Bangalore Water Supply vs Sri B S Dalayath
2022 Latest Caselaw 12352 Kant

                           1



 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 12TH DAY OF OCTOBER 2022

                      PRESENT

            THE HON'BLE MR. ALOK ARADHE
                ACTING CHIEF JUSTICE

                          AND

     THE HON'BLE MR.JUSTICE S. VISHWAJITH SHETTY

             W.A. NO.3148 OF 2019 (S-RES)
                         C/W
             W.A. NO.3249 OF 2019 (S-RES)

IN W.A. NO.3148 OF 2019

BETWEEN:

SRI. T.R. SRINIVASA
S/O LATE T. RAMAPPA
AGED ABOUT 56 YEARS
WORKING AS ADDITIONAL CHIEF SECRETARY
WWM-1, CAUVERY BHAVAN
K.G.ROAD, BANGALORE-560009.
                                    ... APPELLANT

(BY MR. M.S. BHAGWAT, SR. COUNSEL FOR
    MR. SATISH K, ADV.,)

AND:

1.    SRI. B.S. DALAYATH
      AGED ABOUT 53 YEARS
      S/O LATE SUBANSAHEB
      WORKING AS DEPUTY CHIEF ENGINEER
      (KAVERI), KAVERI BHAVAN
      K.G. ROAD, BENGALURU-560009.
                           2



2.   BANGALORE WATER SUPPLY
     AND SEWERAGE BOARD
     IST FLOOR, CAUVERY BHAVAN
     K.G. ROAD, BANGALORE-560009
     BY ITS CHAIRMAN.

3.   THE STATE OF KARNATAKA
     BY ITS SECRETARY
     DEPARTMENT OF URBAN DEVELOPMENT
     VIKASA SOUDHA, BANGALORE-560001.

4.   SRI. R.K. SRINATH
     AGED ABOUT 60 YEARS
     S/O R. KRISHNAPPA
     WORKING AS EXECUTIVE ENGINEER
     INPOR, CAUVERY BHAVAN
     BENGALORE WATER SUPPLY
     AND SEWERAGE BOARD
     BENGALURU-560 001.

                                       ... RESPONDENTS
(BY MR. NISHANTH A.V. ADV., FOR C/R1
    MR. B.L. SANJEEV, ADV., FOR R2
    MR. S.S. MAHENDRA, AGA FOR R3
    MR. DHARSHAN L, ADV., FOR R4)
                           ---

THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND ORDER DATED 26/07/2019 PASSED BY THE LEARNED SINGLE JUDGE IN WRIT PETITION NO.31490/2016 FILED BY THE 1ST RESPONDENT AND CONSEQUENTLY DISMISS THE SAID WP NO.31490/2016 FILED BY THE 1ST RESPONDENT.

IN W.A. NO.3249 OF 2019

BETWEEN:

BANGALORE WATER SUPPLY AND SEWERAGE BOARD, I FLOOR CAUVERY BHAVAN

K G ROAD, BANGALORE-560 009 REPRESENTED BY ITS CHAIRMAN.

... APPELLANT (BY MR. B.L. SANJEEV, ADV.,)

AND:

1. SRI. B.S. DALAYATH AGED ABOUT 51 YEARS S/O LATE SUBANSAHEB ASSISTANT EXECUTIVE ENGINEER NO.1, WATER SUPPLY & SANITARY SUB -DIVISION (NORTH) 17-18TH CROSS, MALLESHWARAM BANGALORE-560 003.

2. STATE OF KARNATAKA BY ITS SECRETARY URBAN DEVELOPMENT DEPARTMENT VIKAS SOUDHA, BANGALORE-560 001.

3. T.R. SRINIVASA S/O LATE T. RAMAPPA AGED ABOUT 55 YEARS WORKING AS EXECUTIVE ENGINEER S T P ( V& H ) DIVISION BANGALORE WATER SUPPLY AND SEWERAGE BOARD NAYANDANAHALLI BANGALORE-560 039.

4. SRI. R.K. SRINATH S/O R. KRISHNAPPA AGED ABOUT 60 YEARS EXECUTIVE ENGINEER CAUVERY BHAVAN BANGALORE WATER SUPPLY AND SEWERAGE BOARD BANGALORE-560001.

... RESPONDENTS

(BY MR. NISHANTH A.V. ADV., FOR C/R1 MR. S.S. MAHENDRA, AGA FOR R2 MR. M.S. BHAGWAT, SR. COUNSEL FOR MR. SATISH K, ADV., FOR R3 MR. DHARSHAN L, ADV., FOR R4)

---

THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 26/07/2019 PASSED BY THE LEARNED SINGLE JUDGE IN WP NO.31490/2016 [S-RES] AND FURTHER BE PLEASED TO DISMISS THE SAID WRIT PETITION.

THESE WRIT APPEALS COMING ON FOR FINAL HEARING, THIS DAY, ACTING CHIEF JUSTICE DELIVERED THE FOLLOWING:

COMMON JUDGMENT

These two appeals arise from an order dated

26.07.2019 passed by learned Single Judge, by which

in a writ petition preferred by the respondent No.1,

notification dated 22.12.2015 has been quashed and

Bangalore Water Supply Sewerage Board (hereinafter

referred to as 'the Board' for short) has been directed

to give effect to notification dated 13.05.2013 and

Circular dated 01.09.2014 and consider the name of

respondent No.1 for promotion to the cadre of

Executive Engineer from the date of his eligibility.

W.A.No.3148/2019 has been preferred by respondent

No.3 in the writ petition, whereas W.A.No.3249/2019

has been filed by the Board. Since, common questions

of law and fact arise for adjudication in these appeals,

they were heard analogously and are being decided by

this common judgment.

2. Facts leading to filing of these appeals

briefly stated are that Board was constituted under

Bangalore Water Supply and Sewerage Act, 1964

(hereinafter referred to as 'the Act' for short). In

exercise of powers under Section 88 of the Act,

Bangalore Water Supply and Sewerage Board,

Recruitment and Promotion Regulations, 1981

hereinafter referred to as 'the Regulations' for short)

were framed. The aforesaid Regulation was amended

in the year 2004 viz., by BWSSB Cadre Recruitment

and Promotion (Amendment) Regulations, 2004. The

respondent No.3 was appointed on 24.09.1998 as

Assistant Engineer in the Board and was promoted on

11.08.2010 as Assistant Executive Engineer.

3. By way of constitution 98th Amendment

Act, 2012, Article 371J was introduced in the

Constitution. Clause 1(c) of Article 371J provides that

President may by an order made with respect to State

of Karnataka, provide for any special responsibility of

the Governor for equal opportunities and facilities for

the people belonging to Hyderabad-Karnataka region

in the matters of public employment, education and

vocational training subject to requirements of the

State as a whole. The State Government made an

order viz., Karnataka Public Employment (Reservation

and Appointment for Hyderabad-Karnataka Region)

Order, 2013 hereinafter referred to as 'the Order' for

short). Para 13 of the aforesaid Order provides that

8% of the posts in the state level offices or state level

institutions or apex institutions shall be reserved for

local persons of the region. Under Para 13(j) of the

aforesaid Order, Board is included.

4. On 20.01.2014, a notification was

published amending Karnataka Public Employment

(Reservation in Appointment for Hyderabad-

Karnataka Region) Order, 2013. The Board thereafter,

by a notification dated 13.05.2013 identified 8% of the

posts for promotion. The Board thereafter, issued a

Circular on 01.09.2014 furnishing the number of

officials who had exercised their option for reservation

under Hyderabad-Karnataka Reservation Order.

However, on 28.10.2005, the Regulations were

amended and only Schedule 2 dealing with method of

recruitment was amended. The appellant in

W.A.No.3148/2019 as well as others filed a writ

petition, in which validity of notification dated

13.05.2014 and 01.09.2014 issued by the Board was

challenged.

5. During the pendency of the writ petition,

teh Board withdrew the notification dated 13.05.2013

and Circular dated 01.09.2014. A learned Single

Judge of this court by an order dated 06.11.2015

permitted withdrawal of the writ petition and granted

respondent No.3 to challenge the order of withdrawal,

by which notification dated 13.05.2013 and Circular

dated 01.09.2014 were withdrawn.

6. The respondent No.3 thereafter filed a writ

petition viz., W.P.No.31490/2016, in which

notification dated 22.12.2015 withdrawing the

notification dated 13.05.2013 and Circular dated

01.09.2014 was challenged. The respondent No.3 also

sought promotion to the post of Executive Engineer

from 01.09.2014 and sought a direction to the Board

to implement the notification dated 13.05.2013 and

Circular dated 01.09.2014.

7. The learned Single Judge by an order dated

26.07.2019 has quashed the impugned notification

dated 22.12.2015 and has directed the Board to give

effect to notification dated 13.05.2013 and circular

dated 01.09.2014. The Learned Single Judge further

directed the Board to consider the case of respondent

No.3 for promotion to the cadre of Executive Engineer

from the date of his eligibility and to pass orders. In

the aforesaid factual background, these appeals have

been filed.

8. Learned Senior counsel for the appellant in

W.A.No.3148/2019 submitted that learned Single

Judge has granted the relief not even claimed by the

petitioner. Attention of this court has also been

invited to communication dated 08.06.2015 sent by

Government of Karnataka to the Chairman of the

Board and it has been pointed out that there is no

provision to provide for reservation in promotion to

the post of Executive Engineer with effect from

03.12.1998. Therefore, the learned Single Judge

erred in granting the relief to respondent No.3.

9. Learned counsel for the appellant in

W.A.No.3249/2019 has submitted that the

notification dated 08.01.2015 has a retrospective

operation and would operate from the date of the

commencement of Regulation i.e., in the year 1981. It

is further submitted that respondent No.1 was

promoted to the post of Assistant Engineer on

11.08.2010 and therefore, would complete four years

of service on 10.08.2014 and therefore, cannot

question the withdrawal of the notification dated

13.05.2013 and the Circular dated 01.09.2014.

10. Learned counsel for respondent No.3

submitted that Schedule 1 of the Regulations is not

amended till 08.01.2015. It is further submitted that

respondent No.3 was eligible to be promoted under

Hyderabad-Karnataka Reservation Order. It is further

submitted that respondent No.3's right is guaranteed

under Article 371J of Constitution of India and the

Regulations, which cannot be taken away by an

executive order. It is further submitted that State

Government has no authority to issue clarification

dated 08.06.2015.

11. We have considered the submissions made

on both sides and have perused the record. The right

of promotion is conferred on the employees under the

Regulation. The right of promotion had accrued to the

petitioner prior to amendment of the regulations. The

right of consideration for promotion is also available to

the petitioner under Karnataka Public Employment

(Reservation in Appointment for Hyderabad-

Karnataka Region) Order, 2013. The right of

consideration for promotion, which has accrued to

respondent No.3 under para 13 of the said order

cannot be taken away by an executive order viz., an

order dated 08.06.2015, which has been issued by

way of a communication sent by Government of

Karnataka to the Chairman of the Board.

12. The submission made on behalf of learned

Senior counsel for the appellant that learned Single

Judge has granted the relief, which is not even

claimed by respondent No.3 is without any basis. The

reliefs prayed for by the respondent No.3 and

operative portion of the order passed by learned Single

Judge read as under:

(a) Call for the records pertaining to Notification bearing No. Aa Ka/Mu Aa Aa - Ka/23-32-2014/3259/2015-15 dated 22/12/2015 at Annexure- L of the first Respondent and peruse the same;

(b) Issue a writ of certiorari or any other appropriate order or direction, as the case may be, quashing the Notification bearing No.Aa Ka/Mu Aa Aa-Ka/23-32-

2014/3259/2015-15 dated 22/12/2015 at Annexure-L of the first Respondent.

(c) As a consequence of quashing the impugned Notification at Annexure-L direct to the first Respondent to implement the Notification dated 13/5/2014 and Circular dated 1/9/2014 and to promote the petitioner to the post of Executive Engineer from 1/9/2014 by issue of writ of mandamus;

(d) Grant such other suitable reliefs as this Hon'ble Court deems fit, in the circumstances of the case.

(e) Direct the 1st respondent Board to treat the effective dated of promotion of the petitioner to the cadre of Executive Engineer as 10.08.2014 and grant all consequential

benefits including arrears of salary, seniority and future promotion etc.,

(i) Writ petition stands allowed.

(ii) In the light of discussion on factual and legal aspects, impugned notification dated 22.12.2015 vide Annexure- L is set aside.

(ii) BWSSB- respondent is hereby directed to give effect to the Notification dated 13.5.2014 and Circular dated 1.9.2014 and consider the name of the petitioner for promotion to the cadre of Executive Engineer from the date he was eligible and to that effect pass orders. Such Exercise be undertaken within a period of two months from today.

(iii) Rule is made absolute on the aforesaid terms.

Costs made easy.

Thus, it is evident that the reliefs, which have

been sought for by respondent No.3 had been granted.

The aforesaid contention therefore, does not deserve

acceptance.

For the aforementioned reasons, we do not find

any ground to interfere with the order passed by the

learned Single Judge. In the result, the appeals fail

and are hereby dismissed.

Sd/-

ACTING CHIEF JUSTICE

Sd/-

JUDGE

SS