Karnataka High Court

Sri. Sabanna Galeppa Pujeri vs State Of Karnataka on 2 July, 2024

Author: M.G.S. Kamal

Bench: M.G.S. Kamal

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                                                  NC: 2024:KHC-D:9028
                                                    WP No. 104849 of 2023




                         IN THE HIGH COURT OF KARNATAKA,
                                 DHARWAD BENCH
                        DATED THIS THE 2ND DAY OF JULY, 2024
                                           BEFORE
                        THE HON'BLE MR JUSTICE M.G.S. KAMAL
                     WRIT PETITION NO.104849 OF 2023(S-PRO)

                BETWEEN:
                SRI SABANNA GALEPPA PUJERI,
                AGED ABOUT 54 YEARS, CHIEF OFFICER,
                ROWN PANCHAYAT SADALAGA,
                TQ: CHIKODI, DIST: BELAGAVI.
                (REVENUE OFFICER SR.RANK-245)
                                                              ...PETITIONER
                (BY SRI RAMACHANDRA A. MALI, ADVOCATE)

                AND:
                1.   STATE OF KARNATAKA,
                     REP. BY ITS SECRETARY,
                     DEPT. OF URBAN DEVELOPMENT,
                     VIKAS SOUDHA, BENGALURU - 01.

Digitally
signed by V N   2.   THE DIRECTOR, DIRECTORATE OF MUNICIPAL
BADIGER
Location:
                     ADMINISTRATION, 9TH AND 10TH FLOOR,
High Court of
Karnataka
                     V.V.TOWER, AMBEDKAR VEEDHI,
                     BENGALURU - 01.

                3.   THE DIRECTOR OF PLANNING,
                     DISTRICT URBAN DEVELOPMENT CELL,
                     OFFICE OF DEPUTY COMMISSIONER,
                     BELAGAVI, DIST: BELAGAVI.

                4.   THE DEPUTY COMMISSIONER,
                     BELAGAVI, DIST: BELAGAVI.
                                                           ...RESPONDENTS
                (BY SRI P.N.HATTI, HCGP)
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                                        NC: 2024:KHC-D:9028
                                           WP No. 104849 of 2023




     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO, ISSUE A
WRIT OF CERTIORARI OR ANY OTHER WRIT OR ORDER IN THE
LIKE NATURE QUASHING THE IMPUGNED ENDORSEMENT
DATED. 7-7-2023 MADE IN NO. 952196/ DMA / EST2/ KMAS/ 6/
2022/ 2381 ISSUED BY THE 2ND        RESPONDENT HEREIN
PRODUCED AT ANNEXURE-J AS THE SAME BEING ARBITRARY,
ILLEGAL AND NOT SUSTAINABLE IN LAW & ETC.,

     THIS PETITION, COMING ON FOR PRELIMINARY HEARING
- B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

1. The petitioner is before this Court seeking quash

of endorsement dated 07.07.2023 issued by the 2nd

respondent produced at Annexure-J and for issue of writ of

mandamus directing the respondents to consider the case

of the petitioner for selection/promotion to the post of Chief

Officer, Grade I as per the Karnataka Municipal

Administrative Service (Cadre and Recruitment), Rules

2022 (hereinafter referred to as, 'the Rules 2022'),

produced at Annexure-B and accordingly promote the

petitioner to the said post with retrospective and on par

with the date from which his juniors are selected i.e., with

effect from 30.11.2022 as per Annexure-F.

NC: 2024:KHC-D:9028

2. Case of the petitioner is that, he belongs to

schedule caste category and was originally appointed as Bill

Collector in the Municipal Council, Gokak and was

thereafter promoted as Revenue Officer on 08.09.2015 and

was posted to work in different capacities. That he has

passed all departmental examinations and has discharged

his duties without any blemish. That during the year 2022,

the 1st respondent published the Rules 2022 on 07.07.2022

providing method of recruitment to the post of Chief Officer

Grade I which is as under:

"CHIEF OFFICER GRADE-I

i. By direct Recruitment 25%

ii. By Promotion from the 20% Cadre of Chief Officer-Gr-II

iii. By selection from the cadre of 21% Revenue Officers on seniority

iv. By selection from the cadre 21% Office Managers.

          v.      By selection from the cadre of        10%
                  Office Assts of Corporations.

          vi.     By selection from the cadre of        03%
                  Managers of DMA on seniority.

                                    NC: 2024:KHC-D:9028

3. Thus, 21% of the post of the Chief Officer Grade

I are required to be filled by way of selection from the

cadre of Revenue Officers of Urban Local Bodies having put

in minimum qualifying service of 3 years with bachelors

decree from the University on the basis of Seniority. That

the requirement of holding bachelors decree was exempted

for the Revenue Officers of Urban Local Bodies who have

attained the age of 50 years on the commencement of the

said the Rules, 2022. Thus, only the seniority is a basis for

selection to the said post. Thus, the petitioner is eligible

and qualified for the promotion.

4. In the proposal submitted by the Deputy

Commissioners in the State of all the eligible candidates in

the list of respective districts, name of the petitioner was

included at Sl.No.37 with seniority ranking at 245 under

Revenue Officers Category. Juniors of the petitioner were

also included at Sl.Nos.41 and 43 and their seniority

ranking is at 251 and 253 in the cadre of Revenue Officers.

Even in the correspondence dated 16.08.2022, between the

NC: 2024:KHC-D:9028

Deputy Commissioner and the 2nd respondent regarding

eligible and qualified candidates for the promotion in the

district of Bellary to the post of Chief Officer Grade I name

of the petitioner was included. The respondent No.1 -

Authority by its correspondence dated 09.09.2022

addressed to 2nd respondent had directed it to scrutinize

the proposal received from the 4th respondent including the

case of petitioner and to submit proposal for further action

to be taken in the matter.

5. That, the respondent-authority conducted DPC

proceedings on 10.08.2022 and the petitioner was hopeful

of consideration of his name for promotion. However,

respondent No.1-authority while issuing a Government

Order dated 03.11.2022 in respect of several Revenue

Officers to the post of Chief Officer Grade I, included the

names of Junior Officials, overlooked the case of the

petitioner without assigning any reason.

6. It is the further case of the petitioner that when

the petitioner was working as Chief Officer, Kudachi Town

NC: 2024:KHC-D:9028

Panchayat in Raibag taluk, Anti Corruption Bureau, Belagavi

police registered a false case against the petitioner in Crime

No.13/2020 for the offence u/s 7(a) of Prevention of

Corruption Act, 1988. Petitioner filed petition under Section

482 of Crl.P.100134/2021 seeking quash of the said case.

The said petition was disposed of with liberty to the

petitioner to challenge any proceedings initiated by the

Lokayukta Police. That there was a special case

No.116/2013 on the file of IV Addl.District and Sessions

Judge, Belagavi. That the proceedings in the said Special

Case have been stayed by this case in Crl.P.101471/2023.

Thus though there is no pendency of any departmental

enquiry against the petitioner, or any charge sheet filed

against him as on the date of DPC meeting dated

10.08.2022 or on the date of issuance of Government Order

dated 03.11.2022, the petitioner had earlier approached by

filing a writ petition in WP No.104971/2022 seeking

appropriate directions. This Court by order dated

10.02.2022, allowed the said writ petition directing

respondent no.2 to consider the case of the petitioner in

NC: 2024:KHC-D:9028

accordance with law. Despite the same, case of the

petitioner is not considered. However, respondent No.2

issued impugned endorsement dated 07.07.2023 stating

that the case of the petitioner would be considered after

closure of Lokayukta case pending against the petitioner.

Being aggrieved by the same, the present petition.

7. Learned counsel appearing for the petitioner

relying upon the judgment of the Apex Court in the case of

Union of India & others V/s. K.V. Jankiraman &

Others1 (for short "K.V. Jankiraman's case") which was

followed by the Division Bench of this Court in W.P.

No.102595/2023, disposed off on 05.09.2023 in the case of

Smt. Jayashree V/s. State of Karnataka & Others (for

short "Smt. Jayashree's case) and also referring to the

Official Memorandum dated 14.07.1993 submits that, the

law with regard to the consideration of the case of the

promotion in respect of the employees, who are facing the

allegations has been well settled. In that, the Departmental

(1991)4 SCC 109

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Promotion Committee (for short "DPC"), which conducts the

proceedings for promotion is required to adopt Sealed

Cover Method only when the charge memo / charge sheet

is issued against the employee on the day, when the DPC is

conducted. He submits that, if no charge memo / charge

sheet is issued, the day when the DPC is being conducted,

there is no impediment in granting promotion to the

employee even if he subjected to certain allegations.

8. Referring to the facts of the instant case, learned

counsel submits that, the DPC was conducted on

10.08.2022, as on the said date, neither any charge memo

was issued nor any charge sheet was filed against the

petitioner. In view of the law referred to above, there was

no impediment of any nature whatsoever for the DPC to

consider the case of the petitioner for promotion. Thus, he

submits that issuance of endorsement at Annexure-J.

9. Thus, he submits that, issuance of the impugned

endorsement at Anneuxre-J stating that, in view of the

pendency of the case against the petitioner in ACB trap

NC: 2024:KHC-D:9028

Case, the case of the petitioner for promotion was not

considered and that since the enquiry in the said trap case

is pending, on conclusion of the same, his case for selection

to the Grade-I would be considered in accordance with law,

is illegal and contrary to the settled principles of law

referred to and laid down by the Apex Court hereinabove.

Hence, seeks for allowing of the petition.

10. Heard Perused the records.

11. Paragraph No.16 of the judgment of the Apex

Court in the case of K.V. Jankiraman (supra), reads as

under:

"16. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge - sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the

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NC: 2024:KHC-D:9028

appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge- sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many-cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge- memo/charge sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalize the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows:

"(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official;

(4) the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge sheet filed before the criminal court and not before;"

12. The Official Memorandum, dated 14.07.1993

issued by the Government of Karnataka, which is

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incidentally referred to in the impugned endorsement at

Annexure-J also is in line with law enunciated by the Apex

Court in the case of K.V. Jankiraman (Supra). It is

relevant to refer to paragraph Nos.3 & 6 of the said Official

Memorandum, which is extracted hereunder:

"3. The Departmental Promotion Committee (DPC) shall assess the suitability of the officer / official for promotion without taking into consideration the disciplinary proceedings / court proceedings pending against the officer / official. The assessment on the basis of records, the view of the DPC shall be kept in a sealed cover. In the subsequent DPCs also, if any, during the period of disciplinary / court proceedings, the DPC shall consider the officer's / official's case and record its findings which will again be kept in a sealed cover in the above manner." &

"6. The sealed cover procedure contemplated herein above, shall be adopted only after the date of issuance of Charge Memo / Charge sheet, that being the date from which the disciplinary proceedings can be taken to have been initiated."

13. The Division Bench of this Court, in the case of

Smt. Jayashree (supra) referred to above, following the

judgment of the Apex Court in the case of

K.V. Jankiraman (supra) had granted the relief directing

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NC: 2024:KHC-D:9028

respondents therein to consider the case of the petitioner

therein for promotion to the post as sought for.

14. The fact situation of the matter in the aforesaid

cases being identical to the case at hand, and the law laid

down by the Apex Court and the Official Memorandum

issued by the Government of Karnataka and the earlier

order passed by the Court in W.P. No.10497/2022 not

having been followed, this Court is of the considered view

that the petitioner has made out case and hence the

following:

ORDER

(i) The writ petition is allowed;

(ii) The endorsement issued at Annexure-J, dated 07.07.2023 is quashed.

(iii) Respondent No.2 is directed to the consider the case of the petitioner as on the date when DPC was conducted i.e., on 10.08.2022 for the post of Chief Officer Grade-I as per the Karnataka Municipalities Administration (Cadre and Recruitment) uRules, 2022, produced at Annexure-D and