Karnataka High Court
Raghu S vs The State Of Karnataka on 26 May, 2022
Author: Alok Aradhe
Bench: Alok Aradhe
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF MAY 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MS.JUSTICE J.M. KHAZI
W.P. NO.10019 OF 2021 (S-RES)
BETWEEN:
1. RAGHU .S
S/O DR. H. SANJEEVAPPA
AGED ABOUT 59 YEARS
EXECUTIVE ENGINEER
DESIGN, CAUVERY BHAVAN
BENGALURU-560009
R/O NO.701, 5TH BLOCK
SIR. M.V. LAYOUT, ULLAL
BENGALURU-590056.
2. R. RAMESH
S/O G. RANGASWAMAIAH
AGED ABOUT 59 YEARS
EXECUTIVE ENGINEER (M)
CENTRAL DIVISION
HIGH GROUNDS, BENGALURU-560020
R/O NO.47, 5TH CROSS, II MAIN
BALAJI LAYOUT, VIDYARANYAPURAM
BENGALURU-560097.
3. DHANAJAYA .K
S/O GUNDURAO K
AGED ABOUT 59 YEARS
EXECUTIVE ENGINEER
STP CHALLAGHATTA VALLEY
SHIMSHA BHAVAN
2
BENGALURU-560070
R/O NO.36, HARIDASA NAGAR
BEML LAYOUT, 3RD STAGE
R.R. NAGAR, BENGALURU-560098.
4. N.B. MALLIKARJUNA
S/O N.M. BASAVARAJU
AGED ABOUT 55 YEARS
EXECUTIVE ENGINEER
(M) NW-2, DIVISION
SUVARNA BHAVANA, IST FLOOR
18TH CROSS, MALLESHWARAM
BENGALURU-560055
R/O 2ND MAIN ROAD
SHANKARA SANNIDI ROAD
SRIGANDADAKAVAL 2ND STAGE
NAGARBHAVI, BENGALURU-560091.
5. K.R. SATISH CHANDRA
S/O K.N. RAMAPPA
AGED ABOUT 52 YEARS
EXECUTIVE ENGINEER
DESIGN, CAUVERY BHAVAN
BENGALURU-560009
R/O NO.1079, 12TH MAIN, II STAGE
WEST OF CHORD ROAD
MAHALAKSHMIPURAM
BENGALURU-560086.
6. K.C. RAJASHEKAR
S/O K. CHANDRASHEKAR
AGED ABOUT 59 YEARS
EXECUTIVE ENGINEER
(K-1) DIVISION, 4TH BLOCK
JAYANAGARA, KAPILA BHAVANA
BENGALURU-560041
R/O NO.384/4/1, ASLV FLAT NO.116
IST FLOOR, D GROUP LAYOUT
GIDADKONENAHALLI, MARIGOWDA CIRCLE
BENGALURU-560091.
7. SATISH REDDY
S/O V. THIMMAREDDY
AGED ABOUT 57 YEARS
3
EXECUTIVE ENGINEER
(WWM-110V)-1
SUVARNA BHAVANA, 18TH CROSS
MALLESHWARAM, BENGALURU-560055
R/O NO.1751, SIR. M.V. LAYOUT
I BLOCK, KENGERI SATELLITE TOWN
BENGALURU-560056.
8. B. NAGENDRA
S/O K.H. BORALINGAIAH
AGED ABOUT 54 YEARS
EXECUTIVE ENGINEER
(M) SOUTH DIVISION
4TH BLOCK, JAYANAGAR
BENGALURU-560041
R/O NO.152, 5TH CROSS
29TH MAIN, SECTOR NO.1
HSR LAYOUT, BENGALURU-560102.
9. DEEPAK K.V.
S/O K.N. VENKATESH
AGED ABOUT 54 YEARS
EXECUTIVE ENGINEER (N)
NORTH DIVISION
PINAKINI BHAVANA, YELHANKA
BENGALURU-560004
R/O NO.105, 13TH MAIN, 29TH B CROSS
4TH BLOCK, JAYANAGAR
BENGALURU-560004.
10. PRADEEP B. KUCHHANGI
S/O K.R. BASAVARAJU
AGED ABOUT 53 YEARS
EXECUTIVE ENGINEER (WWM)
110V-3, 4TH BLOCK
JAYANAGARA, BENGALURU-560041
R/O NO.558, 9TH MAIN
M C LAYOUT, VIJAYANAGAR
BENGALURU-560040.
11. N. LAKSHMIPRABHA
W/O K. RANGARAJ
AGED ABOUT 51 YEARS
MANAGER
4
OFFICE OF THE EXECUTIVE ENGINEER
(WWM) 110V-2
SUVARNA BHAVANA, 18TH CROSS
MALLESHWARAM, BENGALURU-560055
R/O NO.75, IST FLOOR, 6TH MAIN
17TH CROSS, MALLESHWARAM
BENGALURU-560057.
12. VITTAL KUMAR
S/O LATE PRAMOD
AGED ABOUT 49 YEARS
METER READER
GROUND FLOOR-1, BWSSB QUARTERS
KODICHIKKANA HALLI, ROTARY NAGAR
BENGALURU-560076.
... PETITIONERS
(BY MR. ASHOK HARNAHALLI, SR. COUNSEL FOR
MR. SHIVAPRASAD SHANTANGOUDAR, ADV.,)
AND:
1. THE STATE OF KARNATAKA
URBAN DEVELOPMENT DEPARTMENT
VIDHANA SOUDHA, BENGALURU-560001
REP. BY ITS PRINCIPAL SECRETARY.
2. THE BANGALORE WATER SUPPLY
AND SEWERAGE BOARD
IST FLOOR, CAUVERY BHAVANA
KEMPEGOWDA ROAD
BENGALURU-560009
REP. BY ITS CHAIRMAN.
... RESPONDENTS
(BY MRS. VANI H, AGA FOR R1
MR. B.L. SANJEEV, ADV., FOR R2)
---
THIS W.P. IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH REGULATION NO.4
IN THE BANGALORE WATER SUPPLY AND SEWERAGE BOARD
5
(ABSORPTION OF ENGINEERS AND MINISTERIAL STAFF ON
DEPUTATION BASIS IN BANGALORE WATER SUPPLY AND
SEWERAGE BOARD REGULATIONS, 2008, IN SO FAR IT DENIES
CONSIDERATION OF PAST SERVICE OF PETITONERS BEFORE
ABSORPTION TO BWSSB IN FIXING THEIR PAY SCLE AND
PENSIONARY BENEFITS, AS BEING VIOLATIVE OF ARTICLE 14,
16(1) AND 21 OF THE CONSTITUTION OF INDIA. DIRECT THE R1
AND R2 BWSSB TO CONSIDER THE PAST SERVICE OF THE
PETITIONERS BEFORE ABSORPTION WHILE FIXING THEIR PAY
SCALE AND PENSIONARY BENEFITS AS PER THE OLD PENSION
SCHEME WHICH WAS IN FORCE AT THE TIME OF THEIR
DEPUTATION OF BWSSB.
THIS W.P. COMING ON FOR PRELIMINARY HEARING IN 'B'
GROUP, THIS DAY, ALOK ARADHE J., MADE THE FOLLOWING:
ORDER
In this writ petition, the petitioners have assailed the validity of Regulation 4 of the Bangalore Water Supply and Sewerage Board (Absorption of Engineers and Ministerial Staff on Deputation basis in Bangalore Water Supply and Sewerage Board) Regulations, 2008 (hereinafter referred to as 'the Regulations' for short) insofar as it denies consideration of past service of the petitioners before absorption to the services of Bangalore Water Supply and Sewerage Board (hereinafter referred to as 'the Board' for short) as being violative of Article 14 and Article 16 of the 6 Constitution of India. The petitioners also seek a writ of mandamus directing the board to consider the past services rendered by the petitioners before absorption of their services by fixing pay scale and pensionary benefits as per the Old Pension Scheme, which was in force at the time of deputation to the Board.
2. Facts giving rise to filing of this petition briefly stated are that the petitioners were initially recruited by the Karnataka State Construction Corporation (hereinafter referred to as 'the Corporation' for short), which is a Government of Karnataka Undertaking. The Board needed to enhance its work force due to formation of Bruhat Bangalore Mahanagara Palike (hereinafter referred to as 'the BBMP' for short). Therefore, the petitioners vide communication dated 28.07.2004, were deputed to the Board after receiving their consent. The corporation vide communication dated 03.08.2004 granted its consent for deputation of the services of the petitioners.
3. The Board decided to absorb the services of the employees of the Corporation who were sent on deputation 7 to the Board. Accordingly, regulations were enacted and published in the gazette on 11.05.2009. Regulation 4 of the Regulations provided that salary of the deputationists shall be fixed at the minimum of pay scale applicable to the category of the post on which such a deputationist was absorbed. The aforesaid Regulation further provides that services rendered by the deputationists prior to the date of absorption shall not be taken into consideration for the purposes of pay, seniority, grant of selection, time scale of pay and pensionary benefits. The petitioners submitted a representation to the Board to consider their past services by fixing their pay scale. However, the representations submitted by the petitioners failed to evoke any response. In the aforesaid factual background, this petition has been filed.
4. Learned Senior counsel for the petitioners submitted that though the petitioners were deputed to the Board with their consent, however, the decision to absorb their services in the Board has been taken unilaterally by enacting the Regulations. It is further submitted that Regulation 4 of the Regulations is arbitrary and is violative of 8 the constitutional rights guaranteed under Articles 14 and 16 of the Constitution of India. It is further submitted that pari materia provision viz., Rule 4 of Karnataka Municipal Corporations (Absorption of Assistant Engineers / Junior Engineers appointed on deputation basis in Bruhath Bangalore Mahanagara Palike (Special) Rules, 2011 (hereinafter referred to as 'the Rules' for short) was challenged by the Assistant Engineers of the Corporation who were absorbed by the BBMP. It is pointed out that the said Rule was partly quashed by a bench of this court vide order dated 26.07.2016 passed in W.P.No.12050-53/2013 and 12055-58/2013, and that the Rule insofar as it pertains to fixation of pay of the employees at the minimum of pay scale on absorption of service by ignoring their past services was struck down. It is pointed out that the aforesaid Rule insofar as it provided for fixation of seniority on absorption was upheld. It is also pointed out that the aforesaid decision was accepted by the State Government as well as the BBMP and that the same has attained finality. It is therefore, contended that on the basis of the reasons provided in the said judgment, the petitioners are entitled to parity in the matter 9 of fixation of pay and other benefits. It is also urged that the Regulation 4(3) insofar as it disentitles the petitioners of the benefit of the old pension scheme is arbitrary. However, it is fairly contended that the petitioners are not assailing the Rule insofar as it deprives them the benefit of seniority with reference to past services rendered by them. In support of aforesaid submissions, reliance has been placed on decisions in 'STATE OF KARNATAKA & ANR. VS. TN SURAPPA', W.P.NO.23793/2001 DECIDED ON 29.11.2001, 'K.ANJAIAH ETC VS. K.CHANDRAIAH & ORS. AIR 1998 SC 1202, 'SI ROOPLAL & ANR. VS. LT. GOVERNOR, DELHI & ORS', AIR 2000 SC 594, 'K.MADHAVAN & ANR. VS. UNION OF INDIA', AIR 1987 SC 2291.
5. On the other hand, learned Additional Government Advocate submitted that the petitioners have been sent on deputation with their consent as is evident from the communication dated 03.08.2004 sent by the Corporation to the Board and therefore, the petitioners cannot be permitted to challenge the validity of the Rules. It is further submitted that until and unless the memo dated 10 09.06.2009 is challenged by the petitioners, no relief can be granted to them. In support of aforesaid submissions, learned Additional Government Advocate has referred to a decision of the Supreme Court in 'MRIGANK JOHRI AND OTHERS VS. UNION OF INDIA AND OTHERS', (2017) 8 SCC 256. Learned counsel for respondent No.2 has adopted the submissions made by learned Additional Government Advocate and has submitted that the petitioners ought to have challenged the memorandum dated 09.06.2009. However, fairly it is admitted that a pari materia provision contained in the Rules has been quashed by a bench of this court and the aforesaid decision has been accepted by the respondents therein.
6. We have considered the submissions made by learned counsel for the parties and have perused the record. It is pertinent to note that the petitioners were sent on deputation after obtaining their consent as is evident from the communication dated 03.08.2004 sent by the Corporation to the Board. However, subsequent thereto, the Corporation framed the Regulations by which the benefit of 11 past services was denied to the petitioners. Before proceeding further, we may advert to Rule 4 of the Rules, which reads as under:
4. Pay, Pension, Leave and Seniority of Persons absorbed under these regulations.
Notwithstanding anything contained in the rules or regulations governing the salary allowances and conditions of service of the employees of the Board:
(i) the initial basic pay of a deputation engineer or a ministerial staff absorbed under these rules shall be fixed at a minimum of the pay scale applicable to the category of post to which he is absorbed under Rule 3.
(ii) the services rendered by a person as deputation engineer or a ministerial staff prior to the date of absorption shall count for the purpose of leave, pension, but not for the purpose of pay and seniority and grant of selection time scale of pay under the Karnataka Civil Services (Time Bound Advancement) Rules, 1983 or for grant of selection time scale of pay under the Karnataka Civil Services (Automatic grant of special promotion to the senior scale of pay Rules, 1991) 12 and additional increment for having completed twenty years of service in a single cadre.
(iii) As regards pension and other retirement benefits they shall be governed by terms and conditions as stipulated in Government order No.FD (Spl) 04 PET 2005, dated 31.03.2006 i.e., New Defined Contributory Pension scheme introduced w.e.f. 01.04.2006.
7. Thus, the aforesaid Regulation envisages that pay of the petitioners shall be fixed at a minimum of pay scale and the past services rendered by the petitioners shall be counted only for the purposes of leave and pension but not for the purpose of fixation of pay, seniority and grant of selection time scale of pay under the Karnataka Civil Services (Time Bound Advancement) Rules, 1983 or for Grant of Selection Time Scale of Pay under Karnataka Civil Services (Automatic Grant of Special Promotion to Senior Scale of Pay Rules, 1991) and additional increment for having completed twenty years of service in a single cadre. Rule 4(3) of the Rules mandates that the petitioners shall be entitled to the benefit of new defined contributory pension scheme w.e.f. 13 01.04.2006. In other words, the benefit of old pension scheme to which the petitioners were entitled has denied.
8. It is pertinent to note that right to receive pension has been held to be a right to property protected under Article 300A of the Constitution of India. [See: 'STATE OF WEST BENGAL VS. HARESH C BANERJEE AND OTHERS', (2006) 7 SCC 651 and 'DR. HIRA LAL VS. STATE OF BIHAR AND ORS.,', (2020) 4 SCC 346]. Admittedly, the petitioners were entitled to receive pension under the Old Pension Scheme. A constitution bench of the Supreme Court in 'RAILWAY BOARD VS.
C.R.RANGADHAMAIAH', (1997) 6 SCC 623 has held that an amendment which takes away a benefit already available to an employee under the existing Rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 & 16 of the Constitution of India. In view of aforesaid enunciation of law by the Supreme Court, the provisions of the Regulation 4(3) insofar as it deprives the benefit to the petitioners of the old pension scheme are held to be arbitrary and violative of the rights guaranteed to the 14 petitioners under Articles 14 and 16 of the Constitution of India.
9. The Supreme Court in SUB INSPECTOR ROOPLAL AND ANOTHER VS LT. GOVERNOR (2000) 1 SCC 644 while dealing with a dispute of seniority amongst the employees of Delhi Special Police Establishment Act and in particular with regard to the claim of seniority by a deputationist held in para 21 as under:
In other words, deputation may be regarded as a transfer from one government department to another. It will be against all rules of service jurisprudence, if a government servant holding a particular post is transferred to the same or an equivalent post in another government department, the period of his service in the post before his transfer is not taken into consideration in computing his seniority in the transferred post. The transfer cannot wipe out his length of service in the post from which he has been transferred. It has been observed by this Court that it is a just and wholesome principle commonly applied where persons from different sources are drafted to serve in a new service that their pre-existing total length of service in the parent department should 15 be respected and presented by taking the same into account in determining their ranking in the new service cadre.
10. Absorption of services of an employee ensures continuity of service without any interruption. The thread which connects the old employment with the new employment is the legality of the employment. Normally, the absorption is resorted to after transfer or deputation and an employee whose services has been absorbed should be treated as transferred or deputed from one post to another post so that there is no break in service.
11. The Supreme Court in RS MAKASHI V IM MENON AIR 1982 SC 101 had indicated that it is just and wholesome principle commonly applied to persons coming from different sources and drafted to serve a new service to count their pre-existing length of service for determining their rank in the new service cadre.
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 16 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 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.
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, 17 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.
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 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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In the result, the petition succeeds and is hereby allowed.
Sd/-
JUDGE Sd/-
JUDGE SS