Dismissed

Sri K Janardhan v. the Secretary to Government

Karnataka HC6 Mar 2024WP/12344/2022

Case brief

AI extract

What is this about?

This writ petition challenged the Tribunal's dismissal of an application for Time Bound Advancement and pay fixation. The Court held that without challenging valid Government Orders and given the petitioner's voluntary transfer before the relevant cut-off, the Tribunal rightly dismissed the application.

What did the court decide?

Writ petition dismissed being devoid of merits.

Sri K Janardhan Vs the Secretary to… — Pension and Retirement Benefits | Karnataka HC (2024)

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NC: 2024:KHC:9410-DB WP No. 12344 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6^TH DAY OF MARCH, 2024

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PRESENT

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THE HON'BLE MR JUSTICE K.SOMASHEKAR

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AND

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THE HON'BLE MR JUSTICE RAJESH RAI K

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WRIT PETITION NO. 12344 OF 2022 (S-KSAT)

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BETWEEN:

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Digitally signed by HARIKRISHNA V Location: HIGH COURT OF KARNATAKA

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SRI. K. JANARDHAN S/O LATE V. KRISHNAMURTHY, AGED ABOUT 70 YEARS, RETIRED AS FDA, OFFICE OF DEPUTY COMMISSIONER, MYSORE, R/O HOUSE OF 851, GURUPRASAD NILAYA, 4/7 MAIN ROAD, E & F BLOCK, RAMAKRISHNA NAGARA, MYSURU-570 022.

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…PETITIONER

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(BY SRI. MINACHE ASHOK APPANNA, ADVOCATE)

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AND:

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THE SECRETARY TO GOVERNMENT REVENUE DEPARTMENT , KARNATAKA GOVERNMENT SECRETARIAT, VIKAS SOUDHA, BENGALURU-560 001.

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THE DEPUTY COMMISSIONER, MYSORE DISTRICT, ATTARAKACHERI,

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NC: 2024:KHC:9410-DB WP No. 12344 of 2022

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MYSORE-570 005.

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THE ACCOUNTANT GENERAL IN KARNATAKA, A & E DIVISION, PARK HOUSE ROAD, NEW BUILDING, BENGALURU-560 001.

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THE CHIEF EXECUTIVE OFFICER, MYSORE ZILLA PANCHAYATH, CHAMARAJPURAM, MYSURU-570 005.

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…RESPONDENTS

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(BY SRI. YOGESH D NAIK, AGA FOR R1 TO R3; SRI. B.J.SOMAYAJI, ADVOCATE FOR R4)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO i)CALL FOR THE ENTIRE RECORDS IN APPLICATION NO. 4706/2019 ON THE FILE OF THE KARNATAKA ADMINISTRATIVE TRIBUNAL, BANGALORE AND ETC.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, RAJESH RAI, J., MADE THE FOLLOWING:

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ORDER

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The petitioner in this writ petition challenged the legality and validity of the order passed in A.No.4706/2019 dated 07.02.2022 by the Karnataka State Administrative Tribunal at Bengaluru, (for short 'the Tribunal') wherein, the Tribunal has dismissed the application filed by the petitioner.

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The facts that are apposite for consideration as borne out from the pleadings are as follows:

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The petitioner was appointed as Second Division Assistant in the Revenue Department at Kodagu District on 03.07.1978. While working at Kodagu District, the petitioner was transferred to the Deputy Commissioner's Office, Mysore District on his request vide order dated 07.09.1982. Thereafter, he reported at the transferred place on 03.02.1983. Accordingly, the petitioner has completed 10, 15, 20, 25 and 30 years of service on 03.07.1988, 03.07.1993, 03.07.1998, 03.07.2003 and 03.07.2008 in the same post without any promotion. It is the further case that, he was sanctioned an increment on completion of 10, 15 years of service in the same post as per order dated 01.03.1989, the said order was revised on 17.04.1998 and pay was re-fixed granting Time Bound Advancement from 08.02.1993 and automatic grant of senior time scale of pay from 08.02.1998 for having completed 10, 15 years of service vide order dated 17.04.1998, by ignoring the service rendered in Kodagu District by the petitioner from 03.07.1978. It is also the case of the petitioner that, he was initially placed in independent charge of the post of First

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Division Assistant under Rule 32 KCSRs on 30.09.2010 and subsequently, his promotion was regularized substantively with effect from 09.11.2012 and pay was re-fixed vide order dated 22.03.2013. The petitioner retired from service on attaining the age of superannuation on 30.04.2012.

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The grievance of the petitioner is that, for one increment on completion of 20, 25 and 30 years of service in the same post from 03.07.1998, 03.07.2003 and 03.07.2008 respectively as per Government Orders dated 09.05.2002, 05.09.2014, the increments sanctioned was cancelled as per order dated 24.09.2013 and pay was re-fixed on the wrong assumption that the applicant was ineligible to count service rendered in earlier district i.e., Kodagu District.

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Being aggrieved by the same, the petitioner submitted the representation to the respondent-authority dated 28.06.2014 to grant the Time Bound Advancement 10-30 years considering his service from the date of his appointment at Kodagu District as per Government Orders dated 14.06.2012 and 05.09.2014. However, he was sanctioned one additional increment for completion of 15 and 20 years of service from

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03.07.1993 and from 01.04.2002 for having completed 20 years service counting past service rendered in Kodagu District and monetary benefits from 11.02.2011 as per Government Order dated 05.09.2014.

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Subsequently, the petitioner also submitted the representations dated 06.12.2014 and 28.02.2015 for granting Time Bound Advancement from the date of his original appointment. However, the respondent-authority has issued the endorsement dated 26.03.2015, by clarifying that, time bound pay scales for completing 10, 15 and 20 years of service were sanctioned and for completing 25 and 30 years is rejected, since the petitioner had been promoted to the post of First Division Assistant on 29.09.2010 and accordingly, he is not eligible for the Time Bound Advancement.

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Posteriorly, the petitioner made representations dated 07.07.2017, 10.11.2017, 23.11.2017 and 09.02.2018. Additionally, he sent legal notices through his counsel to the respondent for grant of Time Bound Advancement to 10-30 years service in the same post of Second Division Assistant from the date of his appointment. However, those

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representations were not considered by the department. Hence,

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the petitioner approached the Tribunal by filing A.No.4706/2019 praying to set-aside the order dated 06.08.2018 passed by the second respondent and to grant one increment for completion of 10, 15, 20, 25 and 30 years of service counting the service in the same post from the date of initial appointment and to re-fix the pay, pension and arrears of salary.

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The Tribunal after assessment of the documents placed before it so also hearing the learned counsel for the petitioner and Additional Government Advocate, passed the impugned order by dismissing the application filed by the petitioner herein. The challenge to the said order is the lis before this Court.

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We have heard the learned counsel Sri. Minache Ashok Appanna for petitioner and learned Additional Government Advocate Sri. Yogesh D Naik for respondent Nos.1 to 3 so also Sri. B.J Somayagi for respondent No.4.

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The learned counsel for the petitioner would vehemently contends that the Tribunal has erred in passing the

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impugned order by rejecting the application filed by the petitioner, without considering the facts and circumstances of the case. The order of the Tribunal is totally in opposition to various principles of law with regard to the Time Bound Advancement especially it is also in contradiction to the several judgments of this Court and Hon'ble Apex Court.

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He would further contend that the Tribunal totally failed to consider the representation made by the petitioner for grant of Time Bound Advancement for 10-30 years of service in the same post of Second Division Assistant from the date of appointment of the petitioner. According to him, as per the order dated 16.03.2015, the petitioner was sanctioned one additional increment for completion of 15 and 20 years of service from 03.07.1993 and from 01.04.2002 for having completed 20 years service counting past service rendered in Kodagu District and monetary benefits from 11.02.2011 as per Government Order dated 05.09.2014. Hence, the petitioner made several representations for granting Time Bound Advancement from the date of his original appointment, but the authority failed to consider the same and the Tribunal wrongly

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upheld the said order. Accordingly, he prays to allow the writ petition.

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In order to buttress his arguments, the learned

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counsel relied the following judgments:

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W.P.No.36539/2013 (S.KAT) dated 09.12.2013 SC Spl. Leave to Appeal (C)… CC No.(S) 7704/2014.

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Dwijen Chandra Sarkar vs. Union of India reported in (1999) 2 SCC 119.

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Gurusharan Singh vs. Union of India and Others reported in AIR 1994 Supreme Court 1059.

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Per contra, learned Additional Government

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Advocate would contend that, the grant of Time Bound Advancement and additional increment would be considered only once and monetary benefit shall be made effective from 11.02.2011, without considering the earlier service for seniority of the employees, who got transferred on voluntary request under the seniority Rule 6. He also contend that, the petitioner has been granted Time Bound Advancement for 10, 15, 20 years benefit considering his service rendered in Kodagu District from 20.06.1978 vide Official Memorandum dated 16.03.2015. According to the learned Additional Government

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Advocate, the transfer of the petitioner from Kodagu District to Mysore District is being at his instance. As such, the only service that comes towards seniority in the service shall be considered for grant of 10, 15 and 20 years Time Bound Advancement under the relevant provisions. Learned Additional Government Advocate would emphasize Annexures-'F' and 'G' to this writ petition and would submit that, the Government has passed the specific order in respect of the Time Bound Advancement and those Government Orders were not challenged by the petitioner. In such circumstances, the Tribunal has rightly dismissed the application filed by the petitioner. Accordingly, he prays to dismiss the writ petition.

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Having heard the learned counsel for the parties so

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also on perusal of the documents made available before us including the impugned order passed by the Tribunal, the only point that would arise for our consideration is:

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"Whether the order passed by the Tribunal in A.No.4706/2019 is suffers from any infirmities and required interference by this Court."

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On careful perusal of Clause IV of Annexure-'F' i.e., Government Order No.FD 12 SRP 2012 (VIII) dated 14.06.2012 to this writ petition, which reads thus:

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"4. A Government servant must have put in a continuous service of not less than twenty five years and thirty years of service in the post held by him excluding his service:-

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(i) *****

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(ii) *****

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(iii) rendered in the former post or cadre in a department or service consequent on the change in the post or cadre in a department or service which does not count for the purpose of determining seniority for promotion, and

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(iv) any other service which does not count for the purpose of determining seniority for promotion in computing the period of 20 years service in the same post.

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Note: only service which will be taken into account for the purpose of determination of seniority under the Karnataka Government Servants (Seniority) Rules, 1957 as in force from time to time, shall be counted in computing the service prescribed for grant of additional increment under this order."

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NC: 2024:KHC:9410-DB WP No. 12344 of 2022

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Further on perusal of Annexure-'G' i.e., Government Order No.FD 13 SRP 2014 dated 05.09.2014 to this writ petition, which reads thus:

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"In cases where government employees holding District Level Seniority on their own request are transferred from one seniority unit in another seniority unit to the same post in another seniority unit, the government has ordered to consider only once for sanctioning the facilities of timed promotion, senior pay scale and additional pay promotions without considering the service rendered in the previous seniority unit.

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This facility is subject to the condition that senior government employees of the transferred seniority unit will not be eligible for pay increment as it is personal.

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2. This facility is not applicable to the following.

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1) For cases of transfer from one post in seniority unit of a department to another post in another seniority unit.

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2) For cases of transfer to different posts under the same department.

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3) For cases of transfer to the same post in different departments.

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4) For cases transferred to different posts in different departments.

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3. For the sanction of time bound promotion, seniority pay and additional pay promotion facilities under this order, other conditions in the respective rules shall be fulfilled.

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4. This facility will be available from 11.02.2011.”

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On careful perusal of these two Government Orders, admittedly no challenge has been laid by the petitioner against both these Government Orders and according to these two Government Orders, the petitioner would be entitled to the benefit under this order only with effect from 01.04.2012 or later had be completed 25-30 years service as on that date and had not been promoted to a higher post as on that date. The petitioner has been admittedly promoted to the post of First Division Assistant in the year 2010 itself. Hence, he is not entitled to the benefit of the Government Order dated 01.04.2012 for grant of 25, 30 years of Time Bound Advancement.

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Nevertheless, as rightly contended by the learned Additional Government Advocate, it is not in dispute that the transfer of the petitioner from Kodagu District to Mysore District being at the instance of the petitioner himself and as

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per his request, his service shall be considered as 20 years Time Bound Advancement under the relevant provisions and on that count also, the claim of the petitioner is not maintainable.

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The Hon'ble Apex Court in the case of Dhanraj vs. Vikram Singh and Others reported in 2023 SCC OnLine SC 724 , held in Paragraph Nos.11, 12, 13 and 16 as under:

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11 . With greatest respect to the learned counsel for the original writ petitioners, we cannot accept any of these submissions. There is not even a whisper of a challenge incorporated in the writ petition to the 1961 Act and the rules framed thereunder. The State was not called upon to answer the issue of either repugnancy or lack of legislative competence. Moreover, there was no notice issued to the Advocate General of the State.

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12 . In absence of specific pleadings, a Writ Court ought not to have gone into the issues of repugnancy or lack of legislative competence. Learned counsel appearing for the writ petitioners (6th and 7th respondents) relies upon various decisions of this Court including the landmark decision in the case of S.P. Gupta v. Union of India3.

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13 . We are of the view that in absence of any specific challenge to the validity of the statutory provisions, the High Court ought not to have undertaken the exercise of going into the question of repugnancy. We fail to understand the propriety of the observation that the law

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departments of the State and the Union should have a dialogue to remove the discrepancy. Moreover, the High Court has not proceeded to strike down the relevant provisions which were held to be repugnant to PESA. It only directs that till the discrepancy is removed by the legislature, certain provisions of the 1961 Act and the rules framed thereunder shall be ignored. Such approach by the writ Court is not at all called for. Without holding that the statutory provisions are not constitutionally valid, the High Court could not have issued a direction not to implement the statutory provisions.

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16. The Writ Petition is of the year 2008 and looking to the pleadings in the writ petition, it was filed only to take care of the elections which were round the corner. Moreover, considering the prayer made in the writ petition, now we cannot permit the writ petitioners to enlarge the scope of the writ petition.

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Hence, on careful perusal of the law laid down by the Hon'ble Apex Court in the above judgment, it is clear that since the petitioner has not challenged the Government Orders stated supra and as per the orders he is not entitled for the Time Bound Advancement for the above period, we are of the considered view that the Tribunal rightly dismissed the application filed by the petitioner, as the same does not call for any interference by this Court. Even otherwise the judgments relied by the learned counsel for the petitioner not applicable to

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the facts and circumstances of the case on hand. Accordingly, we answer the point raised above in the negative and proceed to pass the following:

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ORDER

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i) Writ petition is dismissed being devoid of merits.

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Pending Interlocutory Applications, if any, do not survive

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for consideration and the same are disposed of.

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Sd/JUDGE

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Sd/JUDGE

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HKV List No.: 1 Sl No.: 20

Sri K Janardhan v. the Secretary to Government

Case brief

What is this about?

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Sri K Janardhan v. the Secretary to Government

Case brief

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