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2016 DIGILAW 578 (KAR)

G. Nagabhushana v. State of Karnataka

2016-07-26

B.S.PATIL

body2016
ORDER : 1. Petitioners are employees of the Karnataka State Construction Corporation, a Government of Karnataka undertaking. They were initially employed on daily wages basis and later on regularized as Assistant Engineers/Junior Engineers. They were treated as regular employees of the said Corporation with effect from 23.07.1998. Services of petitioners were deputed to the Bruhath Bangalore Mahanagara Palike (BBMP) on 31.07.2007. 2. It is relevant to notice that there was a move to close down the Karnataka State Construction Corporation. Employees employed in the Corporation were, therefore, sent on deputation to different organizations including the BBMP. 3. The construction Corporation issued a circular notifying that the Corporation would be closed with effect from 30.09.2008 and that the employees engaged would be retrenched taking recourse to provisions contained in Section 25FFF of the Industrial Disputes Act. It was proposed that all employees who were employed in the Corporation could avail benefit of voluntary retirement scheme floated which would be in force from 15.12.2008 till 31.12.2008; in case the employees did not opt for voluntary retirement benefit, they would be retrenched from service of the Corporation with effect from 16.01.2009 as per the provisions of the Industrial Disputes Act. It was also made clear in the said circular that applications filed seeking voluntary retirement after the prescribed date i.e., 31.12.2008 would not be considered. This circular though not produced by petitioners, is part of the record which has been made available by the learned Additional Government Advocate. 4. Aggrieved by this circular, petitioners filed W.P. Nos. 1280-286/2009 and connected cases. The circular was attacked as arbitrary and unconstitutional being violative of Articles 14 and 16 of the Constitution of India. The BBMP was also made a party as petitioners were working on deputation at that time in BBMP. The Government took a stand in the said writ petitions stating that correspondence was going on between the State and the BBMP and Government was actively considering the option of directing the BBMP to absorb the services of petitioners and the same would be communicated to the writ petitioners in due course. 5. Recording the said submission made by the learned Additional Government Advocate on behalf of the State Government, this Court disposed of the writ petitions reserving liberty to petitioners to revive their grievance if it became necessary. 5. Recording the said submission made by the learned Additional Government Advocate on behalf of the State Government, this Court disposed of the writ petitions reserving liberty to petitioners to revive their grievance if it became necessary. A direction was issued to the Government to take appropriate decision in the matter within a period of eight weeks. 6. Thereafter, BBMP wrote to the State Government bringing to its notice absence of any provision in its cadre and recruitment rules regarding absorption of employees working on deputation and that a proposal for framing rules providing for such absorption was being submitted to the Government. Based on this correspondence, State Government has framed the impugned rules produced at Annexure-A regarding absorption of the employees of the construction corporation who were on deputation to BBMP. 7. The said Rules are known as Karnataka Municipal Corporations (Absorption of Assistant Engineers/Junior Engineers appointed on deputation basis in Bruhath Bangalore Mahanagara Palike (Special) Rules, 2011 (for short ‘the absorption rules’). As per these rules, provision for absorption of deputation Assistant Engineers or Junior engineers in BBMP came to be made in the corresponding category of post and scale of pay specified in the scheme appended to the Absorption Rules. Rule 4 of the Absorption Rules provides as under: 4. Pay, Pension, Leave and Seniority of persons absorbed under these rules: Notwithstanding anything contained in the Karnataka Municipal Corporations Rules, 1977 (i) the initial basic pay of deputation Assistant Engineer or Junior Engineer as the case may be absorbed under these rules shall be fixed at the minimum of the pay scale applicable to the category of post to which he is absorbed under rule 3. (ii) The services rendered by a person as deputation Assistant Engineer or Junior Engineer as the case may be prior to the date of absorption shall count for the purpose of leave, pension, but not for pay and seniority and grant of selection time scale of pay under Karnataka Civil Services (Time Bound Advancement) Rules, 1983 or for grant of selection time scale of pay under the Karnataka Civil Services (Automatic grant of special promotion to the senior scale of pay) Rules, 1991 and additional increment for having completed twenty years of service in the single cadre (iii) as regards pension and other retirement benefits, they shall be governed by the pension policy of the Bruhath Bangalore Mahanagara Palike. 8. 8. It is thus clear that petitioners were subjected to adverse consequences, viz., (i) on absorption, their salary was proposed to be fixed at the minimum of pay scale applicable to the category of post wherein he was absorbed (ii) the services rendered by deputation Assistant Engineer or Junior Engineer prior to the date of absorption shall not count for pay and seniority and grant of selection time scale of pay. It is in this background and aggrieved by the said portion of Absorption Rules, petitioners have approached this Court. 9. Main contention urged by learned Senior counsel appearing for petitioners Sri Ashok Haranahalli is that offending portion of the Rules that take away the right of petitioners to have protection of their pay and to claim seniority by counting past services rendered, is illegal, arbitrary and opposed to Articles 14 and 16 of the Constitution of India. It is his submission that petitioners were deputed to BBMP in public interest as against vacant posts and there was no option given to petitioners not to report at the place to which they were deputed hence it was not a case where petitioners, on their own, elected to go on deputation to the BBMP hence, there was no justification to rob the petitioners of their valuable past service denying pay protection and seniority. In support of this contention, learned Senior counsel has placed reliance on the following judgments of the Apex Court: (i) K. Anjaiah Etc. Vs. K. Chandraiah & Others, AIR 1998 SC 1202 ; (ii) S.I. Rooplal & Another Vs. Lt. Governor Through Chief Secretary, Delhi & Others, AIR 2000 SC 594 (iii) K. Madhavan And Another Vs. Union of India & Others, AIR 1987 SC 2291 . Reliance is also placed by him on the judgment of the Division Bench of this Court in the case of State of Karnataka & Another Vs. T.N. Surappa disposed of on 29.11.2001 in W.P. No. 23793/2001. Dealing with the concept of absorption, he has invited the attention of the Court to paragraphs 80 and 81 of the judgment of the Division Bench of this Court in the case of Sri R. Manjunath & Others Vs. State of Karnataka & Others, 2012 (5) KCCR 3657 . 10. T.N. Surappa disposed of on 29.11.2001 in W.P. No. 23793/2001. Dealing with the concept of absorption, he has invited the attention of the Court to paragraphs 80 and 81 of the judgment of the Division Bench of this Court in the case of Sri R. Manjunath & Others Vs. State of Karnataka & Others, 2012 (5) KCCR 3657 . 10. Learned Additional Government Advocate has contended that it was resolved by the State that the Corporation shall be closed and it was in this background, circular was issued calling upon petitioners to opt for voluntary retirement benefit or otherwise face retrenchment; this circular was challenged by petitioners; the State Government assured this Court in the writ petitions filed by petitioners that the request for absorption of their services would be considered in consultation with the BBMP; though several employees who were similarly deputed to other undertakings such as BWSSB and Karnataka Police Housing Construction Corporation were also absorbed in terms of the provisions made in the respective recruitment rules governing the services of the employees of the said corporations, their seniority was not protected. It is urged that in the case of employees deputed to BBMP, in the absence of recruitment rules providing for absorption of employees on deputation, the State Government was required to frame relevant rules; accordingly, impugned rules were framed after following due procedure and inviting objections; petitioners have been similarly treated compared to other deputationists whose services were absorbed in different government undertakings, hence, there could be no grievance by them. It is submitted by her that indeed Government has taken proactive step in ensuring that services of petitioners were not dispensed with as a result of closure of the Corporation where they were employed. 11. Refuting the legal contentions with regard to the discriminatory treatment or alleged violation of the rights of petitioners guaranteed under Articles 14 and 16 of the constitution of India, learned Additional Government Advocate has placed reliance on the judgment of the Apex Court in the cases of Indu Shekhar Singh & Others Vs. State of U.P. & Others, (2006) 8 SCC 129 , Prafulla Kumar Das & Others Vs. State of Orissa & Others, (2003) 11 SCC 614. State of U.P. & Others, (2006) 8 SCC 129 , Prafulla Kumar Das & Others Vs. State of Orissa & Others, (2003) 11 SCC 614. She has invited the attention of the Court to paragraph 7 of the judgment relied upon by learned Senior counsel for petitioners in the case of K. ANJAIAH (referred supra) to contend that cardinal principle of construction of any rule or regulation is that the same must be held to be constitutionally valid unless and until it was established that the rule in question violated any specific provision of the Constitution of India. 12. Upon hearing the learned counsel for both parties and on consideration of the entire materials on record, the question that falls for consideration is: Whether provisions contained in Rule (4) of the Absorption Rules insofar as it provided that absorption of petitioners shall be at the minimum of pay scale applicable to the category of posts wherein they were absorbed and that services rendered by them prior to the date of absorption shall not count for the purpose of pay and seniority and grant of selection time scale of pay, is illegal being violative of the rights of petitioners guaranteed under Articles 14 and 16 of the Constitution of India? 13. The background in which petitioners were sent on deputation and the need for absorption of petitioners in the service of BBMP, as already adverted to above, assumes significance. The State had decided to close down the Construction Corporation wherein petitioners were working. The Corporation had initiated steps to retrench the services of petitioners. Indeed, a scheme was floated whereunder petitioners and other similarly placed persons were asked to avail voluntarily retirement benefit or otherwise face retrenchment. At that stage, petitioners approached this Court. It is in this context, State Government assured this Court that case of petitioners would be considered by corresponding with the BBMP with regard to their claim for absorption. 14. Had the State Government not intervened to protect the interest of petitioners by enacting the impugned rules, services of petitioners would have been either retrenched or they would have gone out availing the benefit of voluntary retirement. Indeed, several similarly placed employees whose services were deputed to different government undertakings such as BWSSB and Karnataka Police Housing Construction Corporation were also absorbed. Indeed, several similarly placed employees whose services were deputed to different government undertakings such as BWSSB and Karnataka Police Housing Construction Corporation were also absorbed. In their case, there was no need for framing any such rule because the recruitment rules governing the services in the said corporations provided for absorption of deputationists. In their case, as submitted by learned Additional Government Advocate and learned counsel appearing for BBMP, while protecting their pay, relief regarding seniority reckoning their past services was denied. 15. In the present case, the rules framed takes away the benefit of past service rendered for pay protection and also for seniority. Learned Senior counsel is right and justified in the first limb of his argument that such discriminatory treatment is illegal. The employees of the same corporation who were sent on deputation to different organizations under certain contingencies and whose services were absorbed in the Government undertakings because of the closure of the construction corporation, cannot be treated differentially. Benefit of past service rendered for the purpose of pay protection as extended to other employees absorbed in two other government undertakings ought to have been extended to petitioners herein. The Rule, which provides for fixing the pay of petitioners on absorption in the BBMP at the minimum of pay scale applicable to the category of posts wherein they were absorbed, is therefore arbitrary, illegal and discriminatory. 16. However, insofar as denial of seniority is concerned, I do not find any discriminatory treatment. On the other hand, the State Government has ensured that all the employees of the Karnataka Construction Corporation who were sent on deputation have been treated in the same manner. The decisions on which learned Senior counsel has placed reliance do not deal with a situation where persons who were sent on deputation were under the imminent threat of termination of their services by way of retrenchment upon closure of their parent organisation. There was no duty cast on the BBMP nor was there any vested right in the petitioners for absorption of their services in the BBMP. The services of petitioners were liable to be repatriated to their parent department as and when BBMP decided to do so. There was no duty cast on the BBMP nor was there any vested right in the petitioners for absorption of their services in the BBMP. The services of petitioners were liable to be repatriated to their parent department as and when BBMP decided to do so. The construction Corporation having been ordered to be closed, there was absolutely no option for the petitioners except facing the consequence of termination of their services by way of retrenchment or to avail benefit of voluntary retirement within the time specified. 17. In such circumstances, petitioners cannot, as a matter of right, claim that they ought to have been absorbed. Nor can they assert that as the concept of absorption connotes that they would be entitled for all benefits on par with regular employees of the BBMP denial of seniority was illegal being violative of Articles 14 and 16 of the Constitution of India. Even the judgment of the Division Bench of this court in the case of State of Karnataka & Another Vs. T.N. Surappa on which reliance has been placed also does not deal with such a situation. Therefore, the said judgment has no application to the facts of the present case. 18. In the result and for the foregoing, the writ petitions are partly allowed. Sub-Rule (1) of Rule 4 of the Absorption Rules to the extent it tends to fix the pay of petitioners at the minimum of pay scale on absorption of their services ignoring their past services is declared as illegal and unconstitutional. Challenge made to sub-rule (2) of Rule 4 insofar as it pertains to denial of seniority on absorption is dismissed. It is made clear that for fixation of pay of petitioners and other benefits as provided under the Rules past services shall be reckoned and in respect of seniority, prayer made by petitioners stands rejected.