Research › Search › Judgment

Karnataka High Court · body

2023 DIGILAW 796 (KAR)

State of Karnataka v. Savitri M Dandin

2023-06-21

S.G.PANDIT, VIJAYKUMAR A.PATIL

body2023
JUDGMENT/ORDER S.G.PANDIT, J. - Since these writ petitions are based on common facts and arising out of common order passed by the Karnataka State Administrative Tribunal, Belagavi (for short, 'Tribunal') in Application Nos.232/2018, 2203/2018, 2732/2018, 3018/2018 and 10101/2020, the same are taken up together, heard and disposed of by this common order. 2. Heard the learned HCGP Sri. V.S. Kalasurmath for the petitioners/State Authorities and learned counsels Sri. Aditya R Chakragiri and Sri. Suresh Bhat for the respondents and perused the writ petition papers. 3. Respondents herein, retired employees and legal heirs of deceased employees of AYUSH Department, were before the Tribunal in the aforesaid Applications challenging Government Orders dtd. 18/9/2017 and 21/9/2017, wherein their request for fixation of pay as on 1/1/1970 and to count their ad-hoc services for the purpose of grant of increment and pension was rejected and in two writ petitions, prayer before the Tribunal was to issue direction to the respondents/State Authorities to extend the benefit of 10, 15 and 20 years Time Bound promotion and consequently to refix the pay and pension by counting the services rendered in the erstwhile Medical Institutions as per the provisions of Karnataka State Civil Services (Absorption of Employees of the Medical Institutions taken over by the Government) Special (Amendment) Rules, 1990 (Annexure-A5). 4. In WP No.100857/2023 and WP No.100867/2023, the respondents are represented by legal heirs of deceased government servants, whereas in WP No.100854/2023 and WP No.100871/2023, the respondents are retired government servants. 5. The parties to the present writ petitions would be referred to as per their rank before the Tribunal. 6. Before the Tribunal, petitioners herein were the respondents and respondents herein were the applicants. 7. The applicants in the above writ petitions were appointed on 17/2/1964, 20/2/1964, 21/11/1966 and 28/5/1976 respectively as Medical Officers by the then Taluk Development Board. Under Government Order dtd. 30/6/1981, government took over medical institutions run by the Taluk Development Board and Municipalities along with regular incumbent staff w.e.f., 1/7/1981. Subsequently under the Rules called the Karnataka State Civil Services (Absorption of the employees of the Medical Institutions taken-over by the Government) Special Rules, 1985 (for short, 1985 Rules'), the service conditions of the absorbed employees were prescribed. 30/6/1981, government took over medical institutions run by the Taluk Development Board and Municipalities along with regular incumbent staff w.e.f., 1/7/1981. Subsequently under the Rules called the Karnataka State Civil Services (Absorption of the employees of the Medical Institutions taken-over by the Government) Special Rules, 1985 (for short, 1985 Rules'), the service conditions of the absorbed employees were prescribed. Under Rule 4(ii) it is stated that the services rendered by the employees under the taken-over Medical Institutions until the date of absorption into Government service shall count for the purposes of increments, but denied the counting of service for the purposes of seniority. But, subsequently by 1990 Amended Rues (Annexure-A5), the Government extended the benefit to count the services rendered by the employees under the taken-over Medical Institutions until the date of absorption into Government service for the purposes of seniority, increments and pension in the same manner and to the same extent and subject to the same conditions as are applicable for the Government servants from time to time. 8. The applicants retired from Government service on 31/5/1999, 30/6/1994 and 28/2/2000 and on 31/5/2004 respectively. While fixing their pension, as the Government had not counted the earlier service for the purpose of granting pension and also that applicants were not granted time bound increments, two of the applicants had made representations which were rejected under the impugned endorsements dtd. 18/9/2017 and 21/9/2017 and other two applicants approached the Tribunal praying for a writ of mandamus, as stated above. The Tribunal after hearing the parties concerned, allowed the applications and quashed the endorsements where the applicants' request for grant of pay from 1970 and grant of time bound increments were rejected. In other two applications, the Tribunal directed the Authorities to consider and extend the benefit of time bound advancement, automatic grant of promotion in senior scale of pay for 10, 15 and 20 years of service, subject to the restrictions stated in paragraph 23 of the order. Challenging the said allowing of the applications to the extent stated above, the State Authorities are before this Court in these Writ Petitions. 9. Learned High Court Government Pleader Sri.V.S.Kalasurmath makes his submission on two counts. Challenging the said allowing of the applications to the extent stated above, the State Authorities are before this Court in these Writ Petitions. 9. Learned High Court Government Pleader Sri.V.S.Kalasurmath makes his submission on two counts. One is, delay in approaching the Tribunal and other one is that Rule 4(ii) of 1985 Rules would permit only counting of service for the purpose of pension and not for increments and subject to the provisions of Rules 235 of the Karnataka Civil Rules. Elaborating his submission, learned High Court Government Pleader would submit that the applicants retired from Government Service during the period from 1994 to 2004 and approached the Tribunal only in the year 2017. There is more than 10 years delay in approaching the Tribunal. Therefore, he submits that only on the ground of delay and laches, the Tribunal ought to have rejected the applications filed by the applicants. Further, learned High Court Government Pleader would submit that the petitioners were aware of the Rules on which they are basing their claim and they kept quite till their retirement and subsequently, which would disentitle the reliefs to the applicants. 10. Learned High Court Government Pleader referring to Rule 4(ii) of 1985 Rules would submit that this Rule would permit counting of past service rendered prior to taking-over Medical Institutions until the date of absorption into Government service for the purpose of granting of increment. As the Rule would not permit counting of past service rendered for granting of increments for 10, 15 and 20 years of service, the Tribunal committed an error in granting and directing the State Authorities to grant such increment. Thus, he prays for allowing these Writ Petitions. 11. On the other hand, learned counsel appearing for the applicants/respondents in these Writ Petitions would submit that fixation of pay and pension would be a continuous cause of action and the question of delay would not come in the way of the applicants challenging endorsements issued by the State Authorities. Moreover, he submits that endorsements rejecting the applicants' request was rejected in the year 2017 and immediately thereafter the petitioners approached the Tribunal. Moreover, he submits that endorsements rejecting the applicants' request was rejected in the year 2017 and immediately thereafter the petitioners approached the Tribunal. Further, with regard to contention that it is a continuous cause of action, learned counsel places reliance on the decisions of the Hon'ble Apex Court in the case of STATE OF MADHYA PRADESH AND OTHERS V/S. YOGENDRA SHRIVASTAVA [ (2010) 12 SCC 538 ] and in the case of UNION OF INDIA V/S. TARSEM SINGH [ (2008) 8 SCC 648 ]. Moreover, learned counsel would submit that the Tribunal has protected the interest of the State while allowing the applications of the applicants by making observation at paragraph 23 of the order wherein it restricted the financial benefit for only three years prior to their retirement. Thus, he prays for dismissal of the Writ Petitions. 12. Having heard the learned counsel appearing for the parties and on perusal of the Writ Petition papers, the only point which falls for our consideration is as to, "Whether the impugned order requires interference by this Court?" 13. The answer to the above point would be in the Negative for the following reasons: The appointment of the applicants as Medical Officers by the Taluka Development Board on 17/2/1964, 20/2/1964, 21/11/1966 and 28/5/1976 as well as their retirement on attaining the age of superannuation on 31/5/1999, 30/6/1996, 29/2/2000 and 31/5/2004 are not in dispute. The Government took a decision to take over all the Medical Institutions run by the then Taluka Development Board and Municipalities under Government Order dtd. 30/6/1981 (Annexure-A1) with effect from 1/7/1981 along with incumbents of the Medical Institutions. Subsequently, under the Notification dtd. 27/9/1985 (Annexure-A3), the Government framed 1985 Rules wherein Rule 4(ii) reads as follows: "4. Fixation of initial pay and reckoning of services for purposes of increment, pension, Seniority, etc., i) ....... ii) The service rendered by the employees under the taken-over Medical Institutions until the date of absorption into Government Service under these rule shall count for purposes of increments, in the same conditions as are applicable to Government Servants, but it shall not count for purposes of seniority under the Karnataka Government Servants' (Seniority) Rules, 1957, except for determining their interese seniority." 14. The above Rule initially permitted the counting of past service rendered by the applicants for the purpose of increment and denied counting of service for the purpose of seniority. The above Rule initially permitted the counting of past service rendered by the applicants for the purpose of increment and denied counting of service for the purpose of seniority. Subsequently, 1985 Rules was amended by 1990 Amended Rules. 1990 Amended Rule 4(ii) reads as follows: "(ii) The services rendered by the employees under the taken over Medical Institutions until the date of absorption into Government Service under these rules, shall count for purposes of seniority, increments and pension in the same manner and to the same extent and subject to the same conditions as are applicable to Government Servants from time to time." 15. The above Rule in unmistakable terms permits counting of service rendered by the employees under the taken-over Medical Institutions until the date of absorption into Government service, for the purposes of seniority, increment and pension in the same manner and to the same extent and subject to the same conditions as are applicable to the Government Servants from time to time. The above Rule while granting the benefit of counting service for the purpose of seniority, increment and pension also makes it clear that the earlier services shall be counted for the above said purpose in the same manner as that of a Government servant. It had not made any distinction between absorbed employee and regular Government servant. 16. The Tribunal under impugned order, taking note of Rule 4(ii) of 1990 Rules, has observed that denying the benefit of counting past service and passing Government Order to that effect is arbitrary and violative of Article 14 of the Constitution of India, which is proper and correct in the facts and circumstances of the case. Therefore, the contention of the learned High Court Government Pleader that Rule 4(ii) of 1985 Rules would not permit counting of past service for the purpose of granting of increment is liable to be rejected, taking note of the Amended 1990 Rules. 17. The other contention addressed by the learned High Court Government Pleader is that the Tribunal failed to take note of the delay and laches in approaching the Tribunal. 17. The other contention addressed by the learned High Court Government Pleader is that the Tribunal failed to take note of the delay and laches in approaching the Tribunal. The question of delay in approaching the Tribunal would not arise in the instant case, as observed by the Hon'ble Apex Court in catena of decisions wherein it is observed that the claim with regard to salary, arrears of salary, pension and arrears of pension would be recurring cause of action, since a Government servant receives salary/pension every month. The Tribunal has placed reliance on the decision of the Hon'ble Apex Court in the YOGENDRA SHRIVASTAVA (supra), paragraph 18 of the said decision reads as follows: "18. We cannot agree, Where the issue relates to payment or fixation of salary or any allowance, the challenge is not barred by limitation or the doctrine of laches, as the denial of benefit occurs every month when the salary is paid, thereby giving rise to a fresh cause of action, based on continuing wrong. Though the lesser payment may be a consequence of the error that was committed at the time of appointment, the claim for a higher allowance in accordance with the rules (prospectively from the date of application) cannot be rejected merely because it arises from a wrong fixation made several years prior to the claim for correct payment. But in respect of grant of consequential relief of recovery of arrears for the post period, the principle relating to recurring and successive wrongs would apply. Therefore, the consequential relief of payment of arrears will have to be restricted to a period of three years prior to the date of the original application." 18. The same view is found in its earlier decision in TARSEM's case referred supra. The Tribunal at paragraph 23, has taken care to restrict the financial benefits to the respondents prior to 3 years from the date of retirement of the applicants. Paragraph 23 of the Tribunal's order reads as follows: "23. The applicants have claimed grant of time bound advancement which came into effect from 08/06/1983, automatic grant of special promotion to senior scale of pay under the rules which come into effect from 01/06/1991 and also the benefit of additional increment for having worked for 20 years which come into force from 01/04/2002 by a notification dtd. The applicants have claimed grant of time bound advancement which came into effect from 08/06/1983, automatic grant of special promotion to senior scale of pay under the rules which come into effect from 01/06/1991 and also the benefit of additional increment for having worked for 20 years which come into force from 01/04/2002 by a notification dtd. 09/05/2002 the said benefit of increments extended to the government servants who were without any promotion for the periods mentioned in the rules by considering their service from the initial appointment in the taluk board Hospitals or dispensaries which they were working before absorption on taking over those hospitals by a notification dtd. 01/07/1981 they were absorbed by special rules 1985 with effect from date of taking over. While considering the service of the applicants for seniority from the date of their initial appointment, such applicants are required to be considered for grant of time bound promotions for having rendered 10, 15 and 20 years of service without there being any promotion. Applicants who were initially appointed on 20/02/1964, 21/11/1966, 28/05/1976 and 17/02/1964 respectively became government servants on absorption from 01/07/1981 as on that date they have already completed 10 years' service and as such they required to be considered for grant of time bound advancement by counting the service from initial appointment, as such the applicant In A.No.232/2018 has completed 10 years from 08/06/1983 and for 15 years from 01/06/1991 as such on granting additional increment for 10 years from 08/06/1983 and 15 years from 01/06/1991 and the same is required to be fixed notionally and for 20 years additional increment, it is required to be extended from 01/04/2002, but the applicant retired from service on 20/06/1996 thereby the applicant is entitled for the relief of additional increment for having rendered 10 years and 15 years only. The Applicant in A.No.2203/2018 completed 10 years as on 01/07/1981 and as such one additional increment has to be granted from 08/06/1983 notionally and for 15 years additional increment from 01/06/1991 and he is not entitled for the increment for 20 years as he retired on 29/02/2000. The Applicant in A.No.2732/2018 has completed 10 years on 03/02/1988 and as such he is entitled for the additional increment for 10 years from 03/02/1988 and 15 years on 03/02/1993 and 20 years on 03/02/1998 and on extending the increments notionally his benefits has to be fixed. The Applicant in A.No.2732/2018 has completed 10 years on 03/02/1988 and as such he is entitled for the additional increment for 10 years from 03/02/1988 and 15 years on 03/02/1993 and 20 years on 03/02/1998 and on extending the increments notionally his benefits has to be fixed. The Applicant in A.No.3018/2018 & 10101/2020 has completed 10 and 15 years earlier to 08/07/1981 and as such applicant is entitled for the additional increment from 08/06/1983 for 10 years and increments for 15 years from 01/06/1991 and applicant has retired from service on 31/05/1999 though he has completed 20 years on 17/02/1984 but he was not in service as on 01/04/2002 as on the date the government extended the benefit of additional increment for the employees who worked for 20 years without any promotion. Since the applicant is not entitled for benefit of additional increment for having rendered 20 years. Thereby the applicants are entitled to be extended the additional increments from those dates. On the other hand, applicants have claimed the benefit of time bound increments, but the said claim is after lapse of many years. In view of the fact that the said benefit is required to be extended to the applicants for having rendered service and for having worked for 10, 15 and 20 years, as the case may be, without any promotion and based on the said additional increments their pay is required to be fixed. ................................" 19. For the reasons stated above and following the decisions referred supra, there is no merit in any of the contentions raised by the State Authorities and accordingly, Writ Petitions stand dismissed. In view of dismissal of the Writ Petitions, all the pending applications would not survive for consideration.