Karnataka High Court

Sri Krishna vs State Of Karnataka on 3 July, 2023

Bench: G.Narendar, C.M. Poonacha

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 03RD DAY OF JULY, 2023

                        PRESENT

         THE HON'BLE MR. JUSTICE G. NARENDAR

                          AND

        THE HON'BLE MR. JUSTICE C.M. POONACHA

       WRIT PETITION NO.7924 OF 2020 (S-KAT)
                       C/W
      WRIT PETITION NO.13315 OF 2021 (S-KSAT)

IN WP No.7924/2020

BETWEEN

1.     SRI KRISHNA
       S/O VENKATARAMAYYA,
       AGED ABOUT 49 YEARS
       OCC.HEAD CONSTABLE AHC-96,
       DISTRICT ARMED RESERVE,
       DAR HEAD QUARTERS,
       HASSAN DISTRICT-573201
       R/AT NO.11,
       VIJAYANAGARA 2ND STAGE,
       GUDDENAHALLI MAIN ROAD,
       NEAR CANARA BANK,
       HASSAN-573201
                                         ...PETITIONER
(BY SRI VIGHNESHWAR S SHASTRI, SENIOR COUNSEL FOR
    SRI GURURAJ R, ADVOCATE)

AND

1.    STATE OF KARNATAKA
      REP BY ITS SECRETARY
      MINISTRY OF HOME AFFAIRS,
                            2




     M.S.BUILDING,
     BENGALURU

2.   UNDER SECRETARY TO THE GOVERNMENT
     INTERNAL ADMINISTRATION,
     (POLICE SERVICE-B)
     BENGALURU 560001

3.   DIRECTOR GENERAL AND INSPECTOR
     GENERAL OF POLICE
     NRUPATHUNGA ROAD,
     BENGALURU 560001

4.   INSPECTOR GENERAL OF POLICE
     SOUTH ZONE, JALAPURI,
     MYSORE-570001

5.   SUPERINTENDENT OF POLICE
     HASSAN DISTRICT,
     HASSAN 573201
                                           ...RESPONDENTS
(BY SMT SHILPA S GOGI, AGA FOR R1 TO R5)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 16.07.2019 IN APPLICATION NO.1586/2017
ON THE FILE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL
AT BENGALURU AS PER ANNEXURE-C AND ETC.

IN WP No.13315/2021

BETWEEN

1.   SRI S SHIVAKUMAR
     S/O SRINIVAS N,
     AGED ABOUT 37 YEARS,
     OCCUPATION: POLICE CONSTABLE(APC-75)
     WORKING AT DISTRICT ARMED RESERVE,
     H.QR HASSAN, HOSALINE,
     HASSAN DISTRICT 573201.
                             3




2.    SHIVANANDA H L
      S/O LINGARAJAPPA H.R.,
      AGED ABOUT 42 YEARS,
      OCCUPATION: POLICE CONSTABLE(APC-1)
      WORKING AT DISTRICT ARMED RESERVE,
      H.QR HASSAN, HOSALINE,
      HASSAN DISTRICT 573201.

3.    SRI R DHARMENDRA
      S/O LATE RAJU,
      OCCUPATION. POLICE AHC-66.
      AGED ABOUT 40 YEARS,
      DISTRICT ARMED RESERVE,
      HOSALINE ROAD,
      HASSAN 573201.
                                        ...PETITIONERS
(BY SRI VIGHNESHWAR S SHASTRI, SENIOR COUNSEL FOR
    SRI GURURAJ R, ADVOCATE)

AND

1.    STATE OF KARNATAKA
      REPRESENTED BY ITS SECRETARY,
      MINISTRY OF HOME AFFAIRS,
      M.S.BUILDING,
      BENGALURU-560001.

2.    UNDER SECRETARY TO THE GOVERNMENT
      INTERNAL ADMINISTRATION,
      (POLICE SERVICE-B)
      BENGALURU-560001

3.    DIRECTOR GENERAL
      AND INSPECTOR GENERAL OF POLICE,
      NRUPATUNGA ROAD,
      BENGALURU-560001

4.    INSPECTOR GENERAL OF POLICE
      SOUTH ZONE, JALAPURI,
      MYSORE-570001.
                               4




5.   SUPERINTENDENT OF POLICE
     HASSAN DISTRICT,
     HASSAN 573201.
                                             ...RESPONDENTS
(BY SMT SHILPA S GOGI, AGA FOR R1 TO R5)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A
WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT,
ORDER OR DIRECTION QUASHING THE COMMON ORDER DATED
16.07.2019 IN APPLICATION No.1007-08/2017 AND 1512/2017
ON THE FILE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL
AT BENGALURU AS PER ANNEXURE-D AND ETC.


     THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 12.06.2023, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, POONACHA J., MADE
THE FOLLOWING:

                           ORDER

Writ Petition No.7924/2020 is filed seeking for the

following reliefs:

"i) Issue a writ of certiorari or any other appropriate writ, order or direction, quashing the order dated 16.07.2019 in Application No. 1586 / 2017 on the file Karnataka State Administrative Tribunal at Bengaluru as per Annexure- C

ii) Issue a writ of certiorari or any other appropriate writ or order or direction quashing the endorsement dated: 14/20.2.2017 issued by respondent No.5 in No Sibbandi (2)/50(1)/2017 as per Annexure - A15 to the Application No. 1586 /

iii) Issue writ of mandamus directing the respondents to consider the promotion of the applicant to the post of Assistant Reserve Sub-

Inspector by taking into consideration his services from the date of his appointment as per the Government Notification dated: .12.2016 in No. R.L.N.(1)70/2016-17, issued by Respondent No.3 produced at Annexure A12 and to revise the promotion order issued by Respondent No.5 in No.Sibbandi (2)/04/2010-11,OT No. 575/2016 as per Annexure A13 to the Application No. 1586 / 2017.

iv) Pass such other and further orders as this Hon'ble Court may deem fit in the facts and circumstances of the case, to meet the ends of justice."

1.1. Writ Petition No.13315/2021 is filed seeking for

the following reliefs:

"i) Issue a writ of certiorari or any other appropriate writ, order or direction, quashing the common order dated 16.07.2019 in Application No.1007-08/2017 and 1512/2017 on the file Karnataka State Administrative Tribunal at Bengaluru as per Annexure- D.

ii) Issue a writ of certiorari or any other appropriate writ or order or direction quashing the endorsement dated: 14/20.2.2017 issued by respondent No.5 in No Sibbandi(2)/50(1)/2017 as per Annexure A10 in Application No.1512/2017.

iii) Issue writ of mandamus directing the respondents to consider the promotion of the petitioners to the posts of Head Constables by taking into consideration their services from the date of their appointments and place them in appropriate places as per the Government

Po.Si.E 2016, produced at Annexure- A8 issued by

Respondent No. 3 and to revise the promotion order at Annexure A10 issued by Respondent No.5 in No. Sibbandi (2)/52/2010-11 OB No. 581/2016 to the Application No.1007-08/2017 and 1512/2017.

iv) Pass such other and further orders as this Hon'ble Court may deem fit in the facts and circumstances of the case, to meet the ends of justice."

2. Both the Petitions are filed challenging the

common order dated 16.7.2019 passed in Application

Nos.1586/2017 and other connected matters by the

Karnataka State Administrative Tribunal at Bangalore

(hereinafter referred to as the 'Tribunal'). Hence, they are

taken up together for consideration.

3. The relevant facts necessary for consideration

of the Writ Petitions are that the Petitioner in WP

No.7924/2020 was appointed as an Armed Police

Constable (hereinafter referred to the 'APC') in Kodagu

District on 5/7.9.1992. He sought for transfer to Hassan

District at his own request on 21.4.1998. On 9.9.2002 the

Petitioner was sanctioned with the Time Bound

Advancement increment after completion of 10 years of

service. But the re-fixation is withdrawn on the ground

that he had not completed 10 years in Hassan District and

it was directed to recover the excess amount paid on

account of the said increment. Being aggrieved, the

Petitioner approached the Tribunal in Application

No.1159/2008, which was disposed of by the Tribunal, vide

order dated 6.3.2013, wherein the re-fixation was upheld,

but the recovery of excess amount was quashed. Being

aggrieved the Petitioner filed WP No.36539/2013. A Co-

ordinate Bench of this Court, vide order dated 9.12.2013

quashed the order of the Tribunal and upheld re-fixation of

the pay of the Petitioner. The said order was challenged

by the State in SLP No.7704/2014 before the Hon'ble

Supreme Court, which was dismissed.

3.1. Petitioner No.1 in WP No.13315/2021 -

S.Shivakumar in was appointed as an APC in Shivamogga

District on 12.9.2002. As per his own request he was

transferred to Hassan District on 27.7.2005.

3.2. Petitioner No.2 in WP No.13315/2021 -

Shivananda H.L was appointed as an APC in Bangalore

Central on 27.7.2005 and as per his own request, he was

transferred to Hassan District on 24.1.2009.

3.3. Petitioner No.3 in WP No.13315/2021 -

R.Dharmendra was appointed as an APC in Shivamogga

District on 20.2.2003 and as per own request he was

transferred to Hassan District on 13.11.2006.

4. The Government of Karnataka issued a

Notification dated 5.4.2010 to upgrade the posts of Police

Constables to Head Constables (if they had served for 18

years) and the posts of Head Constables to Assistant Sub

Inspectors (if they had served for 25 years) to facilitate

opportunities of promotion.

5. The Government of Karnataka issued a

Notification dated 9.12.2016 restructuring the total

existing strength of police i.e., the posts of Assistant Sub

Inspectors, Head Constables and Police Constables in the

ratio of 1:3:6 and accordingly to upgrade the respective

posts to facilitate opportunities of promotions.

6. The Petitioners submitted representations to

consider their request for promotion in terms of the

Notification dated 9.12.2016 which was rejected by the

Superintendent of Police. Being aggrieved, they filed

Applications before the Tribunal, which were rejected by

the common order dated 16.7.2019. Being aggrieved, the

aforementioned Writ Petitions are filed.

7. Sri Vigneshwara S.Shastri, learned Senior

Counsel for the Petitioners contended:

i) That the Petitioners are entitled to the benefit

of the Government Order dated 9.12.2016;

ii) That a Division Bench of this Court in WA

No.48963/2012 while considering the Notification dated

5.4.2010 has considered Rule 6 of the Karnataka

Government Servants' (Seniority) Rules, 1957 (hereinafter

referred to as the 'Rules') and the basis of the said

judgment is squarely applicable to the facts of the present

case and the Petitioners are entitled to the reliefs sought

for in the Writ Petitions.

8. Per contra, the learned AGA justifies the order

passed by the Tribunal. She further relies on Rule 6 of the

Rules and submits that a plain reading of the same would

not entitle the Petitioners seniority when the transfer has

been made at the request of the officer.

9. We have considered the submissions made by

both the learned Counsel and perused the material on

record. The question that arises for consideration is:

Whether the reliefs sought for by the Petitioners is

liable to be granted?

10. The necessary facts being undisputed and the

interpretation of Rule 6 of the Rules being under

consideration, it is necessary to note that a Co-ordinate

Bench of this Court in WP No.48963/2012 while

considering as to whether the seniority is required to be

considered when the officer voluntarily seeks transfer and

interpreting Rule 6 has held as under:

"14. It is specifically urged that the petitioner no doubt would forego his seniority because of the request transfer, but that does not take away his

service rendered earlier as Police Constable and if that is counted for the purpose of the Government Order dated 05.04.2010, he has put in by now more than thirty years of service and therefore the petitioner's case should have been considered if not for regular promotion at least for promotion as per Government Order dated 05.04.2010.

16. We find that the seniority list is only for regular promotion and cannot be a defence for the respondents not according promotion in the upgradation scheme as per Government Order dated 05.04.2010 in favour of the writ petitioner. The very purpose will be defeated if the persons like the petitioner are asked to wait for eighteen years from the date of transfer. That may be so for the purpose of seniority in the concerned division. That is not the case for eighteen years of service contemplated as Police Constable to get the benefit of the Government Order dated 05.04.2010.

17. We direct the respondents to consider and appoint the petitioner to the post of 'Police Head Constable' on the premise that his service should be counted from the date of his joining service and not merely from the date of his transfer to Hassan Division for the purpose of the benefit of notification dated 05.04.2010. Even otherwise, the petitioner having completed thirty years of service, the petitioner is eligible as per the Government Order dated 05.04.2010."

(emphasis supplied)

11. It is relevant to note that in the said decision

the Co-ordinate Bench of this Court was considering the

Notification dated 5.4.2010. The said Notification was

issued so as to ensure that promotional avenues are

created and promotion is accorded to the police staff to

increase their self confidence.

12. It is necessary to note that the Notification

dated 9.12.2016 under which the Petitioners are seeking

relief has also been issued pursuant to the report of the 7th

National Police Commission, to increase efficiency and to

increase promotional avenues to those who are working in

the same post since 20 years.

13. Having regard to the fact that the basis on

which the Notification dated 5.4.2020 and 9.12.2016 being

same, the Petitioner in WP No.7924/2020 having put in

more than 30 years of service and the Petitioners in WP

No.13315/2021 having served for about 21, 18 and 20

years respectively, we are inclined to follow the reasoning