Karnataka High Court

Smt. K R Dakshayini vs The Secretary Urban Development ... on 29 January, 2025

Author: S.G.Pandit

Bench: S.G.Pandit

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 29TH DAY OF JANUARY, 2025

                      BEFORE

        THE HON'BLE MR.JUSTICE S.G.PANDIT

       WRIT PETITION No.2514/2020 (S-RES)

BETWEEN:

1.   SMT. K R DAKSHAYINI
     W/O U.C. CHANDRASHEKAR
     AGED ABOUT 52 YEARS
     SECOND DIVISION ASSISTANT,
     CITY MUNCIPAL COUNCIL,
     CHICKAMANGALURU,
     R/AT NEAR GUNDINAMMA TEMPLE,
     MOOKAMBIKA NILAYA,
     HOSAMANE EXTENSION,
     CHIKAMANGALURU-577101.

2.   SMT.M.Y. KAMALAMMA
     W/O N.ONKARAPPA
     AGED ABOUT 52 YEARS
     SECOND DIVISION ASSISTANT,
     TOWN MUNICIPAL COUNCIL, MUDIGERE,
     CHIKKAMANGALURU DISTRICT,
     R/AT MOORMANEHALLI ROAD, KOTE,
     CHIKKAMANGALURU-577101.

3.   SMT. CHANDRAKALA
     D/O MUNISWAMY
     AGED ABOUT 53 YEARS
     SECOND DIVISION ASSISTANT,
     TOWN MUNICIPAL COUNCIL,
                          2

     MUDIGERE TALUK, MUDIGERE,
     CHICKKAMANGALURU DISTRICT,
     R/AT BEHIND WATERTANK,
     MUDIGERE-577132.

4.   SMT. LEELAVATHI
     W/O NARAYAN,
     AGED ABOUT 58 YEARS
     SECOND DIVISION ASSISTANT,
     TOWN MUNCIPAL COUNCIL, KADUR,
     CHIKKAMANGALURU DISTRICT,
     R/AT NO.101, VISHWAS RESIDNECY,
     MANGO GARDEN, CHRISTIAN COLONY,
     CHIKAMANGALRUU-577101.

5.   SMT. SHAHANAZ BANU
     W/O MOHAMMED KHAN
     AGED ABOUT 48 YEARS
     SECOND DIVISION ASSISTANT,
     CITY MUNICIPAL COUNCIL
     CHIKKAMANGALURU
     R/AT OPP: RAMESHWARA TEMPLE,
     AFEEFA MANSION MALLANDUR ROAD,
     UPPALLI-577101.
                                       ...PETITIONERS
(BY SRI. C M NAGABUSHANA, ADV.)

AND:

1.   THE SECRETARY
     URBAN DEVELOPMENT DEPARTMENT
     M.S.BUILDING,
     VIKASA SOUDHA,
     BANGALORE-01.

2.   THE DIRECTOR OF MUNCIPAL ADMINISTRATOR
     V.V. TOWER,
     BANGALORE-560001.
                             3


3.   THE DEPUTY COMMISSIONER
     CHIKKAMAGALURU DISTRICT
     CHIKKAMAGALURU.

4.   SRI. G. PRAKASH,
     FDA,
     PRESENTLY WORKING AS MANAGER,
     TOWN MUNICIPAL COUNCIL,
     BIRUR-577116.

5.   SRI. C.G. DEEPAK
     S/O LATE GOVINDARAJU,
     FIRST DIVISION ASSISTANT,
     TOWN MUNICIPAL COUNCIL,
     BIRUR-577116.

6.   SRI. B.K. UMESH,
     SDA, TOWN MUNICIPAL COUNCIL,
     TARIKERE-577228.

7.   SRI. C.G. CHANDRASHKEAR
     S/O LATE GANGARAJU,
     SDA, CITY MUNICIPAL COUNCIL,
     CHIKKAMAGALUR-577101.

8.   SMT. SHEELA,
     SDA, CITY MUNICIPAL COUNCIL,
     CHIKKAMAGALUR-577101.

9.   SRI. V. ANANDA
     SDA,
     PATTANA PANCHAYATHI,
     KOPPA-577126.

10. SRI. RAVIKUMAR B.A,
    SDA, PATTANA PANCHAYATHI,
                            4

    CHIKKAMAGALURU DISTRICT,
    AJJAMPURA-577547.

11. SMT. M.C. ASHA,
    W/O C.G. DEEPAK,
    SDA, CITY MUNICIPAL COUNCIL,
    CHIKKAMAGALURU-577101.

12. SRI. R. NAGENDRA,
    S/O LATE RAVANAIAH,
    SDA, CITY MUNICIPAL COUNCIL,
    SHIVAMOGGA DISTRICT,
    SAGARA-577401.

13. SRI. ANTHONY CRUSE
    SDA, TOWN MUNICIPAL COUNCIL,
    TARIKERE-577228.

14. SRI. KRISHNAIAH,
    SDA, TOWN MUNICIPAL COUNCIL,
    MUDIGERE-577132.
                                        ...RESPONDENTS
(BY SRI REUBEN JACOB, AAG &
 SRI V. SHIVAREDDY, AGA FOR R1 TO R3
 SRI PRAKASH M.H., ADV. FOR R8
 SRI J.N. NAVEEN, ADV. FOR R4 TO R7, R9 TO R13
 R14 IS SERVED)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
CALL FOR THE RECORDS QUASH THE IMPUGNED OFFICIAL
MEMORANDUM DATED 23/27.09.2019 ANNEXURE-F AND
IMPUGNED ENDORSEMENTS DATED 26/28.11.2019 VIDE
ANNEXURE-H, H1, H2, H3, H4 AND SET ASIDE THE RANKING
AND DATE OF ELIGIBILITY BASED ON THE DATE OF
COMPLETING 10 YEARS OF SERVICE AS THE DATE OF
REGULARIZATION IN THE CADRE OF SECOND DIVISION
                            5

ASSISTANT TO THE PETITIONERS AND TO EXTEND ALL THE
CONSEQUENTIAL BENEFITS ARISING THERETO.


     THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED   ON   16/01/2025    COMING  ON  FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:

CORAM:   HON'BLE MR JUSTICE S.G.PANDIT

                      CAV ORDER

     The petitioners, Second Division Assistants ('SDA'

for short) working in various Town Municipal Councils of

Municipal Administration Department are before this

Court, questioning the ranking assigned to them in the

seniority list of the SDAs published under impugned

O.M. bearing No.¸ÀA/rAiÀÄÄr¹/(2)/¹Dgï/163/2018-19 dated

23/27.09.2019 (Annexure-F) and also questioning the

impugned endorsements rejecting petitioners' request

for assigning proper ranking, with a further direction to

assign ranking, taking the date of regularization in the

Cadre of SDA.
                               6

2.     The Brief facts of the case are that:

       The petitioners were initially appointed as Typists

on daily wage in various Town Municipal Councils on

various dates between the years 1990 and 1992. They

completed 10 years of service as daily wagers in the

year 2002 and in terms of the judgment of the Hon'ble

Apex    Court,   the   services   of   the   petitioners   were

regularized under Annexure-A dated 07.07.2007 of the

second respondent.      Annexure-A, order of regularization

indicates the dates on which the petitioners were

regularized.


3.     Under O.M. dated 03.01.2018 (Annexure-C), the

3rd respondent published the provisional seniority list of

SDAs of Chikkamagalur District, inviting objections/

suggestions from the concerned. In the said provisional

seniority list, the petitioners were at Sl.Nos.32, 35, 36,

37 and 39 whereas respondent Nos. 4 to 14 were below

the petitioners.       Thereafter, 3rd respondent, under
                                   7

Annexure-F/O.M. dated 23/27.09.2019 published the

final seniority list of the cadre of SDAs. While finalizing

the seniority list of the SDAs, the petitioners were shown

below the private respondent Nos.4 to 14 by postponing

the   date    of   eligibility.        The     petitioners    made

representation at Annexure-G dated 30.10.2019 to

rectify the seniority list and to assign proper ranking to

the    petitioners.            Under      Annexure-H         series,

endorsements        dated       26/28.11.2019,        petitioners'

requests are rejected. Challenging the ranking assigned

to the petitioners under final seniority list of SDAs

published     under     O.M.      dated      23/27.09.2019      and

endorsements dated 26/28.11.2019, the petitioners are

before this Court in this writ petition.


4.    Heard           learned           counsel         Professor

C.M.Nagabhushana for petitioners, learned Additional

Advocate      General    Sri.Reuben          Jacob   along     with

Sri.V.Shivareddy,       learned        Additional    Government
                                8

Advocate for respondent Nos.1 to 3, Sri.J.N.Naveen,

learned counsel for respondent Nos.4 to 7 and 9 to 13

as   well   as    learned   counsel    Sri.Prakash.M.H.,    for

respondent No.8. Perused the writ petition papers.


5.    Learned counsel for the petitioners would submit

that the petitioners who were initially appointed as

Typists on daily wage between the years 1990 and 1992

were regularized under order of second respondent

dated 07.07.2007 (Annexure-A).          He submits that the

regularization of petitioners was from the date, they

completed 10 years of service as daily wagers i.e., from

01.10.1998,      15.12.2000,       01.06.2002,   01.06.2002,

respectively.    Learned counsel would submit that while

in the provisional seniority list of SDAs published on

03.01.2015       at   Annexure-C,     the   petitioners    were

correctly shown above the respondents, but while

finalizing the seniority list, ranking of the petitioners are

pushed down and respondent Nos.4 to 14 are shown
                                 9

above    the    petitioners.     Further,   he   submits   that

respondent Nos.4 to 14 are appointed subsequently and

are regularized subsequent to the regularization of the

petitioners.    Hence, they could not have been shown

above the petitioners.         Thus, learned counsel would

submit that while preparing the seniority list and

publishing under impugned O.M., the 3rd respondent has

not followed the procedure known to law.              Learned

counsel would submit that a regularized employee would

get seniority from the date of regularization in terms of

Rule    1-A    of   the   Karnataka   Government     Servants

(Seniority) Rules, 1957. Thus, he prays for setting aside

the ranking of the petitioners as well as respondents,

with a direction to the respondents-Authorities to re-do

the seniority list, in accordance with law.


6.     Per contra, learned Additional Advocate General

Sri.Reuben Jacob supports the impugned seniority list

and submits that in terms of amended recruitment rules,
                              10

i.e., Karnataka Municipalities (Recruitment of Officers

and Employees) Rules, 2004 (for short "2004 Rules")

certain of the posts including Typists were abolished and

as such, there were no posts for the petitioners to

assign seniority as on the date of their regularization. In

that regard, learned Additional Advocate General invites

attention of this Court particularly to Rule 16(i) of 2004

Rules and submits that the posts held by the petitioners

on daily wage were abolished and there were no posts to

give them the date of eligibility as on the date of

publication of seniority list, as such, they were pushed

down in the seniority list. Further, it is submitted that,

as there were no sanctioned posts in view of abolition,

the petitioners could not get the date of eligibility as on

the date of their regularization.     Thus, he prays for

dismissal of the writ petition.
                              11

7.     Learned counsel Sri.J.N.Naveen for respondent

Nos.4 to 14 adopts the arguments of learned Additional

Advocate General.


8.     Having heard the learned counsel for the parties

and on perusal of the writ petition papers, the only point

which falls for consideration is as to whether the

impugned seniority list published under O.M. dated

23/27.09.2019 of the cadre of SDAs needs interference

insofar as petitioners and respondent Nos.4 to 14 are

concerned?


9.     Answer to the above point would in the affirmative

and it requires interference at the hands of this Court,

for the following reasons:


       It is an admitted fact that the petitioners were

initially appointed as Typists on daily wage basis

between the years 1990 to 1992. It is also an admitted

fact   that   under   Annexure-A   order   of   the   second
                                12

respondent       dated    07.07.2007,          petitioners     were

regularized as Typists on completion of their ten years of

service.      The date of regularization is assigned on

completion of their 10 years as daily wage employees.

The second respondent under O.M. dated 03.01.2018

(Annexure-C) published provisional seniority list of SDAs

assigning ranking to the petitioners above the private

respondent Nos.4 to 14.


10.   In the provisional seniority list, petitioners were at

Sl.Nos.32, 34, 35, and 36 whereas respondent Nos.4 to

14 were at Sl.Nos.37, 39, 40, 49 and 50. But while

finalizing the seniority list under Annexure-F, O.M. dated

23/27.09.2019, the petitioners are pushed down and the

respondents are pushed up in the seniority list. It is to

be noted that when the petitioners were ranked higher

than the respondents and respondents were below the

petitioners    in   the   provisional   list    and    when     the

petitioners    were   pushed     down    below        the    private
                               13

respondents Nos.4 to 14 in the final seniority list, the

petitioners   had   no   opportunity. Pushing down the

petitioners' ranking to their disadvantage in the final

seniority list is in violation of principles of natural justice.


11.   In terms of Rule 1-A of 1957 Rules, seniority of a

regularized employee shall be determined from the date

of his regularization. In terms of the above Rule,

petitioners would be entitled for counting their service

for seniority from the date of their regularization i.e.,

dates assigned in their order of regularization of the

second respondent dated 07.07.2007.


12.   Learned Additional Advocate General Sri.Reuben

Jacob places reliance on Rule 16(i) of 2004 Rules to

contend that there was no post as the posts were

abolished under 2004 Rules. The said submission of the

learned Additional Advocate General is contrary to the

records. Admittedly, petitioners were working against
                              14

the sanction posts and unless            they   were holding

sanction post, they would not have been entitled for

regularization. It is not in dispute that the petitioners

were working on daily wage since 1990 and 1992. When

they hold the posts as such till their regularization, it

cannot be said that in terms of Rule 16(i) of 2004 Rules,

the posts got abolished. Rule 16(i) of 2004 Rules reads

as follows:

              "16. Abolition of posts.- The posts
     specified in Annexure-I existing in the Urban
     local bodies shall be abolished.
     Provided that, -


     (i)      No such posts shall be abolished unless
              such posts become vacant due to death,
              retirement, promotion or otherwise of
              persons already working"


A reading of the above Rule makes it abundantly clear

that the posts existing in urban local bodies specified in

Annexure-1 to the Rules would get abolished unless
                             15

such post become vacant due to death, retirement,

promotion or otherwise of persons already working. The

persons otherwise already working would come to the

rescue of the petitioners. The petitioners were working

against those Typist posts since form the date of their

appointment on daily wages against the sanctioned

posts. As the petitioners were working against those

posts, it cannot be said that, in terms of Rule 16(i) of

2004 Rules, those posts got abolished. There is no merit

in the submission of the learned Additional Advocate

General.


13.   For the reasons recorded above, the following:

                         ORDER

a) Writ petition is allowed in part.

b) The ranking assigned to the petitioners

and respondent Nos.4 to 14 in the

impugned final seniority list of the cadre

of Second Division Assistants relating to

the Chikkamagaluru District published

under O.M. bearing No.¸ÀA/rAiÀÄÄr¹/(2)/

¹Dgï/163/2018-19 dated 23/27.09.2019

(Annexure-F) are quashed.

c) Respondent No.3 is directed to re-do the

seniority list keeping in mind the

observations made above in this order