authority conducted DPC proceedings on 10.08.2022 and the petitioner was hopeful of consideration of his name for promotion. However, respondent No.1-authority while issuing a Government Order dated 03.11.2022 in respect of several Revenue Officers to the post of Chief Officer Grade I, included the names of Junior Officials, overlooked the case of the petitioner without assigning any reason.
6. It is the further case of the petitioner that when the petitioner was working as Chief Officer, Kudachi Town -6- NC: 2024:KHC-D:9028 WP No. 104849 of 2023 Panchayat in Raibag taluk, Anti Corruption Bureau, Belagavi police registered a false case against the petitioner in Crime No.13/2020 for the offence u/s 7(a) of Prevention of Corruption Act, 1988. Petitioner filed petition under Section 482 of Crl.P.100134/2021 seeking quash of the said case. The said petition was disposed of with liberty to the petitioner to challenge any proceedings initiated by the Lokayukta Police. That there was a special case No.116/2013 on the file of IV Addl.District and Sessions Judge, Belagavi. That the proceedings in the said Special Case have been stayed by this case in Crl.P.101471/2023. Thus though there is no pendency of any departmental enquiry against the petitioner, or any charge sheet filed against him as on the date of DPC meeting dated 10.08.2022 or on the date of issuance of Government Order dated 03.11.2022, the petitioner had earlier approached by filing a writ petition in WP No.104971/2022 seeking appropriate directions. This Court by order dated 10.02.2022, allowed the said writ petition directing respondent no.2 to consider the case of the petitioner in -7- NC: 2024:KHC-D:9028 WP No. 104849 of 2023 accordance with law. Despite the same, case of the petitioner is not considered. However, respondent No.2 issued impugned endorsement dated 07.07.2023 stating that the case of the petitioner would be considered after closure of Lokayukta case pending against the petitioner. Being aggrieved by the same, the present petition.
7. Learned counsel appearing for the petitioner relying upon the judgment of the Apex Court in the case of Union of India & others V/s. K.V. Jankiraman & Others1 (for short "K.V. Jankiraman's case") which was followed by the Division Bench of this Court in W.P. No.102595/2023, disposed off on 05.09.2023 in the case of Smt. Jayashree V/s. State of Karnataka & Others (for short "Smt. Jayashree's case) and also referring to the Official Memorandum dated 14.07.1993 submits that, the law with regard to the consideration of the case of the promotion in respect of the employees, who are facing the allegations has been well settled. In that, the Departmental 1 (1991)4 SCC 109 -8- NC: 2024:KHC-D:9028 WP No. 104849 of 2023 Promotion Committee (for short "DPC"), which conducts the proceedings for promotion is required to adopt Sealed Cover Method only when the charge memo / charge sheet is issued against the employee on the day, when the DPC is conducted. He submits that, if no charge memo / charge sheet is issued, the day when the DPC is being conducted, there is no impediment in granting promotion to the employee even if he subjected to certain allegations.
8. Referring to the facts of the instant case, learned counsel submits that, the DPC was conducted on 10.08.2022, as on the said date, neither any charge memo was issued nor any charge sheet was filed against the petitioner. In view of the law referred to above, there was no impediment of any nature whatsoever for the DPC to consider the case of the petitioner for promotion. Thus, he submits that issuance of endorsement at Annexure-J.
9. Thus, he submits that, issuance of the impugned endorsement at Anneuxre-J stating that, in view of the pendency of the case against the petitioner in ACB trap -9- NC: 2024:KHC-D:9028 WP No. 104849 of 2023 Case, the case of the petitioner for promotion was not considered and that since the enquiry in the said trap case is pending, on conclusion of the same, his case for selection to the Grade-I would be considered in accordance with law, is illegal and contrary to the settled principles of law referred to and laid down by the Apex Court hereinabove.
Hence, seeks for allowing of the petition.
10. Heard Perused the records.
11. Paragraph No.16 of the judgment of the Apex Court in the case of K.V. Jankiraman (supra), reads as under:
"16. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge - sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the
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NC: 2024:KHC-D:9028 WP No. 104849 of 2023 appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge- sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many-cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge- memo/charge sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalize the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows:
"(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official;
(4) the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge sheet filed before the criminal court and not before;"
12. The Official Memorandum, dated 14.07.1993 issued by the Government of Karnataka, which is
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NC: 2024:KHC-D:9028 WP No. 104849 of 2023 incidentally referred to in the impugned endorsement at Annexure-J also is in line with law enunciated by the Apex Court in the case of K.V. Jankiraman (Supra). It is relevant to refer to paragraph Nos.3 & 6 of the said Official Memorandum, which is extracted hereunder:
"3. The Departmental Promotion Committee (DPC) shall assess the suitability of the officer / official for promotion without taking into consideration the disciplinary proceedings / court proceedings pending against the officer / official. The assessment on the basis of records, the view of the DPC shall be kept in a sealed cover. In the subsequent DPCs also, if any, during the period of disciplinary / court proceedings, the DPC shall consider the officer's / official's case and record its findings which will again be kept in a sealed cover in the above manner." & "6. The sealed cover procedure contemplated herein above, shall be adopted only after the date of issuance of Charge Memo / Charge sheet, that being the date from which the disciplinary proceedings can be taken to have been initiated."
13. The Division Bench of this Court, in the case of Smt. Jayashree (supra) referred to above, following the judgment of the Apex Court in the case of K.V. Jankiraman (supra) had granted the relief directing
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NC: 2024:KHC-D:9028 WP No. 104849 of 2023 respondents therein to consider the case of the petitioner therein for promotion to the post as sought for.
14. The fact situation of the matter in the aforesaid cases being identical to the case at hand, and the law laid down by the Apex Court and the Official Memorandum issued by the Government of Karnataka and the earlier order passed by the Court in W.P. No.10497/2022 not having been followed, this Court is of the considered view that the petitioner has made out case and hence the following:
ORDER
(i) The writ petition is allowed;
(ii) The endorsement issued at Annexure-J, dated 07.07.2023 is quashed.
(iii) Respondent No.2 is directed to the consider the case of the petitioner as on the date when DPC was conducted i.e., on 10.08.2022 for the post of Chief Officer Grade-I as per the Karnataka Municipalities Administration (Cadre and Recruitment) uRules, 2022, produced at Annexure-D and
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NC: 2024:KHC-D:9028 WP No. 104849 of 2023 if found eligible, pass appropriate orders and redo the seniority list.
(iv) The entire exercise shall be done within an outer limit of eight (8) weeks from the date of receipt of certified copy of this order.
SD/-
JUDGE VNP*/CT-ASC List No.: 1 Sl No.: 29