Allowed

The State of Karnataka v. Sri. Nagappa

Karnataka HC8 Jul 2021WP/8205/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a writ petition filed by the State challenging a Tribunal order that granted a notional stagnation increment. The Court held that a government servant who voluntarily refrained from accepting an imminent promotion to wait for a specific posting in Bengaluru was not entitled to the stagnation increment during that period, in accordance with relevant rules and gov

What did the court decide?

The writ petition was allowed. The impugned order dated 22.11.2017 passed by the Tribunal in Application No.8966/2014 was set aside.

The State of Karnataka Vs Sri. Nagappa — Pension and Retirement Benefits | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF JULY, 2021

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PRESENT

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THE HON'BLE MR. JUSTICE SATISH CHANDRA SHARMA

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AND

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THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY

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WRIT PETITION NO.8205 OF 2019 (S-KSAT)

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BETWEEN:

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THE STATE OF KARNATAKA REP. BY ITS PRINCIPAL SECRETARY, DEPT. OF COMMERCE AND INDUSTRIES, VIKASA SOUDHA, BENGALURU-01

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THE COMMISSIONER FOR SERICULTURE DEVELOPMENT AND DIRECTOR OF SERICULTURE, V FLOOR, M.S.BUILDING, DR. AMBEDKAR VEEDHI, BENGALURU-560001.

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THE ACCOUNT GENERAL IN KARNATAKA (A & E) PARK HOUSE ROAD, BENGALURU-560001.

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…PETITIONERS

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(BY SRI. B.RAJENDRAPRASAD, ADVOCATE)

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AND:

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SRI. NAGAPPA S/O SRI KARIYAPPA, AGED ABOUT 62 YEARS, RETIRED GAZETTED MANAGER GRADE-I, OFFICE OF THE COMMISSIONER FOR

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SERICULTURE DEVELOPMENT AND DIRECTOR FOR SERICULTURE, V FLOOR, M.S.BUILDING, DR. AMBEDKAR VEEDHI, BENGALURU-560001 R/AT NO.565, 6^TH MAIN ROAD, VINAYAKA LAYOUT, IV STAGE, NAGARABHAVI IV STAGE, BENGALURU-560072.

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… RESPONDENT

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(BY SRI. P.RAJASHEKAR, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS AND QUASH THE ORDER DATED 22.11.2017 IN APPLICATION NO.8996/2014 PASSED BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, BENGALURU, VIDE ANNEXURE-A AND ETC.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, NATARAJ RANGASWAMY. J., MADE THE FOLLOWING:

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O R D E R

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This writ petition is filed by the State Government challenging the correctness of the order dated 22.11.2017 passed by the Karnataka State Administrative Tribunal, Bengaluru (hereinafter referred to as 'the Tribunal' for short) in Application No.8966/2014. By the aforesaid order, the Tribunal allowed the application and directed the State Government to notionally promote the respondent No.1 and grant notional increment to the respondent.

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The application filed before the Tribunal discloses that the respondent was promoted as Gazetted Manager Grade-II on 04.10.1996. He reached the maximum pay attached to the post of Gazetted Manager Grade-II. The process of promoting the respondent to Gazetted Manager Grade-I was commenced by appellant No.2, in view of the vacancy caused on account of promotion of a person named Naganatha Pujary. The respondent submitted a representation dated 13.09.2010 requesting the appellant No.2 to consider his case for promotion in the event of any post being available in Bengaluru. Later, in terms of an official memorandum dated 04.10.2010, the appellant No.2 promoted two persons who were juniors than the respondent. It is stated that the State Government issued an order dated 18.03.1996 and granted 5 stagnation increments annually to those Government servants who had reached the maximum pay scale in the post held by them. The respondent was granted the first stagnation increment on 01.06.2009 and the second stagnation increment on

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01.06.2010 and the third increment was due on 01.06.2011. The respondent submitted a representation dated 13.09.2010 seeking for the third stagnation increment. This was rejected by the petitioner No.2 on the ground that the respondent had refused to accept the promotion and that Rule 4-A of the Karnataka Civil Service (General Recruitment) Rules, 1977 (hereinafter referred to as 'KCS (GR) Rules, 1977' for short) forbade grant of any increment to a Government servant who refused to accept the promotion. Later, the respondent was promoted to the post of Gazetted Manager Grade-I in terms of the official memorandum dated 30.01.2012 and his pay was re-fixed as per the Karnataka Civil Services (Revised Pay) Rules, 2012. The respondent submitted a representation dated 20.07.2012 requesting the appellant No.2 to grant retrospective promotion to the cadre of Gazetted Manager Grade-I with effect from 01.08.2011 or 14.09.2011. The respondent later retired on 30.11.2013.

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The respondent being aggrieved by the non-

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sanction of third stagnation increment with effect from 01.06.2011, filed Application No.8996/2014 before the Tribunal and contended that Rule 4-A of the KCS (GR) Rules, 1977 cannot obliterate his right for the third annual stagnation increment as he was not promoted to the post of Gazetted Manager Grade-I but the process to do so was on. It was contended that the respondent never refused to accept the promotion but only sought for a posting in Bengaluru. The Tribunal held from a reading of Rule 4-A of the KCS (GR) Rules, 1977 that the applicant was not promoted and by merely making a request to accommodate him in Bengaluru cannot result in the respondent foregoing his promotion. The Tribunal held that Rule 4-A of the KCS (GR) Rules, 1977 and Clause 4 of the Government Order dated 18.03.1996 was not applicable to the respondent and thus the third stagnation increment could not be denied. The Tribunal therefore directed the appellants to sanction the third stagnation increment with

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effect from 01.06.2011 in the post of Gazetted Manager Grade - II instead of 01.02.2013.

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Being aggrieved by the aforesaid order, the State Government has filed this writ petition.

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The learned Government Advocate drew our attention to Government Order dated 18.03.1996 (Annexure-A1)which reads as follows:

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"4. The benefit of stagnation increments will not be admissible to a Government servant who foregoes his promotion voluntarily or who after his promotion, seeks reversion on his own accord to the lower post held by him before his promotion."

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He also brought to our notice Rule 4-A of the KCS (GR) Rules, 1977, which reads as follows:

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" 4A. FOREGOING PROMOTION :- (1) A Government servant who, on promotion does not want to accept such promotion may, within fifteen days from the date of receipt of the order of promotion, make a written request seeking permission of the appointing authority to forego the promotion so made, and if on consideration or such request the reasons given for foregoing the promotion are found acceptable by the appointing

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authority, it may permit the Government servant to forego the same.

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(2) In all such cases of foregoing promotion by the Government servant he shall not be considered for promotion for a period of one year from the date of his request seeking permission to forego the promotion or till the immediate next date of consideration of promotion, whichever is later, on the eventual promotion to the higher grade, such Government servant shall lose seniority vis-a-vis his juniors promoted to the higher grade earlier, irrespective of the fact whether the posts in question are filled by selection or otherwise.

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(3) In case, where the reasons given by the Government servant for foregoing the promotion are not acceptable to the appointing authority the same shall be communicated in writing to the concerned Government servant who shall, Immediately on receipt of such communication, assume the charge of the promotional post, failing which it shall be construed as misconduct:

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Provided that such persons seeking permission to forego promotion by female Government Servants shall not ordinarily be refused."

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The learned Government Advocate also invited our attention to the letter dated 13.09.2010 submitted by the respondent, which is as follows:

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"¤zÉÃð±À£Á®AiÀÄzÀ°è£À vÀvÁæAQvÀ ªÀåªÀ¸ÁÜ¥ÀPÀgÀÄ-1 ºÀÄzÉÝUÉ ¥ÀzÉÆÃ£Àßw ¤ÃqÀÄªÀÅzÀÄ w½zÀÄ §A¢zÀÄÝ, £À£Àß ¥ÀzÉÆÃ£Àßw ¥ÀnÖAiÀÄ°è F PÉ¼À ¸À» ªÀiÁrgÀÄªÀ £À£Àß ºÉ¸ÀgÀÆ EgÀÄvÀÛzÉ.

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£À£Àß ªÀAiÉÆÃªÀÈzÀÞ vÁ¬ÄAiÀÄªÀgÀÄ C£ÁgÉÆÃUÀå¢AzÀ §¼À®ÄwÛzÀÄÝ, CªÀjUÉ vÀAVzÁUÉÎöå ªÉÊzÀåQÃAiÀÄ aQvÉìAiÀÄ£ÀÄß §JAUÀ¼ÀÆj£À°èAiÉÄÃ PÉÆr¸À¨ÉÃPÁVgÀÄvÀÛzÉ. C®èzÉ £À£Àß ¥ÀwßAiÀÄ DgÉÆÃUÀåªÀÅ ¸ÀºÀ EwÛÃZÉUÉ ªÉÄÃ°£À ªÉÄÃ¯É ºÀzÀUÉqÀÄwÛzÀÄÝ, EªÀj§âgÀ DgÉÆÃUÀåªÀ£ÀÄß £ÉÆÃrPÉÆ¼Àî¨ÉÃPÁzÀ ºÉÆuÉ £À£ÀßzÉÃ DVgÀÄvÀÛzÉ. C®èzÉ £Á£ÀÆ ¸ÀºÀ ªÀÄzsÀÄªÉÄÃºÀ¢ªÀÄzÀ ºÀ®ªÁgÀÄ ªÀµÀðUÀ½AzÀ §¼À®ÄwÛzÀÄÝ £À£ÀUÀÆ ¸ÀºÀ DVAzÁUÉÎöå OµÀzÉÆÃ¥ÀZÁgÀªÁUÀ¨ÉÃPÁVgÀÄvÀÛzÉ. F J¯Áè PÁgÀtUÀ½AzÁV £Á£ÀÄ ¥ÀzÉÆÃ£Àßw ªÉÄÃgÉUÉ ¨ÉAUÀ¼ÀÆj¤AzÀ ºÉÆgÀUÉ ªÀUÁðªÀuÉAiÀiÁV ºÉÆÃzÀ®° EªÀgÀÄUÀ¼À£ÀÄß £ÉÆÃrPÉÆ¼Àî®Ä ºÁUÀÆ £ÉªÀÄä¢¬ÄAzÀ ¸ÀPÁðj PÉ®¸ÀªÀ£ÀÄß ¤ªÀð»¸À®Ä C£ÀÄªÁUÀÄªÀAvÉ ¥ÀzÉÆÃ£Àßw ¤ÃqÀÄªÀ ¸ÀªÀÄAiÀÄzÀ°è ªÉÄÃ¯ÁÌtÂ¹zÀ £À£Àß ªÉÊAiÀÄQÛPÀ ºÁUÀÆ UÀÈºÀPÀÈvÀåzÀ vÉÆAzÀgÉUÀ½AzÁV ¨ÉAUÀ¼ÀÆj£À°è SÁ°AiÀiÁVgÀÄªÀ ºÀÄzÉÝUÉ ªÀÄÄA§rÛ ¤ÃqÀ¨ÉÃPÉAzÀÄ PÉÆÃgÀÄvÉÛÃ£É.

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MAzÀÄ ªÉÃ¼É FUÀ ¨ÉAUÀ¼ÀÆj£À PÉÃAzÀæ PÀZÉÃjAiÀÄ°è SÁ°AiÀiÁVgÀÄªÀ ºÀÄzÉÝUÉ (²æÃ ©.J¸ï.¥ÁnÃ¯ï ¥À.ªÀåªÀ¸ÁÜ¥ÀPÀgÀÄ-1) EªÀjAzÀ vÉgÀªÁVgÀÄªÀ ºÀÄzÉÝ) ªÀÄÄA§rÛ ¤ÃqÀ¢zÀÝ°è ²æÃ £ÁUÀ£ÁxÀ ¥ÀÆeÁj, ¯ÉPÁÌ¢üPÁjUÀ¼ÀÄ EªÀgÀÄ ¢: 31-7-2011 PÉÌÃ ªÀAiÉÆÃ ¤ªÀÈwÛAiÀiÁUÀÄwÛgÀÄªÀÅzÀjAzÀ D ¸ÀÜ¼ÀPÉÌ ²æÃ ©.¹.ªÁ°, ¥À.ªÀåªÀ¸ÁÜ¥ÀPÀgÀÄ-1 EªÀgÀÄ £ÉÃªÀÄPÀªÁUÀÄªÀ ¸ÀA¨sÀªÀ«zÀÄÝ (gÉÃµÉä dAn ¤zÉÃð±ÀPÀgÀ PÀZÉÃj, ¨ÉAUÀ¼ÀÆgÀÄ «¨sÁUÀ, ¨ÉAUÀ¼ÀÆgÀÄ) EªÀjAzÀ vÉgÀªÁUÀÄªÀ ºÀÄzÉÝUÉ £À£ÀUÉ ªÀÄÄA§rÛ ¤ÃqÀ¨ÉÃPÉAzÀÄ PÉÆÃgÀÄvÉÛÃ£É. C°èAiÀÄªÀgÉUÀÆ FUÀ SÁ° ¥ÀvÁæAQvÀ ªÀåªÀ¸ÁÜ¥ÀPÀgÀÄ-2 ºÀÄzÉÝAiÀÄ°èAiÉÄÃ ªÀÄÄAzÀÄªÀjAiÀÄ®Ä EaÑ¹gÀÄvÉÛÃ£É.

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DzÀÝjAzÀ F ¸ÀA§AzsÀ CUÀvÀå PÀæªÀÄ PÉÊUÉÆ¼Àî¨ÉÃPÉAzÀÄ vÀªÀÄä°è ¥Áæyð¸ÀÄvÉÛÃ£É."

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He therefore contended that the respondent

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was aware that he was short listed for promotion to the post of Gazetted Manager Grade - I. However, instead of accepting the promotional post, the respondent choose to wait till a vacancy arose in the office of Joint Director of Sericulture, Bengaluru Division, Bengaluru. Thus, he contended that the respondent had given up his claim for promotion and therefore, was not entitled to stagnation increment. He submitted that the third increment was given to the respondent with effect from 01.02.2013 when he was promoted as Gazetted Manager Grade - I. He therefore prayed that the impugned order passed by Tribunal be set aside.

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Per contra , leaned counsel for the respondent vehemently contended that the respondent had not refused to accept any promotion and that the Government

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Order dated 18.03.1996 denying the increment to a person refusing promotion could not be pressed into service against him.

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We have considered the submission of the learned counsel for the parties. We have also perused the photocopies of the documents that were placed before the Tribunal.

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The stagnation increment was an incentive devised by the State in respect of the Government servant who stagnated at the maximum of the scale of pay applicable to the post held by him or her. The grant of stagnation increment by the Government was subject to conditions and the benefit of the increment was not available to a Government servant who gave up his promotion voluntarily or who sought reversion after his promotion. In the case on hand, the respondent was aware about his imminent promotion to the next higher post as Gazetted Manager Grade - I. In fact, by his letter dated 13.09.2010, the respondent acknowledged that his

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name was found in the promotion list, however, he did not desire to move out of Bengaluru due to health issues faced by him, his mother and his wife and therefore, choose to await the occurrence of vacancy in Bengaluru and sought promotion in Bengaluru itself. The respondent on his own volition continued in the post of Gazetted Manager Grade - II. In the ordinary course, the respondent would have been promoted and the stagnation increment would have become payable as per the Government Order dated 18.03.1996. However, since the respondent on his own volition choose not to accept the promotion, he was consequently, not entitled to the third stagnation increment with effect from 01.06.2011. He was rightly granted the increment with effect from 01.02.2013 when he was promoted to the post of Gazetted Manager Grade-I. The Rule 4-A of the KCS (GR) Rules, 1977 employs the word "on promotion" and this has to be interpreted in the facts and circumstance of this case that it includes "a person who is short listed for promotion and who refused to accept such promotion". In that view of the matter, the

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impugned order of the Tribunal deserves to interfered with.

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Hence, this writ petition is allowed and the impugned order dated 22.11.2017 passed by the Tribunal in Application No.8966/2014 is set aside.

Sd/-

JUDGE

Sd/JUDGE

NR/-

The State of Karnataka v. Sri. Nagappa

Case brief

What is this about?

What did the court decide?

The State of Karnataka v. Sri. Nagappa

Case brief

What is this about?

What did the court decide?

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