@JUDGMENTTAG-ORDER
D.V. Shylendra Kumar, J.@mdashThis writ petition by a person working as Under Secretary, Karnataka Legislative Assembly Secretariat, Bangalore, is filed questioning promotion accorded to the second respondent as per the impugned Government Order dated 16.03.2012 who was given promotion from the post of ''Section Officer'' to the post of ''Under Secretary'' and the promotion was in terms of the provisions of the Karnataka Legislative Assembly Secretariat [Recruitment and Conditions of Service] Rules, 2003 read with provisions of the Karnataka Civil Service Appointment Rules, 1977 particular rule-19[3][a] of this rules. It is not in dispute that the said promotion was accorded to the second respondent by the first respondent as a consequence of giving effect to the order passed by this court in writ petition No. 15438/2009 passed on 15.11.2011-a writ petition at the instance of the second respondent, who had, inter alia, questioned the order of punishment imposed on him, retiring him compulsorily from working as a Section Officer due to certain allegations of misconduct against him having been proved.
2. This court found that the order of compulsory retirement was not sustainable as the inquiring authority had not examined the matter properly and the appeal filed by the writ petitioner-present second respondent had not been properly examined by the appellate authority and quashed the order passed by the disciplinary authority as well as the appellate authority and directed reinstatement of the petitioner therein into service with all consequential benefits.
3. It transpires that during the compulsory retirement of the second respondent and subsequent order dated 15.11.2011 passed by this court, directing him to be reinstated with consequential benefits, his Juniors had been promoted to the post of ''Under Secretary'' and on the second respondent seeking for his promotion from the date on which his Juniors had been promoted in terms of the impugned order, the promotion is accorded to the second respondent also.
4. It is this order which is questioned by the writ petitioner.
5. Though the matter has come up for orders on the application for early hearing, with the consent of counsel appearing for the parties, the matter is taken up for hearing.
6. Sri. Rajendra Prasad, learned senior counsel for petitioner submits that the first respondent has committed an error in understanding and implementing the order passed by this court in writ petition, observing that the petitioner therein will be entitled for consequential benefits, it does not mean that while granting promotion, the procedure that was required to be followed, particularly, if the person was facing some disciplinary proceedings or any other action, that should be overlooked, but on the other hand, in such cases, in terms of the Official Memorandum issued by the Government of Karnataka, sealed cover procedure has to be followed; that the result of the proceedings of the DPC has to be kept in a sealed cover and await outcome of the pending disciplinary proceedings or criminal, proceedings against the employee and thereafter give effect to; that in the case of the petitioner, it has been overlooked and therefore the promotion accorded to the second respondent without going through this procedure is not sustainable in law.
7. Mr. Rajendra Prasad, learned senior counsel points out that there was a pending criminal case pursuant to a first information report dated 19.02.2008 and criminal case was pending before the VI ACMM, Bangalore; that the second respondent had been charge sheeted and was being tried for offences punishable under sections 114, 448, 506 read with section 34 of IPC.
8. It is also submitted that there was another disciplinary proceedings, to the knowledge of the petitioner, pending against the second respondent.
9. On the other hand, Sri. Raghavendra G Gayatri, learned Government Pleader, appearing for first respondent, with reference to statement of objections filed submits that the first respondent was not aware of the developments and promotion has been accorded in the normal course, particularly, in view of the order passed by this court and now that certain pending proceedings against the second respondent is brought to the notice of the authority while considering further promotions to be accorded to the second respondent, this will be kept in mind.
10. This apart, writ petitioner himself has been promoted to the post of ''Deputy Secretary'' holding independent charge under Rule 32 of the Karnataka Civil Services Rules, 1977.
11. Sri. Pramod N Kathavi, learned counsel for second respondent, on the other hand, submits that the Official Memorandum relied upon by the writ petitioner for DPC to follow sealed cover procedure is not applicable to the employees of the Legislative Secretariat; that they are governed by a separate set of rules as noticed above and therefore that cannot be a ground to disturb the promotion order at Annexure-A.
12. It is also submitted that the consideration for promotion of the second respondent was on the day when his Juniors had been promoted i.e., as on 25.05.2007 and on that day, no proceedings were pending against the second respondent whether criminal case or any other departmental proceedings and in fact, no departmental proceedings is pending against the second respondent as of now and all those proceedings have been quashed by this court in the earlier round of writ litigation at the instance of the second respondent and therefore urges that there is nothing wrong in the promotion order at Annexure-A and prays for dismissal of the writ petition.
13. Writ petitioner himself being promoted as Deputy Secretary cannot have any grievance. That apart, if the second respondent has been given promotion and that is in any way by overlooking any material which should have been taken into consideration or any contravention of any of the rules, that is the matter which requires reexamination by the first respondent.
14. While the order at Annexure-A is not disturbed by this court at this point of time, direction is issued to the first respondent to take a decision, if need be, by reconsidering the order of promotion in the light of the relevant applicable rules and regulations and if need be take corrective measures and this exercise can be done within a period of six months. It is open to the second respondent to put forth all his defences before the first respondent.
15. Except for this direction to reconsider and reserving liberty for the same, no other orders are passed either for quashing or any other consequence in this writ petition. Accordingly, writ petition is disposed of.
