Karnataka High Court
Smt Deepa R Nadigar vs Shri K.P.Mohan Raj Ias on 20 December, 2023
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
-1-
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 20th DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
WRIT APPEAL NO.100203/2023
C/W
CCC NO.100270/2023
C/W
CCC NO.100312/2023
IN WA NO.100203/2023
BETWEEN:
SMT. DEEPA R.NADIGAR,
AGE: 40 YEARS, WORKING AS
ASSISTANT EXECUTIVE ENGINEER (CIVIL),
UNIVERSITY OF HORTICULTURAL SECIENCES
UDYANGIRI, NAVANAGAR,
BAGALKOT-587 104, DISTRICT: BAGALKOT
.....APPELLANT
SHIVAKUMAR (BY SRI.RAMACHANDRA MALI FOR SRI. D.V.PATTAR, ADVOCATE)
HIREMATH
Digitally signed by
SHIVAKUMAR
HIREMATH
AND:
Date: 2023.12.20
15:10:48 +0530
1. SMT. RAZIYABEGAUM D/O MAHAMMADSAB RON
AGE: 40 YEARS, WORKING AS ASSISTANT
EXECUTIVE ENGINEER (Electrical)
UNIVERSITY OF HORTICULTURAL SCIENCES
UDYANGIRI, NAVANAGAR,
BAGALKOT-587 104 DIST: BAGALKOT.
2. THE PRINCIPAL SECRETARY,
DEPARTMENT OF HORTICULTURAL SCIENCES,
3RD DOOR, 4TH FLOOR, M.S. BUILDING,
-2-
AMBEDKAR VEEDHI, BENGALURU-560 001
3. THE VICE CHANCELLOR,
UNIVERSITY OF HORTICULTURAL SCIENCES
UDYANGIRI, NAVANAGAR,
BAGALKOT-587 104, DIST: BAGALKOT
4. THE REGISTRAR,
UNIVERSITY OF HORTICULTURAL SCIENCES
UDYANGIRI, NAVANAGAR,
BAGALKOT-587 104, DIST: BAGALKOT
5. THE CHAIRMAN,
BOARD OF DIRECTORS,
UNIVERSITY OFHORTICULTURAL SCIENCES
UDYANGIRI, NAVANAGAR,
BAGALKOT-587 104, DIST: BAGALKOT
....RESPONDENTS
(BY SRI. S.B.MUKKANNAPPA, ADVOCATE FOR C/R-1,
SRI. G.K. HIREGOUDAR GA FOR R2,
SRI.RAVI.S.BALIKAI, ADVOCATE FOR R3 AND R5)
THIS WRIT APPEAL IS FILED U/S. 4 OF KARNATAKA HIGH
COURT ACT, 1961. PRAYING THIS HON'BLE COURT TO SETTING
ASIDE THE JUDGMENT PASSED BY THE LEARNED SINGLE JUDGE
MADE IN W.P.NO.147624/2020 DATED 02.02.2023 ONLY IN SO FAR
AS APPELLANT IS CONCERNED IN THE INTEREST OF JUSTICE AND
EQUITY.
IN CCC NO.100270/2023
BETWEEN:
RAZIYABEGAUM,
AGED ABOUT 40 YEARS,
D/O MAHAMMADSAB RON,
ASSISTANT EXECUTIVE ENGINEER (ELEC)
UNIVERSITY OF HORTICULTURE SCIENCES,
UDYANGIRI, NAVANAGAR,
BAGALKOT-577 104
......COMPLAINANT
(BY SRI. S.B.MUKKANNAPPA, ADVOCATE)
-3-
AND:
K.P. MOHAN RAJ
PRINCIPAL SECRETARY
DEPARTMENT OF HORTICULTURAL SCIENCES
3RD DOOR, 4TH FLOOR,
M.S. BULDING,
AMBEDKAR VEEDI,
BANGALORE-560 001
....ACCUSED
(BY SRI. G.K.HIREGOUDAR, GOVERNMENT ADVOCATE)
THIS CCC IS FILED UNDER SECTION 11 AND 12 OF THE
CONTEMPT OF COURTS ACT, 1971, R/W. ARTICLE 215 OF
CONSTITUTION OF INDIA, 1950, PLEASED TO EXERCISE IT
JURISDICTION UNDER SECTION 12 OF THE CONTEMPT OF COURTS ACT
TO INITIATE CONTEMPT PROCEEDINGS AGAINST THE ACCUSED FOR
HAVING NOT COMPLIED THE ORDER DATED 02.02.2023 PASSED BY
THIS HON'BLE COURT IN WRIT PETITION NO.147624/2020 C/W
147787/2020 AND CONSEQUENTLY PUNISH THE ACCUSED FOR
HAVING DISOBEYED THE ORDER PASSED BY THIS HON'BLE COURT IN
WRIT PETITION 147624/2020 C/W 147787/2020. IN THE INTERESTS
OF JUSTICE AND EQUITY.
IN CCC NO.100312/2023
BETWEEN:
SMT. DEEPA R.NADIGAR,
AGE: 40 YEARS, WORKING AS
ASSISTANT EXECUTIVE ENGINEER (CIVIL)
UNIVERSITY OF HORTICULTURAL SCIENCES
UDAYANGIRI, NAVANAGAR,
BAGALKOT-587 104, DIST: BAGALKOT
AND:
1. SHRI. K.P. MOHAN RAJ, IAS,
PRINCIPAL SECRETARY,
DEPARTMENT OF HORTICULTURE,
GOVERNMENT OF KARNATAKA,
-4-
3RD DOOR, 4TH FLOOR,
M.S. BUILDING, AMBEDKAR VEEDHI,
BANGALORE-560 001
2. GOVERNMENT OF KARNATAKA
REPRESENTED BY AAG,
HIGH COURT OF KARNATAKA,
DHARWAD
THIS CCC IS FILED UNDER SECTION 11 AND 12 OF THE
CONTEMPT OF COURTS ACT, 1971, R/W. ARTICLE 215 OF
CONSTITUTION OF INDIA, 1950, PLEASED TO INITIATE CONTEMPT
PROCEEDINGS AGAINST THE ACCUSED AND APPROPRIATE ACTION
FOR THE DELIBERATE AND INTENTIONAL DISOBEDIENCE BY THE
ACCUSED BY NOT IMPLEMENTING THE DIRECTION PASSED BY THIS
HON'BLE COURT ON ORDER DATED 02.02.2023 AS PER ANNEXURE-A
AND HAVING COMMITTED GROSS DISOBEDIENCE. THE ACCUSED BE
DEALT SERIOUSLY AND BE PUNISHED FOR HAVING DISOBEYED THE
JUDGMENT PASSED BY THE LEANED SINGLE JUDGE OF THIS HON'BLE
COURT UNDER THE PROVISIONS FO THE CONTEMPT OF COURT ACT.
THESE APPEAL AND CONTEMPT PETITIONS HAVING BEEN
HEARD, RESERVED ON 14.12.2023 AND TODAY COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, VIJAYKUMAR A. PATIL, J.,
PRONOUNCED THE FOLLOWING:
JUDGMENT
This Intra-Court appeal is filed assailing the order
dated 02.02.2023 passed in W.P.No.147624/2020 connected
with W.P.No.147787/2020 by the learned Single Judge,
wherein, the writ petition filed by the appellant in
W.P.No.147787/2020 has been dismissed and in
W.P.No.147624/2020 filed by the respondent No.1 herein
was allowed by directing the respondent-State Government
to consider the proposal of the third respondent University
for approval of the common statutes of Farm Universities of
the Karnataka 2019.
2. The respondent No.1 has filed writ petition
seeking prayer to quash the impugned seniority list dated
09.08.2019 issued by the third respondent University insofar
as it relates to promotion to the post of Executive Engineer
(Civil/Electrical) from the post of Assistant Executive
Engineer and further prayer to quash the meeting
proceedings of the respondent No.4 dated 28.08.2020 as per
Agenda No.9 of the 57th Meeting of the Board of
Management, University of Horticulture Science, Bagalkote
and further prayer to quash endorsement dated 17.09.2019.
The appellant has filed a writ petition seeking to implement
the list of promotion dated 09.08.2019 by accepting the
recommendation of the third respondent.
3. The appellant was appointed as a Assistant
Executive Engineer (Civil Engineering) at the third
respondent University on 14.02.2013. Similarly, the
respondent No.1 was also appointed and working in the third
respondent University as a Assistant Executive Engineer
(Electrical Engineering). The appellant, respondent No.1 and
the other employees of the University are governed by the
Cadre and Recruitment Regulation of the University at
Annnexure-F as amended from time to time. Pursuant to the
said C and R Regulations of the University, the University
issued impugned Seniority List on 09.08.2019 notifying the
eligibility for promotion. The respondent No.1 has challenged
the said seniority list as the appellants' name was found in
the said list, on the ground that the respondent No.1 has
been denied seniority for the promotion for the post of
Executive Engineer. Under these factual circumstances, the
above referred writ petitions have been filed, the learned
Single Judge on considering pleading and rival contentions
has dismissed the writ petition filed by the appellant by
allowing the writ petition filed by the respondent No.1.
4. This appeal is heard along with CCC
No.100312/2023 filed by the appellant and CCC
No.100270/2023 filed by the respondent No.1 alleging the
willful disobedience of the order of the learned Single Judge
impugned in the present petition. The respondent-accused
have filed counter affidavit in both the contempt petitions.
5. Sri. Ramachandra Mali, learned counsel appearing
for the appellant submits that, the appellant is admittedly
senior to the respondent No.1 from the date of inception to
the service as per the prevailing Cadre and Recruitment
Regulations at Annexure-F, the appellant is eligible for
promotion and without considering the existing regulations
the learned Single Judge has proceeded to allow the writ
petition filed by the respondent No.1 on the ground that, the
University has sent draft proposal to the State Government
for approval of the common statutes of Farm Universities of
Karnataka. It is submitted that as on the date of passing of
the order of the learned Single Judge, no proposal was sent
by the University to the State Government.
6. It is further submitted that, the respondent No.1
has not challenged the seniority list which was published by
the University at the inception stage, wherein, in the inter-se
seniority between the appellant and respondent No.1,
admittedly the appellant is senior than the respondent No.1.
This aspect has not been properly appreciated by the
learned Single Judge and in anticipation of the approval of
draft common statutes of the Farm Universities of
Karnataka, the promotion eligibility list published by the
University dated 09.08.2019 and the relevant agenda of the
57th meeting of the Board of Management was quashed. It is
also submitted that, the appellant is working as Assistant
Executive Engineer (Civil) and the respondent No.1 is
working as Assistant Executive Engineer (Electrical) and as
per the existing C and R Regulations of the University
promotion to the post of Executive Engineer (Civil and
Electrical) is by promotion from amongst Executive Engineer
(Civil) and the candidate must have passed Bachelor Degree
in Civil Engineering, must have five years of experience as a
Assistant Executive Engineer in the University, must have
passed Accounts Higher and General Law Part-I & II.
Admittedly, the Assistant Executive Engineer (Electrical)
cannot claim promotion as a Executive Engineer as per the
Cadre and Recruitment Regulations. Hence, the learned
Single Judge has committed grave error in quashing the
promotion process of the University in anticipation of the
approval of the draft common statutes of the Universities of
Karnataka. It is contended that, the learned Single Judge
has failed to appreciate the fact that, the right to get
promotion has accrued in favour of the appellant and no
such right is in favour of the respondent No.1.
7. Sri. Ravi Balikai, learned counsel appearing for
the respondent-University supports the impugned Judgment
of the learned Single Judge and submits that, the proposal of
the draft statutes of the University is pending consideration
before the State Government for approval and once such
approval is accorded the University would take steps to
consider the promotions of its employees. It is submitted
that, the learned Single Judge while allowing the petition has
taken note that, the respondent No.1 has no promotional
avenues, hence, directed to await the approval of the State
Government.
8. Sri. Girish Hiregoudar, learned Government
Advocate, appearing for the State submits that, as on the
date of passing of the order of the learned Single Judge,
there was proposal of the University pending with the State
Government. The University has sent the draft statutes (C &
R of the HUS) Bagalkote for the approval to the State
Government on 07.11.2023 and the State Government
would consider the same in accordance with law. It is
submitted that, as on this day, the service conditions of the
employees of the University are regulated by the existing C
& R Regulations at Annexure-F, hence, there is no
impediment for the University to effect the promotion as per
the existing regulations.
9. Sri. S.B.Mukkannappa, learned counsel appearing
for the respondent No.1 submits that, the respondent No.1
was appointed as an Assistant Executive Engineer
(Electrical) on 14.02.2013 and from the date of appointment
she is discharging her duties ensuring that it was
unblemished. It is submitted that, the respondent-University
has published the provisional seniority list and the
department of Civil and Electrical are treated as a separate
department and separate seniority list is issued and in the
event, the joint seniority list is prepared, the respondent
No.1 would have been senior to the appellant. Surprisingly,
the respondent-University without considering any aspect
has notified eligibility list of employees for promotion on
09.08.2019 and the name of the appellant is included in the
promotion to the post of Executive Engineer. It is further
submitted that the respondent No.1 has filed objections to
the said list contending that appellant is not qualified to be
the senior though the date of joining is the same as the
respondent No.1 and has previously worked at DMA as she
was appointed in the year 2005 and as per the KCS Rules
the respondent No.1 is required to be treated as Senior than
the appellant and without considering these aspects a list of
eligible candidates for promotion to the Executive Engineer
has been prepared by the University, which is contrary to
law. It is also submitted that, in view of the existing C & R
Regulations the respondent No.1 has no promotional
avenues as only two sanctioned posts are there for the
Executive Engineer and already one Sri Vijay Bhaskar A.
Bhajanti has been promoted who was also the Assistant
Executive Engineer (Civil) and if the remaining post of the
Executive Engineer is given to the Assistant Executive
Engineer (Civil), no promotional avenues would be available
to the Assistant Executive Engineer (Electrical) and
considering this anomaly, the University sent proposal to the
State Government for approval of the Common Statutes of
the Farm Universities of Karnataka wherein the present
anomaly has been removed by creating Executing Engineer
(Civil) one post and Executive Engineer (Ele/Agri) another.
Keeping these aspects in mind, the learned Single Judge has
rightly directed the State Government to immediately
approve the draft common statutes and thereafter effect the
promotion. He seeks to dismiss the appeal.
10. Having heard the learned counsel for the
appellant, learned counsels for the respondents, learned
AGA, perused the material available on record. The
appellant and the respondent No.1 joined the University as
Assistant Executive Engineer (Civil) and (Electrical)
respectively on the same date. The University has filed a
memo dated 14.12.2023 along with the copies of the score
card for the post of Assistant Executive Engineer
(Civil/Electrical) i.e., the roster of inter se merit determined
at the initial stage at the time of interview dated
09.01.2013. On perusal of the inter se merit of the appellant
and the respondent No.1, it is evident that appellant's trade
is shown as civil, he has secured total marks out of 100
marks is 40.18. Similarly, the respondent No.1 trade is
shown as electrical and total marks secured out of 100
marks is 30.32. Admittedly, the appellant is senior than the
respondent No.1 from the date of inception into the service
and the said inter se seniority list prepared by University is
not challenged by the respondent No.1 nor there is any
dispute with regard to the same. It is to be noticed that the
combined seniority list referred to at Annexure-C has been
prepared in terms of Regulation 5 of Cadre and Recruitment
Regulations. For reference, the said regulation reads as
follows:
"5. PROCEDURE FOR DETERMINING SENIORITY:
There shall be a common seniority list of service
personnel in each category of posts for the entire
University.
The seniority shall be determined by the chronology
of appointments/promotions order of merit as
recommended by Selection Committee and approved by
the Board for each category."
Accordingly, the promotion in question is made on the
basis of combined seniority list in terms of the existing
regulations which cannot be faulted.
11. It is also not in dispute that subject promotion is
governed by the Cadre and Recruitment Regulations of the
service personnel of the University of Horticulture Sciences,
Bagalkote, dated 28.05.2009. The relevant portion of the
aforesaid regulation is extracted herein below:
4. Executive Engineer By promotion among FOR PROMOTION
(Civil & Electr) Asst. Exec. Engineer a) Must have passed Bachelor's degree
Rs.36300-53850 (Civil ) in Civil Engineering
b) Must have 5 years of experience as
Assistant Executive Engineer in the
University.
c) Must have passed Accts. Higher and
Gen. Law Part I & II.
12. On perusal of the aforesaid regulation, it is
evident that the Assistant Executive Engineer (Civil) is
eligible to be promoted to the post of Executive Engineer
(Civil & Ele) and he must have passed Bachelor's degree in
Civil Engineering, must have 5 years of experience as
Assistant Executive Engineer in University, must have
passed Accounts Higher and General Law Part-I and II.
Admittedly, the appellant is working as Assistant Executive
Engineer (Civil) who is eligible to be promoted as the
Executive Engineer. However, the respondent No.1 who is
the Assistant Executive Engineer (Electrical) is not eligible to
be promoted as a Executive Engineer as per the aforesaid
regulations. This Court has also taken note of the employers
efforts to address the grievance of the alleged anomaly and
to remove this anomaly and to make avenue to the Assistant
Executive Engineer (Electrical). The University has prepared
the common eligibility list for promotion as is evident from
Annexure-A wherein in the cadre of Assistant Executive
Engineer (Civil) (Electrical) one Sri Vijay Bhaskar Bhajantri is
shown at Sl.No.1 and the appellant is at Sl.No.2 of the list.
In other words, the University has prepared common
eligibility list for promotion of both Assistant Executive
Engineer (Civil and Electrical) however, the respondent
No.1's name was not found in the list as she is admittedly
junior than the appellant herein as per their inter se
seniority. It is further evident that the University vide its
endorsement dated 17.09.2019 issued to the respondent
No.1 has made it amply clear that a common list of eligible
candidates for promotion was prepared and the respondent
No.1 is not eligible. Hence, her case was not considered
which clearly indicates that as per the Cadre Recruitment
Regulations prevailing on the date of promotion the
respondent No.1 was not eligible to consider for the
promotion.
13. Admittedly the respondent No.1 has not
challenged the existing C and R Regulations of the University
which provides promotion to the Assistant Executive
Engineer (Civil) to Executive Engineer. As per the prevailing
C and R Regulations, the appellant has vested right to claim
promotion. However, it is not so in the case of the
respondent No.1 as his right is contingent, depending on the
happening of an event i.e., the approval of the draft
University statutes without any modification by the State
Government. When things stand thus, this Court is of the
considered view that in the absence of any challenge to the
C and R Regulations of the University by respondent No.1,
she cannot be allowed to halt the process of promotion of
the candidate who is eligible and legally entitled to claim
promotion as per the prevailing regulations. Admittedly, the
appellant is senior than that of the respondent No.1 and it
would be relevant to make observation that now the
University has made an attempt to remove the said
anomaly, which the respondent No.1 is claiming by providing
Executive Engineer post to the Assistant Executive Engineer
(Electrical) by promotion in the draft University statutes. If
the State Government approves the draft statutes of the
University without any modification then the grievance of the
respondent No.1 would be eventually taken care of.
14. This Court is of the view that holding on the
promotion of the appellant till the draft of statutes of
University is approved by State Government would defeat
the legally accrued right in favour of the appellant. This
Court cannot compel the appellant to wait for promotion till
the draft statutes of the University are approved by the
State, keeping in mind the contingent right of the
respondent No.1. Hence, on this ground the appellant can
enforce his right to seek promotion as per the existing C and
R regulations of the University in the present proceedings.
15. This Court is of the considered view that the
learned Single Judge has committed an error in directing the
State Government to approve the draft statutes of the
University and thereafter consider the case of promotion of
the private parties on the ground that the entry level of both
the posts are one and the same but only difference is with
regard to the promotional avenues. The existing C and R
Regulations of the University provides avenue of promotion
of the Assistant Executive Engineer (Civil) to the Executive
Engineer, however similar avenue of promotion is not
available to the Assistant Executive Engineer (Electrical)
however there is no challenge to the present C and R
Regulations in the absence of any challenge the existing
regulations, the respondent cannot be allowed to contend
that there are no promotional avenue. Admittedly it is the
policy and the wisdom of the statutory authorities to make
promotional avenues to the respondent No.1 taking into
account various factors eventually. Admittedly an attempt is
already made by the University in the draft statute to cure
the said anomaly. However, that itself should not be a
ground to deny the promotion to the candidate who is senior
and eligible under the existing Cadre and Recruitment
Regulations of the University.
16. For the aforementioned reasons, the appeal is
allowed by setting aside the impugned order of the learned
Single Judge with a direction to the respondent No.3 to 5 to
complete the process of promotion in accordance with the
existing Cadre and Recruitment Regulations at Annexure-F.
17. In view of the disposal of the writ appeal, the
contempt petitions i.e. CCC No.100270/2023 and CCC
No.100312/2023 are closed.
No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
Svh/Naa
