Karnataka High Court
Malatesh N Kodliyavar vs State Of Karnataka on 27 March, 2023
Bench: E.S.Indiresh
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.12567 OF 2020 (S-RES)
BETWEEN:
1. MALATESH N. KODLIYAVAR
S/O NEELAPPA M KODLIYAVAR,
AGED ABOUT 53 YEARS,
WORKING AS DEPUTY GENERAL MANAGER
(QS AND S) CORPORATE OFFICE, BESCOM
K.R CIRCLE, BENGALURU - 560 001.
2. B. V PALANETRA
S/O B. VEERAPPA
AGED ABOUT 44 YEARS,
WORKING AS EXECUTIVE ENGINEER
WHITEFIELD DIVISION, BESCOM
WHITEFILED, BENGALURU - 560 060.
3. MANJAPPA
S/O CHENNAMOOLYA,
AGED ABOUT 55 YEARS,
WORKING AS SUPERINTENDING ENGINEER
ELECTRICAL, O AND M CIRCLE, MESCOM
MANGALURU.
..PETITIONERS
(BY SRI. D. R. RAVISHANKAR, SENIOR COUNSEL FOR
SMT. M. L. SUVARNA, ADVOCATE FOR)
2
AND:
1. STATE OF KARNATAKA
BY ITS ADDITIONAL CHIEF SECRETARY
TO GOVERNMENT, ENERGY DEPARTMENT,
VIKAS SOUDHA, DR. AMBEDKAR VEEDHI,
BENGALURU - 560 001.
2. KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED, REPRESENTED
BY ITS MANAGING DIRECTOR,
CAUVERY BHAVANA, K. G ROAD,
BENGALURU - 560 009.
3. THE DIRECTOR (ADMIN AND HR)
KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED,
CAUVERY BHAVAN, K. G ROAD,
BENGALURU - 560 009.
4. KRISHNA MURTHY P.,
THE GENERAL MANAGER,
POWER PURCHASE, CORPORATE
OFFICE, BESCOM, K R CIRCLE,
BENGALURU - 560 001.
5. NAGARAJ G. P.
THE SUPERINTENDING
ENGINEER, MESCOM
BHAVANA CORPORATE
OFFICE, MESCOM, BEJAI
KAVOOR ROAD, BEJAI,
MANGALORE - 575 004.
6. PUSHPA S. A.,
THE SUPERINTENDING
ENGINEER, MESCOM
BHAVANA, CORPORATE
3
OFFICE, MESCOM,
BEJAI KAVOOR ROAD, BEJAI,
MANGALORE - 575 004.
7. RAMESH H. J.,
THE GENERAL MANAGER,
METERS AND COMMERCIAL,
CORPORATE OFFICE, BESCOM,
K R CIRCLE,
BENGALURU-560 001.
8. SRINIVASAPPA,
THE GENERAL MANAGER,
KREDL, SCOUTS
BHAVANA, PALACE ROAD,
BENGALURU - 560 001.
9. VISHWANATHARAO SOLANKI. R.,
THE SUPERINTENDING
ENGINEER, O AND M WEST CIRCLE,
BESCOME, NEXT TO CHORD
ROAD HOSPITAL, SIDDAIAH
PURANIK ROAD, BASAVESHWAR
NAGAR, BENGALURU - 560 079.
10 . SHIVARAM SINGH
THE SUPERINTENDING ENGINEER, BMRCL
DEEPANJALI NGAR, MYSURU ROAD
BANGALORE-560026.
11 . BASAVARAJ B PATIL
THE SUPERINTENDENDING ENGINEER,
O AND M CIRCLE, HESCOM,
CHIKODI - 591 201.
12 . JAMES PHILIP
THE GENERAL MANAGER, DAS
SECTION, CORPORATE OFFICE,
4
BESCOM, K R CIRCLE,
BENGALURU - 560 001.
13 . SHARANAPPA. M. T.,
THE GENERAL MANAGER,
KAVIKA, BAPUJINAGAR,
MYSORE ROAD,
BENGALURU - 560 026.
14 . CHANDRAN. T. S.,
THE SUPERINTENDING
ENGINEER, C,OAND M NORTH
CIRCEL, BESOCM, 3RD FLOOR,
CRESCENT TOWERS, CRESCENT
ROAD, MADHAVANAGAR,
BENGALURU - 560 001.
15 . GOPAL, N. GAONKAR
THE SUPERINTENDING
ENGINEER, W AND M CIRCLE,
KPTCL, PRASARANA BHAVANA,
FTS COMPOUND, N R
MOHALLA, MYSURU - 570 007.
16 . GURUSWAMY K. H.,
THE SUPERINTENDING
ENGINEER, O AND M CIRLCE,
BESCOM, KOLAR - 563 102.
17 . GIRIDHAR KULKRNI,
THE SUPERINTENDING
ENGINEER, O AND M CIRCLE,
HESCOM, NEHRU NAGAR,
BELAGAVI - 590 010.
18 . VENKATESH PRASAD. R.,
THE SUPERINENDING ENGINEER,
TRANSMISSION, W AND M CIRCLE,
5
KPTCL, VIDYANAGAR,
SHIMOGGA - 577 201.
19 . SRIKANTH. M. SASALATTI
THE SUPERINTENDING
ENGINEER, W AND M CIRCLE,
KPTCL, NEHRU NAGAR,
BELAGAVI - 590 010.
20 . SRINIVAS. T. V.,
THE SUPERINTENDING
ENGINEER, (OFFICE) O AND M
ZONE, BESCOM
CHITRADURGA - 577 501.
21 . SHASHIDHAR O S.,
THE SUPERINTENDING
ENGINEER, IT AND MT,
CORPORATE OFFICE,
NAVANAGAR, HUBBALLI - 580 025.
22 . RAVINDRA. K. (1964),
THE SUPERINTENDING
ENGINEER, TL AND SS, KPTCL,
ANAND RAO CIRLCE,
BENGALURU - 560 009.
23 . MITARE. S. S.,
THE SUPERINTENDING
ENGINEER, RT CIRCLE,
VIDYUT NAGAR, KPTCL,
HUBBALLI -580024.
24 . HIREMATH. K. G.,
THE SUPERINTENDING
ENGINEER, O AND M CIRCLE,
HESCOM, BAGALKOT - 587 101.
6
25 . PRAKASH. V.,
THE SUPERINTENDING
ENGINEER, CORPORTE OFFIC,E
TECHNICAL, CESC, NO.29,
VIJAYANGARA, 2ND STAGE,
HINKAL, MYSURU - 570 014.
26 . ABDUL MAJID,
THE SUPERINTENDING
ENGINEER, BMRCL,
DEEPANJALI NAGAR,
MYSURU ROAD,
BENGALURU - 560 026.
27 . ALLABAKSH. B.,
THE SUPERINTENDING
ENGINEER, W AND M, KPTCL,
TUMKUR ASHOK NAGAR,
TUMKUR - 572 103.
28 . GIRISH. B.V.,
THE SUPERINTENDING
ENGINEER, RT AND R AND D,
KPTCL, KAVERI BHAVAN
BENGALURU - 560 009.
29 . RAMESH H. G.,
THE SUPERINTENDING
ENGINEER, ELECRICAL,
BENGALURU RURAL O AND M
CIRCLE, BESOCM, 1ST FLOOR,
TTMC, BENGALURU - 560 060.
30 . NAGESH S.,
THE EXECUTIVE ENGINEER,
TAQC, CORPORTE OFFICE,
CESC, NO.29, VIJAYANAGARA,
2ND STAGE, HINKAL,
7
MYSURU-570 017.
31 . RAMASWAMY M. L.,
THE DEPUTY GENERAL MANAGER
(OPERATION), CORPORATE
OFFICE, BESCOM, K R CIRLCE,
BENGALURU - 560 001.
32 . NATARAJ U. S.,
THE EXECUTIVE
ENGINEER, OFFICE OF THE
CHIEF ENGINEER, O AND M ZONE,
BALLARI - 583 102.
33 . MOHAN RAO BIRADAR,
THE SUPERINTENDING
ENGINEER, TL AND SS, KPTCL,
RAMANAGARA CIRCLE, 220 KV
R/S VRUSHABHAVATI, MYSURU
ROAD, BENGALURU - 560 039.
34 . SADEV MANKARE,
THE EXECUTIVE ENGINNER,
CORPORATE OFFICE, STATION
ROAD, GESCOM,
KALABURGI-585 102.
35 . SHARANAPPA G.,
THE SUPERINTENDING
ENGINEER, O AND M CIRCLE,
HESCOM, NEXT TO VDA
OFFICE, MANAGULI ROAD,
VIJAYAPURA - 586109.
36 . NAGARAJ M. L.,
THE DEPUTY GENERAL
MANAGER, CORPORATE OFFICE,
BESCOM, K R CIRCLE,
8
BENGALURU - 560 001.
37 . SWAMY H. S. (1961),
THE EXECUTIVE ENGINNER, MAJOR
WORKS DIVISION, KPTCL,
PRASARANA BHAVANA, FTS C
OMPOUND, N. R. MOHALLA,
MYSURU - 570 007.
38 . RIZWAN PASHA,
THE DEPUTY GENERAL
MANAGER (PMU), CORPORATE
OFFICE, BESCOM, K R CIRCLE,
BENGALURU - 560 001.
39 . RANGASWAMY P.,
THE DEPUTY GENERAL
MANAGER (PROJECTS),
CORPORATE OFFICE, BESCOM,
K R CIRLCE,
BENGALURU - 560 001.
40 . ATHEEBULLA KHAN,
THE EXECUTIVE ENGINEER,
TL AND SS DIVISION, KPTCL,
N R MOHALLA,
MYSURU - 570 007.
41 . SOMASHEKAR H.,
EXECUTIVE ENGINER,
TL AND SS DIVISION, KPTCL
HOOTAGALLI,
MYSURU - 570 027.
42 . RANGARAJU S.,
THE EXECUTIVE ENGINNER,
R T DIVISION KPTCL,
MYSURU
9
43 . ANANDA K. A.,
THE EXECUTIVE ENGINEER,
MAJOR WORKS DIVISION,
KPTCL, BAGALKT - 587102.
44 . ROMARAJU. M.,
THE EXECUTIVE ENGINEER,
TAQC, O/O CHIEF ENGINEER,
O AND M ZONE, BESCOM,
CHITRADURGA - 577501.
45 . GURAYYAMATH,
THE EXECUTIVE ENGINEER,
AUDIT PARA, KPTCL,
KAVERI BHAVAN,
BENGALURU - 560 009.
46 . NAGARAJ S. R.,
THE DEPUTY GENERAL
MANAGER (PROJECTS),
CORPORATE OFFICE, BESCOM,
K R CIRCLE,
BENGALURU - 560 001.
47 . LOKESH. L.,
THE EXECUTIVE ENGINEER
VIGILLANCE, CORPORATE
OFFICE, CESC, NO.29,
VIJAYANAGARA, 2ND STAGE
HINKAL, MYSURU - 570017.
48 . ABDUL REHAMAN
THE EXECUTIVE ENGINEER,
BMRCL, SADANANDANAGAR,
BENNIGANA HALLI,
BENGALURU - 560 038.
49 . YOGESH B. K.,
10
THE EXECUTIVE ENGINEER,
O AND M DIVISION, N R MOHALLA
CESC, MYSURU - 570 007.
50 . RAMESH H. N.,
THE EXECUTIVE ENGINEER,
TL AND SS DIVISION, TORE
KADANAHALLI, HALAGURU POST,
MALAVALLI TALUK,
MANDYA DISTRICT - 571421.
51 . SHIVAKUMAR. K.,
THE EXECUTIVE ENGINEER,
O AND M DIVISION, MESCOM
CHIKKAMAGALURU - 577101.
52 . VENKATESH P. K.,
THE EXECUTIVE ENGINEER
KARNATAKA ELECTRICITY
REGULATORY COMMISSION
MILLERS TANK BUND,
VASANTH NAGAR
BENGALURU - 560 052.
53 . BASAVARAJ S H
THE EXECUTIVE ENGINEER
TL AND SS
KPTCL
MUNIRABAD
54 . CHANNAASAPPA M
THE EXECUTIVE ENGINEER
TL AND SS . KPTCL, SOMANAHALLI
220KV STATION,
KANAKAPURA ROAD
BENGAULURU-560082
55 . H D MAHESH
THE EXECUTIVE ENGINEER
11
MAJOR WORKS DIVISION
KPTCL, MANDYA.
56 . METI HANUMANTHAPPA
THE EXECUTIVE ENGINEER
C AND M DIVISION
GESCOM
HOSAPETE
57 . NARAHARI K R
DGM, VIGILANCE, BESCOM
1ST FLOOR, CRESCENT TOWERS
CRESCENT ROAD
MADHAVANAGAR,
BENGALURU-560001.
58 . SALEEM
THE EXECUTIVE ENGINEER
TL AND SS
KPTCL, PEENYA
BENGALURU.
59 . KITTUR M M
THE EXECUTIVE ENGINEER
HOTLINE DIVISION, KPTCL,
VIDYUTH NAGAR,
HUBBALLI-580024.
60 . REVANASIDDAPPA G M
THE EXECUTIVE ENGINEER
MT DIVISION, BESCOM
CHITRADURGA.
61 . LOKESH BABU M
THE EXECUTIVE ENGINEER
MT DIVISION, BESCOM,
BMAZ GAVIPURAM,
BENGALURU
12
62 . RAMASWAMY R
THE EXECUTIVE ENGINEER
MT DIVISION, CORPORATE OFFICE
CESC, NO.29,VIJAYANAGAR
2ND STAGE, HINKAL
MYSURU-570017.
63 . AMARNATH N
THE EXECUTIVE ENGINEER
KARNATAKA SOLAR POWER
DEVELOPMENT CORPORATION LTD
SEEDS CORPORATION PREMISES,
NEAR HEBBAL FLY OVER BUS STOP,
BENGALURU.
64 . KHADARVALI S
THE EXECUTIVE ENGINEER
GIS STATION, EAST DIVSION
COMPOUND, RESIDENCY ROAD
BENGALURU-560001.
65 . SIDDAPPA BINJAGERI
THE EXECUTIVE ENGINEER
O AND M DIVISION, HESCOM
BIJAPUR.
66 . KRISHNA MURTHY B
THE DEPUTY GENERAL
MANAGER, DAS, HSR LAYOUT
BESCOM
BENGALURU.
67 . MOHAMED MUSHTAQ
THE EXECUTIVE ENGINEER
TECHNICAL SECTION, KPTCL
KAVERI BHAVN,
BENGALURU-560009.
13
68 . SHASHI KUMAR H S
THE EXECUTIVE ENGINEER
RT DIVISION, KPTCL,
MANDYA.
69 . SOMASHEKARA M K
THE EXECUTIVE ENGINEER
PURCHASE SECTION
CORPORATE OFFICE, CESC,
NO.29, VIJAYANAGAR 2ND STAGE,
HINKAL, MYSURU-570017.
70 . DINESH H R
THE EXECUTIVE ENGINEER
REGULATORY AFFAIRS
CORPORATE OFFICE, CESC, NO.29,
VIJAYANAGARA 2ND STAGE
HINKAL, MYSURU-570017.
71 . GIRISH KUMAR M
THE EXECUTIVE ENGINEER
RT DIVISION, KPTCL,
MANGALORE.
72 . BHARATHI K S
THE EXECUTIVE ENGINEER
O/O SUPERINTENDING ENGINEER,
O AND M CIRCLE, CESC,
SANTHEPETE, HASSAN-573201
73 . THIMMEGOWDA D
THE EXECUTIVE ENGINEER
O AND M DIVISION
CHANDAPURA, BESCOM
BENGALURU-560009
74 . SOMASHEKAR B
THE EXECUTIVE ENGINEER
14
O AND M DIVISION, CESC,
MADIKERI.
....RESPONDENTS
(BY SRI. T. P. SRINIVASA, PRL. GA &
SRI. M. S. NAGARAJA, AGA FOR R1
SRI. SHIRISH KRISHNA, ADVOCATE FOR R2 & R3.
SRI. M. SUBRAMANYA BHAT. ADVOCATE FOR R6, 8, 10,
11, 12, 13, 32, 35, 74, 72, 28, 21, 27, 23, 66, 43, 45,
53, 51, 60 & 63.
SRI. VIJAY KUMAR V. B. ADVOCATE FOR R7, 17,19,24
33, 31, 36 & 44.
SRI. ASHOK N. PATIL ADVOCATE FOR R38, 39,46, 48,54,
57, 58, 64 & 67.
SRI ABHINAV R. ADVOCATE FOR R42, 47, 49 & 55.
SRI. DEVADAS N, SENIOR COUNSEL FOR
SMT. K. S. ANASUYADEVI, ADVOCATE FOR R15, 69,
& 71, 22, 30, 41, 68 & 75. )
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
LETTER DATED 22ND MAY, 2020 VIDE ANNEXURE-A; AND ETC.
IN THIS WRIT PETITION ARGUMENTS BEING HEARD,
JUDGMENT RESERVED, COMING ON FOR "PRONOUNCEMENT OF
ORDERS", THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In this writ petition, petitioners are assailing the
Endorsement dated 05.03.2020 (Annexure-Q) issued by the
respondent No.3 interalia, seeking direction to the respondents
to issue fresh seniority list in terms of the declaration of law by
the Hon'ble Apex Court in the case of K.NARAYANAN AND
OTHERS VS. STATE OF KARNATAKA AND OTHERS reported
in 1994 Supp. (1) SCC 44 and in the case of P. SUDHAKAR
RAO AND OTHERS VS. U.GOVIND RAO AND OTHERS
reported in (2013) 8 SCC 693 and also in terms of the Board
orders dated 16.08.1996 and 27.12.1996 and further, sought for
direction to re-fix the seniority accordingly.
2. Relevant facts for the adjudication of the case are
that, the Karnataka Electricity Board amended the Karnataka
Electricity Board Recruitment and Promotion Regulation, 1969,
incorporating the new policy of appointment called as
"Appointment by transfer" (for short, hereinafter referred to
'ABT' Policy) of the in-service junior engineers who possess or
acquires B.E. or AMIE (India) qualification as Assistant Engineers
(Elec.). Copy of the approval of the Board dated 26.07.1986 is
produced as Annexure-A to the writ petition. Paragraph 2 of the
Annexure-A provides for transfer. The said Board approval
provided for retrospective seniority over and above the existing
Assistant Engineers was questioned before this Court in the case
of GURUSRIPAD VS. KARNATAKA ELECTRICITY BOARD in
WP No. 14622 of 1986. It is further stated in the writ petition
that identical provision providing for retrospective seniority for
appointment by transfer in the Public Works Department was
challenged before the Hon'ble Apex Court in the case of K.
Narayanan (supra). The Hon'ble Apex Court, struck down the
provisions providing for retrospective promotion on the ground
that undue benefit is being given to a class of employees over
the other and the provisions providing for weightage of past
service was upheld. It is contended by the petitioners that the
dictum of the Hon'ble Apex Court was to highlight eligibility
criteria only for in-service candidates while providing promotion.
The Division Bench of this court following the dictum of the
Hon'ble Apex Court in the case of K.Narayanan (supra)
disposed of the writ petition in the case of Gurusripad (supra).
Pursuant to the aforementioned judgments, respondent-
Corporation was directed to prepare a fresh gradation list by
holding the date of entry into service as Assistant Engineer
(Elec.) from the cadre of Junior Engineers (Elec.) who were
appointed by transfer. It is further stated in the writ petition that
during the pendency of the aforementioned case, certain
Assistant Engineers, who are appointed under Appointment By
Transfer Policy on the condition that their interse seniority
ranking would be fixed after the disposal of the writ petition and
at the time of regularizing their service as officiating Assistant
Engineers and such appointment orders were passed by the
respondent-Board as per Official Memorandum dated
30.01.1992, 07.09.1993, 23.09.1994 and 20.03.1995
(Annexure-B1 to B4 respectively). It is the case of the
petitioners that all the Junior Engineers, who were appointed by
transfer to the post of Assistant Engineer Cadre were aware that
their Seniority ranking in the Assistant Engineer cadre would be
subject to outcome of court proceedings in K.Narayanan case
and Gurusripad case (supra). Following the dictum of the
Hon'ble Apex Court in K.Narayanan case, respondent-
Corporation amended the Board order dated 26.07.1986 on
16.08.1996 and 27.12.1996. As per the amended Board order
dated 16.08.1996, Junior Engineer, who is appointed by transfer
as Assistant Engineer on or after 26.07.1986 shall be entitled to
count one-third of the service rendered by him as Junior
Engineer subject to maximum 4 years for the purpose of
consideration of his eligibility for promotion to the post of
Assistant Executive Engineer i.e., the Senior of such Junior
Engineer is to be fixed in the cadre of Assistant Engineer from
the date of transfer (Annexure-C). Subsequent amendment on
27.12.1996, it provides that a Junior Engineer to be appointed
as Assistant Engineer under the 'ABT policy' should have put in
minimum of 7 years service as a Junior Engineer (Annexure-D).
3. It is averred in the writ petition that the petitioners
are appointed to the cadre of Assistant Engineer between 1988
and 1998. It is the grievance of the petitioners that the
respondent-Corporation erroneously interpreting the law
declared by the Hon'ble Apex Court in the case of K.Narayanan
(supra), re-fixed the seniority of Junior Engineers i.e. the Senior
of Junior Engineers appointed by transfer has been fixed in the
Assistant Engineer cadre retrospectively over and above the
seniority of existing Assistant Engineers by fixing their actual
date of joining/reporting as Assistant Engineers much before
they were able to get place in the cadre of Assistant Engineers
and accordingly, Official Memorandum dated 04.11.2000
(Annexure-E) was issued by the respondent-Corporation. The
said re-fixation was neither notified to the petitioners nor
published in the website of the respondent-Corporation. The said
Official Memorandum dated 04.11.2000 is contrary to the law
declared by the Hon'ble Apex Court in the case of K.Narayanan.
It is further amplified that, dictum of the K.Narayanan case was
followed in the case of P.Sudhakar Rao (supra) by the Hon'ble
Apex Court relating to Andra Pradesh Engineering subordinate
service. It is also stated in the writ petition that the respondent-
Corporation, notified the revised seniority list dated 27.10.2017
(Annexure-F), pursuant to the judgment of the Hon'ble Apex
Court in the case of B.K.PAVITRA VS. UNION OF INDIA
reported in (2017) 4 SCC 620. Thereafter, the petitioners have
addressed representation dated 05.06.2017 (Annexure-G) to the
respondent-Corporation and subsequently, the petitioners have
filed WP No.35999 of 2019 before this Court, seeking
consideration of the said representation and this Court, by order
dated 04.12.2019 (Annexure-J), directed the respondent-KPTCL
consider the same in accordance with law. Again the petitioners
addressed one more representation dated 18.12.2019
(Annexure-K) to the respondent-Corporation and pursuant to
the same, the respondent-Corporation has issued impugned
Endorsement dated 05.03.2020 (Annexure-Q), rejecting the
representation filed by the petitioners on the ground that the
Seniority has been already re-fixed. Feeling aggrieved by the
same, the petitioners have presented this writ petition.
4. I have heard Sri D.R. Ravishankar, learned Senior
Counsel appearing on behalf of Smt. M.L.Suvarna, for
petitioners; Sri T.P.Srinivasa, learned Principal Government
Advocate appearing for respondent No.1; Sri Shirish Krishna,
learned counsel appearing for the respondents 2 and 3; Sri
M.Subramanya Bhat, learned counsel appearing for the
respondents 6, 8, 10 to 13, 32, 35, 74, 72, 28, 21, 27, 23, 66,
43, 45, 53, 51, 60 and 63; Sri Vijay Kumar V.B., learned counsel
appearing for the respondents 7, 17, 19, 24, 33, 31, 36 and 44;
Sri Ashok N.Patil, learned counsel appearing for the respondents
38, 39, 46, 48, 54, 57, 58, 64 and 67; Sri Abinav R., learned
counsel appearing for the respondents 42, 47, 49 and 55 and Sri
Devadas N., learned Senior Counsel appearing on behalf of Smt.
K.S.Anasuyadevi, for respondents 15, 69, 71, 22, 30,41, 68 and
75.
5. Sri. D.R. Ravishankar, learned Senior Counsel
appearing on behalf of the petitioners contended that the
petitioners are Engineering graduates and they have been
appointed by direct recruitment in to the respective cadre. The
contesting respondents, who were appointed with a Diploma
Certificate acquired graduation while in service and they have
been transposed as Assistant Engineers and were placed in the
seniority in the cadre of Assistant Engineers above the
petitioners and the said action of the respondent-Corporation, is
contrary to law. Referring to the respondent-Board orders dated
16.08.1996 and 26.07.1986, learned Senior Counsel appearing
for petitioners contended that judgment of Hon'ble Apex Court in
the case of K. Narayanan (supra), would clearly indicate that
the Junior Engineer (Elec.) should put in a minimum experience
of seven years of service in the cadre of Junior Engineer and
thereafter, such Junior Engineers are eligible for ABT Policy to
the post of Assistant Engineer (Elec.). He pleaded that, seniority
of a Junior Engineers (Elec.) who has been appointed as
Assistant Engineer by transfer from the cadre of Junior Engineer
shall be fixed in the category of Assistant Engineers (Elec.) from
the date of their transfer and such Engineers cannot claim their
seniority in the cadre of Assistant Engineer before it takes birth
in the said cadre. Sri. D.R. Ravishankar, learned Senior Counsel
having taken through the Recruitment and Promotion
Regulations of the respondent-Corporation contended that the
promotions have to be made on the basis of seniority-cum-
merit. In this regard, he submitted that the foremost criteria to
be considered for promotion of an employee is that the
employee should be senior in the seniority list and by applying
Regulation-2 of aforementioned Regulations that an employee
appointed against a substantive vacancy shall be senior to all
other persons who are appointed on officiating in the same
cadre. Therefore, it is the principal contention of learned Senior
Counsel appearing for the petitioners that the seniority of
Assistant Engineers who are appointed by direct recruitment
takes precedence over the promotees and all persons in the
same cadre. Therefore, he contended that the petitioners in the
present writ petition are direct recruitees and therefore, the
petitioners have to be placed above the Engineers appointed by
transfer. Emphasize was also made that as the respondent -
Corporation having not followed the procedure contemplated
under their Regulations and same is violation of the orders dated
16.08.1996 and 27.12.1996. Accordingly, he sought for
quashing the impugned endorsement.
6. Nextly, learned Senior Counsel appearing for the
petitioners contended that as the contesting respondents having
been appointed by transfer cannot claim the cadre equivalent to
the petitioners herein on the ground that their entry into the said
cadre is from the date of their transfer and therefore, Sri. D.R.
Ravishankar, learned Senior Counsel argued that the impugned
action of the respondent-Corporation is contrary to the law
declared by the Hon'ble Supreme Court in the case of P.
Sudhakar Rao (supra). He further contended that the
respondent-Corporation has violated the principle that the
Seniority to a person cannot be granted retrospectively even
before such promotee was born in the cadre.
7. Learned Senior Counsel for the petitioners further
contended that there are only two ways of recruitment to any
cadre namely, by direct recruitment or by way of promotion.
The respondent-Corporation, by introducing a new method of
appointment by transfer of in-service employees, possessing and
acquiring higher qualification to technical cadre course as per
Board order dated 26.07.1986 is a scheme to provide for such
employees of a lower cadre being appointed to a technical cadre
post without any competition or examination, based on the
acquisition of degree. Promoting such employees above the
petitioners who have been directly recruited is contrary to law
declared by Hon'ble Apex Court in the case of K.Narayanan
(supra) wherein, it is held that the benefit of retrospective
seniority is ultra-vires to the service jurisprudence. The
respondent-Corporation having aware about its own Board
orders dated 16.08.1996/27.12.1996 that only one-third
weightage of service will be counted for the purpose of eligibility
for promotion to the post of Assistant Executive Engineer cadre
and not for the purpose of seniority however, the said order is
violated by the respondent-Corporation. In this regard, he
referred to the Judgment of the Hon'ble Supreme Court in the
case of K. NARAYANAN AND ANOTHER Vs. STATE OF
KARNATAKA AND OTHERS reported in 1994 Suppl. 1 SCC
44, in the case of P. SUDHAKAR RAO AND OTHERS Vs.
U.GOVIND RAO AND OTHERS reported in (2013) 8 SCC 693;
GURUSRIPAD AND OTHERS Vs. KARNATAKA ELECTRICITY
BOARD in WP No. 14622 of 1986 decided on 23.01.1986 ; in
the case of GOVERNMENT OF INDIA AND OTHERS Vs.
INDIAN TOBACCO ASSOCIATION reported in (2005) 7 SCC
396 and in the case of CHAIRMAN, STATE BANK OF INDIA
AND ANOTHER Vs. M.J. JAMES, reported in (2022) 2 SCC
301.
8. In reply to the submission made by the learned
counsel appearing for the parties with regard to delay and
laches, Sri. D.R. Ravishankar argued that the petitioners and
other similarly situated employees have been kept in dark and
further the respondent-Corporation failed to implement the
Judgments of the Hon'ble Apex Court and this Court, as there is
violation of statutory duty by the respondent-Corporation and
same is a continuing wrong till the issuance of the seniority list,
2017 and immediately the petitioners made efforts to file the
writ petition challenging the impugned notification issued by the
respondent- Corporation as the same is contrary to the law
declared by this Court in Gurusripad's case and retrospective
seniority has been assigned to the Junior Engineers despite the
Judgment of this Court and Hon'ble Apex Court and the same is
in violation of the Board orders and as such, he argued that,
delay and laches would not come in the way of granting relief to
the petitioners. In this regard, he refers to the Judgment of the
Hon'ble Apex Court in the case of AJAY KUMAR SUKLA AND
OTHERS Vs. ARVIND RAI AND OTHERS reported in (2021)
SCC Online 1195 and submitted that, as the seniority list has
been prepared in contravention of statutory rules, same cannot
be defended on the ground of delay and laches.
9. Per contra, Sri. Shirish Krishna, learned counsel
appearing for respondents 2 and 3, invited the attention of the
Court to the prayer made in the writ petition and submitted that,
the petitioners have challenged the provisional seniority list and
same cannot be quashed. He further contended that the writ
petition is liable to be dismissed on the ground of delay and
laches and the rights of the petitioners cannot be enforced in
writ proceedings after unreasonable lapse of action in service
related disputes. Claiming seniority is not a fundamental right
and is only a civil right, Sri. Shirish Krishna relied upon the
Judgment of the Hon'ble Apex Court in the case of SHIBA
SHANKAR MOHAPATRA AND OTHERS Vs. STATE OF
ORISSA AND OTHERS reported in (2010) 12 SCC 471; in the
case of CHAIRMAN / MANAGING DIRECTOR, U.P. POWER
CORPORATION LIMITED AND OTHERS Vs. RAM GOPAL
reported in 2020 SCC Online SC 101 and in the case of
KARNATAKA POWER CORPORATION LIMITED VS. K.
THANGAPPAN AND ANOTHER reported in (2006) 4 SCC 322
and argued that mere making representation to the authorities
would not justify the belated approach by the petitioners in the
present case. He further contended that the petitioners were
well aware about the series of seniority list issued by the
respondent-Corporation since 2000, however, approached this
Court with inordinate delay of more than a decade and therefore,
he sought for dismissal of the writ petition.
10. Sri. N. Devdas, learned Senior Counsel on behalf of
Smt. Anusuyadevi, appearing for some of the contesting
respondents argued that the representation dated 05.06.2017
(Annexure-G) itself has become infructuous and therefore,
consideration of the same does not arise at all. Petitioners
having filed objections to the preliminary notification, have not
attended the oral hearing afforded by the respondent-KPTCL to
the objectors who had filed objections to the provisional seniority
list. Learned Senior Counsel further contended that even after
the judgment rendered by the Hon'ble Apex Court in the case of
B.K. PAVITRA-II on 10.05.2019, the petitioners did not filed
objections to their seniority and therefore, writ petition is liable
to be dismissed for want of material facts. He further contended
that the petitioners have suppressed vital material facts that the
judgment delivered in Writ Appeal No.41 of 2020. Therefore,
looking into the conduct of petitioners, learned Senior Counsel
pleaded that, the writ petition deserves to be dismissed.
11. Nextly, Sri. N. Devadas, learned Senior Counsel
argued that the petitioners are complaining about the issue of
seniority of ABT Engineers after a lapse of 24 years, and
therefore, the writ petition deserves to be dismissed on the
ground of delay and laches. The petitioners were aware about
the method of recruitment to the post of Assistant Engineer
which provided for direct recruitment and also by Appointment
By Transfer of the Junior Engineers who possess requisite
qualification and at this stage, the petitioners cannot be
permitted to raise the belated claim in this writ petition.
Accordingly, he sought for dismissal of petition with cost.
12. Sri. Subramanya Bhat, Sri Ashok N.Patil, Sri Abhinav
R., and Sri. Vijay Kumar, learned counsel appearing for the
contesting respondents contended that some of the respondents
have acquired B.E. Degree before their appointment as Junior
Engineer and therefore as per the existing Rules under
Regulation 10-A of Recruitment and Promotion Regulation, such
respondents were permitted to change the cadre, having
obtained the requisite degree in Engineering and were appointed
as Assistant Engineer under appointment by transfer (ABT) and
accordingly, they sought for dismissal of the petition on the
ground that these contesting respondents have been promoted,
based on the seniority in the cadre of Assistant Engineer.
Referring to Notification dated 16.08.1996, Clause 2 of Note (V)
of paragraph 2, Sri. Vijay Kumar, learned counsel appearing for
the respondents made a specific contention that the said
Notification permits counting of one-third service rendered as
Assistant Engineer for the purpose of qualifying service and
eligible for promotion as Assistant Executive Engineer and
considering the same, the contesting respondents have been
promoted as Assistant Executive Engineer by orders dated
16.11.1999, 30.11.1999 and 29.07.2000 and therefore, he
contended that as per order dated 27.12.1996, which prescribes
a minimum seven years of service in the cadre of Junior
Engineer for appointment by transfer is not applicable to the
case of petitioners. It is the categorical argument of learned
counsel Sri. Vijay Kumar that the contesting respondents are not
beneficiaries of retrospective promotion, as claimed by the
petitioners and therefore, he sought for dismissal of the petition
on the ground of delay and laches.
13. In the light of the submission made by learned
counsel appearing for the parties, the principal claim of the
petitioners is that the petitioners are entitled for promotion in
terms of the judgment of the Hon'ble Apex Court in the case of
K. Naryanan (supra) and P. Sudhakar Rao (supra) and they
have to be placed above ABT Junior Engineers in the seniority
list. Petitioners have also challenged the endorsement dated
05.03.2020 (Annexure-Q) whereby, pursuant to the direction
issued by this Court on 04.12.2019 in Writ petition No.35999 of
2019 and the representation dated 05.06.2017 made by the
petitioners requesting to place their seniority above the seniority
of ABT Engineers in accordance with Board orders. It is relevant
to extract the entire judgment rendered by this Court on
04.12.2019 in Writ Petition No.35999 of 2019, which reads as
under:
"ORDER
Petitioners being the employees of the 2nd
respondent KPTCL are invoking the writ jurisdiction
of this court with an innocuous prayer i.e. a direction
for considering their representation dated
05.06.2017, a copy whereof is at Annexure-C, whilst
finalizing the final Seniority List of the Assistant
Engineers in terms of the Apex Court judgment in
the case of P.SUDHAKAR & OTHERS vs. U. GOVINDA
RAO AND OTHERS, (2013) 8 SCC 693.
2. Sri C.N. Mahadeshwara, learned Additional
Government Advocate accepts notice for 1st
respondent -State and Sri A. Chandrachud, learned
panel counsel accepts notice for 2nd respondent-
KPTCL.
3. Learned Panel counsel for KPTCL fairly submits
that there will be no difficulty for considering
petitioners subject representation if a reasonable
period is prescribed by this court and also if
petitioners agree to produced all necessary material
required for such consideration. This stand of 2nd
respondent is fair and reasonable.
In the above circumstance, this writ petition
succeeds; a Writ of Mandamus issues to the 2nd
respondent to consider petitioners representation
dated 05.06.2017, a copy whereof is at Annexure-C
within a period of six weeks and in accordance with
law.
It is needless to mention that petitioners shall
furnish all the necessary information/documents as
may be solicited by the respondent-KPTCL; however,
in the guise of such solicitation, delay shall not be
brooked.
Result of consideration shall be made known to he
petitioners without any delay.
14. It is the grievance of the writ petitioners that the
Junior Engineers who were appointed with a Diploma certificate,
acquired B.E. Degree while in service and on such acquisition,
such appointment by Transfer (ABT-contesting private
respondents), on acquisition of such Degree qualification
transposed as Assistant Engineers and were placed in the
seniority in the cadre of Assistant Engineers above the
petitioners herein is contrary to Board orders dated 16.08.1996
and 26.07.1986.
15. In the backdrop of these aspects, I have carefully
considered the judgment of the Hon'ble Apex Court in the case
of K. Narayanan and Gurusripad (supra), identical provisions
existing in Public Works Department, wherein challenge was laid
to the retrospective seniority granted to such Junior Engineers.
In the case of K. Narayanan (supra), Hon'ble Apex Court at
paragraph 5 to 9 held as under:
"5. Demarcation of cadres or gradation in the same cadre
on higher and lower qualification is a common
phenomenon for fixing hierarchy in services. It is a valid
basis of classification as held by this Court in State of
Mysore v. P. Narasing Rao, Union of India v. Dr S.B. Kohli
(Mrs), State of J&K v. Triloki Nath Khosa, P. Murugesan v.
State of T.N. Engineering services throughout the
country, normally, maintain distinction between Junior
and Assistant Engineer on diploma and degree. It existed
in the State of Karnataka right from the day the rules
were framed. It has been done away with on assumption
by the Cabinet that some of the duties performed by the
two were common. The Tribunal did not agree with it, and
in our opinion rightly. But that alone is not sufficient to
strike down the rule. A policy decision taken by the
Government is not liable to interference, unless the Court
is satisfied that the rule-making authority has acted
arbitrarily or in violation of the fundamental rights
guaranteed under Articles 14 and 16. Appointment by
transfer in the same service or from the different cadre or
service but equal in rank and status is well known. But
transfer from lower to higher cadre not by promotion but
direct appointment only because the incumbent became
eligible without any selection, test or criteria may not be
in consonance with service discipline. What the rules
contemplate is that once a Junior Engineer acquires a
degree qualification then he automatically should be
deemed to have become an Assistant Engineer. An
employee occupying a higher post in different cadre may
on regularisation be entitled to claim his seniority from
the date he was holding the post but giving a higher post
in different cadre in which the employee has never
worked either as officiating or temporary or even ad hoc
because the employee became eligible earlier would be
violative of the right of equality. The methodology
adopted in the rules by transferring such a person and
placing him in the category of direct recruits from the
date of acquiring the degree the Government in our
opinion violated the basic norms of appointment and
recruitment to any particular service. The Government
may appoint all the Junior Engineers en bloc after framing
of the rule and place them below all those who were
working as Assistant Engineers on that date but they
cannot be so appointed as to get precedence over those
who are working from before. It would result in artificially
making unequals as equals. Any person entering the
service can justly feel secure of equality in continuance,
promotion etc. Any executive action violating it cannot be
upheld. Seniority is an incident of service which cannot be
eroded or curtailed by a rule which operates
discriminately. The purpose of opening evening classes
and permitting diploma holders to study was to improve
efficiency in service and provide better service conditions.
When rules were framed and provision for appointment
by transfer was made both these objectives were
achieved. But operation of the rule with retrospective
effect has no nexus with either except that it may result
in undue benefit to one class of employees over the
other. The impugned rules having been framed in 1985
with effect from 1976 result in entry of diploma holders
as Assistant Engineer only because they became qualified
as against those who entered in service before or after
1976 by competitive process. Devi Prasad] was upheld by
this Court because it was found, 'as reasonable and in the
circumstances fair'. The dispute was between non-
graduate diploma holders working as supervisors etc. and
graduates working as Junior Engineers. Since the Court
found that there was functional parity between
supervisors and Junior Engineers the rule framed by the
Government giving weightage of four years to supervisors
to make them eligible for appointment as Assistant
Engineer was not invalid. But there can be no functional
parity between employees of two different cadres. It
would be too dangerous to accept such assumption. In
R.N. Nanjundappa v. Thimmiah this Court struck down a
rule for violation of Article 14 as it had attempted to
bypass the regular method of recruitment by competitive
examination or by selection or by promotion and provided
for regularisation of a government servant working on
deputation as deemed to have been appointed. In State
of A.P. v. K.S. Muralidhar the temporary supervisor who
had succeeded before this Court in Devi Prasad case
claimed seniority from the date of acquiring academic
qualification. It was repelled and it was held that it could
be from the date of appointment only.
6. Article 309 of the Constitution empowers the
appropriate Legislature to frame rules to regulate
recruitment to public services and the post. 'Recruitment'
according to the dictionary means 'enlist'. It is a
comprehensive term and includes any method provided
for inducting a person in public service. Appointment,
selection, promotion, deputation are all well-known
methods of recruitment. Even appointment by transfer is
not unknown. But any rule framed is subject to other
provisions of the Constitution. Therefore it has to be
tested on rule of equality. Transfer is normally resorted in
same cadre. But when it is made in a different and higher
cadre it must not be violative of constitutional guarantee
and the rule of fairness. Providing for appointment of a
diploma holder from the cadre of Junior Engineer to
Assistant Engineer from back date without any test or
selection on eligibility only does not sound reasonable and
fair. Why was it done is apparent from the following
notings by the Secretary:
"The most important issue was regarding the date
of transfer of the Junior Engineer acquiring graduate
qualifications, the weightage of past service had to be
taken into consideration. In the proposals submitted to
the cabinet this crucial aspect was not outlined specifically
and the impression that was created was that the transfer
would take place with prospective effect. In such an event
the weightage of previous service would have to be
confined only up to date of graduation and this would not
have been of any advantage to most of the Junior
Engineers who have acquired the degree qualification
several years ago. Even if the weightage of past service
after graduation and up to the date of appointment as
Junior Engineers was given the transferees would not
have gained any significant advantage in the matter of
notional seniority. The Karnataka Graduate Engineers
have strongly represented on this issue and have urged
that their transfer to the Assistant Engineer's cadre
should be with retrospective effect i.e., from the date
they have acquired graduate qualification. In support of
their arguments they have pointed out that even in
Andhra Pradesh a similar step was taken in that the
transfer was allowed with retrospective effect. The points
raised by the Graduate Engineers Association have been
examined and it is felt that their demand to have the
transfer effected with retrospective effect has some
justification in view of the long years of service rendered
by the Junior Engineers before and after acquiring
graduate qualification. If this benefit is not given, the
amendment to the C&R Rules allowing for their transfer
would be of little use for many of the senior members of
the Graduate Engineers Association who have been
fighting for this change for many years. Therefore taking
an overall sympathetic view it is proposed that we may
allow for the transfer of Junior Engineers who acquired
graduate qualifications with retrospective effect from the
date of acquisition of such qualification subject to the
availability of vacancies at that time in the Assistant
Engineer's cadre. It is seen that the first batch of the in-
service Junior Engineers took their graduate degree in
1976 and hence the notification amending the rules would
have to be effective from January 1, 1976."
Rules were thus bent and made retrospective as a
sympathetic consideration as many Junior Engineers who
were working since long would not have derived any
benefit otherwise. May be true but if the extension of
such benefit impinges upon the constitutional guarantee
of equality then it cannot be upheld. And that does stand
disturbed. Nothing further need be said. Nor it is
necessary to pronounce on the validity of a rule which in
the class of appointment by direct recruitment includes
appointment by transfer resulting in entry of one class by
competition or selection and other by acquisition of
minimum qualification as the appellants did not challenge
the rule of appointment by transfer but confined their
claim to its operation retrospectively.
7. Rules operate prospectively. Retrospectivity is an
exception. Even where the statute permits framing of rule
with retrospective effect the exercise of power must not
operate discriminately or in violation of any constitutional
right so as to affect vested right. The rule-making
authority should not be permitted normally to act in the
past. The impugned rule made in 1985 permitting
appointment by transfer and making it operative from
1976 subject to availability of vacancy in effect results in
appointing a Junior Engineer in 1986 with effect from
1976. Retrospectivity of the rules is a camouflage for
appointment of Junior Engineers from a back date. In our
opinion the rule operates viciously against all those
Assistant Engineers who were appointed between 1976 to
1985. In Ex-Capt. K.C. Arora v. State of and P.D.
Aggarwal v. State of U.P. it was held by this Court that
the President or Governor cannot make such
retrospective rules under Article 309 of the Constitution
as contravene Articles 14, 16 or 311 and affect vested
right of an employee. Even in B.S. Yadav v. State of
where the power to frame rules retrospectively was
upheld it was observed: (SCC p. 557, para 76)
"Since the Governor exercises a legislative power
under the proviso to Article 309 of the Constitution, it is
open to him to give retrospective operation to the rules
made under that provision. But the date from which the
rules are made to operate must be shown to bear, either
from the face of the rules or by extrinsic evidence,
reasonable nexus with the provisions contained in the
rules, especially when the retrospective effect extends
over a long period as in this case."
As seen earlier there is no nexus between framing a rule
permitting appointment by transfer and making it
retrospective with effect from 1976. Appointing a person
to a higher post in a different cadre in which he has never
worked is violative of constitutional guarantee of those
who are working in the cadre. It is against basic principle
of recruitment to any service. Even in Mohammad Shujat
Ali where the Constitution Bench while reiterating that
distinction in qualification was valid criterion for
determining eligibility for promotion except where both
held the same post and perform same duty did not strike
down the rules as the differentiation in same class of
persons was not brought about for the first time but
existed from before and the two were treated as distinct
and separate class. The retrospective operation of the
impugned rule attempts to disturb a system which has
been existing for more than twenty years. And that too
without any rationale. Absence of nexus apart no rule can
be made retrospectively to operate unjustly and unfairly
against other (sic). In our opinion the retrospective
operation of the rule with effect from January 1, 1976 is
discriminatory and violative of Articles 14 and 16.
8. So far weightage is concerned such provision has been
upheld by this Court in Devi Prasad. Even the appellants
candidly stated that they were not against weightage.
9. For the reasons stated above these appeals and writ
petition succeed and are allowed. The following directions
are issued:
(i) The order of the tribunal dated October 21, 1988 is set
aside. The second paragraph of the 1985 Amendment
Rules making it operative from January 1, 1976 is struck
down as ultra vires.
(ii) Note (2) shall be read as providing eligibility only."
16. In Gurusripad case (WP No.14622 of 1986), some
of the employees have challenged Board order dated 26.07.1986
providing retrospective seniority and this Court, by order dated
23.01.1986, struck down the provision providing retrospective
seniority and directed the respondent-Board therein to prepare
fresh gradation list in the light of the judgment rendered in K.
Narayan (supra).
".........
(2) the note relating to giving weightage shall be
read as providing eligibility only and (3) the
respondent are directed to prepare fresh gradation
list n the light of this and in the light of the
observations made by the Supreme Court in
NARAYANAN'S case referred to earlier. Let such
action be taken by the Board within a period of four
months from today."
17. In the backdrop of the aforementioned declaration of
law made by the Hon'ble Apex Court, it is relevant to extract, the
Board Resolution dated 26.07.1986 whereby, Note 4 and 5 of
the said Board Resolution reads as under:
Note (iv): The transfer shall be effective from the date of
graduation subject to the availability of vacancies without
ignoring the interse seniority among those eligible for
such transfer.
Note (v): A Junior Engineer who is appointed by transfer
as Assistant Engineer on or after 1.1.76 shall be entitled
to count one third of the service rendered by him as
Junior Engineer, prior to appointment as Assistant
Engineer, subject to a maximum of 4 years, as if it had
been in the post of Assistant Engineer, for the purpose of
consideration for promotion to the post of Assistant
Executive Engineer and subject to the following
conditions, namely:-
(1) The seniority of a Junior Engineer who is appointed as
Assistant Engineer shall be fixed in the category of
Assistant Engineers with reference to the national date
arrived at after giving weightage of service as aforesaid;
(2) A Junior Engineer who is appointed as Asst Engineer
shall put in a minimum service of two years on duty as
Assistant Engineer, after such appointment and a total
service of five years as Assistant Engineer, inclusive of
the service given as weightage to become eligible for
promotion as Assistant Executive Engineer.
18. On careful examination of the aforementioned note
would indicate that, a Junior Engineer who has been appointed
by transfer as Assistant Engineer shall be entitled to count 1/3rd
of the service rendered by him as Junior Engineer, and same is
subject to a maximum of four years. Note 5 extracted above,
comprises two sub-clause. A clear reading of Note 5 would
makes it clear that the eligibility criteria for such promotion is
the relevant factor to be looked into at the time of consideration
of the promotion. Undisputedly, the petitioners herein are
working in the cadre of Superintendent Engineer and Executive
Engineer in the respondent-Corporation. The above provisions
of Board order dated 26.07.1986 providing retrospective
seniority to the existing Assistant Engineer was tested by this
Court, in Gurusripad's case. In terms of the judgment rendered
in K.Narayanan's case supra and Gurusripad's case supra,
respondent-Corporation ought to have prepared a fresh
gradation list by holding the date of entry into service as
Assistant Engineers from the date such Junior Engineers were
appointed by transfer in the cadre of Assistant Engineers. It is
also to be noted that, the contesting respondents, who are all
Junior Engineers and appointed by transfer to the Assistant
Engineer cadre were well aware about their Seniority ranking in
the Assistant Engineer cadre in view of the judgments rendered
by the Hon'ble Apex Court in the case of K.Naryanan's case
and this court in Gurusripad's case (supra). It is also not in
dispute that the petitioners herein are appointed as Assistant
Engineers by way of direct recruitment and if the Board order
providing retrospective promotion to the ABT Engineers, is
allowed to be continued, same would run contrary to the law
declared by the Hon'ble Apex Court in K.Narayanan's case
(supra). It is mandated in the Note 4 and 5 that, the actual date
of joining/reporting as Assistant Engineer, by the ABT Junior
Engineers is the determinative factor for consideration for
promotion to higher cadre. Looking into the aforementioned
Board orders, I am of the view that, the respondent-
Corporation/Board, erroneously construed that, the seniority list
of Assistant Engineers/Assistant Executive Engineer cadre,
published up to 2014 wherein the date of entry into service of
Junior Engineers was shown as that they had entered the service
of the respondent-Corporation directly to the cadre of Assistant
Engineer and not by way of promotion in terms of the Board
orders by fulfilling the conditions of acquiring the necessary
degree as well as putting minimum period of 7 years as
mandated by Board order dated 27.12.1996 and therefore, it is
clear violation on the part of the respondent-Corporation to issue
the series of promotion, dehorse the eligibility criteria as well as
the law declared by the Hon'ble Apex Court in the case of
K.Narayanan's case, and therefore, the petitioners herein have
made out a case that the impugned final list of promotion made
by the respondent-Corporation is contrary to law as well as the
law declared by the Hon'ble Apex Court referred to above. If at
all the Junior Engineer who became Assistant Engineers by way
of appointment by transfer are given seniority in the cadre of
Assistant Engineer from the date on which, they got promotion
dehorsing the statutory provisions namely, criteria of eligibility
as mentioned in the regulation would amounts to violation of the
judgment Hon'ble Apex Court in the case of P.Sudhakar Rao
(supra). It is pertinent to note that, impugned order of
promotion is liable to be set aside on the ground that the
respondent-Corporation did not make way for consider only the
1/3rd service weightage for the purpose of eligibility for
promotion to the Assistant Executive cadre and very same
scheme / policy of appointment by transfer would be defeated.
Therefore, I find force in the submission made by Sri. D.R.
avishankar, learned Senior Counsel appearing for the petitioners
that respondent-Corporation failed to follow eligibility criteria
before considering the case of the contesting respondents who
were appointed by transfer.
19. Though I have arrived at a conclusion, that the
petitioners have made out a case for interference in the
impugned Endorsement dated 05.03.2020, however, it is the
principal submission of the all the counsel representing the
respondents that the writ petition deserves to be dismissed on
the ground of delay and laches as the petitioners have not
approached this court at the earlier point of time and the belated
claim made by the petitioners is required to be rejected. I have
also noticed various judgments referred to by Sri. Shirish
Krishna, learned counsel appearing for the respondent-
Corporation with regard to delay and laches. It is well settled
principle in law that right to promotion is not a fundamental right
however, right for promotion of the aggrieved parties, have to
be appreciated by looking into the statutory provisions or the
claim made by the aggrieved parties, like petitioners in this
petition, when there is discrimination based on applying the
principle arbitrarily without following the statutory provisions,
interalia, dehorse the eligibility criteria of such applicants
seeking promotion. In this regard, sum and substance of the
submission of the respondents is that, promotion should not be
disturbed after a long lapse of time when there is inordinate
delay. It is essential that, one who feels aggrieved by the
seniority assigned to him, should approached the Court as early
as possible, otherwise, there would be administrative
complications. It is argued by the learned counsel appearing for
the respondents that writ court shall take into account the delay
and laches on the part of the petitioners in approaching the court
and if there is gross and unexplained delay, the court shall
refuse to grant relief in favour of such petitioners. In the
backdrop of these detailed arguments on delay and laches by the
learned counsel appearing for the respondent-Corporation and
other contesting respondents one cannot miss the fact that writ
court is having a equitable jurisdiction under Article 226 of
Constitution of India, and even if the respondents raised plea of
delay and laches on the part of the petitioners, this Court is
empowered to analise the satisfactory explanation offered by the
petitioners and would grant relief to such petitioners, if the
petitioners satisfactorily explain the reasons for delay in
approaching this Court. Having come to the conclusion that the
respondent-Corporation has violated the norms by promoting the
contesting respondents contrary to the Board orders and the
judgment of the Hon'ble Apex Court in the case of K.Narayanan
supra, it is relevant to extract the judgment of the Hon'ble Apex
Court in the case of KULDEEP CHAND VS. UNION OF INDIA
reported in 1995 (5) SCC 680. Paragraph 5 of the said
judgment reads as under:
"5. When the aforesaid facts are taken into consideration,
it would be obvious that the preparation of seniority list
per se was illegal. Therefore, the mere fact that he did
not challenge the seniority list, which was illegally
prepared, till he was aggrieved for non-consideration of
the claim to the post of accountant, his legitimate right to
be considered cannot be denied. Under these
circumstances, the delay is of no consequence for
considering the claims of Ashok Kumar for the post of
accountant."
20. Recently, Hon'ble Supreme Court had an occasion to
discuss the issue relating to applicability of delay and laches in
the petitions challenging the Seniority list in the case of AJAY
KUMAR SHUKLA AND OTHERS VS. ARVIND RAI and others
reported in (2021) SCC Online SC 1195, at paragraphs 21 to
53 reads as under:
"21. We may now discuss the law on the point regarding
delay in approaching the court and in particular challenge
to a seniority list. The learned Single Judge had placed
reliance on a judgment of this Court in the case of Shiba
Shankar Mohapatra v. State of Orissa (supra). Dr. B.S.
Chauhan, J., after considering the question of
entertaining the petition despite long standing seniority
filed at a belated stage discussed more than a dozen
cases on the point including Constitution Bench
judgments and ultimately in paragraph 30 observed that
a seniority list which remains in existence for more than
three to four years unchallenged should not be disturbed.
It is also recorded in paragraph 30 that in case someone
agitates the issue of seniority beyond period of three to
four years he has to explain the delay and laches in
approaching the adjudicatory forum by furnishing
satisfactory explanation. Paragraph 30 is reproduced
below:--
"30. Thus in view of the above, the settled legal
proposition that emerges is that once the seniority had
been fixed and it remains in existence for a reasonable
period, any challenge to the same should not be
entertained. In K.R. Mudgal, this Court has laid down, in
crystal clear words that a seniority list which remains in
existence for 3 to 4 years unchallenged, should not be
disturbed. Thus, 3-4 years is a reasonable period for
challenging the seniority and in case someone agitates
the issue of seniority beyond this period, he has to
explain the delay and laches in approaching the
adjudicatory forum, by furnishing satisfactory
explanation."
22. On the other hand, the Division Bench while shutting
out the appellants on the ground of delay relied upon
following judgments of this Court.
• Dayaram Asanand Gursahani v. State of Maharashtra2
• B.S. Bajwa v. State of Punjab3
• Malcom Lawrence Cecil D'Souza v. Union of India4
• R.S. Makashi v. I.M. Menon5
23. In the case of Dayaram Asanand Gursahani (supra),
there was a delay of 9 years. In the case of B.S. Bajwa
(supra), there was a delay of more than a decade. In
Malcom Lawrence Cecil D'Souza (supra), the delay was of
15 years and in R.S. Makashi (supra) there was a delay of
8 years. In all these cases, this court has recorded that
the delay has not been explained. Shiba Shankar
Mohapatra (Supra) is a judgment of 2010, which has laid
down that, three to four years would be a reasonable
period to challenge a seniority list and also that any
challenge beyond the aforesaid period would require
satisfactory explanation.
24. In view of the above legal proposition, we now
examine the facts of the present case, firstly, as to
whether there was delay of more than three to four years
and secondly, if there was delay of more than three to
four years, whether the same has been satisfactorily
explained.
25. In October, 2001, when the appointment letters were
issued it carried a stipulation that the seniority would be
determined later on as per rules. It is an admitted
position that before 2006, the seniority list of the
appellants was not notified. In March, 2006, when the
tentative list was published, it did not mention about the
three select lists nor was this fact mentioned when the
final seniority list was published on 05.09.2006. Rather, it
clearly mentioned that the seniority list had been
prepared on the basis of merit. This was in fact an
incorrect statement. The seniority list had not been
prepared on the basis of merit but on the basis of receipt
of the three separate select lists one after the other. As
the Agricultural list was received first on 28.09.1999, all
the selected candidates of agricultural stream were en
bloc placed on the top, thereafter the Mechanical list was
received on 06.01.2000, they were placed below the
Agricultural stream and lastly, the Civil stream list was
received on 07.11.2000, they were placed at the end.
26. Rules 5 and 8 of Rules 1991 clearly mention that
there shall be one list for one selection of direct recruits.
Creating three separate lists for one selection was
contrary to the provisions contained in Rules 5 and 8 of
Rules 1991. Rules 2009 clearly mention that seniority
would be determined and prepared as per 1991 Rules.
Rule 5 of Rules 1991, dealt with the selections made only
through direct recruitment whereas Rule 8 thereof dealt
with the situation where seniority list is to be prepared of
both the direct recruits and the promotees. However, the
principles underlined in both these Rules are the same
that there has to be one list for one selection, as is clear
from Rule 8(2)(a) and Rule 5 of Rules 1991.
27. Once it is established that the seniority list was
prepared in contravention to the statutory provisions laid
down in Rules 1991, the seniority list could be interfered
with. The Appointing Authority would be bound by the
statutory rules and any violation or disregard to the
statutory rules would vitiate the seniority list. The same
would be arbitrary, de hors the rules and in conflict with
Articles 14 and 16 of the Constitution. The only exception
to the above would be where there is unreasonable delay
which is unexplained.
28. In the present case, if we accept the submission of
the appellants then the delay at best could be a few
months or a year however, if we accept the contentions of
the private respondents then the delay could be of five
years. In the first contingency, no explanation would be
required. However, in the second contingency, if the
appellants are successful in satisfactorily explaining the
delay, then even this hurdle could be overcome. In the
facts of the present case what we find from the final
seniority list of 05.09.2006 is that it nowhere mentioned
that there were three separate lists of separate streams
and that they were received on different dates. On the
contrary, there was a recital therein and specific
averment to the effect that the list had been prepared on
the basis of merit. Thus, it cannot be said that the
appellants were aware of the three separate select lists
dispatched by the Commission on three different dates at
the time of publication of final list dated 05.09.2006.
29. It would also be worthwhile to mention here that the
appellants had no occasion to know about the three
separate lists either at the time they were dispatched by
the Commission or at any time thereafter as the
appointment letters of all selected candidates of all the
three streams were issued simultaneously under Office
Order dated 08.10.2001. It would also be relevant to
mention that the order finalizing the seniority list of
05.09.2006 also nowhere mentioned that three separate
lists of three streams were received from the Commission
and placed en bloc as received one after the other.
30. At the time of notifying the tentative list on
29.12.2009, it was not stated anywhere that there were
three separate lists received on three different dates. As
such it could not be alleged that the appellants even at
that stage did not file objections regarding preparation of
common seniority list. It was only when the final seniority
list was published on 05.03.2010 and in the order
finalizing the list, it was mentioned by the department
that there were three separate lists received on three
separate dates and in that sequence the combined
seniority was prepared. Thus, it is for the first-time that
appellants came to know of the error on publication of the
final seniority list on 05.03.2010.
31. The respondents have not been able to show any
material which could clearly indicate that the appellants
had knowledge of three separate lists and the preparation
of the seniority list on its basis. A frail attempt has been
made by the respondents referring to office order dated
17.03.2006 Annexure-P-30 to the Appeal @ SLP(C) No.
5435 of 2020 which is the order notifying the tentative
seniority list. Paragraph 3 thereof mentions that the
sequence whereunder the selection list of Junior
Engineers selected by the Commission has been received,
the seniority has been given in that sequence. Paragraph
3 reads as under:
"3 : The sequence, where under the selection list of the
Junior Engineers selected by the Commission has been
received, in that sequence, the Seniority has been given
in accordance with Seniority detailed therein."
32. A reading of the above paragraph does not refer to
any details either of any stream, the year of selection, the
selection being made on the basis of which advertisement
or the dates on which separate lists were received. It is a
general statement. This submission of the respondents
stands completely diluted in view of the facts recorded in
paragraph 5 and last sentence as contained in paragraph
25 of the same office order dated 05.09.2006. We will
analyse the same but before that they are reproduced
hereunder:
"5. Shri Vinod Kumar Singh has requested to enter his
Name in the Seniority List and requested to grant
Seniority in ratio of 50 : 30 : 20 to the
Agriculture/Mechanical/Civil Engineering. In this regard, it
is clear that the above ratio is only for recruitment. From
Commission, on 6.01.2000, on 27.01.2000 and on
07.11.2000 list was sent. Therefore, in this sequence, on
the basis of merit, the Seniority has already been
assessed. Name of Shri Vinay Kumar has been entered at
the required place in the Seniority List as his Name was
left to be entered therein and as requested to increase
and enter his Name in this Seniority List.
xxx xxx xxx xxx xxx
25. "...The Seniority of the candidates selected from the
Public Service Commission have been kept in their Serial
of merit."
33. Reading of paragraph 5, it is again mentioned that
three lists were received by the Commission and in that
sequence, on the basis of merit, the seniority has been
assessed. Paragraph 5 was dealing with objection of one
Vinod Kumar Singh requesting to enter his name in the
seniority list and further requesting to grant seniority in
the ratio of 50 : 30 : 20. The competent authority allowed
the request finding that the name of Vinod Kumar Singh
was left to be entered and accordingly it was incorporated
at the required place. Further, the last sentence of this
office order clearly mentions that the seniority of the
candidates selected from the Commission has been kept
in their serial of merit. It does not refer to any separate
merit being considered for preparing the seniority list of
the three separate streams.
34. After coming of Rules 2009, fresh exercise was
undertaken for preparation of seniority list. A tentative list
was notified by the Office Order dated 29.12.2009. This
Office Order mentions that the seniority list has to be
prepared according to 1991 Rules. While dealing with the
finalization of this tentative list, vide office order dated
05.03.2010, we find reference to disposal of an objection
by Mahesh Chand Bagani and Mahesh Kumar in which
they had apparently sought clarification regarding the
requisition send to the Commission and other related
aspects. In paragraph 11 of the Office Order, it is
mentioned that the Commission had forwarded the three
lists of the Agriculture, Mechanical and Civil streams
separately on 06.01.2000, 27.01.2000 and 07.11.2000
respectively. It further mentioned that it was in that
sequence i.e. the date of receiving that the combined
seniority was assessed. Thus, again the seniority list was
finalized in the same sequence as the three lists have
been received and in that order. It is thereafter that the
representations were made that the seniority list of the
direct recruits of 2001 was wrongly prepared contrary to
the Rules, however, when no action was taken, Rajiv Nain
Upadhyay and fourteen others approached the High Court
by way of W.P. No. 53123 of 2012 in October 2012 which
was within a period of two to two and half years and till
such time they had been pursuing their representation
after office order dated 05.03.2010. From the above
facts, it is clear that in the first contingency or in the
second contingency, the appellants cannot be found at
fault. The Division Bench committed an error in holding
that the claim lodged by the appellant suffered from delay
and laches.
35. The plea to defend the seniority list prepared contrary
to the statutory provisions on the ground of delay would
be a difficult proposition. Apart from the submission of
the appellants that there is no delay as they came to
know of the three separate lists only in March, 2010, even
if it is assumed that there was some delay and a fresh
seniority list was being prepared in 2009-2010 again
contrary to the provisions of statutory rules, such
seniority list cannot be sustained or defended on the
ground of delay of five years.
36. It is also admitted by the parties that the next
promotion of Junior Engineers in the higher grade is to
the post of Assistant Engineer. In the cadre of Assistant
Engineer, there are no separate streams but only one
cadre of Assistant Engineers. It is the seniority list of the
cadre of Junior Engineers which would be the feeder
cadre for the post of Assistant Engineers. The Junior
Engineers of Agricultural stream of the selection of the
year 2001, would have direct march over the Junior
Engineers selected in the same selection of the
Mechanical and Civil streams, even though the overall
merit of some or many of Agricultural stream Junior
Engineers could be lower than some or many of the
Engineers of the Mechanical and Civil streams. The
appointing authority ought to have prepared a combined
merit list based upon the performance or the proficiency
on the basis of the marks received in the selection test as
prepared by the Commission. Otherwise, it would amount
to denial of the right of consideration for promotion to a
more meritorious candidate as against a candidate having
lesser merit. Right to promotion is not considered to be a
fundamental right but consideration for promotion has
now been evolved as a fundamental right.
37. This Court, time and again, has laid emphasis on right
to be considered for promotion to be a fundamental right,
as was held by K. Ramaswamy, J., in the case of Director,
Lift Irrigation Corporation Ltd. v. Pravat Kiran Mohanty6
in paragraph 4 of the report which is reproduced below:
"4... There is no fundamental right to promotion, but an
employee has only right to be considered for promotion,
when it arises, in accordance with relevant rules. From
this perspective in our view the conclusion of the High
Court that the gradation list prepared by the corporation
is in violation of the right of respondent/writ petitioner to
equality enshrined under Article 14 read with Article 16 of
the Constitution, and the respondent/writ petitioner was
unjustly denied of the same is obviously unjustified."
38. A Constitution Bench in case of Ajit Singh v. State of
Punjab7, laying emphasis on Article 14 and Article 16(1)
of the Constitution of India held that if a person who
satisfies the eligibility and the criteria for promotion but
still is not considered for promotion, then there will be
clear violation of his/her's fundamental right. Jagannadha
Rao, J. speaking for himself and Anand, CJI.,
Venkataswami, Pattanaik, Kurdukar, JJ., observed the
same as follows in paragraphs 21 and 22 and 27:
"21 : Articles 14 and 16(1) : is right to be considered
for promotion a fundamental right
22 : Article 14 and Article 16(1) are closely connected.
They deal with individual rights of the person. Article 14
demands that the "State shall not deny to any person
equality before the law or the equal protection of the
laws". Article 16(1) issues a positive command that "there
shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office
under the State".
It has been held repeatedly by this Court that clause
(1) of Article 16 is a facet of Article 14 and that it takes
its roots from Article 14. The said clause particularises the
generality in Article 14 and identifies, in a constitutional
sense "equality of opportunity in matters of employment
and appointment to any office under the State. The word
"employment" being wider, there is no dispute that it
takes within its fold, the aspect of promotions to posts
above the stage of initial level of recruitment. Article
16(1) provides to every employee otherwise eligible for
promotion or who comes within the zone of consideration,
a fundamental right to be "considered" for promotion.
Equal opportunity here means the right to be
"considered" for promotion. If a person satisfies the
eligibility and zone criteria but is not considered for
promotion, then there will be a clear infraction of his
fundamental right to be "considered" for promotion, which
is his personal right.
"Promotion based on equal opportunity and seniority
attached to such promotion are facets of fundamental
right under Article 16(1)
xxxx xxxx xxxx xxxx xxxx
27. In our opinion, the above view expressed in Ashok
Kumar Gupta and followed in Jagdish Lal and other cases,
if it is intended to lay down that the right guarantee to
employees for being "considered" for promotion according
to relevant rules of recruitment by promotion (i.e.
whether on the basis of seniority or merit) is only a
statutory right and not a fundamental right, we cannot
accept the proposition. We have already stated earlier
that the right to equal opportunity in the matter of
promotion in the sense of a right to be "considered" for
promotion is indeed a fundamental right guaranteed
under Article 16(1) and this has never been doubted in
any other case before Ashok Kumar Gupta right from
1950."
39. This Court in Major General H.M. Singh, VSM v. UOI8,
again reiterated the legal position, i.e. right to be
considered for promotion as a fundamental right
enshrined under Article 14 and Article 16 of the
Constitution of India. The relevant extract from paragraph
28 is reproduced below:
"28. The question that arises for consideration is,
whether the non-consideration of the claim of the
appellant would violate the fundamental rights vested in
him under Articles 14 and 16 of the Constitution of India.
The answer to the aforesaid query would be in the
affirmative, subject to the condition that the respondents
were desirous of filling the vacancy of Lieutenant-General,
when it became available on 1-1-2007. The factual
position depicted in the counter-affidavit reveals that the
respondents indeed were desirous of filling up the said
vacancy. In the above view of the matter, if the appellant
was the senior most serving Major-General eligible for
consideration (which he undoubtedly was), he most
definitely had the fundamental right of being considered
against the above vacancy, and also the fundamental
right of being promoted if he was adjudged suitable.
Failing which, he would be deprived of his fundamental
right of equality before the law, and equal protection of
the laws, extended by Article 14 of the Constitution of
India. We are of the view that it was in order to extend
the benefit of the fundamental right enshrined under
Article 14 of the Constitution of India, that he was
allowed extension in service on two occasions, firstly by
the Presidential Order dated 29-2-2008, and thereafter,
by a further Presidential Order dated 30-5-2008. The
above orders clearly depict that the aforesaid extension in
service was granted to the appellant for a period of three
months (and for a further period of one month), or till the
approval of the ACC, whichever is earlier. By the
aforesaid orders, the respondents desired to treat the
appellant justly, so as to enable him to acquire the
honour of promotion to the rank of Lieutenant-General (in
case the recommendation made in his favour by the
Selection Board was approved by the Appointments
Committee of the Cabinet, stands affirmed). The action of
the authorities in depriving the appellant due
consideration for promotion to the rank of the Lieutenant-
General would have resulted in violation of his
fundamental right under Article 14 of the Constitution of
India. Such an action at the hands of the respondents
would unquestionably have been arbitrary."
40. If the seniority list is allowed to be sustained then the
engineers who are more meritorious in the Mechanical
and Civil streams than the Junior Engineers of the
Agricultural stream would be deprived of their right of
being considered for promotion and in fact their right
would accrue only after all the Junior Engineers of the
Agricultural stream selected in the same selection are
granted promotion. For these reasons also the seniority
list in question must go.
41. The other ground taken by the High Court for non-
suiting the appellants were that they had not impleaded
all the affected Junior Engineers. For the said proposition,
the Division Bench of the High Court has placed reliance
upon judgment of this Court in the case of Ranjan Kumar
v. State of Bihar9. The above case was in respect of
selection and appointment on the ground that the same
had been made only on the basis of interview without
holding any written test. The High Court had quashed
such selection and appointments even of those
appointees who were not even parties to the petition. It
was in these circumstances that this Court held that the
appointments of non-parties could not be quashed. Facts
of the said case are clearly distinguishable.
42. The Division Bench of the High Court also relied upon
another judgment of this Court in Prabodh Verma v. State
of Uttar Pradesh10. This case again related to challenge
to appointments and in the said case there was no
impleadment even in the representative capacity. In such
circumstances, this Court said that the petition was liable
to be dismissed for non-joinder of necessary parties. In
fact, this judgment helps the appellants. Paragraph 50
thereof is reproduced below:
"50(1) : A High Court ought not to hear and dispose of
a writ petition under Article 226 of the Constitution
without the persons who would be vitally affected by its
judgment being before it as respondents or at least some
of them being before it as respondents in a representative
capacity if their number is too large to join them as
respondents individually, and, if the petitioners refuse to
so join them, the High Court ought to dismiss the petition
for non-joinder of necessary parties."
43. The third case relied upon by the Division Bench for
the above proposition namely State of Uttaranchal v.
Madan Mohan Joshi11 was again a case where none of
the affected parties were impleaded not even in the
representative capacity. In such circumstances, this Court
remanded the matter to the High Court leaving it open to
the original petitioners therein to move an appropriate
application for impleading some of the affected teachers
in their representative capacity.
44. The fourth case relied upon by Division Bench on the
above proposition is Indu Shekhar Singh v. State of
U.P.12. In this case also, the affected parties were not
impleaded and this Court relied upon the judgment of this
Court in Prabodh Verma (supra).
45. In the case of Tridip Kumar Dingal v. State of West
Bengal13, C.K. Thakker, J., held that the case falls
within the ambit of non-joinder of necessary parties as
none of the 66 candidates against whom the complaint
was made, were made parties. It further held that some
of the respondents should have been arrayed in
representative capacity. Paragraph 41 is reproduced
below:
"41 : Regarding protection granted to 66 candidates,
from the record it is clear that their names were
sponsored by the employment exchange and they were
selected and appointed in 1998-1999. The candidates
who were unable to get themselves. selected and who
raised a grievance and made a complaint before the
Tribunal by filing applications ought to have joined them
(selected candidates) as respondents in the original
application, which was not done. In any case, some of
them ought to have been arrayed as respondents in
a "representative capacity". That was also not
done. The Tribunal was, therefore, wholly right in holding
that in absence of selected and appointed candidates and
without affording opportunity of hearing to them, their
selection could not be set aside."
46. In the recent case of Mukul Kumar Tyagi v. The State
of Uttar Pradesh,14 Ashok Bhushan, J., laid emphasis
that when there is a long list of candidates against whom
the case is proceeded, then it becomes unnecessary and
irrelevant to implead each and every candidate. If some
of the candidates are impleaded then they will be said to
be representing the interest of rest of the candidates as
well. The relevant portion of paragraph 75 from the
judgment is reproduced below:
"75...... We may further notice that Division Bench also
noticed the above argument of non-impleadment of all
the selected candidates in the writ petition but Division
Bench has not based its judgment on the above
argument. When the inclusion in the select list of large
number of candidates is on the basis of an arbitrary or
illegal process, the aggrieved parties can complain and in
such cases necessity of impleadment of each and every
person cannot be insisted. Furthermore, when select list
contained names of 2211 candidates, it becomes
unnecessary to implead every candidate in view of the
nature of the challenge, which was levelled in the writ
petition. Moreover, few selected candidates were also
impleaded in the writ petitions in representative
capacity."
47. The present case is a case of preparation of seniority
list and that too in a situation where the appellants
(original writ petitioners) did not even know the marks
obtained by them or their proficiency in the examination
conducted by the Commission. The challenge was on the
ground that the Rules on the preparation of seniority list
had not been followed. There were 18 private
respondents arrayed to the writ petition. The original
petitioners could not have known who all would be
affected. They had thus broadly impleaded 18 of such
Junior Engineers who could be adversely affected. In
matters relating to service jurisprudence, time and again
it has been held that it is not essential to implead each
and every one who could be affected but if a section of
such affected employees is impleaded then the interest of
all is represented and protected. In view of the above, it
is well settled that impleadment of a few of the affected
employees would be sufficient compliance of the principle
of joinder of parties and they could defend the interest of
all affected persons in their representative capacity. Non-
joining of all the parties cannot be held to be fatal.
48. The Division Bench has also dealt with an issue which
according to us was totally irrelevant and alien to the
adjudication of the present appeals. In paragraph 45 of
the judgment of the Division Bench there is a reference to
an issue where a party takes calculated chances of
participating in selection/appointment process and later
turns around after being unsuccessful would be hit by
doctrine of estoppel. For the said proposition, the Division
Bench made detailed discussions in paragraphs 46, 47, 48
and 49 of the judgment and relied upon a number of case
laws. In our considered view, this issue was not at all
relevant. The said issue does not arise in the present
case. The appellants/original writ petitioners had never
challenged the selection process. The challenge was only
to preparation of the seniority list. As such, this
discussion by the Division Bench is totally irrelevant.
49. The Division Bench further in paragraph 51 had in a
generalized and vague manner recorded that the
authorities relied upon by the learned single Judge were
rendered in a different fact situation and were not
applicable. The Division Bench did not consider the
judgments relied upon by the learned Single Judge but
only made this passing remarks. What we find is that the
authorities relied upon by the learned Single Judge were
relevant and correctly applied.
50. Further, the Division Bench in paragraphs 51, 52, 53
proceeded to deal with the delay stating it to be 11 years,
the basis for calculation of 11 years was that the seniority
list of 2006 was challenged by way of amendment by the
appellants in the year 2017 and therefore there was a
delay of 11 years. This discussion by Division Bench also
cannot be sustained. The first seniority list was prepared
in 2006. It was not disclosed as to how the seniority list
has been prepared by treating the three separate lists
independently on their merits but not as a result of
combined merit of the three lists. It was only in 2010 that
the appellants came to know of the fallacy and soon
thereafter they challenged the seniority list of 2010. Even
if, they did not challenge the seniority list of 2006, 2010
seniority list could always be revisited, reviewed and
prepared afresh, if the same was quashed. The appellants
could not have been at any loss even if they had not
challenged the 2006 seniority list.
51. The reasoning given in paragraphs 54, 55, 56
regarding issue of single selection is also not sustainable
in view of Rules 1991 as also Rules 2009.
52. Lastly, paragraph 57 of the judgment of the Division
Bench which deals with Rule 5 and 8 of 1991 Rules, we
may only reiterate that, whether it was Rule 5 which was
applicable or Rule 8 which was applicable, the seniority
inter se of direct recruits to one selection has to be one
combined list based on the performance and the marks
awarded in the examination prepared either by the
Commission or the Committee, as the case may be. True,
the learned Single Judge, in the operative portion
mentioned that a fresh seniority list be prepared in
accordance with Rule 5 and apparently did not consider
the effect of Rule 8, would not vitiate the judgment
inasmuch as the basis for preparation of the seniority list
of direct recruits was the same in both the Rules. It may
be noted that there is no lis inter se between direct
recruits and promotees.
53. For all the reasons recorded above, we find that the
Division Bench fell in error in allowing the appeal and
dismissing the writ petition. The learned Single Judge was
right in his view in setting aside the final seniority list and
directing the appointing authority for preparation of fresh
seniority list in accordance with Rules 1991, be it Rule 5
or Rule 8 thereof."
21. Following the dictum of the Hon'ble Apex Court in
the case of Ajay Kumar Shukla (supra), I am of the view that,
the contentions raised by learned counsel appearing for the
respondents, with regard to delay and latches cannot be
accepted.
22. I have also noticed that, the respondent-Corporation
has amended the Board orders, on 16.08.1986 and 27.12.1996
particularly Note 4 paragraph 2, wherein, minimum service of 7
years as Junior Engineer was mandated to be consider while
appointing as Assistant Engineer. It is also gathered from the
writ petition that, despite the direction to prepare the fresh
gradation list, as per Gurusripad's case, respondent-
Corporation did implement its own board orders, and acted
contrary to the orders and provided retrospective seniority to the
ABT Junior Engineers. Taking into consideration the aforesaid
aspects, I am of the view that, the contentions raised by the
respondents not only with regard to delay and laches but also
regarding suppression of materials, cannot be accepted.
23. It is pertinent to mention here that, statutory rules
cannot override by executive orders, by the respondent-
Corporation (see. (1998) 8 SCC 469). In the event, interference
is not made in the present writ petition to set right the wrong
being continued by the respondent-Corporation and allowing for
continuing wrong with the determination of the seniority on the
basis of struck down orders of 1986 by the Board, despite the
same is amended in terms of the judgment of this Court, same
would amounts to perpetuate the illegality and arbitrary exercise
of power by the respondent-Corporation providing retrospective
seniority to ABT Engineers and same would amounts to violation
of Article 14 of Constitution of India. Hon'ble Apex Court in the
case of P.C. SETI VS. UNION OF INDIA reported in (1975) 4
SCC 67 held that delay cannot be a ground to deny the relief to
the aggrieved parties, when there is violation of their
constitutional rights. It is the duty of the Court to enforce the
fundamental rights and the ground of delay and laches is an
exception to the same. Petitioners have clearly demonstrated
that the discrimination has been made by promoting ABT
Juniors.
24. This Court has categorically ordered in WP No.35999
of 2019 that the respondent-Corporation shall consider the
representation dated 05.06.2017 made by the petitioners in
accordance with the declaration of law made by the Hon'ble
Supreme Court in the case of P. Sudhakar (supra). The
aforesaid, judgment was questioned in Writ Appeal No.41 of
2020 and the Division Bench, by its order dated 22.01.2020,
directed the respondent-Corporation, accordingly, to address the
grievance of the petitioners in the light of judgment of Hon'ble
Apex Court in the case of P. Sudhakar Rao (supra).
Thereafter, the petitioners have made one more representation
dated 18.12.2019 (Annexure-K) to the writ petition. Petitioners
have also brought to the notice of the respondent-Corporation,
objecting the ranking made in the provisional seniority list date
08.05.2017 on the ground that the Junior Engineers who had
been appointed by transfer to the cadre of Assistant Engineer
and promoted them by granting seniority with retrospective
effect and same is contrary to the law declared by Hon'ble
Supreme Court in P. Sudhakar case (Supra). Petitioners have
also highlighted the Board orders from the inception is order
26.07.1986 till the 27.12.1996. Judgment of Hon'ble Apex
Court in the case of K.Narayanan (supra) and other judgment
were also placed before the respondent-Corporation to take
decision in the matter is a manner known to law. At this
juncture, it is relevant to cite the dictum of Hon'ble Apex Court
in the case of DIRECTOR OF SETTLEMETNS, A.P. AND
OTHERS vs. M.R. APPARAO AND ANOTHER reported in
(2002) 4 SCC 638 at paragraph 17, Hon'ble Supreme Court held
as under:
"17. Coming to the third question, which is more
important from the point of consideration of the High
Court's power for issuance of mandamus, it appears that
the Constitution empowers the High Court to issue writs,
directions or orders in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari for
the enforcement of any of the rights conferred by Part III
and for any other purpose under Article 226 of the
Constitution of India. It is, therefore essentially, a power
upon the High Court for issuance of high prerogative writs
for enforcement of fundamental rights as well as non-
fundamental or ordinary legal rights, which may come
within the expression "for any other purpose". The
powers of the High Courts under Article 226 though are
discretionary and no limits can be placed upon their
discretion, they must be exercised along the recognised
lines and subject to certain self-imposed limitations. The
expression "for any other purpose" in Article 226, makes
the jurisdiction of the High Courts more extensive but yet
the Courts must exercise the same with certain restraints
and within some parameters. One of the conditions for
exercising power under Article 226 for issuance of a
mandamus is that the Court must come to the conclusion
that the aggrieved person has a legal right, which entitles
him to any of the rights and that such right has been
infringed. In other words, existence of a legal right of a
citizen and performance of any corresponding legal duty
by the State or any public authority, could be enforced by
issuance of a writ of mandamus. "Mandamus" means a
command. It differs from the writs of prohibition or
certiorari in its demand for some activity on the part of
the body or person to whom it is addressed. Mandamus is
a command issued to direct any person, corporation,
inferior courts or Government, requiring him or them to
do some particular thing therein specified which
appertains to his or their office and is in the nature of a
public duty. A mandamus is available against any public
authority including administrative and local bodies, and it
would lie to any person who is under a duty imposed by a
statute or by the common law to do a particular act. In
order to obtain a writ or order in the nature of
mandamus, the applicant has to satisfy that he has a
legal right to the performance of a legal duty by the party
against whom the mandamus is sought and such right
must be subsisting on the date of the petition (Kalyan
Singh v. State of U.P.. The duty that may be enjoined by
mandamus may be one imposed by the Constitution, a
statute, common law or by rules or orders having the
force of law. When the aforesaid principle is applied to the
case in hand, the so-called right of the respondents,
depending upon the conclusion that the Amendment Act
is constitutionally invalid and, therefore, the right to get
interim payment will continue till the final decision of the
Board of Revenue, cannot be sustained when the
Supreme Court itself has upheld the constitutional validity
of the Amendment Act in Venkatagiri case [State of A.P.
v. Rajah of Venkatagiri, on 6-2-1986 in Civil Appeals Nos.
398 and 1385 of 1972 and further declared in the said
appeals that interim payments are payable till
determination is made by the Director under Section
39(1). The High Court in exercise of power of issuance of
mandamus could not have said anything contrary to that
on the ground that the earlier judgment in favour of the
respondents became final, not being challenged. The
impugned mandamus issued by the Division Bench of the
Andhra Pradesh High Court in the teeth of the declaration
made by the Supreme Court as to the constitutionality of
the Amendment Act would be an exercise of power and
jurisdiction when the respondents did not have the
subsisting legally enforceable right under the very Act
itself. In the aforesaid circumstances, we have no
hesitation to come to the conclusion that the High Court
committed serious error in issuing the mandamus in
question for enforcement of the so-called right which
never subsisted on the date, the Court issued the
mandamus in view of the decision of this Court in
Venkatagiri case [State of A.P. v. Rajah of Venkatagiri, .
In our view, therefore, the said conclusion of the High
Court must be held to be erroneous."
25. It is also relevant to extract the law laid down by the
Ho'ble Apex Court in the case of CHAIRMAN, STATE BANK OF
INDA AND OTHERS VS. M.J. JAMES reported in (2022)2 SCC
301. Paragraph 38 to 41 reads as under:
"38. In Ram Chand v. Union of India [Ram Chand v.
Union of India, and State of U.P. v. Manohar [State of
U.P. v. Manohar, this Court observed that if the statutory
authority has not performed its duty within a reasonable
time, it cannot justify the same by taking the plea that
the person who has been deprived of his rights has not
approached the appropriate forum for relief. If a statutory
authority does not pass any orders and thereby fails to
comply with the statutory mandate within reasonable
time, they normally should not be permitted to take the
defence of laches and delay. If at all, in such cases, the
delay furnishes a cause of action, which in some cases as
elucidated in Union of India v. Tarsem Singh [Union of
India v. Tarsem Singh, may be continuing cause of action.
The State being a virtuous litigant should meet the
genuine claims and not deny them for want of action on
their part. However, this general principle would not apply
when, on consideration of the facts, the court concludes
that the respondent had abandoned his rights, which may
be either express or implied from his conduct.
Abandonment implies intentional act to acknowledge, as
has been held in para 6 of Motilal Padampat Sugar Mills
Co. Ltd. v. State of U.P. (Applying this principle of
acquiescence to the precept of delay and laches, this
Court in U.P. Jal Nigam v. Jaswant Singh after referring to
several judgments, has accepted the following elucidation
in Halsbury's Laws of England : (Jaswant Singh case, SCC
pp. 470-71, paras 12-13)
12. The statement of law has also been
summarised in Halsbury's Laws of England, Para 911, p.
395 as follows:
In determining whether there has been such delay
as to amount to laches, the chief points to be considered
are:
(i) acquiescence on the claimant's part; and
(ii) any change of position that has occurred on the
defendant's part.
Acquiescence in this sense does not mean standing by
while the violation of a right is in progress, but assent
after the violation has been completed and the claimant
has become aware of it. It is unjust to give the claimant a
remedy where, by his conduct, he has done that which
might fairly be regarded as equivalent to a waiver of it; or
where by his conduct and neglect, though not waiving the
remedy, he has put the other party in a position in which
it would not be reasonable to place him if the remedy
were afterwards to be asserted. In such cases lapse of
time and delay are most material. Upon these
considerations rests the doctrine of laches.'
13. In view of the statement of law as summarised
above, the respondents are guilty since the respondents
have acquiesced in accepting the retirement and did not
challenge the same in time. If they would have been
vigilant enough, they could have filed writ petitions as
others did in the matter. Therefore, whenever it appears
that the claimants lost time or whiled it away and did not
rise to the occasion in time for filing the writ petitions,
then in such cases, the court should be very slow in
granting the relief to the incumbent. Secondly, it has also
to be taken into consideration the question of
acquiescence or waiver on the part of the incumbent
whether other parties are going to be prejudiced if the
relief is granted. In the present case, if the respondents
would have challenged their retirement being violative of
the provisions of the Act, perhaps the Nigam could have
taken appropriate steps to raise funds so as to meet the
liability but by not asserting their rights the respondents
have allowed time to pass and after a lapse of couple of
years, they have filed writ petitions claiming the benefit
for two years. That will definitely require the Nigam to
raise funds which is going to have serious financial
repercussions on the financial management of the Nigam.
Why should the court come to the rescue of such persons
when they themselves are guilty of waiver and
acquiescence?"
39. Before proceeding further, it is important to clarify
distinction between "acquiescence" and "delay and
laches". Doctrine of acquiescence is an equitable doctrine
which applies when a party having a right stands by and
sees another dealing in a manner inconsistent with that
right, while the act is in progress and after violation is
completed, which conduct reflects his assent or accord.
He cannot afterwards complain. In literal sense, the term
acquiescence means silent assent, tacit consent,
concurrence, or acceptance, which denotes conduct that
is evidence of an intention of a party to abandon an
equitable right and also to denote conduct from which
another party will be justified in inferring such an
intention. Acquiescence can be either direct with full
knowledge and express approbation, or indirect where a
person having the right to set aside the action stands by
and sees another dealing in a manner inconsistent with
that right and in spite of the infringement takes no action
mirroring acceptance. However, acquiescence will not
apply if lapse of time is of no importance or consequence.
40. Laches unlike limitation is flexible. However, both
limitation and laches destroy the remedy but not the
right. Laches like acquiescence is based upon equitable
considerations, but laches unlike acquiescence imports
even simple passivity. On the other hand, acquiescence
implies active assent and is based upon the rule of
estoppel in pais. As a form of estoppel, it bars a party
afterwards from complaining of the violation of the right.
Even indirect acquiescence implies almost active consent,
which is not to be inferred by mere silence or inaction
which is involved in laches. Acquiescence in this manner
is quite distinct from delay. Acquiescence virtually
destroys the right of the person. Given the aforesaid legal
position, inactive acquiescence on the part of the
respondent can be inferred till the filing of the appeal,
and not for the period post filing of the appeal.
Nevertheless, this acquiescence being in the nature of
estoppel bars the respondent from claiming violation of
the right of fair representation.
41. The questions of prejudice, change of position,
creation of third-party rights or interests on the part of
the party seeking relief are important and relevant
aspects as delay may obscure facts, encourage dubious
claims, and may prevent fair and just adjudication. Often,
relevant and material evidence go missing or are not
traceable causing prejudice to the opposite party. It is,
therefore, necessary for the court to consciously examine
whether a party has chosen to sit over the matter and
has woken up to gain any advantage and benefit, which
aspects have been noticed in Dehri Rohtas Light Railway
Co. Ltd. v. District Board, Bhojpur [Dehri Rohtas Light
Railway Co. Ltd. v. District Board, Bhojpurand State of
Maharashtra v. Digambar [State of Maharashtra v.
Digambar. These facets, when proven, must be factored
and balanced, even when there is delay and laches on the
part of the authorities. These have bearing on grant and
withholding of relief. Therefore, we have factored in the
aspect of prejudice to the appellants in view of the relief
granted in the impugned judgment."
26. Having applied the dictum of the Apex Court to the
factual aspects on record, it is relevant to borne in mind that the
appointment by transfer is an appointment of in-service
candidates- Junior Engineers (cadre of Group-C) to the post of
Assistant Engineers (cadre of Group-B) on the basis of acquiring
Degree qualification without appearing for the competitive
examination nor following the reservation - roster as mandated
in the Constitution of India, and therefore, the appointment by
transfer is itself is an exception to the regular mode of
appointment/promotion to the higher cadre of Assistant
Engineer. In that view of the matter, following the law declared
by Hon'ble Supreme Court in the case of P. Sudhakar Rao
(supra) and K. Narayanan (supra) and also order passed by
this Court in Gurusripad case, the directly recruited Assistant
Engineers takes precedence over the Assistant Engineers who
were promoted by ABT. Regulation 2(a) of Chapter IV of
Rerecruitment and Promotion Regulation makes it clear that the
employees appointed substantially in clear vacancies shall be
Senior to all persons appointed on officiating or any other basis
in the same cadre of service. Regulation 3 of the same, provided
that the employees recruited by promotion or by direct
recruitment will take precedence over the promoted employees
where the date of appointment is the same. Regulation 2(a) and
3(a) shall be read conjunctively with Regulation 7 which
mandates that the promotions of eligible employees shall be
made on seniority-cum-merit basis. Perusal of the
aforementioned Regulations, envisages that the appointment by
transfer (ABT) Engineers, cannot claim their seniority in the
cadre of Assistant Engineer before they takes birth in the said
cadre. The issue involved in this writ petition is not with regard
to Seniority however, Seniority as claimed by the parties is the
by-product of appointment and if there is no appointment, the
question of Seniority does not arise. In that view of the matter,
the contentions rasied by the learned counsel appearing for the
parties banking upon the judgment of the Hon'ble Apex Court in
Shiba Shankar (supra) and other cases relating to delay and
laches, are not applicable to facts on record as the cases
referred to by the learned counsel appearing for the respondents
are with regard to Seniority disputing in a particular cadre and
does not deal with the issue of appointments made to the
retrospective dates and it is pertinent to mentioned here that the
issue involved in this writ petition is with regard to non
implementation of the judgments of the Hon'ble Apex Court in
K.Narayananan (supra) and Gurusripad (supra) viz-a-viz
application of the amended Board orders dated 16.08.1996 and
27.12.1996 and therefore, the illegal benefits have been
extended to the Junior Engineers appointed by transfer to the
cadre of Assistant Engineer and therefore, said illegality has to
be put an end by allowing this writ petition. If not so, the
illegality will be perpetuate and further promotions will be made
in violation of Rules, Regulations, Orders passed by the Hon'ble
Apex Court in the aforementioned cases, and that apart two
amended orders of the Board have not been implemented in its
true spirit. I have also borne in mind that, appointment by
transfer is only an appointment but not to promotion. Junior
Engineers who were working as one Rank below the Assistant
Engineers had been promoted and placed above by providing
impugned seniority and thereby such Junior Engineers who were
working under the Assistant Engineers have been appointed and
placed above in the Seniority of Assistant Engineers under whom
they were working. This aspect of the matter has not dealt by
the court referred to by the learned counsel appearing for the
respondents. Therefore, I am of the view that, the impugned
endorsement dated 05.03.2020 is contrary to Articles 14 and 16
of the Constitution of India and consequently, the Official
Memorandum dated 04.11.2000 issued by the respondent-
Corporation is contrary to Board orders dated 16.08.1996 and
27.12.1996. In the result, I pass the following:
ORDER
(i) Writ petition is allowed;
(ii) Endorsement dated 05.03.2020 (Annexure-Q)
issued by the respondent No.3 is hereby quashed
and direction is issued to the respondent-Corporation
to redo the Seniority in accordance with the
judgments of Hon'ble Apex Court in the case of K.
Narayanan (Supra) and P. Sudhakar Rao
(Supra) and in terms of the Board orders dated
16.08.1996 and 27.12.1996 (Annexure-C and D
respectively), within a period of six weeks from the
date of receipt of this order.
(iii) It is made clear that having taken note of
judgments of Hon'ble Apex Court in case of K.
Narayanan (Supra) and P. Sudhakar Rao
(Supra), respondent-Corporation is directed to
implement the Board orders dated 16.08.1996 and
27.12.1996 with effect from 26.07.1986, date on
which the Board order produced at Annexure-A was
notified and no further promotion shall be effected
till implementation of the amended Board Order
dated 16.08.1996 and dated 27.12.1996 effect from
26.07.1986.
Ordered accordingly.
SD/-
JUDGE
SB
