Karnataka High Court
Sri.G.R.Bhvaneshwara vs Smt.M.L.Anuradha on 16 June, 2023
Bench: G.Narendar And Amarannavar, Saj
1 WP.No. 8829 OF 2021
C/W WP.No. 8885 OF 2021
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE Mr. JUSTICE G. NARENDAR
AND
THE HON'BLE Mr. JUSTICE SHIVASHANKAR AMARANNAVAR
WRIT PETITION No.8829/2021 (S-KSAT)
C/W
WRIT PETITION No.8885/2021 (S-KSAT)
IN WRIT PETITION No. 8829/2021
BETWEEN :
SRI.G.R.BHUVANESHWARA
SON OF LATE G M RAJU
AGED ABOUT 59 YEARS
WORKING AS ASSISTANT REGISTRAR
KARNATAKA STATE ADMINISTRATIVE TRIBUNAL
KANDAYA BHAVAN, K .G. ROAD
BENGALURU -560 009.
RESIDING AT No.119/17-K
14TH CROSS, 19TH MAIN
1ST K - BLOCK, RAJAJINAGAR
BENGALURU - 560 010.
....PETITIONER
(BY SRI P A KULKARNI, ADVOCATE)
2 WP.No. 8829 OF 2021
C/W WP.No. 8885 OF 2021
AND :
1. SMT.M.L.ANURADHA
WIFE OF B S SURESH KUMAR
AGED ABOUT 53 YEARS
WORKING AS PERSONAL SECRETARY -CUM
JUDGMENT WRITER
KARNTAKA STATE ADMINISTRATIVE TRIBUNAL
KANDAYA BHAVAN, K .G. ROAD
BENGALURU - 560 009
RESIDING AT NO.401, 8TH MAIN
BYRAPPA ENCLAVE, SHIVANAPURA
RAJAJINAGAR
BENGALURU - 560 010.
2. SMT. B R JAYALAKSHMI
WIFE OF B R RAMESH
AGED ABOUT 57 YEARS
WORKING AS PERSONAL SECRETARY
CUM JUDGMENT WRITER
KARNATAKA STATE ADMINISTRATIVE TRIBUNAL
KANDAYA BHAVAN, K.G .ROAD
BENGALURU - 560 009
RESIDING AT NO.895, 3RD 'A' MAIN, II STAGE
D -BLOCK, RAJAJINAGAR
BENGALURU - 560 010.
3. STATE OF KARNATAKA
REPRESENTED BY THE PRINCIPAL SECRETARY
DEPARTMENT OF PERSONNEL AND
ADMINISTRATIVE REFORMS
VIDHANA SOUDHA
BENGALURU - 560 001.
4. THE REGISTRAR
KARNATAKA STATE ADMINISTRATIVE
TRIBUNAL, KANDAYA BHAVAN
K .G .ROAD
BENGALURU - 560 009.
3 WP.No. 8829 OF 2021
C/W WP.No. 8885 OF 2021
5. SRI S MANJUNATHA
SON OF LATE SARJA KRISHNAPPA NAIK
AGED ABOUT 54 YEARS
WORKING AS ASSISTANT REGISTRAR
KARNATAKA STATE ADMINISTRATIVE TRIBUNAL
KANDAYA BHAVAN, K. G. ROAD
BENGALURU - 560 009.
RESIDING AT NO.402
6TH CROSS, 7TH MAIN
KANAKASHREE LAYOUT
HENNUR - BAGALUR ROAD
KANNUR, BENGALURU - 564 921.
6. SRI S MAHESH
SON OF S SRINIVASAMURTHY
AGED ABOUT 57 YEARS
WORKING AS ASSISTANT REGISTRAR
KARNATAKA STATE ADMINISTRATIVE TRIBUNAL
BELAGAVI BENCH, BELAGAVI
RESIDING AT NO.705, 5-C BLOCK
PROVIDENT SUNWORTH-2
VENKATAPURA, KENGERI
BENGALURU - 560 060.
...RESPONDENTS
(BY SRI GIRISH S JAMBAGI, ADVOCATE FOR R1 & R2
SRI VIJAY KUMAR DESAI, AGA FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A
WRIT IN THE NATURE OF CERITORARI OR ANY OTHER
WRIT/ORDER/DIRECTION QUASHING THE ORDER DATED
21.04.2021 IN A.NOS. 6714 AND 6715/2020, ANNEXURE - A
PASSED BY KARNATAKA STATE ADMINISTRATIVE TRIBUNAL
BELAGAVI BENCH BELAGAVI BENCH, BELAGAVI AS AGAINST
THIS PETITIONER AND ETC.,
4 WP.No. 8829 OF 2021
C/W WP.No. 8885 OF 2021
IN WRIT PETITION No. 8885/2021
BETWEEN:
1. S. MANJUNATHA
S/o LATE SARJAKRISHNAPPANAIK
AGED ABOUT 54 YEARS,
WORKING AS ASSISTANT REGISTRAR
KARNATAKA STATE ADMINISTRATIVE TRIBUNAL
KANDAYABHAVAN, K.G.ROAD
BENGALURU - 560 009
RESIDING AT No.402
6TH CROSS, 7TH MAIN
KANAKASHREE LAYOUT
HENNUR - BAGALUR ROAD
KANNUR, BENGALURU - 564 921.
2. S.MAHESH
S/o LATE S. SRINIVASAMURTHY
AGED ABOUT 57 YEARS
WORKING AS ASSISTANT REGISTRAR
KARNATAKA STATE ADMINISTRATIVE TRIBUNAL
BELAGAVI BENCH
BELAGAVI
RESIDING AT No.705, 5-C BLOCK
PROVIDENT SUNWORTH - 2, VENKATAPURA,
KENGERI.
BENGALURU - 560 060.
...PETITIONERS
(BY SRI M NAGARAJAN, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY THE PRINCIPAL SECRETARY
DEPARTMENT OF PERSONNEL & ADMINISTRATIVE
REFORMS, VIDHANA SOUDHA
5 WP.No. 8829 OF 2021
C/W WP.No. 8885 OF 2021
BENGALURU - 560 001.
2. THE REGISTRAR
KARNATAKA STATE ADMINISTRATIVE TRIBUNAL
KANDAYA BHAVAN, K .G .ROAD
BENGALURU - 560 009.
3. M.L.ANURADHA,
W/o B.S.SURESH KUMAR
AGED ABOUT 53 YEARS,
WORKING AS PERSONAL SECRETARY - CUM-
JUDGMENT WRITER
KARANTAKA STATE ADMINISTRATIVE TRIBUNAL
KANDAYA BHAVAN, K.G.ROAD
BENGALURU - 560 009,
RESIDING AT NO.401, 8TH MAIN,
BYRAPPA ENCLAVE, SHIVANAPURA,
RAJAJINAGAR, BENGALURU - 560 010.
4. B R JAYALAKSHMI
W/o OF B R RAMESH
AGED ABOUT 57 YEARS
WORKING AS PERSONAL SECRETARY - CUM-
JUDGMENT WRITER
KARANTAKA STATE ADMINISTRATIVE TRIBUNAL
KANDAYA BHAVAN, K.G.ROAD
BENGALURU - 560 009
RESIDING AT NO.895,
3RD 'A' MAIN, II STAGE
D -BLOCK, RAJAJINAGAR,
BENGALURU - 560 010.
...RESPONDENTS
(BY SRI VIJAY KUMAR DESAI, AGA FOR R1,
SRI GIRISH S JAMBAGI, ADVOCATE FOR R3 & R4
SRI RAGHAVENDRA G. GAYATHRI, ADVOCATE FOR R2)
6 WP.No. 8829 OF 2021
C/W WP.No. 8885 OF 2021
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A
WRIT IN THE NATURE OF CERITORARI OR ANY OTHER
APPROPRIATE WRIT, ORDER OR DIRECTION, QUASHING THE
IMPUGNED ORDER DATED 21.04.2021 IN APPLICATION Nos.
6714 & 6715 OF 2020 ON THE FILE OF KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL BENGALURU VIDE ANNEXURE-J
AND ETC.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS, THIS DAY, SHIVASHANKAR
AMARANNAVAR J, PASSED THE FOLLOWING;
ORDER
Petitioners in W.P. No. 8885/2021 (respondent Nos. 4
and 5) and petitioner in W.P. 8829/2023 (respondent No.
3) have sought for issue of writ of certiorari to quash the
order dated 21.04.2021 passed in application Nos. 6714
and 6715/2020 by the Karnataka State Administrative
Tribunal (for the sake of brevity hereinafter referred to as
`the Tribunal'), Bengaluru, as against the petitioners and
consequently sought for dismissal of application Nos. 6714
and 6715/2020 filed by the applicants.
C/W WP.No. 8885 OF 2021
2. Petitioners were private respondents in the
applications whose promotions by order dated 09.12.2020
has been challenged under the applications before the
Tribunal. The applicants who were working as Personal
Secretaries - cum - Judgment Writers in the Tribunal have
filed application Nos. 6714 and 6715/2020 challenging the
order dated 09.12.2020 by which the petitioners have been
promoted to the cadre of Assistant Registrar and sought for
their promotion to the next cadre of Assistant Registrar in
accordance with the existing C & R Rules of the Tribunal
with all consequential benefits. The Tribunal, by the
impugned order dated 21.04.2021 has allowed the
applications and quashed the order dated 09.12.2020
(Annexure - A6) and promotion of the petitioners is
declared void-ab-initio and the post of Assistant Registrar
held by the petitioners are declared as vacant with
immediate effect directing respondent No.2 to consider the
promotion to the three vacancies as on 09.12.2020 afresh
C/W WP.No. 8885 OF 2021
and in accordance with the extant 1993 Rules prevailing as
on 09.12.2020 - date on which promotions were made and
also awarded costs of Rs.5,000/- to each of the applicants
which shall be paid by respondent No.2 - Registrar,
Karnataka State Administrative Tribunal, Bengaluru.
3. The applicants were in the cadre of Personal
Secretary - cum - Judgment Writer, respondent Nos. 3 and
4 were in the cadre of Section Officers and respondent No.
5 was in the cadre of Court Officer. Said respondent Nos. 3
to 5 are petitioners in these two writ petitions. The
applicants were working as Stenographers and were
promoted to the cadre of Personal Secretary - cum -
Judgment Writer on the basis of seniority - cum - merit
and have been in the said cadre for the last 26 years as on
the date of filing of the applications. The method of
recruitment and minimum qualification for recruitment for
several cadres in the Tribunal are governed by the
Karnataka State Administrative Tribunal (Recruitment)
C/W WP.No. 8885 OF 2021
Rules, 1993 (for the sake of brevity hereinafter referred to
as the `Rules, 1993'). The Rules, 1993 provide for feeder
channels to the cadre of Assistant Registrar. One is from
Section Officer/Court Officer cadre and the other from
Personal Secretary - cum - Judgment Writer/ Personal
Secretary to Registrar. Common seniority list is drawn in
respect of feeder cadres from which promotion is made to
the cadre of Assistant Registrar strictly based on seniority
cum merit. The combined provisional seniority list of the
said feeder cadres was notified on 17.03.2020 (Annexure
A2). Applicant No. 1 was at Sl.No. 1 and applicant No. 2
was Sl.No.3 while petitioners were at Sl.Nos. 6, 10 and 5
respectively.
4. One Sri. Ramarao who was in the cadre of Personal
Secretary was promoted as Personal Secretary to Registrar
with retrospective effect from 11.08.1994 vide order dated
08.12.2020 (Annexure A3). Since he was given
retrospective promotion, provision gradation list dated
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17.03.2020 was recalled vide order dated 07.12.2020
(Annexure A4) to publish a revised seniority list.
5. Respondent No. 1 - State published the draft Rules
vide notification dated 08.12.2020 (Annexure A5) wherein
the promotion to the cadre of Assistant Registrar from the
cadre of Section Officers, Court Officers and Personal
Secretary - cum - Judgment Writers is proposed in the
ratio of 2 : 1 : 2 and that first and second vacancies will be
filled up from the cadre of Sections Officers, third vacancy
from the cadre of Court Officer and fourth and fifth
vacancies from the cadre of Personal Secretary - cum -
Judgment Writers. If no suitable candidate is available, then
the post will be filled by deputation from the cadre of Civil
Judge (Junior Division) from the Karnataka Judicial Service.
Thereafter, on the very next day, order dated 09.12.2020
(Annexure A6) came to be issued promoting the petitioners
to the cadre of Assistant Registrars on the strength of draft
Rules. The issue before the Tribunal was, whether the
C/W WP.No. 8885 OF 2021
promotion of the petitioners by an order dated 09.12.2020
basing on the draft Rules dated 08.12.2020 is justified?
6. The method of recruitment and qualification in
respondent No. 2 is governed under the Karnataka State
Administrative Tribunal (Recruitment) Rules, 1993 amended
from time to time. Rule 2 of the Rules, 1993, reads as
follows:
"2. Method of Recruitment of recruitment,
qualification etc.- In respect of each category of
posts specified in column (1) of the schedule
the method of Recruitment and the minimum
qualifications, if any, shall be as specified in the
corresponding entries in column (2) and (3)
thereof."
7. Relevant portion of the schedule relating to
Assistant Registrar amended as per Notification dated
05.09.2007 is as under:
C/W WP.No. 8885 OF 2021
Assistant Registrar By promotion from the For promotion:-
(Rs.7,400 - 13,120) cadre of Section (1) Must have put
Officer, Court Officer, in service for not
Personal Secretary- less than five years
cum-judgment writer, in any of the cadres
Personal Secretary to specified in
the Registrar on the column(2):
basis of combined Provided that if
seniority. Seniority persons who have
being determined on put in a service of
the basis of length of not less than five
service in the years are not
respective cadre, available, persons
seniority interse who have put in a
among persons in a service of not less
cadre being than three years in
maintained. the cadres specified
If no suitable in column (2) may
candidate is available be considered for
for promotion, by promotion.
deputation of an
officer in the cadre of
Civil Judge (Junior
Division) from the
Karnataka Judicial
Service.
8. From the above Rule it is clear that the post of
Assistant Registrar is required to be filled from the feeder
cadres of Sections Officers, Court Officers, Personal
Secretary - cum - Judgment Writer, Personal Secretary to
Registrar on the basis of combined seniority and such
C/W WP.No. 8885 OF 2021
seniority is to be determined based on the length of service
in the respective cadres. When the Rules relating to the
method of recruitment for the cadre of Assistant Registrar
was in force, draft Rules dated 08.02.2020 were notified in
the Gazette dated 08.12.2020 wherein promotion to the
cadre of Assistant Registrar from the cadre of Sections
Officers, Court Officers, Personal Secretary - cum -
Judgment Writer is proposed to be in the ratio of 2 : 1 : 2
and the first and second vacancies to be filled up from the
cadre of Section Officers, third vacancy from the cadre of
Court Officer and fourth and fifth vacancies from the cadre
of Personal Secretary - cum - Judgment Writers and
Personal Secretary to Registrar. If no suitable candidate is
available, then the post will be filled up from deputation
from the cadre of Civil Judge (Junior Division) from the
Karnataka Judicial Service. Said draft Rules became Rules
by Gazette Notification dated 30.01.2021. Said Rule 1(2) of
C/W WP.No. 8885 OF 2021
the Karnataka State Administrative Tribunal (Recruitment)
(Amendment) Rules, 2021 reads as follows:
"(2) they come into force from the date of
their publication in the official gazette."
9. Said Rules were notified in the Official Gazette on
30.01.2021. Therefore, said amended Rules came into force
only on 30.01.2021. Publication of the draft Rules in the
Gazette dated 08.12.2020 is an opportunity to the persons
affected to make representations and to show cause why
the said Rules shall not be confirmed. The operation of the
Rules, 1993 subsisting as on the date of the promotion was
in any manner affected by the publication of the draft Rules
on 08.12.2020. When the Rules, 1993, were subsisting on
09.12.2020, promotion could have been made only on the
basis of Rules, 1993 and not on the basis of the draft Rules
of 08.12.2020 which cannot be acted upon in the place of
statutory Rules, i.e, Rules, 1993 that were subsisting and
C/W WP.No. 8885 OF 2021
holding the filed in the matter of promotion to the cadre of
Assistant Registrars.
10. The Hon'ble Apex Court in the case of Government
of Pondichery and another Vs. V. Ramakrishnan and
others, reported in AIR 2005 SC 4295 has held as under:
"28. Valid rules made under proviso appended
to article 309 of the Constitution of India operate so
long the said rules are not repealed and replaced.
The draft rules, therefore, could not form the basis
for grant of promotion, when rules to the contrary is
holding the field. The principle that draft rules can
be acted upon, will apply when there are more rules
governing the matter and where recruitment is
governed by departmental instructions or executive
orders under article 162 of the Constitution."
11. Said aspect has also been considered by the
Hon'ble Apex Court in the case of State of U.P. Vs.
Mahesh Narain reported in 2013 (4) SCC 169 and has
held as under:
C/W WP.No. 8885 OF 2021
11. We, however, have no hesitation in
holding that this contention is fit to be rejected
outright as the rules cannot be held to be made
effective from the date of their preparation but will
attain legal sanctity and hence be capable of
enforcement only when the rules are made effective
and the date on which they are to be made effective
would obviously be the date when the rules are
published vide the gazette notification. In that view
of the matter, we find no infirmity in the
respondents' plea that they possessed the requisite
experience of five years on the post of Scientific
officer as they had already put in five years of
service from the publication of the amended Rules of
1990 and, therefore, they were rightly held eligible
for consideration of promotion to the next post of
Assistant Director. We are thus pleased to approve
and uphold the view taken by the High Court on this
count."
12. Promotion of the petitioners to the post of
Assistant Registrar has been considered on 09.12.2020 and
as on that date Rules 1993 were in force. The amended
Rules came into force only on 30.01.2021.
C/W WP.No. 8885 OF 2021
13. As on the date of the impugned order of
promotion dated 09.12.2020 the combined senior list
existed notwithstanding the fact that the provisional
seniority list of 17.03.2020 was recalled by order dated
07.12.2020. The petitioners are not seniors to the
applicants in the combined seniority list of persons for
promotion to the cadre of Assistant Registrar. We are of the
considered view that promotion needs to be based on the
seniority position as on the date of the order. Admittedly
the petitioners are juniors to the applicants in the final
seniority list of 29.12.2016 that existed as on the date of
promotion.
14. In the case of R.B. Desai Vs. S.K. Khanolker
reported in 1999 (7) SC 54 it is held that if a candidate
comply with the eligibility, then seniority will prevail.
Similarly, the Hon'ble Apex Court in the case of Palure
C/W WP.No. 8885 OF 2021
Bhaskar Rao and others Vs. P. Ramaseshaiah and
others reported in 2017 (5) SCC 783 has held as under:
"16. Seniority and eligibility are also
distinct concepts. As far as promotion or
recruitment by transfer to a higher category or
different service is concerned if the method of
promotion is seniority-cum-merit or seniority per
se, there is no question of eligible senior being
superseded. Other things being equal, senior
automatically gets promoted. But in the case of
selection based on merit - cum - seniority, it is
a settled principle that seniority has to give way
to merit. Only if merit being equal senior will get
the promotion."
15. In view of Rules, 1993, the method of promotion
to the cadre of Assistant Registrar is seniority - cum -
merit, and as such, the applicants who were seniors were
required to be considered for promotion. Promotions based
on seniority - cum - merit are required to be based on
seniority list that exists as on the date of promotion.
C/W WP.No. 8885 OF 2021
Therefore, the Tribunal has rightly held that the promotion
of the petitioners is without any basis and without regard to
their seniority.
16. Promotion is governed by the Rules prevailing as
on the date of promotion. The Rules prevailing as on the
date of promotion of the petitioners is Rules, 1993 and not
the draft Rules of 08.12.2020. Therefore, promotion ought
to have been done under the Rules, 1993 and not under the
draft Rules. The Registrar, Karnataka State Administrative
Tribunal (respondent No.2 before the Tribunal) grossly
erred in issuing the impugned promotion order of
09.12.2020 and the Tribunal found that there is no other
reason than the need to favour the petitioners the
impugned order has been issued and it is not justifiable at
all.
17. While none has a vested right of promotion yet,
concerned who are in the zone of consideration for
C/W WP.No. 8885 OF 2021
promotion have vested right for consideration for promotion
when promotion is effected. The Hon'ble Apex Court in the
case of State of Tripura and others Vs.Nikhil Ranjan
Chakraborty and others reported in 2017 (3) SCC 646
has held as under:
"9. ...a candidate has the right to be
considered in the light of the existing rules,
namely, 'rules in force as on the date' the
consideration takes place..."
18. When promotion was effected on 09.12.2020 the
applicants had got vested right to be considered for
promotion in accordance with the extant Rules, 1993. There
is no material on record that the applicants were indeed
considered for promotion in accordance with the extant
Rules, 1993 and based on the prevailing seniority list in
which the applicants were ranked above the petitioners. As
on the date of issue of order of promotion dated
09.12.2020 by which petitioners were promoted, the
C/W WP.No. 8885 OF 2021
applicants had a better claim for promotion than the
petitioners. The Hon'ble Apex Court in the case of Deepak
Agarval and another Vs. State of U.P. and others reported
in AIR 2011 SCW 2138 has held as under:
"It is by now a settled proposition of law that a
candidate has the right to be considered in the light
of the existing rules, which implies the 'rule in force'
on the date the consideration took place. There is no
rule of universal or absolute application that
vacancies are to be filled invariably by the law
existing on the date when the vacancy arises. The
requirement of filling up old vacancies under the old
rules is interlinked with the candidate having
acquired a right to be considered for promotion. The
right to be considered for promotion accrues on the
date of consideration of the eligible candidates.
Unless, of course, the applicable rule, as in Y.V.
Rangaiah case lays down any particular time-frame,
within which the selection process is to be
completed. In the present case, consideration of
promotion took place after the Amendment came
into operation. Thus, it cannot be accepted that any
C/W WP.No. 8885 OF 2021
accrued or vested right of the appellants has been
taken away by the amendment."
(emphasis supplied)
19. Learned counsel for the petitioners would contend
that the draft Rules was finalized and Rules called
Karnataka Administrative Tribunal (Recruitment)
(Amendment) Rules, 2021 (for the sake of brevity
hereinafter referred to as `Rules, 2021') was issued by way
of Gazette Notification dated 30.01.2021, as on the date of
order of the Tribunal in the applications, i.e, 21.04.2021 the
method of recruitment to the post of Assistant Registrar in
the Tribunal was governed by the said Rules, 2021. He
contends that on publication of the said amended Rules,
2021, the C and R Rules of the year 1993 insofar as the
same relates to the method of recruitment for the post of
Assistant Registrar ceases to be in force with effect from
1993 itself in view of the fact that the amendment by
Notification dated 30.01.2021 is by way of substitution and
C/W WP.No. 8885 OF 2021
the same is evident from the Gazette Notification dated
30.01.2021 itself. Even if the said contention is considered
for the sake of argument, the promotion is not given after
coming into force of the amended Rules, i.e, on or after
30.01.2021 giving retrospective effect. Substituted Rules
will not ratify the earlier acts taken prior to the date of
amendment coming into force, i.e, 30.01.2021. There is no
saving clause of the actions taken under the draft Rules in
the amended Rules which came into effect from
30.01.2021. Incorporation of condition that promotion is
subject to the final Rules does not make the consideration
valid under law since even consideration under the draft
Rules was impermissible as on the date of promotion of the
petitioners on 09.12.2020. Therefore the order of
promotion of petitioners is not in accordance with the Rules
prevailing as on the date of the order of promotion.
Therefore, the Tribunal has rightly held that the promotion
of the petitioners dated 09.12.2020 is void-ab-initio as it is
C/W WP.No. 8885 OF 2021
dehors the relevant Rules. We are of the considered opinion
that there are no grounds made out to set aside the
impugned order passed by the Tribunal.
20. Learned counsel for petitioners submits that the
petitioner in W.P. No. 8829/2021 is now retired and his
pension has been fixed and there shall not be any order for
recovery and his pay fixed requires to be protected.
21. The Hon'ble Apex Court in the case of State of
Punjab and others Vs. Rafiq Masih (White Washer)
and others reported in 2015 (4) SCC 334 has held as
under:
" 18. It is not possible to postulate all
situations of hardship which would govern
employees on the issue of recovery, where
payments have mistakenly been made by the
employer, in excess of their entitlement. Be
that as it may, based on the decisions referred
to hereinabove, we may, as a ready reference,
summarise the following few situations, wherein
C/W WP.No. 8885 OF 2021
recoveries by the employers, would be
impermissible in law:
i. Recovery from the employees belonging
to Class III and Class IV service (or
Group C and Group D service).
ii. Recovery from the retired employees, or
the employees who are due to retire
within one year, of the order of recovery.
iii. Recovery from the employees, when the
excess payment has been made for a
period in excess of five years, before the
order of recovery is issued.
iv. Recovery in cases where an employee
has wrongfully been required to
discharge duties of a higher post, and
has been paid accordingly, even though
he should have rightfully been required
to work against an inferior post.
v. In any other case, where the Court
arrives at the conclusion, that recovery if
made from the employee, would be
iniquitous or harsh or arbitrary to such
an extent, as would far outweigh the
equitable balance of the employer's right
to recover.
C/W WP.No. 8885 OF 2021
22. The petitioners have discharged the duties of
higher post and have been paid accordingly, even though
they were rightfully required to work against an inferior
post and therefore, there shall not be any recovery as held
by the Hon'ble Apex Court in Rafiq Masih's case. Therefore,
there shall not be any recovery from the petitioners. The
Registrar, Karnataka State Administrative Tribunal, shall
consider the promotion to the three vacancies as on
09.12.2020 afresh and in accordance with the extant Rules,
1993 prevailing as on 09.12.2020 within 15 days from the
date of receipt of certified copy of this order.
With the above observations, both the petitions are
dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
LRS.
