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Karnataka High Court · body

2017 DIGILAW 1013 (KAR)

G. L. Jayalakshmi v. State of Karnataka

2017-07-06

R.S.CHAUHAN

body2017
ORDER : Raghvendra S. Chauhan, J. Being aggrieved by the order dated 26.5.20 1 2, and aggrieved by the wrong fixation of pay, and the wrong grant of pensionary benefits, and the deduction of gratuity and the Commutation Value of Pension, the petitioner, who happens to be a widow of late Mr. B.K. Narasimha Murthy, has approached this Court. 2. Briefly the facts of the case are that the petitioner, Smt. G.L. Jayalakshmi, is the wife of Mr. B.K. Narasimha Murthy. Mr. B.K. Narasimha Murthy was appointed on 19.1.1974, as a Gardner, in the Municipal Council, Tumkur City Municipal Council, Tumkur, in the pay scale of Rs. 65 - Rs. 95/-. At the relevant time, a large number of posts in the Municipal Council were carrying the pay scale of Rs. 65 - Rs. 95/-. Therefore, the City Municipal Council, Tumkur, transferred the employees carrying the pay scale of Rs. 65 - Rs. 95/-, from one post to another. Consequently, by the order dated 16.10.1976, the petitioner's husband was transferred from the post of Gardner to the Toll Establishment. In a memo issued by the City Municipal Council, Tumkur, dated 4.9.1980, the petitioner's husband was posted as Toll Gate Keeper. He was not only posted as a Toll Gate Keeper, but was also paid the salary as a Toll Gate Keeper in the pay scale of Rs. 80 - Rs. 145/-. 3. On 31.5.1977, the Government of Karnataka, passed a Government Order, thereby revising the pay scales of those who are working in the Local Bodies. The pay scale of a Toll Gate Keeper was revised from Rs. 80-145/-, to Rs. 280 - Rs. 500/-. In consonance with the said Government Order, the petitioner's husband was placed in the pay scale of Rs. 280 - Rs. 500/-, and was granted the arrears of salary from 1970 onwards. 4. By the order dated 16.2.1991, the Director & Commissioner of Municipal Administration, the respondent No. 2, promoted the petitioner's husband to the post of Second Division Assistant from the cadre of Toll Gate Keeper. Thereafter, by order dated 20.2.1998, the petitioner's husband was further promoted to the post of First Division Assistant. 5. By the Government Order dated 6.7.1990, the petitioner's pay was re-fixed in the pay scale of Rs. 300 - Rs. 700/-, with effect from 1.1.1977. Subsequently, the petitioner's husband retired on 31.3.2011. Thereafter, by order dated 20.2.1998, the petitioner's husband was further promoted to the post of First Division Assistant. 5. By the Government Order dated 6.7.1990, the petitioner's pay was re-fixed in the pay scale of Rs. 300 - Rs. 700/-, with effect from 1.1.1977. Subsequently, the petitioner's husband retired on 31.3.2011. While calculating the pensionary benefits, and the post-retirement benefits which would have accrued to the petitioner's husband, by the order dated 10.10.2011, it was directed that Rs. 1,69,125/-should be recovered from the petitioner's husband's pensionary benefits. For, the authorities felt that the petitioner's husband had wrongly been given the gratuity to the said extent. It was also directed that an amount of Rs. 96,287/- should be deducted as the amount wrongly paid towards Commutation Value of Pension. Since the petitioner's husband was aggrieved by the said order, he challenged the same before this Court by filing a writ petition, namely Writ Petition No. 4541/2012. By order dated 26.3.2012, this Court quashed the order dated 10.10.2011, and remanded the matter to the Assistant Controller, Local Audit Circle, the respondent No. 3. This Court also directed the respondent No. 3 to give an opportunity of hearing to the petitioner's husband. By letter dated 8.5.2012, the respondent No. 3 directed the petitioner's husband to appear before him, and to argue his case. However, after hearing the petitioner's husband, by order dated 26.5.2012, the plea of the petitioner's husband that the amount of Rs. 1,69,125, and the amount of Rs. 96287/-, should not be deducted from his pensionary benefits, has been rejected. By the impugned order, the respondent No. 3 has also rejected the plea of the petitioner's husband that he should have been fixed, and was rightly fixed, in the pay scale of Rs. 300 - Rs. 700/-, with effect from 1.1.1977. Hence, the present petition before this Court. 6. Mr. K.B. Muralidhar, the learned counsel for the petitioner has raised the following contentions before this Court : Firstly, the petitioner's husband was initially appointed as a Gardner in the pay scale of Rs. 65 - Rs. 95/-. However, subsequently, he was employed as a Toll Gate Keeper in the pay scale of Rs. 80 - Rs. 145/-. Secondly, the pay scale was repeatedly revised by the Government through different Government Orders. 65 - Rs. 95/-. However, subsequently, he was employed as a Toll Gate Keeper in the pay scale of Rs. 80 - Rs. 145/-. Secondly, the pay scale was repeatedly revised by the Government through different Government Orders. A complicated dispute was raised with regard to the revised pay scales of the Bill Collectors and to the other similarly situated employees under the Local Bodies. A large number of cases were filed before this Court, and on the basis of decision of this Court, different Government Orders have been issued. In the last order, dated 9.2.2011, the Government had decided that "other similarly situated employees" would mean that "those who are working as Toll Gate Keeper, Toll Gate Peon, Octroi Peon, Octroi Paigasti, Octroi Dafedar\ and the benefit of the Government Order dated 26.8.2008, an order which had extended the benefit of the revised pay scale of Rs. 90 - Rs. 200/- to the Bill Collectors, should equally be extended to the persons holding these posts. Subsequently, an Addendum was also issued by the Government, whereby the Government had further clarified that the pay scale of Rs. 90 - Rs. 200/- would be payable to such employees who were sanctioned with the pay scale of Rs. 80 - Rs. 125/-. According to the learned counsel, both, the Government Order dated 9.2.2011, as well as the Addendum dated 18.7.2011, are in favour of the petitioner's husband. For, once the petitioner's husband was appointed as a Toll Gate Keeper, he had been fixed on the pay scale of Rs. 80 - Rs. 145/-. Therefore, he was equally entitled to the revised pay scale of Rs. 90 - Rs. 200/-. Thus, subsequently, based on the revised pay scale which came into effect from 1977, he would have entitled to the pay scale of Rs. 300 - Rs. 700/-. Therefore, the deduction made by the respondent from the pensionary benefits of the petitioner's husband, mentioned herein above, are illegal. 90 - Rs. 200/-. Thus, subsequently, based on the revised pay scale which came into effect from 1977, he would have entitled to the pay scale of Rs. 300 - Rs. 700/-. Therefore, the deduction made by the respondent from the pensionary benefits of the petitioner's husband, mentioned herein above, are illegal. Lastly, Rule 42-B of the Karnataka Civil Services Rules, 1958, ('the Rules' for short), clearly stipulates that in case a government servant is appointed to an ex-cadre post, and such promotion or appointment involves the assumption of duties and responsibilities of greater importance than those of the post held by him, then he would be entitled to have his pay fixed at the stage next above the pay in the time scale of the lower post at the time of such fixation. Since the petitioner's husband had been appointed to the post of Toll Gate Keeper, it was a post having greater importance and responsibilities than the post of Gardner, he had been correctly fixed in the pay scale of Rs. 80 - Rs. 145/-. During the lifetime of the petitioner's husband, this was the pay scale that was paid to him. Thus he would be equally entitled to the revised pay scale of Rs. 300 - Rs. 700/- with effect from 1.1.1977. Therefore, the reason given by the respondent in denying him his plea that the said amount should not be deducted, is clearly untenable. Thus, the order dated 26.5.2012 needs to be set aside by this Court. Consequently, the pensionary benefits needs to be re-fixed, taking the pay scale of the petitioner's husband as Rs. 300 - Rs. 700/-, and the amounts so deducted from his pensionary benefits need to be refunded to the petitioner. 7. On the other hand, Mr. M.A. Subramani, the learned counsel for the respondents, has vehemently pleaded that the petitioner's husband was appointed as a Gardner in the pay scale of Rs. 65 - Rs. 95/-. Although he had been transferred subsequently on the post of Toll Gate Keeper, but he had not been promoted to the said post. Therefore, the benefit of the pay scale of Rs. 80 - Rs. 145/- could not have been given. Thus, he was not entitled to have his pay scale revised to the extent of Rs. 300 - Rs. 700/-. Therefore, the benefit of the pay scale of Rs. 80 - Rs. 145/- could not have been given. Thus, he was not entitled to have his pay scale revised to the extent of Rs. 300 - Rs. 700/-. Since wrong payment had been made to the petitioner's husband, since the mistake had been discovered, the respondents were justified in deducting the amount from the pensionary benefits, and in rejecting his pleas by the impugned order dated 26.05.2012. 8. Heard, the learned counsel for the parties, and perused the impugned order. 9. The relevant extract of Rule 42-B of the Rules, reads as under: (1) Notwithstanding anything contained in these rules, when a Government servant is promoted to a post or appointed to an ex-cadre post and such promotion or appointment involves the assumption of duties and responsibilities of greater importance than those of the post held by him, his initial pay in the time scale of the higher post shall be fixed at the stage next above the pay in the time scale of the lower post at the time of such fixation: Provided that where a Government servant appointed to a higher ex-cadre post is promoted while holding such higher ex cadre post, to a higher post in accordance with the Recruitment Rules of the Service to which he belongs, the pay drawn in such ex-cadre post shall not be taken into account for the purpose of fixation of initial pay on such promotion; but this initial pay in the post to which he is promoted shall be fixed with reference to the pay which he would have drawn in the post held by him before his appointment to the ex-cadre post: Provided further that if a Government servant either - (a) has previously held substantively or officiated in - (i) the same post, or (ii) a permanent or temporary post on the same time scale, or (iii) a permanent post other than a tenure post, or a temporary post on an identical time scale, or (b) is appointed substantively to a tenure post on a time scale identical with that of another tenure post which he has previously held substantively or in which he has previously officiated, then proviso to Rule 41 shall apply in die matter of the initial fixation of pay and counting of previous service for increment. A bare perusal of the said Rule, clearly reveals that the Rule covers both circumstances, where the government servant is promoted, or appointed to an ex-cadre post. Although the learned counsel for the State may be justified in claiming that the petitioner's husband was not promoted to the post of Toll Gate Keeper, but nonetheless, he was appointed to the said post, even through a transfer. Thus, under Rule 42-B of the Rules, after appointing him on the post of Toll Gate Keeper, he was entitled to the stage next above the pay in the time scale of the higher post, namely to the pay scale of Rs. 80 - Rs. 145/-. Admittedly this was the pay scale which was paid to the petitioner's husband during his life time. Therefore the respondents are not justified in now claiming that the fixation of the pay of the petitioner's husband in the pay scale of Rs. 80 - Rs. 145/- was incorrectly done. 10. According to the subsequent Government Orders, namely G.O. dated 9.2.2011, those who were working as Toll Gate Keeper, where entitled to the benefit of the revised pay scale of Rs. 90 - Rs. 200/- as granted by the Government, by its Government Order dated 26.02.2008. Even according to the Addendum dated 18.07.2011, those who were sanctioned, and were on the pay scale of Rs. 80 - Rs. 145/-, were equally entitled to the revised pay scale of Rs. 90 - Rs. 200/-. Therefore the learned counsel for the petitioner is certainly justified in pleading that the case of the petitioner's husband is covered by the Government Order dated 09.02.2011, and the Addendum dated 18.07.2011. 11. Since the pay scale was further revised to Rs. 300 - Rs. 700/- with effect from 01.01.1977, the petitioner's husband was certainly entitled to the said pay scale from the said date. Therefore the respondents are not justified in deducting the amount from the pensionary benefits. 12. For the reasons stated above, the Writ Petition is hereby allowed. The impugned order dated 26.05.2012 is hereby set aside. The respondents are directed to recalculate the pensionary benefits of the petitioner's husband, keeping in mind that he was entitled to the pay scale of Rs. 300 - Rs. 700/- with effect from 1.1.1977. In case they come to the conclusion that he was entitled to the gratuity of Rs. The impugned order dated 26.05.2012 is hereby set aside. The respondents are directed to recalculate the pensionary benefits of the petitioner's husband, keeping in mind that he was entitled to the pay scale of Rs. 300 - Rs. 700/- with effect from 1.1.1977. In case they come to the conclusion that he was entitled to the gratuity of Rs. 1,69,125/-, and to the Commutation Value of Pension of Rs. 96,287/-, the same shall be refunded to the petitioner, along with interest at the rate of 10% p.a. The said exercise shall be carried out by the respondents within a period of one month from the date of receipt of certified copy of this order.