B.V. Krishnamurthy vs Commr. of Commrl. Taxes and Another

(1) The petitioner joined the services in the erstwhile State of Mysore, as a Bill Collector. He was appointed to that post on 14-6-1951. Consequent upon the States Re-organisation in 1956, he became an allottee of the new State of Karnataka with effect from 1-11-1956. On 17-1-1966 the petitioner was promoted as Second Division Clerk and thereafter on 23rd August 1969 he was promoted as First Division Clerk. It is averred by the petitioner that the promotions referred to above were solely on the basis of seniority and made against the promotional quota existing in the respective cadres. From this it is to be implied that when the promotions were effected, as averred, the authorities did not insist upon his having passed or not passed any of the prescribed examinations for such promotions from time to time in the new State of Karnataka. Because of the seniority in the cadre of the First Division Clerk enjoyed by the petitioner, he was promoted to the post of Commercial Tax Inspector, on 21-12-76 on purely temporary basis. It is further averred by the petitioner that on 14-9-1978 his pay was also fixed in the cadre of Commercial Tax Inspectors. However, the State Legislature came to pass the Act No. 43 of 1976 viz., the Karnataka Service Examinations Act, 1976, (hereinafter referred to as the Act) by the provisions of which, all promotions denied to Government servants between 1-11-1956 and 9th Jan. 1974 on the ground that they had not passed the or scribed examinations are required to be reviewed as if no such qualifying examinations for promotion had been prescribed between the two dates aforementioned. This is clear from the provisions contained in S. 3 of the Act that;

"No service examination for the period from 1st November 1956 to 9th January 1974,-(1) For the period commencing on 1st November 1956 and ending on 9th January 1979, for the purpose of eligibility to promotion, no service examination shall be and shall ever be deemed to have been prescribed for Government servants.

(2) A Government servant who, during the aforesaid period, was not promoted solely on the ground of not passing any service examination shall, if he has not already been promoted and if he is otherwise eligible, be promoted.

(3) Every promotion under sub-sec. (2) shall, notwithstanding anything in any judgment, decree or order of any court, be prospective only on and from a date after 10th January 1974:

Provided that-(1) the person promoted shall be entitled to initial pay on the date of actual promotion as if he was holding the promoted post from the date he would have been promoted but for not passing the service examination (hereinafter referred to as the eligibility date), but such person shall not be entitled to payment of any arrears for the period prior to the date of actual promotion;

(2) if the person to be promoted has retired from service prior to 10th January 1974, he shall, if otherwise, eligible, be deemed to have been promoted from the eligibility date and his pension and Death-cum-Retirement Gratuity shall be revised on the basis of the pay he would have drawn had he been so promoted from that date."

From sub-sec. (2) above, it becomes clear that any Second Division Clerk or First Division Clerk, who at the relevant time was not promoted on the ground that he had not passed the prescribed examination would be entitled to be promoted in order to get the benefit of the Act. Under S. 5 of the Act, a mandate is issued to the State Government to review the promotions made between 1st November 1956 and 9th January 1974 and declares that the persons promoted shall, if juniors to the person to be promoted, yield place and wherever necessary be reverted to the lower post. Sub-sec. (1) of S. 5 reads as follows:

"(1) To facilitate promotions under S. 3, a review of promotions made between the 1st November 1956 and 9th November 1974 shall be made and the persons promoted shall, if juniors to the person to be promoted, yield place and wherever necessary be reverted to the lower post."

Sub-sec. (2) of S. 5 further makes it clear that the seniority list of persons in the class or grade of service to which a Government servant is promoted under S. 3, the rank of the promoted person shall be fixed as if he had been promoted to that class or grade or service on the eligibility date.

In the present petition, the petitioner has sought the quashing of the review made in accordance with the provisions of the Act in which he is revested to the Tank of the First Division Clerk as evidenced by Ext. A which is a list prepared for the cadre of First Division Clerks pursuant to the provisions of the Act, in the Department of Commercial Taxes in Karnataka. The petitioner is shown at Sl No. 7. Ext. A further states that certain officials shown in the afore-mentioned list should be reverted as First Division Clerks with immediate effect. Aggrieved by the order at Ext. A, the petitioner has moved this Court under Art. 226(1)(b) and (c), contending that the review of promotions under the Act ought not to affect him in-as-much as he was not promoted with the pre-requisite of passing prescribed departmental examination throughout. Admittedly, he was promoted without insisting upon those qualifications at relevant times.

Shri Murlidhar Rao, the learned counsel for the petitioner, strenuusly contended that if this view should be accepted, as S. 3(2) speaks about only persons who were denied promotions on account of their not passing tests, then the impugned order would be clearly violative of not only the rights conferred already on the petitioner but also the provisions of the Act and therefore liable to be set aside.

It is difficult to accept the contention. In order to understand S. 3 of the Act, the entire purpose under the scheme of the Act has to be examined. I have already set out the two key sections of the Act-Ss. 3 and 5. It is clear fromthe preamble of the Act that on account of various conflicting decisions of the High Court and Supreme Court and on account of various reviews made pursuant thereto it had become necessary to enact the Act. If S. 3 is properly understood, it is made to give benefit to Government servants who were denied in the now State promotions to higher cadres to which they were entitled to on account of their not passing the prescribed tests or examinations by creating a fiction that for the relevant period there were no examinations or tests prescribed to become eligible for promotion. It is the case of the petitioner himself that he was promoted without his having passed any examination whatsoever. If, in that process, his seniors at the relevant times in the relevant cadres were overlooked for promotions to the higher cadre on the ground that they had not passed the prescribed tests and examinations, then, such seniors would be entitled to get their rightful position by promotion in the respective cadres by virtue of the provisions of the Act. If so understood, then the promotions given from time to time in the different cadres, the promotions of the petitioner would necessarily require to be reviewed in order to assure proper place to his admitted seniors at the relevant times, in the relevant cadres. The order at Ext. A, the seniority list prepared in the cadre of First Division Clerks, pursuant to the mandate of the Act cannot, therefore, be said to be unlawful and cannot be held not applicable tothe petitioner.

If the petitioner has any other grievance against the correctness of the list prepared, he is free to agitate the same in separate proceedings, if he is so advised.

It is also relevant to note that the promotion of the petitioner to the cadre of Commercial Tax Inspector was made on purely temporary basis and so it is clear that the petitioner had not acquired any substantive right to the post of Commercial Tax Inspector.

For the reasons given above, no grounds are made out to issue rule in this case. Hence, the petition is rejected.