Sri. K.S. Aithal vs Karnataka Land Army Corporation Ltd. and Others

Anand Byrareddy, J.—Heard the learned Counsel for the Petitioner and the learned Counsel for Respondents 4, 5, 6 and 13.

It is the Petitioner''s case that the Final Seniority List of the Deputy Directors of the Karnataka Land Army Corporal ion (hereinafter referred to as the "KLAC" for brevity) was bad in law and seeks a writ of mandamus to redo the Final Seniority List of the Deputy Directors as on 1.4.1989 and 1.4.1998, by placing the Petitioner at Serial No. 2 and Serial No. 1, respectively, and further seeks a direction to the first Respondent - Corporation to review the promotions to the cadre of Deputy Director counting the service of the Petitioner with effect from 3.8.1971, the date on which he was appointed in the Public Works Department in the Government of Karnataka.

The petition is resisted by the Respondents, who contend that the Petitioner had admittedly joined the service in the Public Works Department as an Assistant Engineer on 3.8.1971. He was deputed initially as an Assistant Director on 13.5.1981. The hierarchy of posts is that the post of an Assistant Engineer is the lowest and above the post of Assistant Engineer is the cadre of Assistant Executive Engineers, over which there is a cadre of Executive Engineers, Superintending Engineers etc. The corresponding posts in the LAC are Task Force Commander, Assistant Director, Deputy Director and Joint Director, respectively. The Petitioner was working as an Assistant Engineer when he was deputed to KLAC. The post in the KLAC to which he could have been deputed as per Rules 60 and 425 of the Karnataka Civil Service Rules was the post of Task Force Commander, but he was deputed to the next higher category of the post of Assistant Engineer and while working as an Assistant Engineer, on deputation, he was absorbed in the still higher cadre of the post of Deputy Director. The said absorption was sought to be questioned by the Respondents in writ petitions in WP 23472/1993 and WP 29667/1992. which were disposed of by this Court, by its order dated 1.7.1999 whereby it was observed that the Petitioners and other persons aggrieved by the ranking assigned to them in the provisional seniority list dated 1.7.1998 were permitted to file objections and the KLAC was directed to consider the same within two months and to publish the final seniority list of Deputy Directors. Accordingly, objections having been filed, the KLAC while considering the objections of the Respondents, insofar as the present Petitioner was concerned, has observed that the Petitioner was not accorded any promotion in his parent department and when he was working as an Assistant Director at the time of his deputation and his lien was continued to be maintained with the parent department as an Assistant Engineer. However, he was promoted by the Chairman and Managing Director of KLAC as Deputy Director on 10.4.1985. He was absorbed as a Deputy Director on 15.7.1.987 by the Chairman and Managing Director. The Board of Directors of the KLAC in its meeting held on 17.5.1987, ratified his promotion with retrospective effect from 15.7.1987. It is further noticed that according to Rule 3(4) Karnataka Land Army Corporation Limited Service Rules 1974, the Chairman and Managing Director was not competent to promote an officer to the cadre of Deputy Director when he was on deputation as an Assistant Engineer and had been appointed as Assistant Director and thereafter absorbed as a Deputy Director. Hence, the Petitioner sought to place reliance on a reported judgment of the Supreme Court in Rooplal v. Lt. Governor, Delhi (2001)1 SCC 644. The authority has held that the same could not be applied when the promotion of the Petitioner as a Deputy Director by the KLAC and subsequent ratification by the Board was not valid as his absorption was improper from the inception and such an illegal and incompetent order could not have been ratified. It is that which is sought to be challenged by the Petitioner in this petition.

The learned Counsel for the Petitioner would submit that even if there was an infirmity in the absorption by the KLAC in the first place, the subsequent ratification by the board would assume significance and any defect stand cured by virtue of such ratification. In this regard, he places reliance on a judgment of the Supreme Court in Maharashtra State Mining Corporation Vs. Sunil Pathak, wherein the facts were that the Respondent was employed by the Appellant and since there were allegations of misconduct, he was placed under suspension and thereafter, an enquiry having been conducted, the Managing Director had issued a show cause notice to the Respondent as to why the punishment of dismissal ought not be imposed on him to which there was no reply. Accordingly, the Managing Director had proceeded to dismiss the Respondent from service, which was sought to be questioned before the High Court. In the meanwhile. the Board of Directors of the said Corporation had ratified the order of dismissal. The court held that the said ratification cured the defect, if any, in the Managing Director not being competent to pass an order of dismissal as on the relevant date. He would seek to draw sustenance from the said decision to hold that even if the Chairman and the Managing Director was not competent to pass an order absorbing the Petitioner as a Deputy Director, the subsequent ratification by the Board of Directors cured the defect.

This, unfortunately, cannot be applied in the present case since from the very inception, the appointment of the Petitioner was as Assistant Director when he was only eligible to be appointed as a Task Force Commander, the question of the Petitioner having been absorbed as a Deputy Director by the Chairman and Managing Director, who was not competent to pass the order and thereafter, the Board of Directors having ratified the same, could not cure the defect from inception.

Accordingly, there is no case made out. The petition stands dismissed.