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PETITIONER: N. NAGARAJA ETC.

       Vs.

RESPONDENT: VASANT K. GUDODAGI AND ORS.

DATE OF JUDGMENT24/04/1990

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH RAMASWAMY, K.

CITATION:  1990 AIR 1377            1990 SCR  (2) 695  1990 SCC  (3)  42        JT 1990 (2)   217  1990 SCALE  (1)812

ACT:     Civil  Services: Karnataka State Civil Service  (Regula- tion of Promotion, Pay & Pension) Rules 1973: Rule 2--Retrospective promotion--Whether permissible.

HEADNOTE:     The appellant joined service under the State  Government as  a Lecturer. Later he was deputed to the  Directorate  of Youth  Services  as an Assistant Director  and  subsequently confirmed  in the said post. On 27th of March, 1978, he  was temporarily promoted as Deputy Director for a period of  six months,  and  an order was made on 20th December,  1978  ap- pointing him on a regular basis with effect from 27th March, 1978.  Respondent  No. 1 was recruited  directly  as  Deputy Director  on 28.7.1978, joined service on 7.8.1978  and  was confirmed on 7.8.1980.     A  draft Gradation List was published on  25th  January, 1983 wherein the appellant was shown above respondent No. 1, and  he represented against this placement by claiming  sen- iority  over  the appellant. This was not  accepted,  and  a final  Gradation List was published on 14th September,  1983 maintaining the position shown in the draft list.     Respondent  No. 1 filed a writ petition before the  High Court  which  was transferred to  the  State  Administrative Tribunal. The Tribunal held that respondent No. 1 was senior to  the  appellant as the promotion of 27th March,  1978  in favour of the appellant was a temporarily measure and  after the six months period expired, the appellant was really  not continuing  as Deputy Director, and that the order  of  20th December,  1978 issued by the Government could  not,  there- fore,  provide a regular retrospective promotion in view  of the  special  Rules obtaining in the  State.  It  therefore, directed the redrawing of the seniority list by showing  the appellant below respondent No. 1.     Aggrieved  by the aforesaid order of the  Tribunal,  the appellant  as well as the State Government filed appeals  to this Court. 696 Dismissing the appeals, this Court,     HELD:  1.  The Tribunal has found that  under  Karnataka State  Civil Services (Regulation of Promotion, Pay  &  Pen-

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sion)  Rules 1973 no retrospective promotion  is  admissible unless  the  situation comes within the various  clauses  of rule 2, and that the instant case was not covered by rule  2 and,  therefore, the order of 22nd December, 1978  giving  a retrospective  promotion from 27.3.1978 was  not  justified. [698B-C]     2.  Attempt  was made to place the appellant  above  re- spondent No. 1 by making shifting orders between 27.3.78 and 22.12.1978. The appellant was Editor of Youth Karnataka even when he was confirmed as Assistant Director and the Tribunal has recorded that he never worked as Assistant Director. The conclusion  reached  by the Tribunal cannot be  said  to  be wrong. Its order, therefore, does not call for any interfer- ence. [698D-E]

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.977 & 978 of 1988.     From  the Judgment and Order dated 17.12.1987  Tribunal, Bangalore of the Karnataka Administrative in Application No. 4743 of 1986(T).     P.P.  Rao,  R.B.  Datar, S.R. Bhat,  P.  Chowdhary,  P.R Ramasesh and R.P. Wadhwani for the appearing parties. The Judgment of the Court was delivered by     RANGANATH MISRA, J. These are appeals by special  leave, the  first  one by Nagaraja, the main  contestant,  and  the second by the State of Karnataka challenging the decision of the  Karnataka  State Administrative Tribunal by  which  the Tribunal  accepted  the claim of inter-se seniority  of  re- spondent No. 1.     In the Directorate of Youth Services of the State, there are  posts  of  Assistant and  Deputy  Directors.  Appellant Nagaraja  joined  service under the State  Government  as  a Lecturer  on  6.9.1966 and came on deputation as  Editor  of ’Youth  Karnataka’ from 18th of August, 1976. While  working as such Editor he was confirmed as an Assistant Director  in the Youth Directorate. On 27th of March, 1978, Nagaraja  was temporarily promoted as the Deputy Director for a period  of six  months.  On 20th of October, 1978, an  order  was  made promoting 697 Nagaraja regularly as Deputy Director and on 22.12.1978  his appointment was made on regular basis with effect from 27.3. 1978.     Gudodagi,  respondent No. 1, was recruited  directly  as Deputy Director on 28.7.1978. He joined on 7.8.1978 and  was confirmed in the said post on 7.8.1980. The draft  Gradation List  was published on 25.1.1983 wherein Nagaraja was  shown just above Gudodagi. Accordingly he represented against this placement by claiming seniority over Nagaraja and when  that was not accepted and the final Gradation List was  published on 14th of December, 1983 maintaining the position shown  in the  draft list, Gudodagi filed a writ petition  before  the Karnataka High Court which, on the constitution of the State Administrative Tribunal, was transferred to it.     The  Tribunal on heating parties has held that  Gudodagi was  senior to Nagaraja as the promotion of 27th  of  March. 1978,  in  favour of Nagaraja was a  temporary  measure  and after  the six months expired, Nagaraja was really not  con- tinuing  as  Deputy Director. The order of  December,  1978, could not provide a regular retrospective promotion in  view of  the special Rules obtaining in the  State.  Accordingly, the Tribunal directed re-drawing up of the seniority list by

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showing  Nagaraja below Gudodagi. Thereupon, these  two  ap- peals  have  been filed--one by Nagaraja and  the  other  by State of Karnataka. The promotional order of 27th March, 1978, read thus: "Pending  consultation  with the  Karnataka  Public  Service Commission,  Shri  N. Nagaraja,  Assistant  Director,  Youth Services  is  temporarily promoted to  officiate  as  Deputy Director,  Youth  Services in the grade Rs.900-1750  in  the Department of Youth Services for a period of six months with immediate effect from the date of taking over charge of  the post or until further orders, whichever is earlier."     The  Tribunal  has found that Nagaraja  had  taken  over charge  as Deputy Director on 13th of April, 1978,  and  the six  month period had expired on 13th of October, 1978.  His regular  promotion  was notified on 20th of  October,  1978. Therefore, the Tribunal has not accepted Nagaraja as  Deputy Director  between  13th of October and 20th of  October.  To meet that situation the notification of 22nd December, 1978. had been made, which read thus: "In continuation of Government Notification  .....  dated 698 27.3.1978,  Sri  N. Nagaraja, Assistant  Director  of  Youth Services is regularly promoted to officiate as Deputy Direc- tor  of  Youth Services with effect from  27th  March,  1978 (i.e.  date from which he was promoted to officiate  against the post)  ......  "     The Tribunal has found that under Karnataka State  Civil Services (Regulation of Promotion, Pay & Pension) Act, 1973, no  retrospective promotion is admissible unless the  situa- tion  comes within the various clauses of rule 2..  The  in- stant  case, according to the Tribunal, was not  covered  by rule 2 and, therefore, the order of 22nd of December,  1978, giving  a  retrospective promotion from  27.3.1978  was  not justified.  Once  that notification goes, Gudodagi  being  a direct recruit from 7.8.1978 would be entitled to seniority.     We have analytically examined the judgment of the Tribu- nal  with reference to the submissions made at the  Bar.  We have  also seen the provisions of the 1973 Act, referred  to above and see no justification to take a view different from what  has been taken by the Tribunal. From the  sequence  of events with reference to the dates, an impression is  avail- able  to be formed that attempt was made to  place  Nagaraja above  Gudodagi by making shifting orders between  27.3.1978 and 22.12.1978. Nagaraja was Editor of Youth Karnataka  even when he was confirmed as Assistant Director and the Tribunal has  recorded  that he never worked as  Assistant  Director. Taking the broad aspects of the matter into consideration we are  satisfied that the conclusion reached by  the  Tribunal can  not be said to be wrong and, therefore, does  not  call for any interference. The  appeals  are dismissed. There would be no order  as  to costs. N.V.K.                                        Appeals   dis- missed. 699