Sharat Chandra Lingappa Koshti vs State of Karnataka

Rama Jois, J.—This Writ Appeal is presented against the order of the learned Single Judge dismissing the Writ Petition of the petitioner, who is an Executive Engineer in the services of the Hubli-Dharwad Municipal Corporation. The learned Judge dismissed the Writ Petition on the ground that Government was the appointing authority to the post of Executive Engineer and therefore the contention of the petitioner that the Municipal Corporation was the Appointing Authority was inaccurate and therefore the order of suspension was made by the Competent Authority. The second contention of the petitioner before the learned single Judge which was also rejected was that the suspension order was not justified as there was no scope for the petitioner to tamper with the records.

We heard the matter on the last occasion. As the learned Counsel for the Appellant relying on Sections 82 and 84 of the Karnataka Municipal Corporations Act, 1976 (hereinafter referred to as ''the Act'') had contended that the appointing authority for the post of Executive Engineer was the Commissioner of the Corporation, the Government had no power to place the Appellant under suspension. The learned Counsel had produced the order of appointment to show that actually the Commissioner appointed the Appellant. In the circumstances, we directed issue of notice to the learned Counsel for the Corporation and the State.

Sri N. Devadas, learned Government Advocate for the State and Sri Nanjunda Reddy, -learned Counsel for the Corporation, have invited our attention to Rule 26 of the Karnataka Municipal Corporation Rules, 1977. It reads: -

"26. Appointment of officers of the Corporation:- In each of the Corporation the posts mentioned in column (2) of the Table below shall be filled by Government by appointment of Officers of the cadre specified in the corresponding entries in column (3) thereof and the number of such posts in each Corporation shall be as specified in the corresponding entries in column (4) thereof:

TABLE

Sl. No. Posts Method of appointment of Officers No. of posts

1 2 3 4

The relevant entry relating to Hubli Dharwar Municipal Corporation shows that as regards the post of Executive Engineer, appointment has to be made by promotion from the cadre of Assistant Engineers. The Table read with Rule 26 of the Rules clearly indicates that the Government is the promoting authority.

Learned Government Advocate also produced the order dated 25-6-1991 by which the Government promoted the petitioner to the post of Executive Engineer. The order reads:

''''The Commissioner, HDMC, in his letter, dated 30-4-1981 forwarded a copy of Resolution No. 2844 dated 28-4-1981, passed by the Administrator recommending the cases of Messrs A. T. Patil and S.L. Koshti, Assistant Engineers for promotion to the post of Executive Engineers and solicited orders of Government thereon.

ORDER NO. HUD 219 MNU 79, DATED THE 24TH JUNE, 1981

After careful consideration of the cases in detail and in view of the Ordinance vide Notification No. LAW 42 LGN 81, dated 28-5-1981, published in Extraordinary Gazette, Part-IV dated 28-5-1981, amending Section 421 of the KMC Act, 1976, validating the K.M.C. Rules, 1977 with retrospective effect.

"Government of Karnataka are pleased to accord sanction promoting Sri A.T. Patil, B.E.M. Tech., and Sri S.L. Koshti, B.E.(Civil) Assistant Engineers, HDMC, as Executive Engineers against the existing two posts of Executive Engineers included in Chapter VI of the KMC Rules, 1977 as recommended by the Commissioner, HDMC, and resolved by the Administrator, vide resolution No. 2844 dated 28-4-1981."

The wordings of the order give no room for doubt that it is the Government which promoted the appellant to the post of Executive Engineer exercising its power under Rule 26 of the Rules. The order of appointment produced by the Appellant reads:-

PROCEEDINGS OF THE COMMISSIONER, H.D.M.C.

Sub: Promotion of Shri A.T. Patil & S.L. Koshti, Assistant Engineers as Executive Engineers.

Read: Government Order No. HUD 219, MNU 79 dated 24-6-1981.

ORDER No. HDC 34 GAC 81 DATED 25TH JUNE 1981

In pursuance of the Government Order read above, sanction is hereby accorded to promote Shri A.T. Patil and S.L. Koshti, Assistant Engineers, as Executive Engineers in the pay-scale of Rs. 1,300-1, 900 plus admissible allowances and to post them against the existing two posts of Executive Engineers included in Chapter VI of the K.M.C. Rules 1977, without prejudice to the rights of others and also subject to the decision of the Hon''ble High Court in the Writ Petition filed by other Assistant Engineers.

For administrative convenience, Shri S.L. Koshti, is posted to work as Executive Engineer in Dharwad unit and Shri A.T. Patil, is posted as Executive Engineer in Hubli unit.

Separate orders will follow regarding the consequential working arrangement and re-fixation of pay of the promoted officers.

This order should take immediate effect.

Commissioner, HUBLI-DHARWAD MPL. CORPORATION."

Thus, it may be seen the Commissioner was only giving effect to the Government Order promoting the appellant to the post of Executive Engineer.

Learned Counsel for the appellant next contended that the Rules had been framed without previous publication and they were struck down by this Court in the case of ALLISAB HUSENSAB v. STATE OF KARNATAKA AND ANR. 1980 (2) KarLJ 17 The learned Counsel for the respondents pointed out that the Rules have been validated by an Act of Legislature by Act No. 40/1981. The relevant portion of Section 8 of the said Act reads:-

"8. Validation:- (1) The Karnataka Municipal Corporations Rules, 1977 made in Notification No. HMA 270 MUN 77 dated 19th December 1977 and published as GSR 390 in the Karnataka Gazette (Extraordinary) dated 22nd December 1977 (hereinafter referred to as the said Rules) shall, notwithstanding anything contained in any Judgment, decree or order of any Court OF other Authority or in the principal Act, be deemed to be as valid and effective for all purposes as if the said rules had been made under the principal Act as amended by this Act and accordingly:-

(a) all actions or things taken or done (including appointments and promotions made) under the said Rules shall, for all purposes be deemed to be and to have always been taken or done in accordance with low."

From the above provision it is clear that every action taken under the Rules prior to the coming into force of the Validation Act is deemed to have been done validly as if the Amendment Act had come into force from the inception, In view of this, it is no longer open for the Appellant to contend that order made under the authority of Rule 26 is invalid. Learned Counsel for the Appellant however submitted that Rule 26 of the Rules even after the validation cannot prevail over Sections 82 and 84 of the Act. It is unnecessary to go into that question since the validity of the Rule has not been challenged in the Writ Petition. For these reasons we hold that the Government is the Competent Authority to pass the order.

The order of suspension is in the nature of an interim order pending disciplinary proceedings against the employee, which the appointing/disciplinary authority has discretion to pass. A reading of the order of suspension indicates that having regard to the material before it, the Government has come to the conclusion that it is a fit case in which the appellant should be placed under suspension. Therefore, we find no merit in this appeal.

The Appeal is therefore dismissed.