Karnataka High Court
Union Of India vs Mr R Ravichandran on 7 March, 2013
Bench: N.Kumar, B.Manohar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 7TH DAY OF MARCH, 2013
PRESENT
THE HON'BLE MR. JUSTICE N.KUMAR
AND
THE HON'BLE MR. JUSTICE B MANOHAR
WRIT PETITION No.45073/2012(S-CAT)
Between:
1. Union of India,
By its Secretary,
Ministry of Defence,
DHQ Post,
New Delhi - 11.
2. The Director General @
Scientific Adviser to Raksha Mantri,
Defence Research @
Development organization,
Ministry of Defence,
DRDO Bhawan, Rajaji Marg,
New Delhi - 110 001.
3. The Director,
Defence Avionics Research
Establishment (DARE),
Kaggadaspura Main Road,
C.V. Raman Nagar,
Bangalore - 560 096. .....Petitioners
(By Smt.M.K.Devaki, Advocate)
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And:
Mr.R.Ravichandran,
S/o.B.Rajagopalan,
Aged 50 years,
Working as Senior Technical Assistant
DARE, Kaggadasapura Main Road,
C.V.Raman Nagar,
Bangalore,
Residing at No.11,
Ankappa Reddy Layout,
Near DRDO Phase - II,
C.V.Raman Nagar,
Bangalore - 560 093. ....Respondent
(By Sri.M.A.Sebestian, Advocate)
This Writ Petition is filed praying to quash the
impugned order passed by the CAT Bangalore Bench in
OA.No.92/11 order dated 16.4.12 copy at Annexure-A
and grant Interim order to stay the impugned order
passed by the CAT, Bangalore Bench in OA.No.92/11
dated 16.4.12 and pass such other orders.
This W.P. coming on for preliminary Hearing this
day, N.KUMAR, J, made the following:-
ORDER
The Union of India has preferred this writ petition challenging the order dated 16-04-2012 passed by the Central Administrative Tribunal directing them to issue orders granting benefit of special increment for undergoing sterilization.
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2. The respondent joined the service of Indian Air Force on 24-8-1981. He took voluntary retirement on 30-4-2001. His wife underwent sterilization operation on 17-03-1992. In terms of the Government Order dated 18-4-1979, he has been granted an incentive w.e.f. 1-4-1992 till he took voluntary retirement on 30-4-2001. The respondent was re-employed as Senior Technical Assistant in the Defence Avionics Research Establishment on 28-11-2003. On 8-10-2010, he gave a representation requesting to extend the incentive increment in terms of the order dated 4-12-1979 for his wife undergoing tubectomy operation. The same was not considered by the petitioner. He preferred O.A.No.92/2011 before the Tribunal seeking for extension of the benefit of the Government Order dated 18.4.1979. The Tribunal has passed the impugned order relying on the earlier order passed by it which has not been challenged, wherein similar relief was granted. Aggrieved by the said order, the Union is before this court.
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3. Learned counsel appearing for the petitioners assailing the impugned order contends that the employee is entitled to the benefit of incentive order dated 4-12-1979 only once in the course of his employment. After availing the said benefit, if he takes voluntary retirement, and thereafter, again enter the service in the Central Government, he is not entitled to the benefit of said incentive for the second time. Merely because in similar matters, when such directions were issued and they were not been challenged is no ground to grant the same relief, when the petitioner was not a party to those proceedings. Therefore, she submits that the impugned order requires to be set aside.
4. Per contra, learned counsel appearing for the respondent submits that Chandigarh Bench and Ernakulam Bench have taken a view that the said benefit is available for the second time on such re- employment. It is not the case of granting the same benefit for the second time, it would be continuation of the benefit granted for the first time, till he attains the age of superannuation. Therefore, he submits that the 5 order passed by the Tribunal is legal and valid and do not call for any interference.
5. While appreciating the rival contentions, it is necessary to see the terms of the order dated 4th December 1979. The aforesaid order makes it clear that the President was pleased to decide that the Central Government Employees who undergo sterilization after having two or three surviving children, may be granted a special increment in the form of personal pay not to be absorbed in future increase in pay either in the same post or on promotion to higher posts. The rate of personal pay would be equal to the amount of next increment due at the time of grant of concession and will remain fixed during the entire service. The grant of the said concession will be subject to the following conditions:
(i) The employee must be within the reproductive age group. In the case of male Central Government employee, this would mean that he should not be over 50 years and his wife should be between 20 to 45 years of age. In the case of female 6 Government employee, she must not be above 45 years and her husband must not be over 50 years of age.
(ii) The employee should have two or three living children.
(iii) The sterilization operations must be conducted and the sterilization certification must be issued by a Central Government hospital or under the auspices Central Government Health Scheme. Where this is not possible, the sterilization certificate issued by a State Government hospital or an Institution recognized by the Central Government for the purpose will suffice.
(iv) The sterilization operation can be undergone either by the Central Government employee or his/her spouse provided the conditions at Sl.No.(i) to (iii) above are fulfilled.
(v) The concession will be admissible only to the employees who undergo sterilization operation on or after the date of issue of these orders.
Therefore, from the aforesaid order, it is clear that the object of the said order is to promote small family 7 among the Central Government servants and for that purpose such an incentive is given. If one of the spouses undergo sterilization operation, then, the Central Government employee is given the benefit of a special increment in the form of personal pay. It is relevant to note that the said increment will not be absorbed in future increase in the pay either in the same post or on promotion to higher posts. Now the question is, when once such benefit is extended to the Central Government employee during his service, if he chooses to take voluntary retirement, and again gets into the Central Government employment, in the said new employment over again, is he entitled to the said benefit?
6. A reading of the aforesaid order do not indicate that such employee is entitled to the said benefit in his future employments which the Central Government employee may opt or join. This Government Order is made applicable to the employees who undergo operation after the date of the said order. The Central Government employees should be within the 8 reproductive age group and therefore all persons who are within the reproductive age group after the said Government Order who opt for sterilization operation are entitled for the benefit of special increment only once, when they are in service. Once he goes out of service in any manner, he is not entitled to the benefit of the said increment even if he again enters the Central Government service in another capacity. It is not a re- appointment and it is a case of new employment. In the earlier employment, if he had been extended the benefit of the said Government Order, he is not eligible for the benefit of the said order in the new employment which may be a re-employment. If we see the object with which, the order came to be passed, it is an incentive to promote the small family among the employees who are within the reproductive age group. He has not undergone sterilization operation after fresh appointment. Once sterilization has taken place, he has been given the incentive, the object is achieved. On re- employment he cannot contend that he still wants to maintain a small family because sterilization was done 9 earlier, and that benefit should be extended to him. That is not the object of the said scheme which the Government has made. These incentives should be construed strictly.
7. In that view of the matter, the order passed by the Tribunal is erroneous and requires to be set aside. Hence, we pass the following:
ORDER The writ petition is allowed. The impugned order is set aside.
Parties to bear their own costs.
Sd/-
JUDGE Sd/-
JUDGE mpk/-*