The State of Karnataka and Another vs Sri. K. Shivanna and Others

Misc. W. No. 3175/2011 is filed by Respondent Nos. 17, 18 and 19 seeking vacation of the interim order dated 11.2.2011 whereby this Court has granted an interim order of status quo. Misc W. No. 3987/2011 is filed by Respondent No. 172 seeking grant of stay of the order passed by the Tribunal impugned in these writ petitions. Misc W. No. 4291/2011 is filed by Respondent Nos. 14, 15, 26, 34, 51, 53, 54, 56 and 97 seeking stay of all further proceedings in the writ petitions pending disposal of the SLP (Civil) No. 4670/2011.

The State of Karnataka and the Principal Secretary, Public Works, Port and inland Water Transport Department, have tiled these writ petitions challenging the order dated 7.5.2010 passed by the Karnataka Administrative Tribunal, Bangalore, in application Nos. 1440-1441/2009 and other connected matters. The applicants in the said cases challenged the constitutional validity of the Karnataka Determination of Seniority of the Government Servants Promoted on the basis of the Reservation (to the posts In the Civil Services of the State) Act, 2002 (Act No. 10/2002) and the Seniority Lists pertaining to the cadres of Executive Engineers and Assistant Executive Engineers Division-I. The seniority lists have been prepared by granting consequential seniority to the persons belonging to the Scheduled Castes and Scheduled Tribes from 27.4.1978 by virtue of Section 4 of Act No. 10/2002.

After the 85th amendment to the Constitution, notified on 4.1.2002, the Governor of Karnataka promulgated the two ordinances, i.e. Karnataka Determination of Seniority of the Government Servants promoted on the basis of reservation (to the posts in the Civil Services of the State) Ordinance, 2002, which was notified on 27.2.2002 and came into force from 17.6.1995. Yet another Ordinance called The Karnataka Determination of Seniority of the Government Servants promoted on the basis of reservation (to the posts in the Civil Services of the State) Ordinance, 2002'', which has clarified the Ordinance of 2002. Later the State Legislature enacted Act 1C/2002. Some of the Respondents questioned the 85th amendment to the Constitution and Act 10/2002 before the Hon''ble Supreme Court in W.P. (Civil) No. 61/2002 and other connected matters. The Hon''ble Supreme Court rejected the challenge to the 85th amendment of the Constitution. By order dated 18.3.2010, the Hon''ble Supreme Court transferred the writ petitions to the file of the Division Bench of this Court to be dealt with in accordance with law.

As noticed above, some of the Respondents herein had filed application Nos. 1440-1441 /2009 before the KAT for the reliefs mentioned above. The Tribunal by its order dated 17.5.2010 has held that Section 4 of Act 10/2002 should he read down to mean that the consequential seniority already accorded to the Government servants belonging to the Schedule Castes and Scheduled Tribes who were promoted in accordance with the policy of reservation in promotion provided for in the reservation order w.e.f. 17.6.1995 shall be valid and shall be protected and shall not be disturbed. The seniority list dated 23.3.2009 and the 2.1.2010 were quashed and the Government was directed to prepare the fresh seniority lists pertaining to the cadres of Assistant Executive Engineers and higher cadres and thereafter review the promotion or effect promotions. Till the preparation of such lists, no promotion or reversion shall be effected in the cadres of Assistant Executive Engineers and above.

The transferred matters from the Hon''ble Supreme Court were numbered before this Court as W.P. No. 14655/2010 and other connected matters. On 25.12.2010, this Court rejected the contention of the Petitioners that Act No. 10/2002 is unconstitutional. Consequently, the writ petition was dismissed. Feeling aggrieved by the order of the Division Bench, the Petitioners therein filed SLP No. 4670/2011. On 7.3.2011. the Hon''ble Supreme Court passed the orders in the said SLP as under:

Upon hearing counsel the Court made the following:

ORDER

Application for deletion of proforma Respondents in SLP (C) No. 5592 of 2011 is allowed.

Leave granted.

Issue notice on the Petitioners'' prayer for interim relief returnable in eight weeks. Dasti. in addition, is permitted.

In the meanwhile, the officers who have already been promoted shall not be reverted pursuant to the impugned amendment,

The matter was again posted before the Supreme Court on 7.7.201.1. On that day the Court has passed the order as under:

Upon hearing counsel the Court made the following:

ORDER

Copy of the paper book should be furnished to the Registry for issuance of notice to the Respondents within one week, Issue notice returnable within four weeks. Dasti, in addition, is also permitted.

In the event of default. I. As. and the Civil appeals shall be liable to be dismissed.

7 The contention of Sri. P.S. Rajagopal, learned Senior Counsel appearing for the applicant in Misc. W. No. 3987/2011 (i.e., Respondent No. 172) Is that when the Act: No. 10/2002 was under challenge before the Supreme Court, the contesting Respondents were not justified in filing the application before the Tribunal challenging the said Act and also challenging seniority lists referred to above. It is argued that the Petitioners in the connected writ petition No. 28285/2010 and other connected matters were Hot made parties to the applications though they were necessary parties. The Tribunal was not justified in proceeding with the matter and passing the order holding that Section 4 of Act No. 10/2002 should be read down and granting other consequential reliefs. It is submitted that the Hon''ble Supreme Court has already upheld the 85th amendment of the Constitution and the matter was transferred to this Court for consideration of the validity of the Act No. 10/2002. This Court has upheld the validity of the said Act and the writ petitions were dismissed on 23.12.2010. In the circumstances, the order of the Tribunal requires to be stayed and the two lists referred to above should be given effect to.

On the other hand, learned Counsel appearing for the other Respondents contend that some of the Respondents herein have already challenged the order of the Division Bench of this Court upholding the validity of Act No. 10/2002. The Supreme Court has granted leave and notices have been issued to the contesting Respondents relating to the prayer made by the Petitioners therein, for interim relief. When the matter is pending before the Supreme Court, it is not just and proper for this Court to consider the grant of interim order.

As noticed above, during the pendency of the matter before the Hon''ble Supreme Court relating to challenge to the validity of the 85th amendment as also Act No. 10/2002, the Tribunal has passed the impugned order reading down ''Section 4 of Act No. 10/2002. It has given certain other directions in the said order. This Court has directed the parties to maintain status quo on 11.02.2011, which was continued until further orders on 17.3.2011. The order of the Division Bench in W.P No. 14655/2010 and other connected matters dated 25.12.2010 has been challenged by the aggrieved parties therein and the Hon''ble Supreme Court has granted leave. In the said case, the Petitioners have sought for stay of the order of the Division Bench of this Court. The Hon''ble Supreme Court has issued the notices on the prayer for interim relief returnable within eight weeks. The Supreme Court has further held that the officers who have already been promoted shall not be reverted pursuant to the impugned amendment. On 7.7.2011, the Supreme Court has again directed the parties to furnish paper book to the Registry for issuance of notice to the Respondents within one week. Since the Hon''ble Supreme Court has already issued notices on the prayer for interim order, it is not just and proper for this Court to pass any order on the applications referred to above. The applicants have to move the Hon''ble Supreme Court for grant of any interim relief in the aforesaid civil appeal, if they so desire. In this connection, it is profitable to quote the observations of the Apex Court in Pune and Anr. v. Bharat Forge Co. Ltd. and Ors., (1995) 3 SCC 434 which is as under:

The Petitioner Miss Chhavi Mehrotra, has moved this writ petition before this Court under Article 32 of the Constitution of India for directions for consideration of her admission to the MBBS course against the 15% all-India quota of 1992. This writ petition along with other similar petitions came for consideration and certain comprehensive directions were issued in matters for admission of students in the waiting list to various colleges in the country. In obedience to the orders of this Court, a notification dated 28.5.1993 was issued by the Director General of Health Services calling upon the candidates to signify their willingness to be considered for admission under the scheme evolved by the Court. Despite the whole matter being seized of by the Court, the Petitioner moved and what is disturbing us is that the learned Judge of the High Court entertained -an independent Writ Petition No. 1508 (M/S) of 1993 before the Lucknow Bench of the High Court and obtained certain directions which would not only be consistent with the consequences of the implementation of this Court''s order but would also interfere and detract from it. Learned Counsel would say that it was a direct interference with the proceedings before this Court. It is a clear case where the High Court ought not to have exercised jurisdiction under Article 226 where the matter was clearly seized of by this Court in a petition under Article 32. The Petitioner was eo nomine a party to the proceedings before this Court. It is an unhappy situation that the learned Judge of the High Court permitted himself to issue certain directions which, if implemented, would detract from the plenitude of the orders of this Court. The learned Single Judge''s perception of justice of the matter might have been different and the abstinence that the observance of judicial propriety, counsels might be unsatisfactory; but judicial discipline would require that in a hierarchical system it is imperative that such conflicting exercise of jurisdiction should strictly be avoided. We restrain ourselves from saying anything more.

Consequently. MISC.W. Nos. 3175/2011. 3967/2011 and 4291/2011 are rejected. The order of status quo granted by this Court earlier is continued subject to the observations made above.