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2003 DIGILAW 647 (KAR)

V. S. RICHARDS v. STATE OF KARNATAKA

2003-08-06

R.V.RAVEENDRAN, S.ABDUL NAZEER

body2003
R. V. RAVEENDRAN, J. ( 1 ) PETITIONER joined the Air Force on 13-4-1971. He was promoted as a sergeant on 1-8-1984. He was discharged from the Air Force on 30-4-1986 on completing fifteen years of service. At the time of discharge from the Air force, his pay scale was Rs. 1460-1710. The petitioner claims that the term of his engagement in the Indian Air Force was 15 years of regular service and 6 years of reserve service; and that during the period of reserve period of six years (that is between 1-5-1986 to 30-4-1992), he could have been called upon to serve in the Regular Air Force Reserve. ( 2 ) AFTER his release from Air Force, the petitioner applied to the Karnataka public Service Commission against a notification for recruitment to the posts of Commercial Tax Inspectors. He was duly selected and was appointed by the second respondent as per order dated 3-6-1988, in the pay scale of Rs. 1400-1750. According to petitioner, the post of CTI in Commercial Tax department which is a Group 'c' post is equivalent in grade to the post sergeant in the Air Force. In the seniority list relating to the cadre of CITs, the petitioner was assigned the date of entry into service as 3-6-1988. Petitioner gave a representation requesting that date of entry into service should be shown as 13-4-1971 by taking into account his services in the Air Force relying on Rule 6-A of the Karnataka Government Servants' (Seniority) rules, 1957 ('seniority Rules' for short ). The said request was rejected by endorsement dated 7-11-2000 issued by the second respondent. Feeling aggrieved, petitioner approached the Karnataka Administrative Tribunal, in application No. 2447 of 2000, for the following reliefs: (a) To set aside the endorsement dated 7-11 -2000; and (b) for a direction to respondents to consider his case afresh and extend him the benefit of Rule 6-A of the Seniority Rules by counting his service in the Air Force from 13-4-1971 for the purpose of seniority in the cadre of Commercial Tax Inspector in the Department of commercial Taxes and also grant him consequential monetary benefits. The said application was dismissed by order dated 2-4-2002. Petitioner thereafter filed Review Application No. 26 of 2000 and that was also dismissed by the Tribunal by order dated 11-10-2002. The said application was dismissed by order dated 2-4-2002. Petitioner thereafter filed Review Application No. 26 of 2000 and that was also dismissed by the Tribunal by order dated 11-10-2002. ( 3 ) THE petitioner has filed this petition for setting aside the orders of the tribunal, dated 2-4-2002 and 11-10-2002 and for grant of the reliefs sought in his application before the Tribunal. The question that therefore arises for consideration is whether a person who takes up fresh employment under the state Civil Service, after being discharged from Defence Service, is entitled to couut such Defence Service, for purposes of seniority in the State Civil service. ( 4 ) RULE 6-A of the Seniority Rules deals with determination of seniority of an officer of some other service, transferred or appointed to the State Civil service. Relevant portion of Rule 6-A is extracted below:"6-A. The transfer or appointment of an officer of the Defence services, an All India Service or a Civil Service of the Union or the civil Service of any other State to any equivalent class or grade of service in the State Civil Services shall not be treated as first appointment to that class or grade of service for purpose of seniority; and the seniority of an officer so transferred or appointed shall be determined with reference to his first appointment to the class or grade of service or services to which he belonged prior to such transfer or appointment: provided that, where such transfer or appointment is made at the request of officer, he shall be placed in the seniority list of the class or grade of service to which he is transferred or appointed below the persons borne on that class or grade of service immediately prior to the date of such transfer or appointment: provided further, that, the seniority of a person transferred in public interest vis-a-vis the persons actually holding the post in the class or grade to which he is transferred shall be determined on the date of such transfer with reference to his first appointment to the class or grade from which he was transferred. ( 5 ) A careful reading of the said rule shows that the said Rule is applicable only when an officer in Defence Service (as contrasted from an officer who has ceased to be in such service) is transferred or appointed to an equivalent grade of service in the State Civil Service. The Rule uses the words transfer or appointment of an officer of the Defence Services. . . to any equivalent class or grade of service in the State Civil Service. 'an officer of the Defence service' necessarily refers to a serving officer and not an Ex-officer. Therefore, if a person who has already been discharged from the Defence service, applies for and obtains a fresh employment, in the State Civil service, obviously Rule 6-A will not apply. ( 6 ) ONE more aspect of Rule 6-A may also be noticed. Rule 6-A entitles a government servant to count his previous service (either in Defence Service, all India Service or a Civil Service of the Union or other State) for purposes of seniority, only if he is transferred or appointed to the State Civil Service, at the instance of the State Government. If such transfer or appointment is at the request of the officer himself, even if he is a serving officer, he will be placed below the persons borne on that class or grade immediately prior to the date of such transfer or appointment. Certainly, the position of a person joining State civil Service, after his discharge/retirement/termination, cannot be better than a person who is in service, while being transferred or appointed to the state Civil Service. If a serving officer, appointed or transferred to a State civil Service on his own request, cannot count his previous service for purposes of seniority, it is inconceivable that a person discharged from previous service, on re-employment under the State Civil Service on his own request, can claim that his previous service should be counted for purposes of seniority. Rule 6-A does not confer the benefit of counting the previous service for the purpose of seniority of a person who is appointed to the State civil Services after he ceases to belong to Defence service (or an All India service or Civil Service of the Union or any other State ). We therefore find no error in the order of the Tribunal. We therefore find no error in the order of the Tribunal. ( 7 ) LEARNED Counsel for the petitioner next submitted that the terms of engagement with Indian Air Force was that he was required to complete 15 years of regular service and six years of reserve service, and therefore for a period of six years from 30-4-1986, that is upto 30-4-1992, he should be deemed to be in Indian Air Force Reserve Service, and if so, as on the date of appointment in the Commercial Tax Department, he should be treated as a person in service. He also contended that the letter dated 2-5-1988 from Air Headquarters relied on by the Tribunal, stating that his reserve liability was completed on 30-4-1988 did not state the position correctly. He relied on a certificate issued by the Air Force Record Officer, New Delhi, dated 24-4-2002 (received by him subsequent to the order of the Tribunal and produced with LA. No. III) which states that the period of engagement of petitioner is 15 years 'regular' and six years 'reserve' as per records. Even if the period of reserve was originally intended to be six years (when petitioner was recruited), nothing prevents the Air Force from subsequently reducing the 'reserve' liability to only two years. Therefore, the letter dated 30-4-1988 from Air Headquarters stating that the 'reserve' liability came to an end of 30-4-1988 cannot be ignored. ( 8 ) EVEN assuming that period of 'reserve' is six years, the position is no different. After petitioner was discharged from Air Force on 30-4-1986, he was not called back or appointed to Air Force reserve. Being on 'reserve' after discharge is being on 'call' for military service. It does not give any lien over the post from which the employee is discharged. Petitioner's assumption that he had a 'lien' over his post as Sergeant in the Air Force, after his discharge from regular service, for a period of six years, cannot be accepted. 'lien' is inextricably linked with substantive appointment. The 'lien' came to an end when the substantive appointment came to an end on discharge. Petitioner's assumption that he had a 'lien' over his post as Sergeant in the Air Force, after his discharge from regular service, for a period of six years, cannot be accepted. 'lien' is inextricably linked with substantive appointment. The 'lien' came to an end when the substantive appointment came to an end on discharge. ( 9 ) THE petitioner next contended that he is liable for being appointed to 'regular Air Force Reserve' under the Reserve and Auxiliary Air Forces Act, 1952, and therefore he should be deemed to be in the service of the Union Government for a period of six years after his discharge on 30-4-1986. The said Act empowers the Central Government to raise and maintain a 'regular Air Force Reserve' consisting of persons transferred to it under Section 5 (1)of that Act, that is. (a) any officer or Airman of the Air Force who under the terms and conditions of his service is liable to serve in any Air Force Reserve if and when constituted; (b) any officer or Airman of the Air Force whose commission or engagement in the Air Force has been terminated before the commencement of this Act and who under the terms of his commission or engagement was liable to serve in any Air Force reserve if and when constituted; (c) any officer or Airman who has served in the Air Force and has retired therefrom. Only an officer or Airman so transferred is deemed to be a member of the said reserve and not others. Section 5 (2) also enables appointment of any member of Air Defence Reserve or Auxiliary Air Force (constituted under chapters If I and IV of that Act) to regular Air Force Reserve. Admittedly, the petitioner was neither transferred nor appointed to 'regular Air Force reserve'. Therefore, the question of petitioner being treated as being in 'regular Air Force Reserve' service as on 3-6-1988 (when he was appointed in the State Civil Service) does not arise. ( 10 ) IT is a well-settled principle of service jurisprudence that past or previous service will not be taken into account in reckoning seniority where the two services are distinct and different. Further seniority is a comparative concept between employees who are equally circumstanced. ( 10 ) IT is a well-settled principle of service jurisprudence that past or previous service will not be taken into account in reckoning seniority where the two services are distinct and different. Further seniority is a comparative concept between employees who are equally circumstanced. Where the previous service is neither in the same class or grade, nor in an equivalent class or grade, the question of counting such previous service does not arise. Therefore, even assuming that Rule 6-A applied, the period of service as 'sergeant' in the Indian Air Force cannot be counted as seniority in the cadre of Commercial Tax Inspectors, as it is not an equivalent post. ( 11 ) ANOTHER aspect which requires to be noticed is even if Rule 6-A applied, and even if the post of Sergeant is to be considered to a class or grade equivalent to that of a Commercial Tax Inspector, what could be counted is only his service as Sergeant from 1 -8- 1984 to 30-4-1986 and not his service in a lower class or grade between 13-4-1971 to 31 -7-1984. Be that as it may. ( 12 ) PETITION is therefore rejected with costs. In the view we have taken, i. A. No. III for production of document (Certificate dated 24-4-2002) is disposed of as not relevant. --- *** --- .