STATE OF KARNATAKA v. H. R. SURYANARAYANA RAO — 1984 DIGILAW 13 (KAR)

V. S. MALIMATH, A. C. J. ( 1 ) H. R. Suryanarayana Rao, the respondent, came to this Court with W. P. No. 5171/78 seeking following reliefs: r. 23 (i) To quash the order dt. 10/11th April 1978 issued by the Chief Engineer and produced as exhibit-D in the writ petition; (ii) To issue a writ in the nature of mandamus directing the State Government, the chief engineer and the Accountant General to settle his pensionary claims including death-cum- retirement gratuity amount in accordance with law and also to fix his pension at Rs. 182/- per month and to grant all consequential reliefs. ( 2 ) THE undisputed facts of the case are, that sri Suryanarayana Rao was promoted as superintendent Grade-I with effect from 12. 10. 1966 consequent upon review of promotions made by the Government. He retired from service on 5. 12. 1973 on attaining the age of superannuation. Thereafter, promotions were once again reviewed, whereupon it was determined that the date of eligibility for promotion of Shri Suryanarayana Rao to the cadre of superintendent Grade-I, was 31. 5. 1967. We have taken 12. 10. 1966 as the actual date of promotion as that is the assertion made by Sri. K. Sridharan, learned Counsel for the respondent, and that is also the stand taken by Sri. V. C. Brahmarayappa, learned Government advocate. When the deemed date of eligibility for promotion was accorded to Sri suryanarayana Rao as 31. 5. 1967, he having already been given certain retirement benefits, the Chief Engineer addressed a letter dt. 10/ llth April 1978 to the Accountant General as per Exhibit-D suggesting that pension and the d. C. R. G. Amount be reduced and the excess amount paid be recovered after obtaining a consent letter from Sri. Suryanarayana Rao and when a copy of the same was furnished to sri. Suryanarayana Rao, he approached this court for reliefs as aforesaid. The learned single Judge has, by his order dated the 3qth of october 1981, allowed the writ petition, quashed the communication from the chief engineer to the Accountant General (Exhibit- d) and directed the appellants to determine the pension payable reckoning the service of Sri. Suryanarayana Rao in the cadre of superintendents from 12. 10. 1966 and not from 31. 5. Suryanarayana Rao in the cadre of superintendents from 12. 10. 1966 and not from 31. 5. 1967 and to make him available the arrears of pension that may be found due as also the death- cum-retirement gratuity due, on that basis. The learned single Judge further directed that pending redetermination, Sri. Suryanarayana Rao be paid interim pension at the rate of Rs. 159/- per month. It is the said order that is challenged in this appeal by the appellant. ( 3 ) THE respondent was admittedly as allottee and, therefore, promotions accorded to him were required to be reviewed and relief granted to him in the matter of promotion, pay and pension in accordance with the Karnataka State civil Services (Regulation of promotion, Pay and pension) Act, 1973. It is in accordance with s. 4 of the said Act that promotions were reviewed though Sri Suryanarayana Rao was actually promoted to the cadre of Superintendents with effect from 12. 10. 1966, deemed date of eligibility for promotion to the said cadre was determined as 31. 5. 1967. Though in the writ petition, an attempt was made to challenge the according of this deemed date of eligibility, durig the course of the arguments before the learned single Judge, that contention was given up and the according of the deemed date of eligibility for promotion as 31. 5. 1967 was accepted and it is on that basis that the arguments were advanced before the learned single judge. Hence, we did not permit the learned counsel for the respondent to advance arguments in this behalf the case made out by him having been expressly given up as recorded by the learned single Judge. We, therefore, proceed on the basis that 31. 5. 1967 was correctly accorded as the demeduate of eligibility for promotion to the cadre of Superidntendents to which Sri. Suryanarayana Rao was entitled to on the basis of his ranking in the final inter-state seniority list. ( 4 ) AS Sri Suryanarayana Rao was deemed to have become eligible for promotion only on 31. 5. 1957, it is obvious that full effect has to be given to the statutory presumption that he must be deemed to have been promoted with effect from 31. 5. 1967 notwithstanding the fact that he was promoted on an earlier date, namely, 12. 10. 1966. 5. 1957, it is obvious that full effect has to be given to the statutory presumption that he must be deemed to have been promoted with effect from 31. 5. 1967 notwithstanding the fact that he was promoted on an earlier date, namely, 12. 10. 1966. But, then the very act also provides that the official, who was actually promoted on a date earlier than the deemed date of eligibility for promotion, shall not be liable to refund the excess emoluments paid between the date of the actual promotion and the deemed date of eligibility for promotion. That is the clear effect of S. 4 of the Act. That being the position, we have no hesitation in holding that Sri suryanaryana Rao was not liable to refund any part of the salary which he received in the cadre of superintendents between 12. 10. 1966 and 31. 5. 1967. ( 5 ) THE learned single Judge has held that pension has to be determined and the other retir- ment benefits have to be given to Sri. Suryanarayana Rao on the basis that he became the superintendent on 12. 10. 1966. The learned single Judge has clarified that the period from 12. 10. 1966 to 31. 5. 1967 should be reckoned as qualifying service for the purpose of pension. The learned single Judge has observed that the very object of granting pension is to give retirement benefits taking into consideration the actual service rendered by the official to the state. Hence, the learned single Judge has observed that Sri Suryanarayana Rao having actually rendered service from 12. 10. 1966 to 31. 5. 1967, that period may have to count as qualifying service for the purpose of determination of pension payable to Sri. Suryanarayana rao. No statutory provision has been relied upon by the learned single Judge in this behalf. None has been relied upon by the learned Counsel for the respondent before us either. In the absence of a statutory provision, when the law deems that Sri Suryanarayana Rao must be deemed to have ben promoted with effect from 31. 5. 1967, full effect must be given to it even for the purpose of determining qualifying service and determining pension and other retirement benefits. In the absence of a statutory provision, when the law deems that Sri Suryanarayana Rao must be deemed to have ben promoted with effect from 31. 5. 1967, full effect must be given to it even for the purpose of determining qualifying service and determining pension and other retirement benefits. S. 4 has since been amended by Kar- nataka Act 25/1982 by inserting the following:-"where, on such review he is found eligible for promotion to a higher or grade of service from a date subsequent to the date of his actual promotion to such class or grade of service, his pay on the date of eligibility shall be refixed as if he had been promoted on such date, but he shall not be liable to refund the excess pay and allowances drawn by him up to the date of Issue of the order fixing the date of eligibility. "the amendment has been given retrospective effect from the 1st of November 1959. The clear effect of this provision is that the pay of Sri. Suryanarayana Rao has to be fixed as on the date of eligibility for promotion to the cadre of superintendents, that is, with effect from 31. 5. 1967, though in fact, he was promoted on an earlier date, namely, 12. 10. 1966. The said provision further makes it clear that though that would be the legal position so far as the fixation of his pay is concerned, he will not be liable to refund the excess pay and allowances drawn by him from 12. 10. 1966 to 31. 5. 1967. When the law requires that the Official must be deemed to have been promoted with effect from the date of eligibility for promotion and that pay is also to be refixed on that basis, all benefits have to be accorded to him on that basis except otherwise provided by law. As already stated, it is otherwise provided in regard to the emoluments paid for the period prior to the deemed date of eligibility for promotion. Except for this, the official has to be deemed to have been promoted with effect from the date of eligibility for promotion and it is on that basis that all benefits accuring to him, have to be accorded. Except for this, the official has to be deemed to have been promoted with effect from the date of eligibility for promotion and it is on that basis that all benefits accuring to him, have to be accorded. That being the position, we have no hesitation in taking the view that Sri Suryanarayana Rao's pension and d. C:r. G. benefits have to be accorded to him on the basis that he was acutally promoted with effect from 31. 5. 1967. For the purpose of fixing his pension and granting D. C. R. G. and other retirement benefits, the actual service rendered by Sri Suryanarayana Rao between 12. 10. 1966 and 31. 5. 1967 has to be ignored. It is further made clear that the excess pay and allowances paid to him for the period from 12. 10. 1966 to 31. 5. 1967 shall not, however, be recoverable from him as provided by S. 4 as Amended by karnataka Act 25/82. ( 6 ) THE communication from the chief engineer to the Accountant General (Exhibit-D) does not clarify the position correctly. It may not reflect the correct legal position which, we have expounded during the course of this order relying upon the provisions as amended subsequently by Karnatak- Act No. 25/82. Hence, we are clearly of the opinion that determination of pension as also D. C. R. G amount to which Sri Suryanarayana Rao has become entitled to, has to be made in the light of elucidation which we have made in the course of this order ignoring the tentative view taken by the chief Engineer in his communication (Exhibit-D ). ( 7 ) AS we have come to the conclusion that the period from 12. 10. 1966 to 31. 5. 1967 cannot be regarded as qualifying service for the purpose of determining pension and D. C. R. G. benefits, the order of the learned single Judge cannot be sustained. ( 8 ) FOR the reasons stated above, this appeal is allowed and the order of the learned single judge is set aside. We make the following order: (i) The appellants shall determine the pension and the D. C. R. G. benefits to which the respondent is entitled to on the basis that he stood promoted to the cadre of superintendents with effect from 31. 5. 1967. We make the following order: (i) The appellants shall determine the pension and the D. C. R. G. benefits to which the respondent is entitled to on the basis that he stood promoted to the cadre of superintendents with effect from 31. 5. 1967. (ii) The appellants are directed not to deduct the excess pay and allowances paid to Sri suryanarayana Rao between 12. 10. 1966 and 31. 5. 1967. (iii) The appellants shall determine the pension and the D. C. R. G. amounts to which Sri. Suryanarayana Rao is entitled to, ignoring exhibit-D dt. 10/11th April 1963 addressed by the Chief Engineer to the Accountant General. (iv) It is after determination of the pension and the D. C. R. G. amount in the light of the aforesaid directions and the eluciation made in the course of this order, that appropriate directions be issued regarding adjustment of the excess amount paid, if any, by deducting reasonable amounts in the pension, if that is reasonably possible. (v) Pending determination as aforesaid, the respondent, Sri Suryanarayana Rao, shall be paid interim pension at the rate-of Rs. 15. 00 per month. ( 9 ) THE aforesaid order shall be complied with within a period of four months from the date of receipt of this order. ( 10 ) THE respondent is entitled to his costs. Advocate's fee is fixed at Rs. 250. 00. --- *** --- .