Harish B M vs The State Of Karnataka
2022 Latest Caselaw 9467 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
        DATED THIS THE 23 RD DAY OF JUNE 2022
                         BEFORE
     THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
         WRIT PETITION No.1182/2021 (S-RES)


BETWEEN:
HARISH B M
S/O LATE MURUGESH
AGED ABOUT 33 YEARS
STENOGRAPHER,
COUNCIL DEPARTMENT
BRUHAT BENGALURU MAHANAGARA PALIKE
BENGALURU.
                                      ... PETITIONER

(BY SRI NARAYANA BHAT M., ADVOCATE)

AND:
1.     THE STATE OF KARNATAKA
       REPRESENTED BY ITS SECRETARY
       URBAN DEVELOPMENT DEPARTMENT
       VIKASA SOUDHA,
       BENGALURU - 560 001.

2.     BRUHATH BENGALURU MAHANAGARA PALIKE
       REPRESENTED BY ITS COMMISSIONER
       N.R. SQUARE,
       BENGALURU - 560 002.
3.     KARNATAKA LOKAYUKTA
       REPRESENTED BY ITS REGISTRAR
       M.S. BUILDINGS,
       BENGALURU - 560 001.

4.     SRI AVINASH S. PUTHANE
       STENOGRAPHER
       OFFICE OF THE COMMISSIONER
       BRUHATH BENGALURU MAHANAGARA PALIKE
                              2


      N.R. SQUARE,
      BENGALURU - 560 002.

5.    SMT. A. NIRMALA
      STENOGRAPHER,
      STANDING COMMITTEE FOR MARKETS,
      COUNCIL DEPT.
      BRUHATH BENGALURU MAHANAGARA PALIKE
      N.R. SQUARE,
      BENGALURU - 560 002.

6.    SMT. N. VIJAYA
      STENOGRAPHER
      O/O JDS PARTY LEADER
      COUNCIL DEPT.
      BRUHATH BENGALURU MAHANAGARA PALIKE
      N.R. SQUARE,
      BENGALURU - 560 002.

7.    SRI IRANNA BORAWATH
      STENOGRAPHER,
      O/O SPECIAL OFFICER TO
      CHIEF MINISTER OF KARNATAKA
      HOME OFFICE "KRISHNA"
      BENGALURU - 560 001.
8.    SMT. N. SHEELA
      STENOGRAPHER
      STANDING COMMITTEE FOR HORTICULTURE
      COUNCIL DEPT.
      BRUHATH BENGALURU MAHANAGARA PALIKE
      N.R. SQUARE,
      BENGALURU - 560 002.

9.    SMT. PUSHPA
      STENOGRAPHER
      O/O THE ADDITIONAL COMMISSIONER (ADMIN)
      BRUHATH BENGALURU MAHANAGARA PALIKE
      N.R. SQUARE,
      BENGALURU - 560 002.

10.   SRI M.S.CHANDRASHEKAR
      STENOGRAPHER
                                    3


      O/O DEPUTY COMMISSIONER (MARKETS),
      BBMP, DASAPPA HOSPITAL CAMPUS,
      NEAR TOWN HALL
      BENGALURU - 560 002.             ... RESPONDENTS

(BY SRI   D.C. PARAMESWARAIAH, HCGP FOR R1;
    SRI   H. DEVENDRAPPA, ADVOCATE FOR R2;
    SRI   VENKATESH S. ARABATTI, ADVOCATE FOR R3;
    SRI   K.V. BATHE GOWDA, ADVOCATE FOR C/R5, R7;
    SRI   V. SRINIVAS, ADVOCATE FOR R9 AND R10)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS
PERTAINING TO THE CASE OF THE PETITIONER AND GRANT HIM
THE FOLLOWING REIEFS AND QUASH THE FINAL SENIORITY
LIST DATED 16.12.2019 PRODUCED AT ANNEX-H3 IN SO FAR AS
IT RELATES TO THE PETITIONER VIS-A-VIS R4 TO 10 AS THE
SAME IS ILLEGAL AND VIOLATION OF ARTICLES 14, 16 AND 21
OF THE CONSTITUTION OF INDIA AND ETC.

     THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:

                                 ORDER

The petitioner has called in question the validity of the

final seniority list dated 16.12.2019 at Annexure-'H3'

insofar as it relates to the petitioner vis-à-vis respondent

Nos.4 to 10 as being violative of Articles 14, 16 and 21 of

the Constitution of India. The petitioner has also sought for

issuance of writ of mandamus directing the respondent No.2

to restore the petitioner above respondent Nos.4 to 10 in

the final seniority list of 2019 and to grant the

consequential benefits upon quashing the final seniority list

at Annexure-'H3'.

2. Certain alternative relief has also been sought for

by way of issuance of writ of mandamus to direct the

respondent No.3 to consider the representation dated

29.01.2020 at Annexure-'K' and direct the respondent No.3

to grant the petitioner the benefit of promotion which has

been granted to his juniors, who continued in the service of

Karnataka Lokayukta and grant the consequential benefits.

3. The petitioner is stated to have been appointed

to the Office of Karnataka Lokayukta to the post of

'Stenographer' and had continued to work in the Office of

Karnataka Lokayukta till 30.04.2011. It is submitted that

the respondent - Bruhat Bengaluru Mahanagara Palike

(BBMP) had set in motion the recruitment process for

appointment of 'Stenographer' and the petitioner having

participated in such selection process was selected and an

order of appointment dated 16.09.2010 was issued.

4. The petitioner submits that there was some

delay in reporting for duty at the Office of BBMP and that

the delay was due to sensitive employment in the Office of

Karnataka Lokayukta and at the relevant point of time there

were matters relating to illegal mining in Ballari upon which

the petitioner was working and the services of the petitioner

could not be spared. The petitioner came to be selected and

an appointment order was issued on 16.09.2010 by the

respondent - BBMP and he was required to report for duty

within 15 days from the said date.

5. It is submitted that the petitioner had made

representation to the previous employer, viz., Karnataka

Lokayukta requesting to relieve him after making necessary

arrangement to ensure that he can take up his appointment

with BBMP.

6. The petitioner submits that in light of the nature

of sensitive task being performed by him and taking note of

the same, a representation was made by the Office of

previous employer, i.e. Karnataka Lokayukta to the BBMP

on 13.01.2011, wherein the request was made for

extension of time for reporting to duty. The letter dated

13.01.2011 had referred to the sensitive nature of work yet

to be completed by the petitioner. It was only subsequently

as per the order at Annexure-'B5' dated 30.04.2011 that

the letter of resignation of the petitioner came to be

accepted with effect from 30.04.2011 and petitioner was

relieved from such date from the Office of Karnataka

Lokayukta. The respondent - BBMP, as per the Office Order

dated 02.05.2011 at Annexure-'B6', accepted the reporting

of duty of the petitioner towards the vacant post of

'Stenographer'.

7. The petitioner submits that the seniority list

came to be published on 19.02.2013 at Annexure-'C',

wherein the petitioner's name was above the name of

private respondents, who were juniors, in the seniority list.

It is submitted that subsequent seniority lists were also

published as per Annexure-'C1' dated 10.02.2014,

Annexure-'D' dated 24.04.2014 and Annexure-'E' dated

29.10.2015 and Annexure-'E1 dated 29.01.2016 wherein,

the name of the petitioner was found higher up in the

seniority list as compared to the private respondents.

8. It is further submitted that there were certain

other subsequent seniority lists published wherein, the

petitioner was again higher up in the lists as compared to

the private respondents.

9. It is further submitted that only in the seniority

list at Annexure-'H3' dated 16.12.2019, the petitioner was

placed below that of the private respondents, who were his

juniors all this while.

10. Learned counsel for the petitioner submits that

the delay in reporting for duty was as a result of inability of

being relieved from the Office of previous employment, i.e.

Karnataka Lokayukta and was due to supervening public

interest considerations.

11. It is further submitted that the absence of

challenge to the previous seniority lists has resulted in

creation of vested right in the petitioner and the

respondent-BBMP cannot upset such pattern of seniority as

was contained in the earlier seniority lists published

between 2013 and 2018.

12. Learned counsel appearing for the respondent-

BBMP reiterates the stand taken in the statement of

objections and has specifically averred that the power of the

Authority to rectify the lapses, if any, in the previous

seniority lists is not taken away.

13. It is submitted that, in light of the Bruhat

Bengaluru Mahanagara Palike (General Cadre and

Recruitment of Officers and Employees) Rules, 2018, the

Karnataka Government Servants' (Seniority) Rules, 1957

are made applicable, as regards the BBMP employees.

14. It is further submitted that in terms of sub-rule

(2) of Rule 5 of the Karnataka Government Servants'

(Seniority) Rules, 1957, the seniority of a candidate who

assumes charge of a post after the period specified in

Rule 23 of the Karnataka Municipal Corporations Rules,

1977 shall be determined from the date on which he

assumes charge of such post.

15. Learned counsel appearing for the respondent-

BBMP submits that in terms of Rule 23(1) of the Karnataka

Municipal Corporations Rules, 1977, a candidate appointed

by direct recruitment shall assume charge of the post not

later than forty-five days from the date of the order of

appointment; under Rule 23(2), there could be an extension

of time for assuming the charge; under Rule 23(3), the

candidate would not be eligible for appointment, if he fails

to report for duty within the time prescribed under sub-rule

(1) and sub-rule (2) of Rule 23. It is submitted that such

rule only relates to joining of duty and the aspect of

seniority is required to be determined separately.

16. Reliance is placed on the order dated

11.01.1983 passed by this Court in W.P.No.41576/1982

(S.R.Joshi v. State of Karnataka) and the order dated

30.09.1971 in W.P.No.2666/1970 (M.Savitri v. State

of Mysore).

17. It is further contended that it is the settled

principle in Service Law that seniority will be reckoned from

the date of entry in the cadre and seniority cannot be

extended with retrospective effect vis-à-vis other

employees, who have reported for duty in the intervening

time.

18. Sri V.Srinivas, learned counsel appearing for the

respondent Nos.9 and 10 has relied on the judgment of

Apex Court in the case of K.Meghachandra Singh & Ors.

v. Ningam Siro & Ors. reported in (2020) 5 SCC 689 and

submits that seniority is to be reckoned only from the date

on which the appointment is made to the post and the

retrospective seniority should not to be granted from the

date when an employee has not entered the cadre so as to

adversely impact those who were validly appointed in the

meantime.

19. Learned counsel appearing for the respondents

contends that generally Karnataka Government Servants'

(Seniority) Rules, 1957 having been made applicable to the

employees of respondent-BBMP, reference in sub-rule (2) of

Rule 5 of Karnataka Government Servants' (Seniority)

Rules, 1957 and sub-rules (1) and (2) of Rule 18 of

Karnataka Civil Services (General Recruitment) Rules, 1977,

would have the effect of clarifying that seniority is from the

date on which the candidate assumes charge.

20. It is further contended that the time that is

extended as regards reporting for duty cannot be beyond

the time as is permissible under Rule 23 of the Municipal

Corporations Rules, 1977.

21. It is submitted that the only extension of time

that is borne out on record by the respondent-BBMP is till

08.11.2010, however, the respondent-Lokayukta has

relieved the petitioner only on 30.04.2011. It is submitted

that beyond the period permitted by respondent-BBMP, the

delayed reporting for duty and its acceptance by

respondent-BBMP may have the effect of extending the

period for reporting for duty that however cannot be taken

note of for the purpose of seniority.

22. Learned counsel for the petitioner has

distinguished the judgments relied upon by the respondents

and submits that the factual matrix in all those judgments is

different and accordingly, the said judgments cannot be

made applicable to the present factual matrix.

23. Learned counsel for the petitioner has also

contended that, if the petitioner was aware that the

extension of time and his late reporting of duty consequent

to non-relieving by the previous employer, i.e. Karnataka

Lokayukta would prejudice his interests, he would not have

taken up the fresh assignment.

24. It is further pointed out that the petitioner had

two years time to return back to his Parent Department,

i.e. Karnataka Lokayukta and the right could not be

exercised by him within such time since no occasion arose,

as the seniority list published placed the petitioner higher

up in the seniority list.

25. It is further contended that, if at this point of

time that the previous employer, i.e. Karnataka Lokayukta

were to take him back and provide seniority as per his

appointment in the Office of Karnataka Lokayukta and

service subsequently rendered, then his representation

referred to in the alternative prayer may be ordered to be

considered so that the petitioner's interests may be taken

note of and no prejudice is caused to the petitioner. It is

submitted that the petitioner's non-relieving has nothing to

do with the petitioner as he had sought for relieving at the

earliest point of time itself.

26. Heard both sides. It must be noted that the

petitioner has reported for duty on 02.05.2011, which has

been accepted by the respondent-BBMP. The time for

reporting to duty at the Office of BBMP was extended on an

earlier request as is evident from the endorsement at

Annexure-'B3' dated 04.11.2010, whereby the time for

reporting was extended till 08.11.2010. Though subsequent

letters have been addressed by Karnataka Lokayukta, there

is no record for extension of time by the respondent - BBMP

till the petitioner finally reported to duty at the Office of

BBMP after being relieved on 30.04.2011 and reporting for

duty with the respondent-BBMP on 02.05.2011. However,

the duty report of the petitioner has been accepted by the

respondent - BBMP by its order of 02.05.2011 is also borne

out on record.

27. Rule 23(1) of the Karnataka Municipal

Corporations Rules, 1977, provides for the petitioner being

required to report for duty within a period not less than

forty-five days from the date of relieving and as per Rule

23(2), the Appointing Authority may, by written order

extend further time.

28. The BBMP (General Cadre and Recruitment of

Officers and Employees) Rules, 2018 makes it clear that the

Karnataka Government Servants' (Seniority) Rules, 1957,

are made applicable. The said Rules would be applicable as

regards seniority is concerned. Rule 23 of the Karnataka

Municipal Corporation Rules, 1977 must be construed to

apply only as regards 'Joining Time for Appointment' and

not as regards seniority. It is also to be noted that the

Apex Court in the case of K.Meghachandra Singh

(supra) had reiterated the same principle that seniority is

to be considered from the date the employee is 'borne in

the cadre', as not doing so would adversely affect the

employees who have been appointed validly in the

meantime.

29. As per the Karnataka Government Servants'

(Seniority) Rules, 1957, it is clear that the seniority shall be

determined initially as per sub-rule (1) of Rule 5 of the

Karnataka Government Servants' (Seniority) Rules, 1957 in

case of direct recruitment through competitive examination

in the order of merit, but under sub-rule (2) of Rule 5,

insofar as assumption of charge after the period permissible

under the Rules, the seniority would be determined from

the date on which he assumes charge of such post.

30. It is clear from the records that the private

respondents had reported for duty in the year 2010 itself.

Rule 23 of the Karnataka Municipal Corporations Rules,

1977 governs the aspect of 'Joining Time for appointment.'

If that were to be so, the time for joining at the first

instance is forty-five days and if sub-rule (2) of Rule 5 of

the Karnataka Government Servants' (Seniority) Rules,

1957 is to be interpreted in the proper context, the

reporting for duty beyond the period of forty-five days

under Rule 23 of the Karnataka Municipal Corporations

Rules, 1977 would not give any benefit of seniority beyond

the period of forty-five days and in terms of sub-rule (2) of

Rule 5 of the Karnataka Government Servants' (Seniority)

Rules, 1957, the seniority after forty-five days shall be

determined by reference to the date on which he assumes

the charge.

31. This would be so, since Rule 23 of the Karnataka

Municipal Corporations Rules, 1977 though governs 'Joining

Time for Appointment', as the BBMP cadre and Recruitment

Rules has made 'The Karnataka Government Servants

(Seniority) Rules, 1957, applicable, the aspect of seniority

will be governed by the Karnataka Government Servants

(Seniority) Rules, 1957.

32. Accordingly, in the present case, the petitioner

having reported for duty as on 02.05.2011 that would be

the date to be taken note of for the purpose of calculating

his seniority and any extension of time in terms of sub-rule

(1) of Rule 23 of the Karnataka Municipal Corporations

Rules, 1977 will not have the effect of saving his seniority

or extending it till the date of his actual reporting for duty.

Sub-rule (2) of Rule 23 of the Karnataka Municipal

Corporations Rules, 1977 only provides for saving his

appointment and will not save his seniority.

33. It is also settled principle of Service Law that the

seniority will be counted from the date on which the

candidate enters the cadre and there cannot be

retrospective seniority by notional reporting of duty by

virtue of extended period being granted to report for duty.

It is clear that there is a time gap of about six months

between the private respondents having reported for duty

and the petitioner having reported for duty after six

months, which cannot have the effect of granting seniority

to the petitioner by virtue of permission granted by

respondent-BBMP for reporting to duty belatedly.

34. Accordingly, no ground is made out for

interference in the seniority lists issued by the respondent-

BBMP. The fact that the previous seniority lists had not

been challenged would be no ground to prevent the revision

of seniority list as per the impugned order, as there could

be no estoppel against law. The law regarding seniority is

as contained in Rule 5(2) of the Karnataka Government

Servants' (Seniority) Rules 1957, which determines that the

seniority shall be from the date on which the petitioner

assumes charge is to be adhered to. The fact that the

earlier seniority list had not take note of Rule 5(2) and it

shows the petitioner to be senior than that of the private

respondents cannot be allowed to continue, as doing so

would amount to perpetuation of illegality and accordingly,

this Court finds no merit in such contention and the petition

is liable to be dismissed.

35. Insofar as the alternative prayer of the petitioner

is concerned, considering the contents of communication of

the Karnataka Lokayukta at Annexure-'B4' dated

13.01.2011 and also taking note of the contents of relieving

letter issued to the petitioner on 30.04.2011 at

Annexure-'B5', the representation already made to

Karnataka Lokayukta as referred to in the alternative prayer

and the request of the petitioner to the Karnataka

Lokayukta to consider taking him back with all the benefits,

including seniority considering his service before Karnataka

Lokayukta and the service rendered before respondent-

BBMP, is an aspect left open to be considered by the

Karnataka Lokayukta appropriately keeping in mind the

case made out by the petitioner that despite his request for

being relieved at the earliest point of time and the act of

Karnataka Lokayukta in relieving him belatedly has

prejudiced his seniority prospects, which cannot be

attributed to any action of the petitioner. Such assertion of

the petitioner remains unrebutted.

36. Further, if at all the petitioner's service was

continued with Karnataka Lokayukta as certain important

matters of public interest which did not permit relieving him

earlier, such aspect may be taken note of appropriately so

as to assuage the disappointment in his service prospects

as put forth in the petition.

37. The petitioner is at liberty to make out fresh

representation on the same lines as referred to in the

alternative prayer at Annexure-'K' dated 29.01.2020.

Needless to state such request is to be considered by the

respondent No.3 in terms of the applicable Rules.

With the above observations and directions, this

petition is disposed off.

Sd/-

JUDGE VGR