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Judgment
Anand Byrareddy
Heard the learned counsel for the petitioner and the learned counsel for the respondents. The facts briefly stated are as follows:
The petitioner is said to have been appointed as a First Division Assistant with the respondent - University as on 29.12.1982. He was promoted as Senior Assistant as on 28.12.1990. It transpires that there was an amendment of the Karnataka Civil Services (General Recruitment) Rules, 1977 (hereinafter referred to as '' the KCSR'' for brevity) and proviso to Rule 8 providing for backlog vacancies for the promotional quota with effect from 27.4.1978 was inserted. It is the petitioner''s case that he was promoted as a Superintendent on 9.2.1993 pursuant to the said amendment. The amendment, however, was Subject to a challenge before the Karnataka Administrative Tribunal which, by a judgment dated 29.04.1994. set aside the amendment. In this backdrop, the petitioner had made a representation to promote him as Assistant Registrar against a Scheduled Caste vacancy. This not having been considered, he had filed a Writ petition seeking prohibition against the Syndicate of the University from promoting one Abdul Kareem who was promoted against a vacancy earmarked for a Scheduled Caste vacancy and thereby the petitioner being deprived of the same, the petition in W.P. No. 20125/1994, was disposed of with a direction to consider the case of the petitioner, in accordance with law. It transpires that as on 6.11.1995, that the said Abdul Kareem, who was junior to the petitioner, was promoted against the Scheduled Caste vacancy subject to the result of a SLP which had been filed challenging the order of the Tribunal, in Special Leave Petitions (Civil) Nos. 9132 of 1994, pending before the Apex Court, The petitioner in turn, was also promoted as Assistant Registrar on independent charge, subject to the result of the very special leave petition, It thereafter transpires that the petitioner was transferred to the FMKM College at Madikeri as Assistant Registrar. The petitioner had challenged the order of transfer by way of a writ petition before this ''Court in W.P. No. 2884/1996, which was ultimately dismissed with certain observations. By judgment dated 24.01.1997, the Supreme Court allowed the SLP and reversed the order of the Administrative Tribunal upholding the amendment to the General Recruitment Rules. Consequently, by an order dated 19.03.1997, the petitioner was stripped the post of Assistant Registrar and was demoted to the post of Superintendent. The post of Assistant Registrar was retransferred to Mangalore University''s Headquarters and one Smt. Akku was placed in independent charge of the post of Assistant Registrar under Rule 32 of the KCSR. The petitioner challenged his demotion in yet another writ petition in W.P. No. 7772/1997, which was rejected, however, with an observation that his case for promotion should be considered in accordance with law, by an order dated 19.06.1997. On 24.06.1997, consequent upon the judgment of the Apex Court in Special Leave Petition, the State Government framed certain guidelines to give effect to the judgment regarding promotions to the backlog vacancies, a copy of which is at Annexure-"H" to the writ petition. It transpires that Abdul Kareem, a junior to the petitioner was promoted to a Scheduled Caste vacancy after converting the post.
It transpires that in the year 1996, the petitioner was issued with a charge-sheet alleging certain acts of misconduct. The petitioner was ultimately exonerated of the charges by an order dated 13.01.19.99. Therefore, between the year 1997 and 1999, the petitioner''s status remained in limbo by virtue of the said enquiry proceedings against him and it is in this background that on 17.11.1999, Smt. Akku was regularly promoted overlooking the seniority of the petitioner. The petitioner had challenged the promotion of Smt. Akku in Writ Petition No. 45987/1999 which was disposed of with a direction to consider the case of the petitioner with effect from the date of his eligibility to seek promotion by an order dated 6.4.2005. The petitioner had accordingly submitted a representation claiming promotion with effect from 6.11.1995, the date on which the vacancy for a Scheduled Caste candidate arose. The petitioner was promoted as Assistant Registrar as on 30.07.2005 while the decision regarding the date of eligibility was kept pending and was to be decided separately. On 26.12.2005, the promotion given to Smt. Akku was revised with effect from 26.10.2005. The eligibility date of the petitioner to the post of Assistant Registrar was considered and fixed notionally from 17.11.1999 and he was held not entitled for any monetary benefit as per the decision dated 11.1.2007. The petitioner had submitted a representation claiming promotion and benefits with effect from 6.11.1995. That having been rejected, the present petition is filed.
The learned counsel for the petitioner would canvass the following grounds. Admittedly, there was a vacancy in the cadre of Assistant Registrar which was earmarked for a Scheduled Caste candidate and petitioner was placed on independent charge undisputedly, with effect from 6.11.1995. The petitioner, incidentally, having been stripped of the post and having been continued as Superintendent and his junior having been regularly promoted as Assistant Registrar and the petitioner having all along pleaded his innocence in so far as certain allegations having been made, against him and having been exonerated, the petitioners eligibility of promotion would date back to 6.11.1995 which is said to be unjustly denied to the petitioner. Incidentally, the circumstance, that his junior Smt. Akku has been promoted regularly as Assistant Registrar would not be relevant in so far as the petitioner is concerned and it is his independent right which would be relevant for consideration, that has been overlooked by the respondent unreasonably, in holding that the eligible date of the petitioner could be only with reference to the eligible date of promotion given to Smt. Akku which was the post held by the petitioner earlier and it is with reference to the said post the eligibility date is sought to be fixed by the respondent which is clearly an erroneous reasoning and in this regard, he would submit that even if it is to be accepted that the petitioner is entitled to the eligibility date namely 17.11.1999, the petitioner claims that monetary benefits would have to be paid to him at least from 17.11.1999 which is the date on which he is held entitled to his promotion. This having been continued, petitioner would contend that he has not only been denied promotion but also the monetary benefits that would naturally flow from the date of being conferred the eligibility for promotion. It is this which is sought to be emphasised with reference to two judgments of the Apex Court in the case of Mohammed A, Vs. Nizam 2005 SCC (L & S) 62 and Smt. Sudha Shrivastava Vs. Comptroller and Auditor General of India, .
The learned counsel for the respondent on the other hand would point out that there is a preliminary objection to the very maintainability of the petition. In that, the petitioner being granted any such relief as prayed for, in that, the petitioner seeks promotion with effect from 6.11.1995, however, the petitioner''s date of eligibility for promotion having been taken as 17.11.1999, any relief if granted to the petitioner would have a direct bearing on the date of promotion and seniority of six others namely Shri. Abdul Kareem who was promoted in the year 1995, Smt. Bharathi who was promoted in the year 1995, Shri. Prabhakar and three others who were promoted in the year 2006. The respective dates of promotion and seniority would have to be reworked, which would be impermissible and further, the petition itself would have to be rejected for non-joinder of those necessary parties whose service conditions would be seriously affected if any relief is to be granted to the petitioner as, sought for.
Not-withstanding the preliminary objections and without prejudice to the same, it is pointed out that reservations in the matter of promotion were introduced by the Government for persons belonging to the Scheduled Caste as on 27.04.1978. The Government incorporated a rule against any carry forward and categorically stated that if on any occasion of promotion, qualified and suitable Scheduled Caste or Scheduled Tribe candidates for whom vacancies are reserved, are not available, such vacancies shall be filled by promotion of qualified and suitable persons from amongst others in accordance with the rules of recruitment. It is further provided that the vacancies lost to persons belong to Scheduled Castes and Scheduled Tribes on account of such promotions shall not be carried forward and future vacancies shall be filled up according to rotation as indicated in the annexure to the said order. It is thereafter that the roster that is prescribed by the Government order dated 30.08.1979 that governed promotions to the Cadre of Assistant Registrar University stood modified. For the first time, the concept of backlog and promotional vacancies was introduced by virtue of an amendment to the KCSR, 1977 whereby a proviso was inserted. That notification having been challenged, ultimately resulted in the Apex Court holding the rule by its order passed in SLP No. 9132/1994 as already stated. It is pursuant to which representations had been made by the petitioner and any apprehension that his junior would be promoted, had filed writ petitions before this Court all of which had been disposed of with appropriate directions to the respondents to consider his case and it is in consideration of the legal position that ultimately promotion granted to Smt. Akku was reversed and the petitioner in her stead, was conferred with the date of promotion which is in accordance with the sequence of events and in view of the petitioner having been stripped of his post of Assistant Registrar and having been posted as a Superintendent and thereafter, the disciplinary proceedings that were held against him posed an impediment for the petitioner to be considered to the promotional post of Assistant Registrar and it is only after he was exonerated of the charges that his case for promotion could be considered and accordingly, has been conferred on him. The petitioner has been conferred all consequential benefits on such promotion being granted with effect from 17.11.1999. Therefore, the petitioner''s claim that he was eligible for promotion with effect from 6.11.1995 is misleading and would be over-looking several events that are not in dispute in so far as the petitioner''s claim to the promotion post is concerned. He would further point out that there is no rule which provides for payment of arrears of salary to the promotional post and it is only the consequential benefits which he would be entitled to and it has been conferred on him. Therefore, he would point out that the judgments sought to be pressed into service cannot also be held as precedents in so far as the petitioner is concerned in the absence of any rule which provides for the same and submits that the petition be dismissed.
Given the above facts and circumstances, the petitioner was conferred with independent charge of the post of Assistant Registrar with effect from 6.11.1995. He was not regularly promoted to the post and thereafter it is not denied that consequent upon the Apex Court conferring and withholding the amended rule, the benefit of the same has been conferred on persons similarly situate as the petitioner who was entitled to be promoted to a Scheduled Caste vacancy. Smt. Akku was a Scheduled Caste candidate who has been regularly promoted with effect from 17.11.1999. This incidentally was the post which was held by the petitioner of which he was stripped earlier. In the light of the judgment of the Supreme Court and the respondent - University seeking to implement the guidelines that were issued by the State Government pursuant to the order of the Supreme Court, having revoked the promotion granted to Smt. Akku and having provided the promotion with effect from 17.11.1999 to which the petitioner according to the respondent was entitled to be promoted, but instead Smt. Akku having been granted the said promotion, the petitioner having been conferred the same, has been granted all consequential benefits. The question of payment of arrears and question of considering the petitioner''s promotion with effect from 17.11.1995 does not arise for consideration. The petitioner having been put in independent charge as on that date, is not relevant in view of the subsequent events that are not in dispute. Therefore, the petitioner''s promotion can only be with effect from 17.11.1999 and the question whether the petitioner would be entitled to arrears of salary from 17 11.1999 also has to be answered in the negative. The decision of the Apex Court firstly in the case of Mohammed, supra, was with reference to the order of a learned Single Judge of the High Court who had conferred such benefit on one of the parties therein. That has been carried through and the Supreme Court has affirmed the said conferment of that benefit. This was not on the basis of any rule which was in force. Similarly, in the case of Smt. Srivastava''s (supra), the Supreme Court has again held that she was entitled to benefits to which her husband was entitled, if he had not died in service and the promotion that he was entitled to on the basis of which the lady was claiming relief having been granted, would not also be a precedent, in the absence of any rule on the basis of which the present petitioner claims.
Accordingly, no case is made out for interference. The petition is dismissed.