Karnataka High Court
N Ravi vs The Commissioner on 12 July, 2021
Author: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JULY, 2021 R
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.7504/2020 (S- PRO)
BETWEEN
1. N.RAVI
S/O LATE NARAYANA,
AGED ABOUT 37 YEARS,
WORKING AS IN-CHARGE
TAX INSPECTOR
OFFICE OF THE
ASSISTANT REVENUE OFFICER
KODIGEHALLI SUB- DIVISION,
8TH MAIN, SAHAKARA NAGAR
BBMP, BENGALURU - 560 092.
SERIAL NO.4416
2. N.RAMESH
S/O LATE NARAYANAPPA,
AGED ABOUT 40 YEARS,
WORKING AS IN-CHARGE
TAX INSPECTOR
OFFICE OF THE COMMISSIONER,
BBMP, NR SQUARE
BENGALURU - 560 002.
3. EBINIZER GNANSHEKAR
S/O LATE GOPAL ,
AGED ABOUT 40 YEARS,
WORKING AS IN-CHARGE
TAX INSPECTOR
OFFICE OF THE ASSISTANT
REVENUE OFFICER,
2
GANDHINAGAR SUB- DIVISION
GOOD SHED ROAD,
COTTONPET, BBMP,
BENGALURU - 560 003.
4. M.GOPI
S/O LATE MALLAIAH,
AGED ABOUT 47 YEARS,
WORKING AS IN-CHARGE
TAX INSPECTOR
OFFICE OF THE
ASSISTANT REVENUE OFFICER,
VIDYARANYA PURA SUB-DIVISION
WARD NO 11, NEAR BUS STAND
VIDYARANYA PURA
BENGALURU - 560 097.
5. G.SHIVAKUMAR
S/O LATE GOVINDA,
AGED ABOUT 31 YEARS,
GROUP D EMPLOYEE
IN OFFICE OF THE
JOINT COMMISSIONER WEST
SAMPIGE ROAD, OPP. MANTRIMALL,
BBMP, BENGALURU - 560 002.
6. NARAYANA M.,
S/O MOHAN
AGED ABOUT 28 YEARS,
GROUP 'D' EMPLOYEE
WORKING IN THE OFFICE OF
IN OFFICE OF THE HEAD LEGAL CELL
BBMP HEAD OFFICE,
N.R.SQUARE, BENGALURU - 560 001.
7. G.MANJUNATH
S/O LATE GUDDAIAH,
AGED ABOUT 45 YEARS,
WORKING AS IN CHARGE
TAX INSPECTOR
3
OFFICE OF THE
ASSISTANT REVENUE OFFICER
NAGPURA SUB DIVISION
MAHALAKSHMI LAYOUT
WARD NO 67, NAGPURA
BENGALURU - 560 086.
8. V.SRINIVAS
S/O LATE VENKATESH,
AGED ABOUT 33 YEARS,
WORKING AS IN CHARGE
TAX INSPECTOR
OFFICE OF THE
ASSISTANT REVENUE
OFFICER HBR LAYOUT,
WARD NO 29, HENNUR MAIN ROAD,
6TH CROSS, KACHARAKANAHALLI
BENGALURU - 560 084.
9. A.GOPAL KRISHNA
S/O LATE YARASWMY,
AGED ABOUT 37 YEARS,
WORKING AS IN CHARGE
TAX INSPECTOR
OFFICE OF THE
ASSISTANT REVENUE OFFICER
K G NAGAR SUB DIVISION
WARD NO 119, J.C.ROAD,
BBMP COMPLEX, BENGALURU - 560 002.
10. K.NAGESH
S/O LATE KEMPAIAH,
AGED ABOUT 47 YEARS,
WORKING AS IN CHARGE
TAX INSPECTOR,
OFFICE OF THE
ASSISTANT REVENUE OFFICER,
BTM LAYOUT, SUB DIVISION,
WARD NO 172, HOSUR MAIN ROAD,
MADIVALA, BENGALURU - 560 068.
4
11. SHEKAR V.,
S/O LATE VENKATAIAH,
AGED ABOUT 36 YEARS,
WORKING AS IN CHARGE
TAX INSPECTOR,
OFFICE OF THE
ASSISTANT REVENUE OFFICER,
K.G.HALLI, SUB DIVISION
WARD NO. 60, SAGAIAHPURAM,
KIMS ROAD, BENGALURU - 560 001.
12. SRINIVASALU
S/O LATE VENKATESH,
AGED ABOUT 30 YEARS,
WORKING AS IN CHARGE
TAX INSPECTOR,
OFFICE OF THE
ASSISTANT REVENUE OFFICER
BEGUR SUB DIVISION
WARD NO 192,
BEGUR MAIN BOMMANAHALLI,
BENGALURU - 560 068.
13. PRASHANTH KUMAR
S/O RAMANNA @ NARAYANA,
AGED ABOUT 41 YEARS,
WORKING AS PEON
OFFICE OF THE
CHIEF HEALTH OFFICER
HEAD OFFICE BBMP,
N.R.SQUARE, BENGALURU - 560 002.
14. V. SRIKANTH
S/O LATE S.VENKATESH,
AGED ABOUT 35 YEARS,
WORKING AS GROUP- D
OFFICE OF THE JOINT DIRECTOR
TOWN PLANNING (SOUTH)
HEAD OFFICE BBMP
N R QUARE, BENGALURU - 560 002.
5
15. RAMAMURTHY Y.,
S/O LATE YAMAIAH R.,
AGED ABOUT 32 YEARS,
WORKING AS IN CHARGE
TAX INSPECTOR OFFICE
OF THE ASSISTANT REVENUE
OFFICER HBR LAYOUT
SUB- DIVISION WARD NO 24,
BDA COMPLEX 3RD BLOCK,
HENNUR, BENGALURU - 560 045.
16. SATHISH U.,
S/O LATE UDAY KUMAR,
AGED ABOUT 32 YEARS,
WORKING AS IN CHARGE
TAX INSPECTOR ,
OFFICE OF THE
ASSISTANT REVENUE OFFICER
JEEVAN BEEMA NAGAR,
WARD NO 80, NO 16, A AND B MAIN
HAL 2ND STAGE, BENGALURU - 560 008.
17. SURESH BABU
S/O LATE NARAYANA,
AGED ABOUT 39 YEARS,
WORKING AS IN CHARGE
TAX INSPECTOR
OFFICE OF THE
ASSISTANT REVENUE OFFICER
CHIKKAPET SUB DIVISION,
TULASI THOTA WARD NO 121,
MAGADI ROAD, 4TH CROSS,
BENGALURU - 560 026.
... PETITIONERS
(BY SRI V. LAXMINARAYANA, SENIOR ADVOCATE A/W.
SRI V. SRINIVAS, ADVOCATE)
6
AND
1. THE COMMISSIONER
BBMP, N.R.SQUARE,
BENGALURU - 560 001.
2. THE DEPUTY COMMISSIONER (ADMIN)
BBMP, N R SQUARE,
BENGALURU - 560 001.
3. M.RAMPRASAD
AGED MAJOR, TAX INSPECTOR,
BBMP, HEAD OFFICE,
N R SQUARE, BENGALURU - 560 002.
4. C.VENKATESH
AGED MAJOR, TAX INSPECTOR,
BBMP, HEAD OFFICE, N.R. SQUARE,
BENGALURU - 560 002.
5. R. UMASH
AGED MAJOR,
TAX INSPECTOR,
BBMP, HEAD OFFICE, N.R. SQUARE,
BENGALURU - 560 002.
6. MOHAMED NASSER
AGED MAJOR, TAX INSPECTOR,
BBMP, HEAD OFFICE, N R SQUARE,
BENGALURU - 560 002.
7. T.HARINI
AGED MAJOR, TAX INSPECTOR,
BBMP, HEAD OFFICE, N R SQUARE,
BENGALURU - 560 002.
8. R. HEMANTH
AGED MAJOR,
TAX INSPECTOR,
BBMP, HEAD OFFICE, N R SQUARE,
7
BENGALURU - 560 002.
9. S.RAJESH
AGED MAJOR, TAX INSPECTOR,
BBMP, HEAD OFFICE, N R SQUARE,
BENGALURU - 560 002.
10. V.CHANDRASHEKAR
AGED MAJOR, TAX INSPECTOR,
BBMP, HEAD OFFICE, N R SQUARE,
BENGALURU - 560 002.
11. N.RAJESH
AGED MAJOR, TAX INSPECTOR,
BBMP, HEAD OFFICE, N R SQUARE,
BENGALURU - 560 002.
12. N.H.GIRISH
AGED MAJOR,
TAX INSPECTOR,
BBMP, HEAD OFFICE, N R SQUARE,
BENGALURU - 560 002.
13. B.KIRAN
AGED MAJOR, TAX INSPECTOR,
BBMP, HEAD OFFICE, N R SQUARE,
BENGALURU - 560 002.
14. D.DIVYA
AGED MAJOR,
SECOND DIVISION ASSISTANT,
BBMP, HEAD OFFICE, N R SQUARE,
BENGALURU - 560 002.
15. S.DIVYA
AGED MAJOR,
SECOND DIVISION ASSISTANT,
BBMP, HEAD OFFICE, N R SQUARE,
BENGALURU - 560 002.
8
16. M.MANJUNATH
AGED MAJOR,
SECOND DIVISION ASSISTANT,
BBMP, HEAD OFFICE, N R SQUARE,
BENGALURU - 560 002.
17. D.NIRMALA DEVI
AGED MAJOR,
SECOND DIVISION ASSISTANT,
BBMP, HEAD OFFICE, N R SQUARE,
BENGALURU - 560 002.
18. R.REKHA
AGED MAJOR,
SECOND DIVISION ASSISTANT,
BBMP, HEAD OFFICE, N R SQUARE,
BENGALURU - 560 002.
... RESPONDENTS
(BY SRI ARAVIND M.NEGLUR, ADVOCATE FOR R1 AND R2;
SRI K.SUBBA RAO, SENIOR ADVOCATE A/W.
SRI K.N.SATHEESH, ADVOCATE FOR R3 TO R18)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE PROMOTION ORDER DTD. 13.03.2020 ISSUED
BY THE R.2 VIDE ANNEXURE-J AND K TO THE WRIT
PETITION; DIRECT THE R-2 TO CONSIDER THESE
PETITIONERS TO THE PROMOTIONS TO THE NEXT CADRE
i.e., TO THE POST OF TAX INSPECTORS IN ACCORDANCE
WITH LAW.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 02.07.2021, COMING ON
FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING :-
9
ORDER
The petitioners in this writ petition who are
seventeen in number call in question an order of
promotion dated 13-03-2020, promoting private
respondent Nos.3 to 18 to the cadre of Tax Inspector
ignoring the claim of the petitioners.
2. Sans unnecessary details, the facts in brief as
averred by the petitioners in the writ petition, are as
follows:-
All the petitioners entered the service of Bruhat
Bengaluru Mahanagara Palike (hereinafter referred to as
'the BBMP' for short) as Group-D employees with the
qualification of SSLC, which was the requisite
qualification for the post at the time of their entry. The
petitioners entered service between 18-12-2002 and
19-04-2010. The petitioners further claim that they
have cleared all the requisite departmental
examinations for consideration of their cases for
promotion to the next higher cadre which is Tax
Inspector/Second Division Assistant.
3. On 13-12-2013, an amendment was brought
about to the Karnataka Civil Services (Recruitment to
Ministerial Posts) Rules, 1978 by the Karnataka Civil
Services (Recruitment to Ministerial Posts) (Amendment)
Rules, 2013, substituting the qualification of pass in
Pre-University Course in place of SSLC for the post of
Second Division Assistants and equivalent posts. It
further transpires that on 21-12-2014, the said Rules
further came to be amended by way of clarification that
PUC or equivalent qualification would not be insisted
upon employees who have already joined service with
SSLC qualification for promotion to higher cadre.
Owing to the clarification made in the year 2014, several
employees of the BBMP who were similarly situated as
that of the petitioners with the qualification of SSLC
were all promoted to the cadre of Tax Inspector
on 26-09-2016. The employees who were promoted
were all seniors to the petitioners and the qualification
which they possessed was that of a pass in SSLC.
4. Considering the seniority of the petitioners, they
were placed on in-charge basis in the cadre of Tax
Inspector which is the next higher cadre for promotion
from Group-D posts in the BBMP. When the petitioners
were all working as Tax Inspectors on in-charge basis, a
Circular was issued on 03-10-2019 calling for service
particulars of the petitioners in tune with their
seniority. But promotions were not granted despite
summoning of records for a long time. This drove some
of the petitioners to this Court in Writ Petition No. 4877
of 2020 seeking a mandamus to consider their cases for
promotion. This came to be disposed of by this Court
on 02-03-2020 directing the BBMP to act efficaciously
and expeditiously and complete grant of promotion as
permissible in law.
5. Promotions to the petitioners were not granted,
but the promotions of private respondents 3 to 18 were
granted on 13-03-2020 along with others to the post
of Second Division Assistants or Tax Inspectors as the
case would be. This promotion was granted to the
private respondents on the ground that the requisite
qualification in terms of the Rules obtaining at the
relevant point in time was a pass in PUC and the
petitioners herein are holders of SSLC. It is however
now contended the State Government on 16-03-2020,
notified new Rules to the employees of BBMP namely
Bruhat Bengaluru Mahanagara Palike (General Cadre
and Recruitment of Officers and Employees) Rules,
2018 in exercise of powers conferred by Government
under Section 71 read with Section 421 of the
Karnataka Municipal Corporations Act, 1976. This
came into effect from 16-03-2020. In the newly framed
Rules to the posts of Second Division Assistants or Tax
Inspectors, the minimum qualification depicted is PUC.
It is the grant of promotions ignoring the cases of the
petitioners to the private respondents that is called in
question in the writ petition.
6. Heard Shri V. Laxminarayana, learned Senior
Counsel for Shri V. Srinivas, learned counsel for the
petitioners, Shri K. Subba Rao, learned Senior Counsel
for Shri K.N. Satheesh, learned counsel for respondent
Nos.3 to 18 and Shri Aravind M. Neglur, learned
counsel appearing for respondent Nos.1 and 2.
7. The learned senior counsel
Shri V. Laxminarayana, would submit that the
petitioners are all seniors to private respondents. The
qualification that the petitioners possess at the time of
entry into Group-D service was SSLC; at the time when
the petitioners entered service, the promotional post
also needed the qualification of SSLC; it is for the first
time in the year 2013, the Rules that were existing came
to be amended with the prescription of qualification of
PUC for the post of Second Division Assistant or
equivalent; this was clarified later by way of a proviso
that it would not be applicable to employees who have
already joined service with the qualification of SSLC.
7.1. The learned senior counsel would submit that
notwithstanding this clarification, the private
respondents who are juniors to the petitioners are
promoted on 13-03-2020, under the Rules which
insisted qualification of PUC despite the subsequent
clarification and would also submit that the new Rules
notified on 16-03-2020, would not be applicable to the
petitioners as the vacancies arose long before
promulgation of the Rules of 2020.
8. Per-contra, the learned senior counsel
representing respondent Nos.3 to 18 would seek to
justify their promotions on the ground that, be it the
new or the old Rules earlier prevailing, what was
insisted upon, as a qualification for promotion, was
PUC. Admittedly, the petitioners do not possess the
qualification of PUC and on that ground, the learned
senior counsel would submit that though private
respondents were juniors to the petitioners, on the
ground that they are qualified, are promoted.
9. The learned counsel for the BBMP, Sri Aravind
M. Neglur, would also toe the lines of the learned senior
counsel appearing for respondent Nos.3 to 18, in
making identical submissions but would further submit
that there are vacancies in the BBMP in the posts to
which the petitioners are also seeking promotion and
the petitioners can also be accommodated.
10. I have given my anxious consideration to the
contentions and contra-contentions of the respective
learned senior counsel and the learned counsel
appearing for the BBMP and in furtherance whereof, the
following points would arise for consideration:
'(i) Whether the petitioners had a right to
be considered for a promotion to the post of
Tax Inspectors/Second Division Assistants in
terms of the Rules of 2013?
(ii) Whether the new Rules notified on
16.03.2020 would take away the right of the
petitioners for promotion to the next higher
post of Tax Inspector/Second Division
Assistant in the light of vacancies in these
posts existing long before the promulgation of
the new Rules of 2020?'
Re. Point No.(i) Whether the petitioners had a right to be
considered for a promotion to the post of Tax
Inspectors/Second Division Assistants in terms of the
Rules of 2013?
11. Facts are not in dispute. The petitioners and
the private respondents entered the cadre of Group-D in
the BBMP. Petitioners entered service before private
respondent Nos.3 to 18 joined the service of the BBMP.
Thus, the petitioners were seniors to the private
respondents. The controversy is with regard to the
promotion to the next higher cadre of either Tax
Inspector or Second Division Assistant, the feeder cadre
of which among others is, from Group-D employees.
Both the petitioners and the private respondents
entered as Group-D employees and formed the feeder
cadre inter alia for promotion to the post of Second
Division Assistant or Tax Inspector, as the case would
be.
12. The Rules that were obtaining at the relevant
point in time in the Government for grant of promotion
to the post of Second Division Assistants/Tax
Inspectors underwent a change on 13-12-2013, in the
light of amendment to the Karnataka Civil Services
(Recruitment to the Ministerial Posts) (Amendment)
Rules, 2013. These Rules are applicable to the
employees of the BBMP. The amended Rule reads as
follows:
"NO.DPAR 18 SCR 2013, Bangalore, dated
13-12-2013.
WHEREAS the draft of the Karnataka Civil
Services (Recruitment to the Ministerial Posts)
Rules, 1978 was published as required by
clause (a), sub-section (2) of Section 3 read
with Section 8 of the Karnataka State Civil
Services Act, 1978 (Karnataka Act 14 of
1990) in Notification No.DPAR 18 SCR 2013
dated 13-11-2013 in Part-IVA (PR No.1268) of
the Karnataka Gazette Extra-ordinary dated
13-11-2013 inviting objections and
suggestions from all persons likely to be
affected thereby within fifteen days from the
date of publication of the draft in Official
Gazette.
WHEREAS, the said Gazette was made
available to the public on 13-11-2013.
AND WHEREAS, no objections and
suggestions have been received in this behalf
by the State Government.
NOW, THEREFORE, in exercise of the powers
conferred by sub-section (1) of Section 3 read
with Section 8 of the Karnataka State Civil
Services Act, 1978 (Karnataka Act 14 of
1990) the Government of Karnataka hereby
makes the following rules, namely:-
RULES
1. Title and commencement:- (1) These
rules may be called the Karnataka Civil
Services (Recruitment to the Ministerial Posts)
(Amendment) Rules, 2013.
(2) They shall come into force from the date of
their publication in the Official Gazette.
2. Amendment of rule 4:- In the
Karnataka Civil Services (Recruitment to
the Ministerial Posts) Rules, 1978, in rule
4, -
(i) in sub-rule (1), in clause (ii), for the
words "Secondary School Leaving
Certificate Examination or equivalent
qualification" the words "Pre-University
Course examination or equivalent
qualification" shall be substituted.
(ii) in sub-rule 2, for the words
"Secondary School Leaving Certificate
Examination or equivalent qualification"
the words "Pre-University Course
examination or equivalent qualification"
shall be substituted."
(emphasis supplied)
In terms of the amendment as aforementioned, the
qualification of SSLC obtaining in Rule 4 of the principal
rules came to be amended to that of Pre-University
Examination or equivalent qualification. Immediately
thereafter on 21-04-2014, these rules were further
clarified by adding a proviso which reads as follows:
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(emphasis supplied)
In terms of the proviso, the rules which insisted on
qualification of PUC were made inapplicable to the
employees who had joined the BBMP with the
qualification of SSLC.
13. In terms of the said qualification several
employees who were in Group-D and seniors to the
petitioners who had the qualification of SSLC were all
promoted to the cadre of Tax Inspector or Second
Division Assistant. This fact is not in dispute.
Therefore, the BBMP was aware and applied the proviso
to grant promotion to several seniors to the petitioners
with their qualification being SSLC to the next higher
cadre of Tax Inspector/Second Division Assistant. The
petitioners who were next in line for promotion in terms
of their seniority were all placed on in-charge basis in
the cadre of Tax Inspector on 12.02.2019. After about 8
months of the petitioners being placed as in-charge Tax
Inspectors, in order to grant promotions to the
petitioners, service records were summoned by a
Circular dated 03-10-2019. The Circular reads as
follows:-
" ¸ÀÄvÉÆÛïÉ
«µÀAiÀÄ: £Á®Ì£Éà zÀeÉð £ËPÀgÀgÀ ªÀÈAzÀ¢AzÀ ¢éwÃAiÀÄ zÀeÉð
¸ÀºÁAiÀÄPÀgÀÄ / PÀAzÁAiÀÄ ªÀ¸ÀÆ°UÁgÀgÀ ºÀÄzÉÝUÉ
ªÀÄÄA§rÛ ¤ÃqÀĪÀ §UÉÎ.
G¯ÉèÃR: 1) ¸ÀPÁðgÀzÀ ¹§ãA¢ ªÀÄvÀÄÛ DqÀ½vÀ ¸ÀÄzsÁgÀuÉ
E¯ÁSÉAiÀÄ DzÉñÀ ¸ÀASÉå:¹D¸ÀÄE 186
J¸ïDgïJ¸ï 2018, ¢£ÁAPÀ:27-02-2019.
2) ¸ÀPÁðgÀzÀ ¹§âA¢ ªÀÄvÀÄÛ DqÀ½vÀ ¸ÀÄzsÁgÀuÉ
J¸ïDgïJ¸ï 2018, ¢£ÁAPÀ:15-05-2019.
3) F PÀbÉÃj DzÉñÀ ¸ÀASÉå: ©12(5f)
¦Dgï/118/19- 20, ¢: 11-09-2019.
* * * * *
ªÉÄð£À «µÀAiÀÄ ªÀÄvÀÄÛ G¯ÉèÃRPÉÌ ¸ÀA§A¢ü¹zÀAvÉ, §ÈºÀvï
¨ÉAUÀ¼ÀÆgÀÄ ªÀĺÁ£ÀUÀgÀ ¥Á°PÉAiÀÄ°è ««zsÀ PÀbÉÃjUÀ¼À°è
PÁAiÀÄð¤ªÀð»¸ÀÄwÛgÀĪÀ dªÁ£ÀgÀÄ, UÁåAUïªÉÄ£ï, vÉÆÃlUÁjPÉ ªÀiÁ°,
¸Áå¤lj zÀ¥sÉÃzÁgï ªÀÄvÀÄÛ E¤ßvÀgÉà UÀÆæ¥ï r ªÀÈAzÀ¢AzÀ SÁ°
EgÀĪÀ ¢éwÃAiÀÄ zÀeÉð ¸ÀºÁAiÀÄPÀgÀÄ / PÀAzÁAiÀÄ ªÀ¸ÀÆ°UÁgÀgÀ ºÀÄzÉÝUÉ
ªÀÄÄA§rÛAiÀÄ£ÀÄß ¤ÃqÀ®Ä GzÉÝò¸À¯ÁVgÀĪÀ »£É߯ÉAiÀÄ°è ¸ÀA§AzsÀ¥ÀlÖ
§lªÁqÉ C¢üPÁjUÀ¼ÀÄ vÀªÀÄä PÀbÉÃjUÀ¼À°è PÁAiÀÄð¤ªÀð»¸ÀÄwÛgÀĪÀ
£Á®Ì£Éà zÀeÉð £ËPÀgÀgÀÄUÀ¼À ¸ÉêÁ ¥ÀĸÀÛPÀ, «zÁåºÀðvÉ ¥ÀæªÀiÁt
¥ÀvÀæUÀ¼ÀÄ, E¯ÁSÁ ¥ÀjÃPÉë ¥ÀæªÀiÁt ¥ÀvÀæUÀ¼ÀÄ ºÁUÀÆ ªÀÄÄA§rÛUÉ EZÉÒ
EgÀĪÀ / E®è¢gÀĪÀ §UÉÎ LaÑPÀvÉ ¥ÀvÀæªÀ£ÀÄß ªÀÄvÀÄÛ F
¸ÀÄvÉÆÛïÉAiÉÆA¢UÉ ®UÀwÛ¹gÀĪÀ £ÀªÀÄÆ£ÉAiÀÄ°è ¨sÀwðªÀiÁr
zÀÈrüÃPÀgÀtzÉÆA¢UÉ F ¸ÀÄvÉÆÛÃ¯É ºÉÆgÀr¹zÀ 07 ¢£ÀUÀ¼ÉƼÀUÁV
DAiÀÄÄPÀÛgÀ PÀbÉÃjAiÀÄ DqÀ½vÀ ±ÁSÉUÉ PÀ¼ÀÄ»¹PÉÆqÀ®Ä ¸ÀA§AzsÀ¥ÀlÖ
J¯Áè §lªÁqÉ C¢üPÁjUÀ½UÉ ¸ÀÄa¹zÉ."
(emphasis supplied)
The Circular clearly directed that several of Group-D
employees who were Attendars, Gangmen, Daffedars
etc. are required to be considered for promotion to the
posts of Second Division Assistants/Tax Inspectors
according to their seniority. Though, on 03-10-2019,
service records of the petitioners were summoned,
nothing progressed thereafter. It is then the petitioners
approached this Court in Writ Petition No.4877 of 2020.
This Court by its order dated 02-03-2020, disposed of
the writ petition by the following order:
"5. It is the case of the petitioners that if
the relief as sought for is not granted, the
respondents may delay the completion of the
process of granting promotions. Keeping in
view the submissions made by the learned
counsel for the petitioners that records have
already been requisitioned and are under
consideration, is suffice to demonstrate that
the respondents are acting in a fair and
square manner and marginal delay in
constitution of Departmental Promotion
Committee would not entitle the petitioners for
a relief as in the nature sought for.
6. Be that as it may, this Court is of the
considered opinion that the respondents
would act efficaciously and expeditiously and
complete the process of granting promotions
as permissible under law."
The order passed by this Court did not enure to the
benefit of the petitioners, but to the private respondents
who were immediately thereafter promoted on 13-03-
2020, taking into consideration the qualification
prescribed under the Rules which stood prior to adding
the proviso. The Rule that bears reference in the order
of promotion dated 13-03-2020 is the notification dated
13.12.2013, and the qualification of PUC that was
sought for in the Rules. Though the order refers to the
proviso as well, but all the private respondents who are
promoted possessed the qualification of PUC. This is
vindicated from the justification given by the BBMP in
the statement of objections contending that the
petitioners have been rightly denied promotions for
want of requisite qualification. The statement of
objections insofar as it is germane reads as follows:-
"3. It is submitted that the
petitioners have been rightly denied
promotion for want of requisite
qualification as on the date of
consideration of their candidature.
There-fore, the writ petition is liable to
be dismissed.
4. It is submitted that the petitioners
have been relying upon law that stood prior to
amendment to seek promotion. Therefore, the
petition is liable to be dismissed.
5. It is submitted that the Karnataka
Civil Services (Recruitment of Ministerial
Posts) Rules, 1978 have been amended with
effect from 13-12-2013. A copy of the
notification bearing No.DPAR 18 SCR 2013,
Bengaluru, dated 13-12-2013 is produced
herewith and marked Annexure-R1. Rule 4 of
the said Rules has been inserted with the
words "Pre-University Course Examination or
equivalent qualifications" in the place of
"Secondary School Living Certificate or
equivalent qualification". Since the
amendment has come into effect from 13-11-
2013 the petitioners are governed by the
amended provision. There-fore, the writ
petition filed by the petitioners should fail."
(emphasis added)
Therefore, it need not necessitate this Court to delve
deeper as to whether the Rule prior to insertion of the
proviso is taken into consideration or otherwise, as
BBMP itself clearly indicates in its affidavit that what
was considered was the Rule dated 13.12.2013, and the
petitioners despite being seniors were denied
promotions on the ground that the Rule insisted PUC as
the requisite qualification and the petitioners did not
possess such a qualification. In view of the preceding
analysis, I hold point No.1 in favour of the petitioners by
declaring that the petitioners were entitled to be
considered for promotion to the post of Second Division
Assistants/Tax Inspectors in the light of the insertion of
proviso clarifying the Rule of 2013, as also in the light of
the undisputed fact that several seniors to the
petitioners were all granted promotion relying on the
proviso which dispensed with the qualification of PUC, if
the employees are appointed prior to 13.12.2013, as
also the placement of the petitioners on in- charge basis
in the existing vacancies pending consideration of their
cases for regular promotion to the post of Second
Division Assistants/Tax Inspectors. It is beyond cavil
that the private respondents 3 to 18 have stolen a
march over the petitioners.
Re. Point No.(ii): Whether the new Rules notified on
16.03.2020 would take away the right of the petitioners
for promotion to the next higher post of Tax
Inspector/Second Division Assistant in the light of
vacancies in these posts existing long before the
promulgation of the new Rules of 2020?
14. After the promotion of private respondents on
13.03.2020, the State Government notified Bruhat
Bengaluru Mahanagara Palike (General Cadre and
Recruitment of Officers and Employee) Rules, 2020
which came into effect from 16.03.2020 (hereinafter
referred to as 'the Rules, 2020' for short). The Rules,
2020 insofar as they pertain to the cadre of Tax
Inspector read as follows:-
Revenue Department
2. Category of posts Tax Inspector (Rs.21400-
and scale of pay. 42000)
3. Number of posts 594
4 Method of (1) Sixty percent by direct
Recruitment recruitment; and (2) Forty
percent by promotion from any
of the Group 'D' cadre on the
basis of combined seniority.
Seniority is being determined
by treating a person holding of
a post carrying higher scale of
pay as senior to a person
carrying higher scale of pay.
5. Minimum For Promotion. -
qualification (1) Must have passed PUC/
equivalent examination; and
(2) Must have put in a service
of not less than five years of
service in the cadre of Group-
'D'.
For Direct Recruitment. -
Must have passed PUC or
equivalent examination with
Kannada as a language.
The qualification prescribed for promotion to the post of
Tax Inspector was PUC. On the strength of these Rules,
both the learned senior counsel appearing for private
respondents and learned counsel appearing for BBMP,
would in unison submit that, admittedly, the petitioners
are not qualified as the Rules, 2020, also insisted
qualification of PUC which the private respondents
possess.
15. The issue now springs for consideration in the
light of the facts, contentions and contra-contentions is
with regard to application of Rules when the vacancies
arose in the cadre of Tax Inspector. It is not in dispute
that several vacancies arose in the cadre of Tax
Inspector or Second Division Assistant, as the case
would before the Rules, 2020, came into force which
was on 16-03-2020. Owing to existence of vacancies, all
the petitioners herein were placed on in-charge basis in
the cadre of Tax Inspector or Second Division Assistant.
The Rules that were prevailing prior to the Rules, 2020,
had not insisted on qualification of PUC for employees
who had joined service of the BBMP prior to
13-12-2013, for promotion to next higher cadre. All the
petitioners have joined the service of BBMP before
13-12-2013 and are seniors to private respondents.
Under the Rules then prevailing, the promotions of the
petitioners could not have been denied. Taking into
consideration the new Rules, the vacancies that existed
prior to promulgation of the new Rules cannot be
considered in terms of new Rules. Two principles
emerge in the controversy. The promotion that is
granted to private respondents even before the Rules,
2020, was contrary to the proviso that deleted
insistence of PUC as a qualification for promotion and
the vacancies that arose when the old Rules were
prevailing will have to be filled up on promotion in terms
of the old Rules. Old Rules, as stated, deleted the
qualification and the new Rules that insisted on
qualification of PUC would not be applicable to the
vacancies that arose prior to those Rules. The
petitioners who were qualified in terms of the proviso
notified on 21-04-2014, became eligible for
consideration for promotions. Consideration for
promotion, is trite a fundamental right as held in
plethora of judgments of the Apex Court. Therefore,
cases of petitioners ought to have been considered.
16. It is now germane to notice and consider the
defence of the respondents that new Rules have come
into force and the petitioners cannot be considered for
promotion to the cadre of Second Division Assistant or
Tax Inspector. Since the application of the Rules qua
vacancies, as an issue, has emerged, it is necessary to
notice the line of law as delineated by the Apex Court.
The Apex Court in the case of State of Rajasthan v. R.
Dayal1, has held as follows:
"8. Therefore, it is not in dispute and
cannot be disputed that while selecting
officers, minimum requisite qualifications and
experience for promotion specified in the
relevant column, should be taken into
consideration against vacancies existing as
on 1st April of the year of selection. But since
the Rules came to be amended and the
amendment became effective with immediate
effect and clause (11-B) of Rule 24-A indicates
that options have been given to the
Government or the appointing Authority, as
the case may be, to revise the select list as
existing as per the law as on the date of the
appointment or as may be directed by a
competent court, selection is required to be
made by the concerned DPC. An appointment
made, after selection as per the procedure, to
the vacancies existing prior to the
amendment, is valid. But the question is
whether selection would be made, in the case
of appointment to the vacancies which
(1997) 10 SCC 419
admittedly arose after the amendment of the
Rules came into force, according to the
amended Rules or in terms of Rule 9 read
with Rules 23 and 24-A, as mentioned
hereinbefore. This Court has considered the
similar question in para 9 of the judgment
above-cited. This Court has specifically laid
that the vacancies which occurred prior to the
amendment of the Rules would be governed
by the original Rules and not by the amended
Rules. Accordingly, this Court had held that
the posts which fell vacant prior to the
amendment of the Rules would be governed
by the original Rules and not the amended
Rules. As a necessary corollary, the
vacancies that arose subsequent to the
amendment of the Rules are required to
be filled in accordance with the law
existing as on the date when the
vacancies arose. Undoubtedly, the selection
came to be made prior to the amendment of
the Rules in accordance with law then
existing since the anticipated vacancies also
must have been taken into consideration in
the light of Rule 9 of the Rules. But after the
amended Rules came into force, necessarily
the amended Rules would be required to be
applied for and given effect to. But,
unfortunately, that has not been done in the
present case. The two courses are open to the
Government or the appointing authority, viz.,
either to make temporary promotions for the
ensuing financial year until the DPC meets or
in exercise of the power under Rule 24-A(11-
B), they can revise the panel already
prepared in accordance with the Rules and
make appointments in accordance therewith.
9. It is contended by Shri Das that one
of the persons, namely, H.L. Meena was
appointed against a carried-forward post as
per the existing Rules and, therefore, his
appointment cannot be challenged. We find it
difficult to give acceptance to the contention.
Even a carried-forward vacancy is
required to be considered in accordance
with the law existing unless suitable
relaxation is made by the Government. As
on that date, when the appointment came to
be made, the selection was required to be
made on the basis of the Rules as existing on
the date the vacancy arose. Since,
admittedly, that has not been done, the
appointment of Shri Bhatnagar and H.L.
Meena must be treated to be only temporary
appointments pending consideration of the
claims of all the eligible persons belonging to
General and Reserved quota separately as
per Rules.
(emphasis supplied)
The Apex Court later in the case of A. Manoharan v.
Union of India2, has held as follows:
"25. Furthermore, the Regulations
have been amended only with effect from
11-8-2004. It would have a prospective
effect. It cannot be applied
retrospectively. Any vacancy which has
arisen prior to coming into force of the
said amended Regulations must be filled
up in terms of the law as was existing
prior thereto. (State of Rajasthan v. R.
Dayal [(1997) 10 SCC 419 : 1997 SCC (L&S)
1631] , SCC para 8.)"
(emphasis supplied)
Again the Apex Court in the case of Kulwant Singh v.
Daya Ram3, has held as follows:
"38. Keeping the aforesaid proposition
of law in mind we shall proceed to deal with
various other facets which have been
canvassed before us, for we feel it is not a
case which can be shut down by holding that
the order dated 8-1-1990 [Mewa
Singh v. Chandigarh Admn., OA No.
137/CH/89, order dated 8-1-1990 (Tri)]
(2008) 3 SCC 641
(2015) 3 SCC 177
having gone unassailed, the doors of justice
from all quarters get closed. The Tribunal
in Acchhar Chand case [Acchhar
Chand v. Union of India, OA No. 510/CH/88,
order dated 28-9-1988 (Tri)] , which was
decided on 28-9-1988, had strictly gone by
the principles stated in Y.V. Rangaiah [Y.V.
Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC
284 : 1983 SCC (L&S) 382 : AIR 1983 SC
852] by directing to prepare a fresh list of
constables for sending to Lower School
Course at Police Training College, Phillaur, in
accordance with the pre-amended Rule as far
as vacancies of Head Constables which had
come into existence prior to the Notification
dated 17-6-1988. It had further clarified that
it is open to the respondent to act in
accordance with the amended Rule in respect
of the vacancies/posts of Head Constables
which may have occurred subsequent to
coming into force of the amended Rule.
Submission of Mr Gupta is that the said order
was not only in accord with Y.V.
Rangaiah [Y.V. Rangaiah v. J. Sreenivasa
Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382
: AIR 1983 SC 852] but also in consonance
with the principles stated in P. Ganeshwar
Rao [P. Ganeshwar Rao v. State of A.P., 1988
Supp SCC 740 : 1989 SCC (L&S) 123 : (1988)
8 ATC 957] , R. Dayal [State of
Rajasthan v. R. Dayal, (1997) 10 SCC 419 :
1997 SCC (L&S) 1631] , B.L. Gupta [B.L.
Gupta v. MCD, (1998) 9 SCC 223 : 1998 SCC
(L&S) 532] and Arjun Singh Rathore [Arjun
Singh Rathore v. B.N. Chaturvedi, (2007) 11
SCC 605 : (2008) 2 SCC (L&S) 387] .
39. In P. Ganeshwar Rao [P.
Ganeshwar Rao v. State of A.P., 1988 Supp
SCC 740 : 1989 SCC (L&S) 123 : (1988) 8
ATC 957] the Court reproduced a passage
from Y.V. Rangaiah [Y.V. Rangaiah v. J.
Sreenivasa Rao, (1983) 3 SCC 284 : 1983
SCC (L&S) 382 : AIR 1983 SC 852] and
observed that it appositely applied to the
facts of the said case. The question that
emerged for consideration in the said case
was whether the amendment made on 28-4-
1980 to the Special Rules in the said case
applied only to the vacancies that arose after
the date on which the amendment came into
force or whether it applied to the vacancies
which had arisen before the said date also.
Interpreting the Rule the Court observed that
the amendment on 28-4-1980 did not apply to
the vacancies that had arisen prior to the
date of amendment. The ratio of the said
decision is that the vacancies that had
arisen after the amendment would be
governed by the amended Rule and the
vacancies that had arisen prior to the
amendment would be governed by the
unamended Rule.
40. In R. Dayal [State of Rajasthan v. R.
Dayal, (1997) 10 SCC 419 : 1997 SCC (L&S)
1631] the Court was considering the effect of
Rule 24-A of the Rajasthan Service of
Engineers (Building and Roads Branch)
Rules, 1954 (as amended). It pertained to the
vacancies which were filled up prior to the
amended Rule. Question arose whether the
vacancies were prepared to be filled up under
the amended Rule or unamended Rule. On
behalf of the respondents therein reliance
was placed on Y.V. Rangaiah [Y.V.
Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC
284 : 1983 SCC (L&S) 382 : AIR 1983 SC
852] . The Court, appreciating the factual
scenario and the rule position, came to hold
as follows: (R. Dayal case [State of
Rajasthan v. R. Dayal, (1997) 10 SCC 419 :
1997 SCC (L&S) 1631] , SCC p. 422, para 8)
"8. ... But the question is
whether selection would be made,
in the case of appointment to the
vacancies which admittedly arose
after the amendment of the Rules
came into force, according to the
amended Rules or in terms of Rule
9 read with Rules 23 and 24-A, as
mentioned hereinbefore. This Court
has considered the similar question
in para 9 of the judgment above-
cited. This Court has specifically
laid that the vacancies which
occurred prior to the amendment of
the Rules would be governed by the
original Rules and not by the
amended Rules. Accordingly, this
Court had held that the posts
which fell vacant prior to the
amendment of the Rules would
be governed by the original
Rules and not the amended
Rules. As a necessary corollary,
the vacancies that arose
subsequent to the amendment of
the Rules are required to be
filled in accordance with the
law existing as on the date
when the vacancies arose."
41. In B.L. Gupta [B.L. Gupta v. MCD,
(1998) 9 SCC 223 : 1998 SCC (L&S) 532] the
Court reiterated the principle stated in Y.V.
Rangaiah [Y.V. Rangaiah v. J. Sreenivasa
Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382
: AIR 1983 SC 852] , P. Ganeshwar Rao [P.
Ganeshwar Rao v. State of A.P., 1988 Supp
SCC 740 : 1989 SCC (L&S) 123 : (1988) 8
ATC 957] and A.A. Calton v. Director of
Education [(1983) 3 SCC 33 : 1983 SCC (L&S)
356] wherein it had been held that the
vacancies which had occurred prior to
the amendment of rules were governed by
the old rules and not by the amended
rules. In Arjun Singh Rathore [Arjun Singh
Rathore v. B.N. Chaturvedi, (2007) 11 SCC
605 : (2008) 2 SCC (L&S) 387] the views
stated in Y.V. Rangaiah [Y.V. Rangaiah v. J.
Sreenivasa Rao, (1983) 3 SCC 284 : 1983
SCC (L&S) 382 : AIR 1983 SC 852] and R.
Dayal [State of Rajasthan v. R. Dayal, (1997)
10 SCC 419 : 1997 SCC (L&S) 1631] were
reiterated."
(emphasis supplied)
The Apex Court yet again in the case of State of Orissa
v. State (TRYSEM) Livestock Inspector Sangha4, has
held as follows:
"10. There cannot be any quarrel with
the first principle in service jurisprudence,
that for direct recruitment, the qualification
has to be seen at the time of recruitment. In
direct recruitment a lot of policy issues are
also involved. It is not mandatory that all
such vacancies should be filled up and if at
all to be filled up, should be filled up as and
when vacancies arise. Those are all matters
left to the conscious decision of the appointing
authority. It is also open to the competent
authority to decide the mode and manner of
(2018) 18 SCC 247
selection and prescribe the qualification and
eligibility at the time of recruitment. However,
in the case of promotion, the incumbents
are entitled to stake a claim for
vacancies which existed prior to the
amendment to be filled up as per the
unamended rules. That is based on the
principle of legitimate expectation.
Hence, we find it difficult to appreciate the
submission made by Shri R.P. Bhat, learned
Senior Counsel, that the qualification should
be seen as on the date of occurrence of
vacancies, in the case of direct recruitment.
14. Thus, the view taken by the High
Court that the appointment will have to be
made in terms of the Rules existing at the
time of occurrence of vacancy, for direct
recruitment, placing wrong reliance in Vinod
Kumar Sangal [Vinod Kumar Sangal v. Union
of India, (1995) 4 SCC 246 : 1995 SCC (L&S)
963] does not reflect the correct legal position.
As we have already stated above, for
promotees, they can always stake a
claim for promotion in respect of the
vacancies available prior to the
amendment to be filled up in terms of the
amended Rules. That is not the situation
in the present case.
(emphasis supplied)
The controversy is further clarified by the Apex Court in
its latest judgment in the case of DR.ASWATHY R.S.
KARTHIKA AND OTHERS v. DR. ARCHANA M. AND
OTHERS5. A perusal at the judgments of the Apex
Court and the principle enunciated therein, beyond
equivocation will lead to a conclusion that the vacancies
that existed prior to the promulgation of the new Rules
will have to be filled up in accordance with the Rules
obtaining at the relevant point in time.
17. Insofar as the judgments relied on by the
learned senior counsel appearing for private
respondents contending that the judgment in the case
of Y.V. RANGAIAH AND ORS. VS J. SREENIVASA RAO
AND ORS.6, which enunciated that vacancies under the
old Rules will have to be filled up in terms of the
unamended Rules has been clarified in the subsequent
judgments. The clarified judgments relied on by the
(2020) 8 SCC 98
(1983) 3 SCC 284
learned counsel appearing for the respondents are in
the cases of, Deepak Agarwal v. State of U.P.7,
wherein it has held as follows:
"8. We have heard the exhaustive
submissions made by the learned counsel for
the parties. Dr. Rajeev Dhavan, learned
Senior Counsel, appearing for the appellants,
has highlighted the primary issues involved
herein, which are as follows:
Whether the State of Uttar Pradesh
amendment of 17-5-1999 in the Schedule is
invalid because--
(a) it abolishes Technical Assistant
Officers (TAO) and Statistical Officers (SO)
as feeder streams to the post of Deputy
Excise Commissioner;
(b) denies TAO and SO the right to be
considered for promotion;
(c) stagnates them by denying any
promotional avenue and merely gives them
a "sop" of upgradation with no avenue to
promotion;
(d) gives retroactive application to the
amendment to exclude persons covered by
the pre-amended Rules of 1983.
(2011) 6 SCC 725
9. By the amendment, the avenue of
promotion of the appellants has been totally
blocked. The upgradation of the pay scale is a
mere sop. The decision to amend the Rules on
19-5-1999 came within one year of granting
eligibility to the post of Statistical Officer on
22-6-1998. It was unreasonable for the State
to do a total volte face. Only reason for such a
volte face was the pressure from the Excise
Commissioner to be favoured.
28. In our opinion, the matter is
squarely covered by the ratio of the judgment
of this Court in Dr. K. Ramulu [(1997) 3 SCC
59 : 1997 SCC (L&S) 625] . In the aforesaid
case, this Court considered all the judgments
cited by the learned Senior Counsel for the
appellant and held that Y.V. Rangaiah
case [(1983) 3 SCC 284 : 1983 SCC (L&S)
382] would not be applicable in the facts and
circumstances of that case. It was observed
that for reasons germane to the decision, the
Government is entitled to take a decision not
to fill up the existing vacancies as on the
relevant date. It was also held that when the
Government takes a conscious decision and
amends the rules, the promotions have to be
made in accordance with the rules prevalent
at the time when the consideration takes
place."
Later in the case of State of Tripura v. Nikhil Ranjan
Chakraborty8, following the judgment in the case of
Deepak Agarwal (supra) holds as follows:
"8. In Deepak Agarwal [Deepak
Agarwal v. State of U.P., (2011) 6 SCC 725 :
(2011) 2 SCC (L&S) 175] the appellants were
Technical Officers who along with Assistant
Excise Commissioners were eligible to be
considered for promotion to the post of Deputy
Excise Commissioner. Two days before the
DPC was scheduled to meet to consider the
cases of all eligible officers for promotion, the
Rules concerned were amended and
Technical Officers stood excluded as the
feeder post for the next promotional post of
Deputy Excise Commissioner. The challenge
to such exclusion having been negated
[Deepak Agarwal v. State of U.P., 2002 SCC
OnLine All 1279 : 2002 All LJ 1701] by the
High Court, the matter reached this Court and
the relevant paragraphs of the decision were:
(Deepak Agarwal case [Deepak
Agarwal v. State of U.P., (2011) 6 SCC 725 :
(2011) 2 SCC (L&S) 175] , SCC pp. 728 &
734-35, paras 2 & 23-26)
"2. The old vacancies have to be
filled under the old rules is the mantra
(2017) 3 SCC 646
sought to be invoked by the appellants
in support of their claim that the
vacancies arising prior to 17-5-1999,
ought to be filled under the 1983 Rules
as they existed prior to the
amendment dated 17-5-1999. The
claim is based on the principle
enunciated by this Court in Y.V.
Rangaiah v. J. Sreenivasa Rao [Y.V.
Rangaiah v. J. Sreenivasa Rao, (1983)
3 SCC 284 : 1983 SCC (L&S) 382] .
***
23. Could the right of the
appellants, to be considered under the
unamended 1983 Rules be taken
away? The promotions to the 12
vacancies have been made on 26-5-
1999 under the amended Rules. The
High Court rejected [Deepak
Agarwal v. State of U.P., 2002 SCC
OnLine All 1279 : 2002 All LJ 1701]
the submissions of the appellants that
the controversy herein is squarely
covered by the judgment of this Court
in Y.V. Rangaiah [Y.V. Rangaiah v. J.
Sreenivasa Rao, (1983) 3 SCC 284 :
1983 SCC (L&S) 382] . The High Court
has relied on the judgment of this
Court in K. Ramulu v. S.
Suryaprakash Rao [K. Ramulu v. S.
Suryaprakash Rao, (1997) 3 SCC 59 :
1997 SCC (L&S) 625] .
24. We are of the considered
opinion that the judgment in Y.V.
Rangaiah case [Y.V. Rangaiah v. J.
Sreenivasa Rao, (1983) 3 SCC 284 :
1983 SCC (L&S) 382] would not be
applicable in the facts and
circumstances of this case. The
aforesaid judgment was rendered on
the interpretation of Rule 4(a)(1)(i) of
the Andhra Pradesh Registration and
Subordinate Service Rules, 1976. The
aforesaid Rule provided for
preparation of a panel for the eligible
candidates every year in the month of
September. This was a statutory duty
cast upon the State. The exercise was
required to be conducted each year.
Thereafter, only promotion orders were
to be issued. However, no panel had
been prepared for the year 1976.
Subsequently, the Rule was amended,
which rendered the petitioners therein
ineligible to be considered for
promotion. In these circumstances, it
was observed by this Court that the
amendment would not be applicable to
the vacancies which had arisen prior
to the amendment. The vacancies
which occurred prior to the amended
Rules would be governed by the old
Rules and not the amended Rules.
25. In the present case, there is
no statutory duty cast upon the
respondents to either prepare a
yearwise panel of the eligible
candidates or of the selected
candidates for promotion. In fact, the
proviso to Rule 2 enables the State to
keep any post unfilled. Therefore,
clearly there is no statutory duty
which the State could be mandated to
perform under the applicable Rules.
The requirement to identify the
vacancies in a year or to take a
decision as to how many posts are to
be filled under Rule 7 cannot be
equated with not issuing promotion
orders to the candidates duly selected
for promotion. In our opinion, the
appellants had not acquired any right
to be considered for promotion.
Therefore, it is difficult to accept the
submissions of Dr Rajeev Dhavan that
the vacancies, which had arisen
before 17-5-1999 had to be filled
under the unamended Rules.
26. It is by now a settled
proposition of law that a candidate
has the right to be considered in the
light of the existing rules, which
implies the "rule in force" on the date
the consideration took place. There is
no rule of universal or absolute
application that vacancies are to be
filled invariably by the law existing on
the date when the vacancy arises. The
requirement of filling up old vacancies
under the old rules is interlinked with
the candidate having acquired a right
to be considered for promotion. The
right to be considered for promotion
accrues on the date of consideration of
the eligible candidates. Unless, of
course, the applicable rule, as in Y.V.
Rangaiah case [Y.V. Rangaiah v. J.
Sreenivasa Rao, (1983) 3 SCC 284 :
1983 SCC (L&S) 382] lays down any
particular time-frame, within which the
selection process is to be completed. In
the present case, consideration for
promotion took place after the
amendment came into operation. Thus,
it cannot be accepted that any accrued
or vested right of the appellants has
been taken away by the amendment."
10. In our view, the instant case is fully
covered by the law laid down by this Court
in Deepak Agrawal [Deepak Agarwal v. State
of U.P., (2011) 6 SCC 725 : (2011) 2 SCC
(L&S) 175] and the High Court was
completely in error in allowing the writ
petition and in dismissing the writ appeals.
We, therefore, allow these appeals, set aside
the judgment [Nikhil Ranjan
Chakraborty v. Brajendra Tripura, 2012 SCC
OnLine Gau 806 : (2013) 5 Gau LR 898] under
appeal and dismiss Writ Petitions (Civil) Nos.
104, 105, 106, 153 and 181 of 2012.
11. Before we part, we must also
express that a selection contemplated in the
year 2011 in which the original writ
petitioners did not stand excluded has been
stalled as a result of challenge raised and
litigation initiated by the original writ
petitioners. In our view, the challenge was
totally uncalled for and avoidable. However,
it resulted in putting in abeyance the entire
process of selection and adversely affected
the administration. We, therefore, feel
compelled to impose exemplary costs of Rs
10,000 on each of the writ petitioners which
shall be deposited with the High Court within
six weeks from the date of this order and
upon such deposit, the entire amount shall be
made over to the Chief Minister's Relief Fund
for the State of Tripura."
Later, the Apex Court following both the judgments
(supra) in the case of Union of India v. Krishna
Kumar9, holds as follows:
"11. In Deepak Agarwal v. State of
U.P. [Deepak Agarwal v. State of U.P., (2011)
6 SCC 725 : (2011) 2 SCC (L&S) 175] , this
Court observed thus: (SCC p. 735, paras 26-
27)
"26. It is by now a settled
proposition of law that a candidate
has the right to be considered in the
light of the existing rules, which
implies the "Rules in force" on the date
the consideration took place. There is
no rule of universal or absolute
application that vacancies are to be
filled invariably by the law existing on
the date when the vacancy arises. The
requirement of filling up old vacancies
under the old rules is interlinked with
the candidate having acquired a right
to be considered for promotion. The
right to be considered for promotion
accrues on the date of consideration of
the eligible candidates. Unless, of
course, the applicable rule, as in Y.V.
Rangaiah case [Y.V. Rangaiah v. J.
Sreenivasa Rao, (1983) 3 SCC 284 :
(2019) 4 SCC 319
1983 SCC (L&S) 382] lays down any
particular time-frame, within which the
selection process is to be completed. In
the present case, consideration for
promotion took place after the
amendment came into operation. Thus,
it cannot be accepted that any accrued
or vested right of the appellants has
been taken away by the amendment.
27. The judgments cited by the
learned counsel for the appellants,
namely, B.L. Gupta v. MCD [B.L.
Gupta v. MCD, (1998) 9 SCC 223 :
1998 SCC (L&S) 532] , P. Ganeshwar
Rao v. State of A.P. [P. Ganeshwar
Rao v. State of A.P., 1988 Supp SCC
740 : 1989 SCC (L&S) 123] and N.T.
Devin Katti v. Karnataka Public
Service Commission [N.T. Devin
Katti v. Karnataka Public Service
Commission, (1990) 3 SCC 157 : 1990
SCC (L&S) 446] are reiterations of a
principle laid down in Y.V. Rangaiah
case [Y.V. Rangaiah v. J. Sreenivasa
Rao, (1983) 3 SCC 284 : 1983 SCC
(L&S) 382] ."
12. Recently, in State of
Tripura v. Nikhil Ranjan Chakraborty [State of
Tripura v. Nikhil Ranjan Chakraborty, (2017)
3 SCC 646 : (2017) 1 SCC (L&S) 718] ,
another two-Judge Bench of this Court held
thus: (SCC pp. 650-51, para 9)
"9. The law is thus clear that a
candidate has the right to be
considered in the light of the existing
rules, namely, "rules in force on the
date" the consideration takes place
and that there is no rule of absolute
application that vacancies must
invariably be filled by the law existing
on the date when they arose. As
against the case of total exclusion and
absolute deprivation of a chance to be
considered as in Deepak
Agarwal [Deepak Agarwal v. State of
U.P., (2011) 6 SCC 725 : (2011) 2 SCC
(L&S) 175] , in the instant case certain
additional posts have been included in
the feeder cadre, thereby expanding
the zone of consideration. It is not as if
the writ petitioners or similarly
situated candidates were totally
excluded. At best, they now had to
compete with some more candidates.
In any case, since there was no
accrued right nor was there any
mandate that vacancies must be filled
invariably by the law existing on the
date when the vacancy arose, the
State was well within its rights to
stipulate that the vacancies be filled in
accordance with the Rules as
amended. Secondly, the process to
amend the Rules had also begun well
before the Notification dated 24-11-
2011."
13. In view of this statement of the law,
it is evident that once the structure of Assam
Rifles underwent a change following the
creation of the intermediate post of Warrant
Officer, persons holding the post of Havaldar
would be considered for promotion to the post
of Warrant Officer. The intermediate post
of Warrant Officer was created as a
result of the restructuring exercise. The
High Court was, in our view, in error in
postulating that vacancies which arose
prior to the amendment of the
Recruitment Rules would necessarily be
governed by the Rules which existed at
the time of the occurrence of the
vacancies. As the decided cases noted
earlier indicate, there is no such rule of
absolute or universal application. The
entire basis of the decision of the High Court
was that those who were recruited prior to
the restructuring exercise and were holding
the post of Havaldars had acquired a vested
right of promotion to the post of Naib Subedar.
This does not reflect the correct position in
law. The right is to be considered for
promotion in accordance with the Rules as
they exist when the exercise is carried out for
promotion.
(emphasis supplied)
The aforesaid judgments relied on by the learned
counsel appearing for the respondents are not
applicable to the case at hand as the petitioners herein
were all eligible to be considered for promotion under
the Rules of 2013. Therefore, a statutory right for
consideration of their cases for promotion was available
in favour of the petitioners. That could not have been
taken away by the illegal act of the respondent- BBMP
by promoting the private respondents ignoring the claim
of the petitioners. The onset of new Rules would not
come in the way of the right of the petitioners on two
counts. One, the Rules that were obtaining at the
relevant point in time gave a right to the petitioners and
in the light of the right of the petitioners, the vacancies
at that point in time and the petitioners holding the post
of Tax Inspector or Second Division Assistant in those
very vacancies that existed earlier to the promulgation
of the new Rules dated 16.03.2020. It is in this light,
the authorities relied on by the petitioners are apposite
and not the ones relied on by the respondents.
18. Insofar as it concerns the judgment in the case
of KRISHNA KUMAR (supra), this was a case of
upgradation of post and creation of a new post, the
Apex Court has held that when a new post is created,
the concept of Rules obtaining when the vacancies arose
is inapplicable as what is created is a new post on
account of re-structuring of the cadre. The facts of the
case on hand are not identical to the facts that were
before the Apex Court. Therefore, this judgment also
would be inapplicable to the facts on hand. Hence, I
answer point No.2 in favour of the petitioners holding
that the petitioners did have a right for consideration of
their cases for promotion under the old Rules.
Therefore, what is applicable to the case of the
petitioners are the Rules of 2013 as the vacancies arose
long before the promulgation of the Rules 2020.
19. It is now necessary to consider the memo filed
by the learned counsel appearing for the BBMP
indicating several posts vacant in the cadre of Tax
Inspector and Second Division Assistant. The chart
given by the BBMP reads as follows:
"¥Á°PÉAiÀÄ°è ªÀÄAdÆgÁVgÀĪÀ, PÁAiÀÄð¤ªÀð»¸ÀÄwÛgÀĪÀ ªÀÄvÀÄÛ SÁ° EgÀĪÀ
PÀAzÁAiÀÄ ªÀ¸ÀÆ°UÁgÀgÀÄ ªÀÄvÀÄÛ ¢éwÃAiÀÄ zÀeÉð ¸ÀºÁAiÀÄPÀgÀ «ªÀgÀUÀ¼ÀÄ
ªÀÄAdÆgÁw PÁAiÀÄð¤ªÀð»¸ÀÄvÀÄÛgÀªÀ SÁ° EgÀĪÀ
ºÀÄzÉÝUÀ¼ÀÄ ºÀÄzÉÝUÀ¼ÀÄ ºÀÄzÉÝUÀ¼ÄÀ
PÀæ.¸ÀA. ºÀÄzÉÝ
DR PR Total DR PR Total DR PR Total
1. PÀAzÁAiÀÄ 140 435 02 159 161
297 297 594 295
ªÀ¸ÀÆ°UÁgÀgÀÄ
2. ¢éwÃAiÀÄ
zÀeÉð 456 225 681 264 130 394 192 95 287
¸ÀºÁAiÀÄPÀgÀÄ
About 161 vacancies in the cadre of Tax Inspector and
287 vacancies in the cadre of Second Division Assistant
exist as on date, out of which, 159 posts are earmarked
for promotion in the cadre of Tax Inspector and 95 posts
in the cadre of Second Division Assistant, which are to
be filled up from amongst eligible candidates from the
respective feeder cadres. Therefore, the BBMP could
also consider retaining the private respondents in their
promoted posts in the cadre of Tax Inspector or Second
Division Assistant, but the petitioners will have to be
seniors to the private respondents, as the petitioners
were seniors in the feeder cadre.
20. For the aforesaid reasons, I pass the following:
ORDER
(i) Writ Petition is allowed.
(ii) Impugned order dated 13-03-2020, granting
is quashed.
(iii) Mandamus is issued to the Bruhat
Bengaluru Mahanahara Palike to consider
cases of the petitioners for promotions to the
cadre of Tax Inspector/Second Division
Assistant as the case would be in accordance
with their seniority in the feeder cadre.
(iv) It is also open to the BBMP to continue the
private respondents in the promoted posts
owing to large number of vacancies existing,
but the petitioners will have to be placed as
seniors in terms of the seniority obtaining in
the respective feeder cadres.
(v) Consideration of the cases of the petitioners
in terms of direction No.(iii) shall be
complied with by the BBMP within six weeks
from the date of receipt of the copy of the
order.
Ordered accordingly.
In view of allowing of the petition, I.A.No.1/2021
filed for vacating stay does not survive for consideration.
Accordingly, the same stands disposed of.
Sd/-
JUDGE
bkp
CT:MJ
