Vittal Ramrao Kulkarni vs The State Of Karnataka And Ors
2022 Latest Caselaw 6 Kant

                                   1



            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

        DATED THIS THE 3RD DAY OF JANUARY 2022

                              PRESENT

     THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
                                 AND
       THE HON'BLE MRS.JUSTICE K.S.HEMALEKHA

          WRIT PETITION NO.200489/2020 (S-KAT)

BETWEEN:

Vittal Ramarao Kulkarni
Aged about 50 years
Working as Subject Inspector (Sanskrit)
Office of the Addl. Commissioner of
Public Instructions
Iwan-e-Shahi Road, Kalaburagi
R/o House No.10-3/24
"Chandrika", 6th Cross
Vittal Nagar, Kalaburagi - 585 103
                                                       ... Petitioner
(By Sri. Mahesh Patil, Advocate)
AND:
1.     The State of Karnataka
       Rep. by the Principal Secretary
       Department of Education (Primary & Secondary)
       M.S. Building, Bengaluru-1

2.     The Commissioner for Public Instructions
       Nrupatunga Road, K.R.Circle, Bengaluru-01

3.     The Addl. Commissioner for Public Instructions
       Iwan-e-Shahi Road, Kalaburagi - 585 102
                                                    ... Respondents
(By Sri Mallikarjun C. Basareddy, HCGP)
                                   2



       This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India, praying to issue a writ of certiorari and quash
the final order/judgment dated 29.11.2019 passed in Application
No.4590/2019 by the Karnataka State Administrative Tribunal,
Kalaburagi, the certified copy of which is at Annexure-E.

       This petition coming on for Preliminary Hearing this day,
K.S. Hemalekha J, made the following:


                              ORDER

The petitioner is assailing the order passed by the

Karnataka State Administrative Tribunal at Kalaburagi

(hereinafter referred to as 'the Tribunal' for short) dated

29.11.2019 in Application No.4590/2019.

2. The petitioner herein filed an application before

the Tribunal under Section 19 of the Administrative Tribunals

Act, 1985, seeking to quash the order dated 18.07.2019

passed by respondent No.3 - the Addl. Commissioner for

Public Instructions, Kalaburagi Division and also sought for

writ of mandamus, directing the respondents to grant him

promotion to the cadre of Subject Inspector (Sanskrit) with

effect from 12.07.2013, as he was placed under Rule 32 of the

Karnataka Civil Services Rules (for short 'KCSRs') and also

sought for grant of all consequential benefits such as seniority,

increment and arrears of salary etc.

3. It is the contention of the petitioner that he is a

graduate in Arts and has acquired a degree in B.A. and was

successful in getting a M.A. Degree in Sanskrit and after

acquiring M.Phil in the year 2005 and M.Ed. in the year 2007

pursuant to the notification issued in the year 2003, the

petitioner was selected to the post of Secondary School

Assistant Grade II (Sanskrit) by an order dated 21.05.2004

and was posted to Government High School, Kottur, Kudligi

Taluk, Bellary District. It is further contended that the 3rd

respondent under Rule 32 of the KCSRs, posted the

petitioner/applicant in the post of Subject Inspector (Sanskrit)

as against the existing vacancy and this appointment was as

per the order dated 12.07.2013 and in view of the promotion

was eligible for the seniority, increment and arrears of salary.

It is further contended that though respondent No.3 appointed

the petitioner to an higher grade, has reverted back and

revoked the promotion on 18.07.2019 and that the promotion

to the post of Subject Inspector was as per Schedule 42 to the

Karnataka Education Department Services (Department of

Public Instruction) (Recruitment) Rules, 1967.

4. On hearing the petitioner and the respondent

authorities, the Tribunal was pleased to reject the application

of the petitioner and held that the order passed by the

respondent authorities reverting the applicant to the original

position is not illegal or against any Rules.

5. Heard Sri Mahesh Patil, learned counsel for the

petitioner and Sri Mallikarjun C. Basareddy, learned High

Court Government Pleader appearing for the respondents and

perused the material on record.

6. It is the main contention of the petitioner that his

promotion was under Schedule 42 to the Karnataka Education

Department Services (Department of Public Instruction)

(Recruitment) Rules, 1967.

7. Per contra, learned High Court Government

Pleader would justify the order passed by the Tribunal.

8. The contention of the petitioner that the promotion

was under Schedule 42 to the Karnataka Education

Department Services (Department of Public Instruction)

(Recruitment) Rules, 1967 cannot be accepted, as the perusal

of the promotion order dated 12.07.2013 clearly indicates that

the petitioner was promoted under Rule 32 of KCSRs as a

stop-gap temporary promotion and not as a permanent

promotion as contemplated under Schedule 42 to the

Karnataka Education Department Services (Department of

Public Instruction) (Recruitment) Rules, 1967.

9. The Hon'ble Apex Court in AIR 1991 SC 1145

(Ramakant Shripad Sinai Advalpalkar v. Union of India

and others) has held that, "Asking an officer who

substantively holds a lower post merely to discharge the

duties of a higher post cannot be treated as a promotion. In

such a case he does not get the salary of the higher post, but

gets only that in service parlance is called a "charge

allowance". Such situations are contemplated where

exigencies of public service necessitate such arrangements

and even consideration of seniority do not enter into it. The

person continuous to hold his substantive lower post and only

discharges the duties of the higher post essentially as a stop-

gap arrangement."

10. From the records it is clear that the applicant

earlier was working as Secondary School Assistant Grade II

(Sanskrit) and subsequently was posted as a Subject

Inspector (Sanskrit) in terms of temporary arrangement

governed under Rule 32 of the KCSRs. Rule 32 of the KCSRs

reads as under:

32. Instead of appointing a Government servant to officiate, it is also permissible to appoint him to be in charge of the current duties of a vacant post. In such a case a "charge allowance" (additional pay) is payable as specified in Rule 68."

11. Thus, we are of the considered opinion that in

view of the decision of the Hon'ble Apex Court stated supra

and in view of Rule 32 of the KCSRs', the order passed by the

Tribunal does not call for any interference and the present

petition is devoid of merits and is liable to be dismissed.

Accordingly, the writ petition is dismissed. No order as

to costs.

Sd/-

JUDGE

Sd/-

JUDGE LG