AI Structured Summary
Not yet generated for this judgment
Judgment
S. Abdul Nazeer, J. - The petitioners in these cases have called in question the legality and correctness of the notification dated 21-1-2014 at Annexure-J and the endorsements at Annexures-K, K1 and K2, dated 21-1-2014. They have also sought for a direction to respondents 1 and 2 to assign the seniority in the cadre of Assistant Statistical Officer, Grade-II from the date on which they entered the said cadre and further reckon the date of entry into the said cadre for the purpose of granting promotion to the post of Statistical Officers (Class-I Junior).
Petitioners were initially appointed as Assistant Statistical Officers, Grade II (hereinafter referred to as ''ASO-II'' for short) in the KSRTC with the rural weightage with effect from 30-11-1999. They were placed on probation for two years. Their probationary period was declared to be satisfactory by an order at Annexure-B, dated 26/31-3-2003 with effect from the dates mentioned against their names. They were removed from services in terms of the law declared by the Hon''ble Supreme Court declaring Rule 3-B of Karnataka Civil Services (General Recruitment) Rules, 1977 as unconstitutional. Subsequently, the Government of Karnataka framed Karnataka Civil Services (Absorption of Persons Appointed to the State Civil Services with the benefit of Rural Weightage) (Special) Rules, 2003 (for short ''the Rules'') to absorb the persons, who lost employment on account of the law declared by the Supreme Court as above. Pursuant to the said Rules, petitioners were reappointed as Assistant Statistical Officers in the KSRTC by an order at Annexure-D, dated 13-11-2003.
The petitioners were placed on probation for two years and their probationary period was declared by separate orders at Annexures-E to E2, dated 5-8-2006, 11-5-2007 and 29/30-8-2006 respectively.
The post of ASO-II is classified as Class-II post in the Karnataka State Road Transport Corporation (Cadre and Recruitment) Regulations, 1982 (''Regulations'' for short) and the said post is included in Schedule A. The method of filling up the post of ASO-II under Regulations is by promotion and direct recruitment in the ratio of 1:1. Rule 3(4) of the C and R Regulations, 1982 states that if suitable candidates are not available for promotion to any posts specified in Schedule A, such posts may be filled up by direct recruitment. Respondents 1 and 2 did not resort to promotion for 12 years continuously. Thus, for the period from 1999 to 2011, the posts of ASO-II were being filled up only by direct recruitment. It was only in the year 2011, 7 posts of ASO-II were filled up by promoting respondents 3 to 8.
The Corporation issued notification dated 5-8-2004 publishing the final seniority list of ASO-II for the period from 1-9-1999 and 31-12-2003. The names of the petitioners are shown below SI. No. 48 showing the date of their appointment to the post of ASO-II as 30-11-1999 with a remark that they were removed from service with effect from 21-7-2003 upon taking away the benefit of rural weightage. Subsequently, as per the notification at Annexure-G1, dated 6/7-5-2009, the final seniority list of ASO-II as on 1-1-2008 was published wherein the petitioners name were shown at SI. Nos, 17, 18 and 19. Yet another seniority list of ASO-II for the period from 1-9-1999 to 31-12-2010 was issued as per the notification at Annexure-G2, dated 19-7-2011. In the said seniority list, for the first time, block-wise details of promotion and direct recruitment were also furnished. The name of the first petitioner was shown in the 5th Block, name of the second petitioner was shown in the 3rd Block and the name of the third petitioner was shown in the 1st Block. It was stated that their seniority will be fixed in the next block.
Thereafter, the private respondents were promoted as ASO-II on 24-8-2011 against the quota earmarked for promotion quota. One more seniority list of ASO-II at Annexure-G3, dated 1-2-2013 was published wherein petitioners were shown at SI. Nos. 12, 13 and 14 and the private respondents were shown at SI. Nos. 20 to 26. It was stated that seniority of the petitioners and the private respondents would be decided in the next block.
The first respondent published a provisional seniority list of ASO-II as per the notification dated 28-8-2013 wherein the petitioners name were shown at SI. Nos. 17, 18 and 19 and the names of the private respondents were shown at SI. Nos. 5 to 11 respectively. Petitioners filed detailed objections as per Annexures-H and H1 contending that since they are seniors to the private respondents, they could not have been shown to be seniors. However, the first respondent published the final seniority list of ASO-II as on 1-1-2013 as per the notification at Annexure-J, dated 21-1-2014. In the said seniority list, the names of the petitioners were found at SI, Nos. 17, 18 and 19 and the names of the private respondents were shown at SI. Nos. 5 to 11. Therefore, petitioners have called in question the validity of the said final seniority list in these writ petitions.
Respondents 1 and 2 have filed their objections contending that the appointments have been made to the post of ASO-II following the procedure. In terms of KSRTC (Cadre and Recruitment) Regulations, 1982, first vacancy out of every two vacancies is by way of promotion on the basis of seniority-cum-merit and every'' second vacancy is by direct recruitment. Tire seniority list is prepared on quota rule basis. For the purpose of preparation of seniority list in the Corporation, guidelines have been issued as per the official memorandum at Annexure-R1, dated 18-1-2000. As per this official memorandum, for the purpose of calculating and classifying the vacancies between direct recruitment and promotion on the basis of quota prescribed for recruitment by promotion/direct recruitment, the total number of vacancies utilised from 24-9-1999 and onwards is taken.
It is further contended that petitioners were reappointed as ASO-II. Hence, their names were considered once again in the seniority list as per the terms and conditions specified in the order of their appointment dated 13-11-2003. The Corporation has prepared final seniority list from time to time, wherein the petitioners are not given any ranking. In every stage, it has been stated as against their names that they are removed from service with effect from 21-7-2003. Further, they have also stated that seniority of the following direct recruitees will be determined after promotion. The petitioners were appointed in excess having regard to the total number of vacancies in the quota prepared as per the list at Annexure-R4. The petitioners and 14 other direct recruits were found in excess of quota. Hence, suitable endorsement has been made in the seniority list stating that their seniority would be determined in the subsequent block after recruitment/promotion. The seniority of the petitioners has to be fixed in accordance with law.
Sri Subramanya Bhat, learned Counsel appearing for the petitioners submits that the petitioners were appointed as ASO-II on 13-11-2009 on the basis of rural weightage. Their appointment as such was cancelled and were reappointed on 13-11-2003. They have been discharging the duties of ASO-II since then. The private respondents were promoted to the aforesaid post only on 24-8-2011. In the final seniority list at Annexure-J, petitioners were shown at SI. Nos. 17, 18 and 19 whereas the private respondents were shown at SI. Nos. 6 to 11. The appointment of the petitioners were made in regular manner after following the procedure prescribed. Therefore, there was no reason for pushing them down below the promotees in the year 2011. He further submits that it is permissible under Rule 3(4) of the Regulations to fill up the candidates directly recruited to the post which are to be filled up by promotion in certain circumstances. Promotions are not granted since the year 1999 till 2011. Petitioners have been working as ASO-II since 2003. They cannot be pushed down below the promotees, who are eight years junior to them. In this connection, he has relied on the decision of the Apex Court in The Direct Recruit Class-II Engineering Officers'' Association and Others v. State of Maharashtra and Others, AIR 1990 SC 1607.
On the other hand, learned Counsel appearing for the respondent-KSRTC has sought to justify the impugned seniority list. It is submitted that petitioners were appointed in excess of the quota meant for direct recruitees. Their appointment was subject to determination of seniority. On account of certain administrative exigencies, promotions were not made by the KSRTC. The promotions were made in the year 2011 and after determination of seniority, the petitioners were pushed down on the basis of the quota specified for the recruitment by promotion/direct recruitment.
I have carefully considered the arguments of the learned Counsel made at the Bar and perused the materials placed on record.
It is not in dispute that the petitioners were appointed as ASO-II on 13-11-2003 in accordance with the Karnataka Civil Services (Absorption of Persons Appointed to the State Civil Services with the benefit of Rural Weightage) (Special) Rules, 2003 (for short ''the Rules''). The private respondents were promoted to the post on 24-8-2011. The petitioners are seniors to the private respondents by at least eight years in the cadre of ASO-II. It is no doubt true that the method of filling up the post of ASO-II under the Regulations is by promotion and direct recruitment in the ratio of 1:1. The stand taken by the respondent-Corporation is that due to certain administrative exigencies, the promotion was not made to the post of ASO-II till 2013. Rule 3(4) of the C and R Regulations, 1982 states that if suitable candidates are not available for promotion to any posts specified in Schedule A, such posts may be filled up by direct recruitment and it cannot be said that no suitable candidates were available for promotion, when the petitioners were appointed as such. Petitioners were appointed to the post in question by direct recruitment. The fact remains that after eight years of their appointment, private respondents have been promoted to the post of ASO-II and that the petitioners, who have put in eight years of service in the said post have been pushed down below the private respondents. KSRTC has issued guidelines at Annexure-L, dated 18-1-2000 to prepare the seniority lists on Quota Rule basis. The relevant guideline is as under:
"The short fall of vacancies in the quota of promotes or direct recruits, in any block shall be carried forward to the subsequent block and be added to the respective source of recruitment. But, no promotees or direct recruits of the subsequent blocks shall be taken and pushed up to the previous blocks to make good the short fall."
The impugned seniority list is opposed to these guidelines.
The Constitution Bench of Hon''ble Supreme Court in The Direct Recruit Class-II Engineering Officers'' Association''s case has settled the controversy relating to the application of the quota rule and the effect of its violation. It has been held that where the quota rule has broken down and the appointments from one source are made in excess of the quota, but in a regular manner and after following the prescribed procedure, there is no reason to push down the appointees below the recruits from the other source, who are inducted in the service at a later date. It has been held thus:
"44(E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other sources inducted in the service at a later date."
In the instant case also, the appointments made through direct recruitment was in excess of the quota. But they are made after following the procedure prescribed. Private respondents did not get promotion for over8 years continuously. Thus, the quota rule had broken down. The private respondents were promoted to the post of ASO-II after eight years of the appointment of the petitioners herein. They should not be pushed down below the private respondents, who are appointed from other source inducted into service at a later date.
Therefore, the Corporation is not justified in pushing the petitioners below the private respondents in the final seniority list of ASO-II at Annexure-J. The endorsements issued by the respondent-Corporation at Annexures-K, K1 and K2, dated 21-1-2014 are also bad in law. Therefore, the endorsements at Annexures-K, K1 and K2, dated 21-1-2014 are hereby quashed. The final seniority list placing the petitioners below the private respondents at Annexure-J, dated 21-1-2014 is quashed to that extent. Respondents 1 and 2 are directed to issue fresh final seniority list of ASO-II as on 1-1-2013 in the light of the observations made in this order. Writ petitions are allowed accordingly.
In view of the disposal of the writ petitions as above, I.A. Nos. 1 and 2 of 2016 do not survive for consideration. They are accordingly dismissed. No costs.