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Judgment
22 paragraphs · 2,238 wordsSubhash Badi
Petitioner has sought for a direction to the respondents-1, 2 and 5 to give effect to the order dated 28.8.2004 produced at Annexure-Missued by respondent No. 5 creating a post of General Manager (Industrial Estates) retrospectively w.e.f. 22.2.1999 and promoting the petitioner with retrospective effect to the said post of General Manager (Industrial Estates) w.e.f. 22.2.1999. Brief facts as unfolded by the petitioner are, that the petitioner was appointed as a Chief Manager as against the backlog on 23.2.1991, however, as the fourth Respondent in this writ petition filed a writ petition before this Court in W.P. No. 5123/1991, questioning the appointment of the petitioner as a Chief Manager, petitioner was not permitted to report to the duty. The fourth respondent was working as a Deputy Chief Manager and had questioned the appointment of the petitioner. Similarly, one Omkarappa had also filed W.P. No. 6410/1991. The writ petition filed by fourth respondent was disposed of, accordingly, the fourth respondent was promoted to the post of Chief Manager. In view of the disposal of the writ petition and promotion of the respondent No. 4, the petitioner was permitted to the report to the duty as a Chief Manager in the Corporation on 09.03.1994 retrospectively with effect from 23.02.1991. On 09.12.1998, respondent published the seniority list of Chief Manager and in the seniority petitioner was shown at Sl. No. 4. However, the said seniority was subject to a writ petition pending in W.P. No. 6410/1991 filed by one Omkarappa.
On 22.02.1999, one S.R. Prahlada Rao, who was shown at Sl. No. 1 in the seniority list, was promoted to the post of General Manager. W.P. No. 6410/1991 came to he disposed of by order dated 08.07.1999 with a direction that, Omkarappa shall be appointed as a Chief Manager, however, the petitioner was not disturbed from the post of Chief Manager, at the same time, Omkarappa was also directed to be appointed as a Chief Manager. As against the said order, the Corporation filed a Writ Appeal. The said writ appeal came to be allowed and the order of the learned Single Judge was set aside and in the meanwhile, the fourth respondent was also promoted to the post of Chief General Manager on 17.10.2002.
The Corporation published a provisional seniority list dated 26.02.2004, thereafter the final seniority list came to be published for the cadre of Chief Manager as on 1.1.2004. The said final seniority list has become final.
It is not in dispute that, in the final seniority list, petitioner is shown at Sl. No. 7 whereas Prahlada Rao was shown at Sl. No. 12 The said seniority list was challenged by the fourth respondent and others in W.P.Nos.26342-43/2004, however, the said writ petitions were also dismissed by order dated 23.03.2011. In view of the fixation of seniority of the Chief Managers, it was clear that, this petitioner was senior to Prahlada Rao, and was eligible for promotion to the post of General Manager, even before the Prahlad Rao was promoted. Thus, at least what was required was that the petitioner should have been promoted to the post of General Manager as on the date of promotion of Prahlada Rao. The respondent - Board having realized the mistake, and to set right the injustice caused to the petitioner, Board by its resolution decided to promote the petitioner retrospectively w.e.f. 22.2.1999 to the post of General Manager. Same reads as under:
Therefore, the Chairman placed the request of Sri L. Nagaraju for promotion to the post of General Manager with effect from retrospective date to set right the injustice caused to him
and accordingly the Board resolved:
Resolved further to promote to Sd. L. Nagaraju, chief Manager to the post of the General Manager retrospectively with effect from 22.02.1999 add to entrust the work of Industrial Estates so as to develop second line as the present Executive Director is retiring from the services on 31.05.2005.
This resolution was approved by the Government by order dated 28.08.2004, however, the Corporation resolved to create supernumerary post of General Manager with effect from 22.02.1999 to 31.05.2005. 31.05.200'' date was mentioned as that, Prahlada Rao, who was promoted to the post of General Manager, had retired on the said date.
However, the Chairman, who was party to the Board resolution and who had even made an observation that an injustice has been caused to the petitioner and to set right the injustice, a retrospective promotion is required to be given to the petitioner to the post of General Manager, wrote a letter to the Government interalia stating that the Board resolution dated 30th June 2004 is incorrect, as the complete facts were not placed and further directed the Managing Director by his letter dated 04.09.2004 to place the matter once again before the Board on the ground that the promotion was not given retrospectively to the petitioner.
Despite the Government approval of the resolution, when the petitioner was not paid the consequential benefits, petitioner had approached this Court in W.P. No. 16997/2005 and the said Writ petition was allowed by order dated 13.09.2005 wherein it is observed at paragraph No. 4 as under:
The facts remains that the order granting retrospective promotion has been issued by the Managing Director on 23.08.2004 and the same has been approved by the State Government vide Government order dated 28.08.2004 which continues to be in force. These orders are neither modified nor cancelled. Hence, the Government Order at Annexure-E holds the field. The petitioner is entitled for the benefit that flows from the said order, which clearly says that he is entitled for all consequential benefits flowing from the retrospective promotion given to him in the cadre of General Manager with effect from 22.02.1999...
Accordingly, this Court also observed that, the petitioner cannot be Made to wit indefinitely in this regard, the authorities are bound to honour the order passed at Annexure-E, unless they take appropriate action to rectify their mistake, if any, in accordance with law within a stipulated time. The respondent - Corporation was allowed twelve weeks from the date of receipt of copy of that order to take a decision in this regard. If no such order is passed within the stipulated period, the petitioner shall be paid all his dues and be accorded all the consequential benefits, which flow from the retrospective promotion accorded to him pursuant to Annexure-E therein without any further delay.
From the order of the learned Single Judge, it was clear that, in the Board resolution, the Government approval was accepted that the promotion given in the petitioner was retrospective and also accepted that the petitioner became entitled to all consequential benefits. However, liberty was reserved to the Board to correct mistake, if any, within 12 weeks. The Board, contrary to the order of the learned Single Judge, issued a show cause notice dated 25.10.2005 (in the style of memo) interalia to revert the petitioner from the post of General Manager to the post of Chief Manager, though Board stated to have passed the resolution, but it was not placed before the Government for approval. The Board in its resolution dated 23.09.2005 held that the promotion given to the petitioner retrospectively was not correct. Petitioner in the meanwhile replied to the show cause notice. However, the respondent by issuing Annexure-X, treated the promotion of the petitioner to the post of General manager as prospective. It is this order, which is called in question in this writ petition.
I heard Sri. Prasanna, learned counsel for the petitioner and Sr. Ramachandran, Counseler Sri. M.R.C. Ravi for the respondents-1 and 2.
The facts narrated above are not in dispute. It is also not in dispute that the Board had passed a resolution giving retrospective promotion to the petitioner. It is also not in dispute that, the final gradation list dated 01.06.2004 as on 01.01.2004 of the Chief Manager (Administration) and it has become final. It is also not in dispute that, in the seniority list, this the petitioner is shown above Prahlada Rao. It is also not in dispute that, overlooking the seniority of the petitioner, Prahlada Rao was promoted to the post of General Manager on 22.02.1999. Had the seniority list as on 01.01.2004 published earlier, or considered properly, indisputedly, the petitioner being senior t-o Prahlada Rao, would have been promoted before Prahlada Rao was promoted on 22.02.1999. It is not in dispute that, the petitioner has been denied of his promotion at least from 22.02.1999 to the post of General Manager. It is also not in dispute thaw, after realizing the mistake had passel the resolution in which the Chairman himself s a party. It is also not in dispute that, the Board had passed a resolution to give retrospective promotion to the petitioner to the post of General Manager with effect from 22.02.1999 and the said resolution also contains the reforenes9 of the Chairman''s statement that the resolution is passed in order to set right the injustice caused to the petitioner, and the petitioner be promoted retrospectively. It is also not in dispute that this resolution is approved by the Government. Further, this Court in W.P. No. 16997/2005 has also held that the promotion given to the petitioner is retrospective and is neither annulled nor modified and further has observed that, the petitioner is entitled for all consequential benefits flowing from retrospective promotion, unless that is annulled or modified within the stipulated time. It is not in dispute that, within 12 weeks as directed by this Court, the retrospective promotion approved by the Government is not cancelled.
If these facts are not in dispute, the petitioner admittedly had become entitled for retrospective promotion with effect from 22.02.1999 which he otherwise would ha7e functioned in the said post and the Board after realizing the same felt that injustice has been caused to the petitioner and had given retrospective promotion to the petitioner.
But now the contention is raised that a mistake has crept-in in the said resolution and the Board has corrected the said mistake. It is contended that, in terms of Cadre and Recruitment Rules of the Corporation as per Clause 12 Explanation, the promote will be placed above the direct recruitee. Though this contention is raised, but this contention goes contrary tot he final gradation, which is also not only published, but has been upheld by this court in the writ proceedings, wherein the petitioner admittedly has been shown above Pranla & Rao. Apart from this, Rule 3 of the Government Servants (Seniority) (Karnataka) Rules, 1957, specifies in case of direct recruitee and promotion to the same post, the direct recruitee will be placed above the promote. Though the said aspect may not be relevant in this case, as the seniority list itself is clear that the petitioner is placed above Prahlada Rao, further contention of the learned counsel for the respondent - Corporation that Pralilad Rao should be placed above the petitioner, does not hold. good.
Further, the resolution passed by the Board earlier giving retrospective promotion is sought to be modified. It is not in dispute that, though the Government had permitted the Board to take steps to pass a resolution, but it is not in dispute that there is no Government oilier approving any further, resolution. If that is so, in terms of the order passed by this Court in W.P. No. 16997/2005, the retrospective promotion of the petitioner not only has been upheld but further there is a direction for giving consequential benefit and also for making payment and that order has become final.
No doubt, the learned counsel for the respondent - Corporation has relied on the judgment of the Apex Court reported in (2010) 1 SCC (L&S) 959 in the matter of Abhijit Ghosh Dastidar -vs-Union of India and others and submitted that, in case of retrospective promotion, the promote will not be entitled to any pay or allowance for the period for which he had not worked in the higher grade administration group. No doubt, type promote, who had not worked, may not be entitled, but in this case, this Court had already passed an order as regard to the consequential benefit and the said order has become final. Hence, it is suffice to hold that the petitioner''s retrospective promotion with effect form 22.02.1999 has become final and if the petitioner has been promoted retrospectively, this court has already observed that the consequential benefits also flow from the same and if that order has become final, the petitioner is entitled for whatever comequential benefit that flow from his retrospective promotion to the post of General manager. Hence, Annexure-X, which is passed and which has no Government approval, is not sustainable, as such, in ray opinion, the writ petition deserves to be allowed.
Accordingly, the petition is allowed. Annexure-X is hereby quashed. A direction is issued to the respondent - Corporation to comply with the order of this court upholding retrospective promotion to the petitioner with effect from 22.02.1999 with consequential benefits, as ordered in W.P. No. 16997/2005.
Since the petitioner had been made to approach this court again and again, though the resolutions have been passed, he must have incurred certain cost and time and must have also suffered inconvenience. Having regard to the same, Board shall pay a nominal cost of Rs. i0,000/- to the petitioner.