Karnataka High Court
Sri. Lokesh M V vs The State Of Karnataka on 18 April, 2024
-1-
NC: 2024:KHC:15233
WP No. 5668 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 5668 OF 2024 (S-PRO)
BETWEEN:
SRI. LOKESH M.V.,
S/O VENKATESH,
AGED ABOUT 46 YEARS,
JUNIOR ENGINEER,
CITY MUNICIPAL COUNCIL,
CHICKKAMANGALURU DISTRICT,
CHICKMANGALURU,
R/AT C/O VIJAYAKUMAR,
BANASHANKARI NILAYA,
KUPPENAHALLI,
JYOTHINAGAR POST,
CHICKKAMAGALURU - 577 101.
...PETITIONER
(BY SRI. A.C. NAGARJUNA, ADVOCATE FOR
Digitally signed SRI. C.M. NAGABUSHANA, ADVOCATE)
by CHAITHRA A
Location: HIGH AND:
COURT OF
KARNATAKA
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS SECRETARY,
URBAN DEVELOPMENT DEPARTMENT,
VIKASA SOUDHA,
BANGALORE - 560 001.
2. THE DIRECTOR OF
MUNICIPAL ADMINISTRATION
IN KARNATAKA,
-2-
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WP No. 5668 of 2024
V.V. MAIN TOWERS,
BENGALURU - 560 001.
...RESPONDENTS
(BY SMT. SUKANYA BALIGA, AGA)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO ISSUE THE WRIT
IN THE NATURE OF MANDAMUS TO CONSIDER THE
REPRESENTATIONS DATED 5.6.2023 AND 12.7.2023
(ANNEXURE-E AND F) RESPECTIVELY, AND EXTEND THE
BENEFITS TO THE PETITIONER TO THE CADRE OF ASSISTANT
ENGINEER FROM 3.12.2016 TO 30.8.2022 AND FURTHER
DIRECT THE RESPONDENTS TO PROMOTE THE PETITIONER
RETROSPECTIVELY IN VIEW OF RULE 2(1) (A) OF THE
KARNATAKA STATE CIVIL SERVICES (REGULATIONS OF
PROMOTION, PAY AND PENSION) RULES, 1978, TO THE CADRE
OF ASSISTANT EXECUTIVE ENGINEER FROM 30.8.2022 FROM
THE DATE ON WHICH HIS JUNIORS BEING PROMOTED, BY
EXTENDING ALL CONSEQUENTIAL BENEFITS ARISING
THERETO AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned petition is filed by the petitioner,
feeling aggrieved by the inaction on the part of respondent
No.2 in not considering the petitioner's representation
pursuant to the judgment rendered by the coordinate
bench in W.P.No.20866/2017.
2. Heard learned counsel for the petitioner and
learned AGA.
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3. The petitioner's grievance is that he was not
considered for promotion, seniority and other monetary
benefits on the ground that he is facing a departmental
enquiry.
4. This Court, in W.P.No.20866/2017, set aside
the penalty of dismissal from service vide order dated
23.08.2022. Paragraphs No.14 and 15 would be relevant
and the same are extracted as under:
"14. In the present case, the order at Annexure-'J' is
passed by mere reliance on the recommendation of the
Upa Lokayukta. The application of mind by the
Government is not evident from the order at Annexure-'J'.
The reply to the second show-cause notice of the
petitioner regarding finding of the Enquiry Officer as
regards non-acceptance of Rs.5,000/- has not been
considered and in fact, the order at Annexure-'J' would
reflect that the reply made to the second show-cause
notice has not been considered while accepting the
recommendation of the Upa Lokayukta and proceeding to
pass the impugned order of penalty. At this point of time,
no useful purpose would be served for remanding the
matter for reconsideration afresh in light of the enquiry
report.
15. In light of the discussion made above, the impugned
orders are liable to be set aside as articles of charges are
not proved. At the point of repetition, the finding by the
enquiring authority regarding misconduct on the ground
that the petitioner has accepted a sum of Rs.5,000/- from
PW.1 which remains unexplained is clearly a finding on
the basis of different article of charge without following
the procedure under Rule 11 (23) as pointed out above. If
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that were to be so, the finding in the enquiry report being
favourable to that of the petitioner, the Disciplinary
Authority will not be in a position to arrive at any different
conclusion to hold the petitioner guilty even on remand.
Even the finding of receipt of Rs.5,000/- cannot be linked
to the clearance of bills. In the absence of such nexus,
proposed fresh article of charge on such aspect upon
remand may not stand the test of judicial scrutiny.
Accordingly, the order at Annexure-'J' is set aside and the
petition is disposed off as calling for no further orders.
Consequently, the order imposing penalty is set aside.
Needless to state consequent to setting aside of the
impugned order, if there is any other adverse service
condition inflicted upon the petitioner consequent to the
impugned order the same is also is set aside."
5. On examining the findings recorded by this
Court while setting aside the order of penalty of dismissal
from service, it has further clearly recorded a finding that
any adverse conditions inflicted upon the petitioner
consequent to the penalty also stand set aside. In the light
of the judgment rendered by the coordinate bench, this
Court is more than satisfied that there is clear laxness on
the part of respondent No.2 in not considering the
petitioner's representation where a request is made to
extend promotion with retrospective effect in terms of Rule
2(1)(a) of the Karnataka Civil Services (Regulation of
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Promotion, Pay, and Pension) Act, 1978 (for short, 'KCSR
Rules 1978').
6. Perused the said rule. Rule 2(1)(a) of KCSR
Rules 1978 clearly contemplates that the promotion of a
civil servant will be made with effect from the
retrospective date where promotion is withheld on account
of departmental proceedings or criminal prosecution.
There is complete inaction on the part of respondent No.2
in not examining the representation. The petitioner has a
legal right to ascertain and claim promotion with
retrospective effect by seeking benefit of 2(1)(a) of KCSR
Rules 1978. Correspondingly, there is a mandatory
obligation cast on respondent No.2 to examine the
petitioner's representation and pass appropriate orders. As
there is inaction on the part of respondent No.2, a
mandamus would lie in the present set of facts.
7. For the foregoing reasons, this Court proceeds
to pass the following:
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ORDER
i. The writ petition is allowed;
ii. Respondent No.2 is hereby directed to
consider the petitioner's representation
dated 05.06.2023 and 12.07.2023 as per
Annexures-E and F respectively and pass
appropriate orders by taking note of the
observations made by the coordinate
bench in W.PNo.20866/2017 and Rule
2(1)(a) of KCSR Rules 1978;
iii. This exercise shall be completed within a
period of three months from the date of
receipt of certified copy of this order.
Sd/-
JUDGE
HDK
CT:SNN
