K. Narsimhamurthy vs State of Karnataka and Others

Anand Byrareddy, J.—Heard the learned counsel for the petitioner, the learned Government Pleader for State and the learned counsel for respondents.

It is the case of the petitioner that he had entered service of the respondent Zilla Panchayat, which was earlier called as Zilla Parishad in the year 1988. It is stated that when the personnel were recruited in terms of the directions of the erstwhile Zilla Parishad, through the Employment Exchange, there was no Cadre and Recruitment Rules framed under Article 309 of the Constitution of India and the appointments were made under executive orders issued from the Government from time to time. The period till the framing of Recruitment Rules were, therefore, considered as "a No Rule Zone". However, the appointments were to be considered as valid and legal.

The petitioner was one among several persons appointed through the Employment Exchange on the directions of the State Government to fill up the posts. The Government Orders and Circulars in this regard are produced in support of the above contention.

It is the petitioner''s case that respondents No. 3 to 7 were appointed as Typists in the erstwhile Taluk Development Board and District Rural Development Scheme (hereinafter referred to as ''DRDS Scheme'', for brevity). The State Government, had therefore, issued directions for absorption of such temporary staff, who were appointed under the said Scheme and by an order dated 06.07.1989. The respondent No. 2 had absorbed respondents No. 3 to 7 with effect from 23.06.1989 as Typists. Similarly the petitioner service was regularized by an order dated 02.01.1991 with effect from 02.01.1990.

It is further case that respondents No. 3 to 7 were the erstwhile staff appointed under DRDS Scheme and were appointed in the office of the respondent No. 2, but they had come there on transfer from other Local Bodies as Typists in the lower cadre, which is below the cadre of Stenographer and the Government had further clarified that all Local Bodies shall unless the Recruitment Rules were framed for promotion, no promotions should be effected. Notwithstanding the said specific direction, it is the contention of the petitioner that respondents No. 3 to 7 were promoted from the cadre of Typists to Stenographers within a short while of they being transferred to the Zilla Panchayat. Objections were raised by the Accountant General as well as by the State Government, in this regard, as there was no provision for promotion let alone a retrospective promotion, which was totally impermissible. Therefore, the Zilla Panchayat was constrained to cancel the promotion and proceed to order for recovery of salaries paid, by a corrigendum dated 26.08.1987.

The absorption of the petitioner as a Stenographer was also objected to certain officials on the basis of which the State Government is said to have issued a telegraphic communication dated 08.01.1991 staying the regularization, which had already come into force. The Zilla Panchayat had sought to justify its action in absorbing the service of petitioner and sought permission to continue the petitioner in service as the Stenographer.

The petitioner and four others, who were aggrieved by the common order, which was sought to be stayed by the Government had approached this Court by way of writ petitions in W.Ps. No. 26604-608 of 1994 seeking quashing of the Government direction and to seek regularization of their service. This Court by its order dated 09.09.1997 had directed the State Government to re-examine the matter and if necessary to withdraw the order dated 08.01.1991 with expedition. The State Government had failed to re-examine the matter as directed by this Court. On the other hand, it had postponed the date of regularization of the services of petitioners and others to 01.08.1995. Consequently, the Zilla Panchayat had issued an order dated 27.09.1997 postponing the date of regularization of the petitioner and others from 01.12.1990 to 01.08.1995, therefore, denying the petitioner''s seniority of more than five years.

Even before the State Government could take any decision on the earlier directions of this Court in W.Ps. No. 26604-608 of 1994, the Zilla Panchayat is said to have published a provisional seniority list of Typists and Stenographers as per official memorandum dated 06.07.2005 calling for objections from the concerned officials. The petitioner was shown, below the respondents No. 3 to 7, in the said list. He had filed his objections in this regard seeking that the list be redone in terms of the first order of absorption and since respondents No. 3 to 7 had come on transfer to the Zilla Panchayat as Typists, whereas the petitioner was a direct recruit to the cadre of Stenographer and as such he should be ranked above the respondents No. 3 to 7 in strict compliance of Seniority Rules and the application of Quota Rule in terms of the principles laid down by the Apex Court in the case of V.B. Badami and Others Vs. State of Mysore and Others, , and reiterated in the subsequent decision in Gonal Bihimappa Vs. State of Karnataka and Others, .

It is the petitioner''s grievance that without considering his objections, a final seniority list came to be published as on 24.05.2006 continuing the same inter se seniority of the petitioner vis-�-vis the respondents No. 3 to 7. The petitioner had brought this to the attention of the State Government and the Zilla Panchayat had also published the seniority list for the Government for further promotion for approval of the list. For over a year the State Government had not taken a decision. Therefore, the petitioner had filed a writ petition in W.P. No. 8782/2006 challenging the Seniority list dated 24.05.2006 and pointing out the glaring infirmities and violation of the rules in the preparation of the Seniority list.

It is alleged by the petitioner that this Court without examining the case on merits directed the respondents to dispose of the representation of the petitioner as with expedition and before finalizing the list by an order dated 12.03.2007. Though there was much exchange of correspondence between the State Government and Zilla Panchayat, no further action was taken in finalizing the Seniority list. Inspite of several representations and reminders addressed by the petitioners, the Zilla Panchayat had once again prepared the Seniority list on 24.09.2007 repeating the same infirmity of placing the petitioner below the respondents No. 3 to 7. Therefore, the petitioner was again constrained to make a representation dated 17.01.2008 pointing out the infirmity and after having exhausted all his remedies, the petitioner is before this Court. The respondents have entered appearance and filed statement of objections.

The learned counsel for respondent No. 2 in support of the statement of objections would point out that the respondent No. 2 Zilla Panchayat was bound by the directions issued by the State Government from time to time and the Seniority list, thus, finalized is on the directions of the State Government and that there is an order of stay granted by the State Government staying the action of the Zilla Panchayat conceding the claim of the petitioner that he has seniority over and above respondents No. 3 to 7 and in that view of the matter, the respondent No. 2 is helpless in addressing the case of the petitioner.

While on behalf of the State Government, the Government Pleader would submit that the petitioner had made a representation, which even according to him is pending before the State Government and the State Government would consider the representation made by the petitioner and would possibly take necessary steps if it is so warranted, and hence, since the State Government has not taken any final decision as regards the representation made by the petitioner, the State Government may be granted reasonable time to consider the claim of the petitioner and dispose of the same in accordance with law.

He would further point out that the representation made by the State Government is old as this petition, which was filed in the year 2008, and therefore, it is quite possible that the representation may no longer be available with the State Government and it would be necessary for the petitioner to represent any such representation.

Accordingly, the petitioner is directed to make a fresh representation pointing out the infirmities as sought to be claimed insofar as Seniority list is concerned and within a period of one week from today and the State Government shall consider the said representation and address the infirmities as sought to be pointed out by the petitioner and pass appropriate order and take proper decisions within eight weeks from the date of receipt of such a representation. With that observation, the petition stands disposed of.