Sri. Anand K M Vs State of Karnataka

THIS WP IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO 1) QUASH THE ORDER PASSED BY THE R3 VIDE OFFICIAL MEMORANDUM BEARING NO. BWSSB/CH/CAO-S/1946/2023-24 DATED 07/07/2023, VIDE ANNEXURE-A IN SO FAR PETITIONER NOS.1 TO 3 IS CONCERN 2) DIRECT THE R1 AND R2 TO CONSIDER THE PAST SERVICE OF THE PETITIONERS BEFORE ABSORPTION WHILE FIXING THEIR PAY SCALE AND PENSIONARY BENEFITS AS PER THE OLD PENSION SCHEME.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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NC: 2025:KHC:48867 WP No. 10740 of 2024

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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ORAL ORDER

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The petitioner has filed this writ petition seeking for the following reliefs:

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1. To issue a writ in the nature of certiorari, quash the order passed by the respondent No.3 vide Official Memorandum bearing No.BWSSB/CH/CAO-S/1946/2023-24 dated 07.07.2023 vide Annexure-A insofar petitioner Nos.1 to 3 is concerned and

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1. To issue nature of mandamus directing the respondent No.1 and respondent No.2 to consider the past service of the petitioners before absorption while fixing their pay scale and pensionary benefits as per the old pension scheme and;

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1. Issue such other appropriate order or direction as this Hon'ble Court deems fit, in the interest of justice and equity.

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Brief facts leading rise to the filing of this writ

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petition are as follows:

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HC-KAR

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The petitioners initially joined the Karnataka State Construction Corporation as a contract employees to the post of Assistant Engineer. The Corporation issued an order of regularising the service of the petitioners on 23.07.1998. The service of the petitioners has been disputed to the post of the Assistant Engineer in Bangalore Water Supply and Sewerage Board in 2007. On 08.04.2010, a notification was published in the Official Gazette of Karnataka, wherein BWSSB (Absorption of Engineers appointed on deputation basis in BWSSB) Amendment Regulation 2010 was published. The said Amendment Regulation brought the petitioners into the purview of the BWSSB (Absorption of Engineers on Deputation Basis in the BWSSB) Regulations 2008. In view of the Amendment Regulation, an intimation letter was issued on 26.04.2010 by the Chairman of BWSSB, wherein it was intimated that, as per the Amendment Regulation, the service of the petitioners has been absorbed to the post of the Assistant Engineer. The salary of the

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petitioners was proposed to be fixed at minimum pay scale applicable to the post, wherein they were absorbed. The said rule explicitly disregards the services rendered by the petitioners on deputation basis in the post of Assistant Engineer in BWSSB. The Regulation No.4(2) stipulates that

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the service rendered by a person as an Assistant Engineer before the date of the absorption shall count for the purpose of leave and pension, but not for the purpose of pay and seniority. The Regulation No.4(3) extended the terms and conditions of New Defined Contributory Pension Scheme. It is contended that the Karnataka Municipal Corporations (Absorption of Assistant Engineers appointed on deputation basis in BBMP) Special Rules, 2011. Rule 4 of the 2011 Rules was identical to the Regulation 4 of the 2008 Regulations. The employees of the BBMP approached this Court by filing W.P.No.12050-53/2013 and W.P.No.12055-58/2013 and challenged the constitutional validity of the said rules. This court, vide order dated 26.07.2016, allowed the writ petition and declared that

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the Rule which denies to take the service rendered before

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the absorption of an employee into consideration is unconstitutional and arbitrary. It is contended that the employees who got deputed to the post of the Assistant Engineer in BBMP vide communication dated 28.07.2004, challenged the constitutional validity of Regulation No.4 of the Bangalore Water Supply and Sewerage Board (Absorption of Engineers appointed on deputation basis in Bangalore Water Supply and Sewerage Board) Regulations, 2008 in W.P.No.10019/2021. This Court, vide order 26.05.2022 passed an order directing the Board to given an option to the petitioners regarding the retirement benefits under old pension scheme. Needless to say the old pension scheme. The respondents did not consider the service rendered by the petitioners prior to their absorption in BWSSB in fixation of a pay and other benefits and made them to get pension as per the New Pension Scheme even though the petitioners are entitled to get pension as per the old pension scheme. It is

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HC-KAR

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contended that the petitioners filed the writ petition in W.P.No.12772/2022, challenging Regulation No.4 of the BWSSB Regulation-2008 and sought for a mandamus directing respondent Board to consider the past service of the petitioners while fixing their pay scale and pensionary benefits as per old pension scheme. Respondent No.1 disposed off the writ petition reserving the liberty to the petitioners to file a representation with respondent No. 1. Pursuant to the order passed by this Court in W.P.No. 12772/2022, the petitioners submitted a representation dated 23.03.2023 to fix their pay scale and pensionary benefits as per old pension scheme. The respondents issued a memorandum dated 07.07.2023, rejecting the representation of the petitioners. Hence this writ petition.

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Heard the learned counsel for the petitioners

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and also learned counsel for the respondents.

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Learned counsel for the petitioners submits that in an identical matter, the similarly placed petitioners

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HC-KAR

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along with the petitioners herein, filed writ petition in W.P.No.12772/2022 and the writ petition was allowed. He submits that BBMP has framed similar Rules. The said Rule was identical with the Rule No.4 of BWSSB Regulations, 2008. The Division Bench of this Court in W.P.No.10019/2021 disposed of on 26.05.2022, wherein the Division Bench directed the Court to give an option to the petitioners regarding the retirement benefits under old pension scheme. He submits that a similar order may be passed in the instant petition in terms of the order passed in W.P.No.10019/2021. He also submits that the similarly placed petitioners working under the respondents, preferred a writ petition. The same was allowed and the respondents preferred a writ appeal. Hence, on these grounds, he prays to allow the writ petition.

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Per contra , learned counsel for the respondents

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submits that the impugned endorsement issued by the respondents is in accordance with law. Hence, prays to dismiss the writ petition.

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HC-KAR

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Perused the records and considered the submissions of the learned counsel to the parties.

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There is no dispute that the petitioners were initially appointed or joined the Karnataka State Construction Corporation as a contract employees for the post of Assistant Engineers. They were regularized vide order dated 23.07.1998. Respondent No.2 issued a notification dated 08.04.2010, in the Official Gazette of Karnataka, wherein BWSSB Regulations were amended and Rule 4(1) of the BWSSB Regulation, 2008 provides that the salary of the petitioners was proposed to be fixed at the minimum scale applicable to the post, wherein they were absorbed. The said rule explicitly disregards the service being rendered by the petitioners on the deputation basis in the post of Assistant Engineer in BWSSB. The Regulation No.4(2) stipulates that the service rendered by a person as an Assistant Engineer before the date of absorption, shall count for the purpose of leave and pension but not for the purpose of pay and seniority.

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The Regulation No.4(3) extended the terms and conditions

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of New Defined Contributory Pension Scheme. The Karnataka Municipal Corporation granted absorption of the Assistant Engineers appointed on deputation basis under BBMP Special Rules 2011 in way of amendment to Rule No.4 of 2011 Rules, which was identical to the Regulation No.4 of BWSSB of 2008 Regulations. The employees of the BWSSB, aggrieved by Rule No.4 of BWSSB Regulations, 2008, approached this Court in W.P.No.10019/2021. The Division Benches vide order dated 26.05.2022 has recorded a finding at paragraph Nos.12, 13 and 14, which reads as follows:

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"12. Therefore, the impugned regulation insofar as it deprives the benefit of past service of the petitioners in respect of fixation of pay scale cannot be sustained in the eye of law. It is also pertinent to note that admittedly, a pari materia provision under the Rules was challenged before a bench of this court and by an order dated 26.07.2016 passed in W.P.Nos.12050-53/2013, the court partly allowed the challenge and held that fixation of pay and other benefits has to be extended to the petitioners by taking into consideration the past

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services rendered by the deputationists in that case. It is also not in dispute that the aforesaid decision has been accepted by the Government of Karnataka as well as BBMP. The impugned Regulation therefore, cannot be sustained. However, since, the petitioners have challenged the Regulation only to the extent of fixation of pay and other benefits as provided under the Regulation, the Regulation 4(2) insofar as it deprives the benefit of fixation of pay and other benefits without taking into consideration the past service rendered by the deputationists is struck down.

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13. So far as the submission that the petitioners have been sent on deputation to the Board with their consent and therefore no relief can be granted to them is concerned, suffice it to say that though the petitioners are deputed with their consent to the Board, thereafter their services have been absorbed by the Board by enacting the impugned Regulations. It is trite law that there cannot be any estoppel against law. Therefore, the contention that the petitioners have been sent on deputation to the Board with their consent and therefore no relief can be granted to them deserves to be rejected.

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14. Accordingly, the Board is directed to give an option to the petitioners with regard to the retirement benefits under the old pension scheme. Needless to state that in case such an option is exercised by the petitioners, their eligibility / entitlement shall be considered in accordance with the scheme and a decision

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HC-KAR

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in this regard would be taken within a period of three months from the date of receipt of copy of this order. The petitioners are also held entitled to benefit of fixation of pay and other benefits to which they may be entitled to."

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From the perusal of the order passed by the

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Division Bench of this Court, the Board was directed to give an option to the petitioners regarding the retirement benefits under the old pension scheme. The petitioners are entitled for the benefit of the order passed in W.P.No.10019/2021, on the ground of parity.

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In view of the above discussion, I proceed to

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pass the following:

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ORDER

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i. The writ petition is allowed .

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ii. The order dated 07.07.2023 passed by respondent No.3 vide Annexure-A is hereby quashed.

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iii. The respondent-Board is directed to give option to the petitioners regarding the

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HC-KAR

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retirement benefits under old pension scheme. Needless to say that in the case such an option is exercised by the petitioners, their eligibility/entitlement should be considered in accordance with the scheme and a decision in this regard would be taken within three months from the date of the receipt of the copy of this order. The petitioners are also entitled for the benefit of fixation of pay and other benefits to which they may be entitled to.

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iv. Pending applications, if any, stand disposed off accordingly.

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Sd/(ASHOK S.KINAGI) JUDGE

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SSB

Sri. Anand K M v. State of Karnataka

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Sri. Anand K M v. State of Karnataka

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