Fakkirappa S/O Hanamanthappa Rottigawad Vs Registrar General

…RESPONDENTS (BY SMT. B.V.VIDYULATHA, ADVOCATE FOR RESPONDENT NOS.1 TO 3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER BEARING NO.ACCTS:1514/2014 DATED 21.11.2014/01.12.2014 PASSED BY RESPONDENT NO.2 WHICH IS AT ANNEXURE-D AND ETC.

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(BY SMT. B.V.VIDYULATHA, ADVOCATE FOR RESPONDENT NOS.1 TO 3)

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ

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ORAL ORDER

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The petitioner has challenged an order bearing No.Accts:1514/14 dated 21.11.2014/01.12.2014 passed by respondent No.2 rejecting an increment. He has also challenged Office Order bearing No.51/2017 dated 28.12.2017 and Office Order bearing No.66/2018 dated 28.12.2018, both passed by respondent No.3 communicating the rejection of the request of an increment. He has sought for a writ in the nature of mandamus to direct the respondents to grant an increment for having passed/deemed to have passed Kannada Language examination by restoring earlier order bearing No.64/2013 dated 23.11.2013 and to pay arrears with interest.

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(i) The petitioner was appointed as a Typist-cumCopyist in respondent No.2 on 15.04.1968 and thereafter, recruited as Typist. As per the Rule 6 of the Karnataka Civil Services (Service and Kannada Language Examinations) Rules, 1974 (henceforth referred to as 'Rules, 1974'), an employee who has passed or deemed to have passed a compulsory Kannada language examination between 10.01.1974 to

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02.09.1987, was eligible for an increment. The petitioner submitted a requisition to the respondent No.3 to sanction an increment for having passed/deemed to have passed Kannada language examination. Accordingly, an order bearing No.64/2013 dated 23.11.2013 was passed sanctioning an additional increment to the petitioner with effect from 10.01.1974. However, no entry was made in the service register and no payment was made to the petitioner. Thereafter, on 18.10.2014, respondent No.3 sought clarification from respondent No.2 in respect of the increment granted to the petitioner and his other colleagues and stated in the said letter that on verification of the service register of the petitioner, it was found that the petitioner was granted one additional increment with effect from 14.08.1984 for having passed the departmental examination as per an office order dated 08.01.1986 issued by the Munsiff and JMFC, Kundgol and therefore, clarification was sought whether the petitioner and his colleagues were entitled to an additional increment. Pursuant to the said letter, respondent No.2 clarified vide letter dated 21.11.2014/01.12.2014 that the petitioner having been granted an increment once in the year 1986, similar increment

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cannot be granted to him for the second time and therefore, directed the respondent No.3 to issue an appropriate endorsement. Accordingly, respondent No.3 issued an Office Order bearing No.51/2017 dated 28.12.2017 thereby canceling the earlier Office Order bearing No.64/2013 dated 23.11.2013.

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It was also ordered to recover any amount paid to the petitioner and an entry was made in his service register. The petitioner thereafter, made a request to the respondent No.3 to re-consider and grant an additional increment with effect from 10.01.1974. This application was rejected by the respondent No.3 in terms of an Office Order bearing No.66/2018 dated 28.12.2018.

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(ii) The petitioner contends that his two other colleagues were also given an increment as per the Rule 6 of the Rules, 1974 and it was later withdrawn by respondent No.3 in view of certain office objections raised by auditor while auditing accounts of the respondent No.3 for the period of 1998-2004. Thereafter, increment was granted to the said employees as per the order passed in W.P.Nos.1229112298/1985 with effect from 06.05.1982 and subsequent pay and allowances was ordered to be worked out. Thereafter,

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some of the colleagues of the petitioner challenged an order dated 14.07.2004 before this Court in W.P.No.44275276/2004, which were allowed and this Court was pleased to set aside the order of recovery and directed the District Judge to take steps in the matter only after hearing the petitioners therein and after giving opportunity to them. Pursuant to the aforesaid order, respondent No.2 issued notices to the colleagues of the petitioner and after hearing them was pleased to grant them the benefit of Rule 6 of the Rules, 1974 and ordered the pay of the said officials to be restored. Respondent No.2 thereafter, directed the respondent No.3 to take steps for sanction of one additional increment for having passed/deemed to have passed the Kannada language examination and necessary entries were ordered to be made in their service register. The petitioner therefore, contends that he has been discriminated vis a vis his colleagues, who have been granted additional increment. Therefore, he is before this Court challenging the order passed by the respondent No.3 refusing to grant benefit of increment and prays that the earlier order dated 23.11.2013 granting benefit of increment be restored.

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The learned counsel for the petitioner reiterated the above contentions and contended that the grant of an increment for having passed/deemed to have passed Kannada language examination was automatic and therefore, the petitioner is entitled to the increment. She contends that the grant of increment for having passed the departmental examination is different than granting additional increment for having passed/deemed to have passed Kannada language examination and both cannot be compared and one cannot be scored off against the other. She therefore, submits that the impugned Order/Office Orders passed by respondent Nos.2 and 3 warrants interference.

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(i) Per contra, the respondents have filed statement of objections inter alia contending that as per Rule 6 of the Rules, 1974, an employee who is appointed to a post to which no examination is prescribed and where an employee employed in such post between 10.01.1974 to 02.09.1987, has passed or is deemed to have passed the compulsory Kannada language examination is eligible for an increment. They admit that in terms of the order dated 23.11.2013, an additional increment was granted to the petitioner for having

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passed/deemed to have passed the Kannada language examination and consequently, his pay was re-fixed. However, as per the Circular dated 12.09.2001 issued by the State Government, it was stated that a Government servant can avail the facility of grant of additional increment only once during his tenure and it cannot be granted twice and if it is done, the same shall be recovered. Therefore, on obtaining clarification from the State Government, respondent No.2 on verification of records, held that the petitioner was not entitled to two increments and hence, respondent No.3 was directed to issue necessary endorsement and consequently, respondent No.3 issued the impugned office order canceling the earlier order dated 23.11.2013. It is contended that the order issued by the respondent No.3 is in line with the earlier Government Circular dated 12.09.2001 as clarified by the respondent No.2.

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(ii) The respondent No.3 had admitted that two colleagues of the petitioner, who were also agitating the same relief, had approached this Court in W.P.No.453/2005 and connected petitions, which were disposed off in terms of an order dated 25.02.2005 directing the concerned District Judge to issue show-cause notice and hear the petitioners therein and

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thereafter pass appropriate orders. Thereafter, the Principal District Judge was pleased to sanction an additional increment to those persons. However, it is contended that in view of the Circular issued by the State Government dated 12.09.2001 referred above, the petitioner cannot compel the respondent No.3 to grant benefit to him. It is contended that no right can lie to compel performance of duty, which is proscribed by the State Government vide its Circular dated 12.09.2001.

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The learned counsel for respondents reiterated the

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above contentions and submitted that the petitioner is not entitled to an additional increment.

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I have considered the submissions of the learned

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counsel for the petitioner as well as the learned counsel for the respondents.

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Rule 6 of the Rules, 1974 reads as follows:-

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" 6. Grant of additional increments.-

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Every Government servant who has passed, who passes or who is deemed to have passed the Kannada language examination and the prescribed examinations, if any, shall notwithstanding anything contained in the Karnataka Civil Services Rules or in

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Rule 10 of the Karnataka Government Servants (Probation) Rules, 1957 and without prejudice to his right to get the normal increments be entitled to one additional increment at the rate corresponding to his position in the time scale-

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(a) in the case of a Government servant who has passed or is deemed to have passed the Kannada Language examination and the prescribed examinations, if any, before the date of commencement of these rules, from the date of commencement of these rules:

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(b) in the case of any other Government servant who passes or is deemed to have passed the Kannada language examination and the prescribed examinations, if any, from the date of passing the last of such examinations:

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Provided that no Government servant shall be allowed more than one increment under this rule during his entire service under the Government."

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It is not in dispute that the petitioner had joined the services of respondent No.2 in the year 1968 and when the Rules, 1974 came into force, the petitioner having passed his Kannada language examination in SSLC, was deemed to have passed the compulsory Kannada language examination and

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therefore, by virtue of Rule 6 of the Rules 1974, the petitioner was entitled to an increment. This increment ought to have been granted soon after Rule 6 of the Rules, 1974 came into

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force. It appears that the petitioner had passed the departmental examination after he was entitled to the increment for having passed/deemed to have passed Kannada language examination. These two increments were distinct and different. Therefore, respondent Nos.2 and 3 could not have construed these two as similar to deprive the benefit of the increment that the petitioner was entitled to. The Circular dated 12.09.2001 relied upon by the respondents apparently does not deal with the situation where an employee is entitled to an increment soon after he has passed/deemed to have passed Kannada language examination and also increment that he is entitled to after passing departmental examination. In that view of the matter, the impugned Office Orders passed by the respondent No.3 on the basis of the directive issued by the respondent No.2 warrant interference.

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Hence, the following

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ORDER

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(i) This writ petition is allowed .

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(ii) The impugned order bearing No.Accts:1514/2014 dated 21.11.2014/01.12.2014 passed by the respondent No.2 as well as the Office Order bearing No.15/2017 dated 28.12.2017 and Office Order bearing No.66/2018 dated 28.12.2018 passed by respondent No.3 are quashed.

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(iii) Consequently, the order bearing No.64/2013 dated 23.11.2013 passed by respondent No.3 is restored.

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(iv) Respondent Nos.2 and 3 are directed to pay arrears payable to the petitioner along with interest at the rate of 6% per annum from the date of entitlement till the date of payment.

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(v) This shall be done within a period of three months from the date of receipt of a certified copy of this Order.

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Sd/(R.NATARAJ) JUDGE

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PMR List No.: 19 Sl No.: 3

Fakkirappa S/O Hanamanthappa Rottigawad v. Registrar General

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Fakkirappa S/O Hanamanthappa Rottigawad v. Registrar General

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