Karnataka High Court
Sri D Mallikarjuna vs Superintendent Of Police on 5 February, 2013
Author: N.K.Patil
Bench: N.K.Patil
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 5th day of February 2013
Present
The Hon'ble Mr. Justice N.K.PATIL
And
The Hon'ble Mr. Justice V.SURI APPA RAO
WRIT PETITION NO.25231/2009 (S-KAT)
BETWEEN:
Sri D.Mallikarjuna,
S/o Devarajappa,
Aged about 35 years,
Civil Police Constable,
C/o Manoj DVD CD Zone,
Gayathri Bhavan Circle,
Holalkere Road,
Chitradurga. ...Petitioner
(By Sri M.S.Bhagwat, Adv.)
AND:
1. Superintendent of Police,
Chitradurga District,
Chitradurga.
2. State of Karnataka,
Dept. of Personnel Administration
and Reforms,
Rep. by its Secretary,
2
Vidhana Soudha,
Bangalore - 560001.
3. Director General & Inspector
General of Police,
Bangalore.
4. Accountant General in
Karnataka, Bangalore. ...Respondents
(By Smt. Revathy Adinath Narde,
Government Pleader for R-1 to R-4)
This Writ Petition is filed under Article 226 of the
constitution of India praying to quash the order dated
7.7.2009 of Hon'ble Karnataka Administrative Tribunal
in Application No.2759/08 vide Annexure-A.
This Writ Petition coming for Hearing this day,
N.K.Patil J., made the following:-
ORDER
The petitioner is questioning the legality and correctness of the order dated 07.07.2009 passed in Application No.2759/2008 on the file of the Karnataka Administrative Tribunal, Bangalore, (hereinafter referred to as the 'Tribunal' for short), wherein the petitioner has prayed to declare that the provisions of Rule 285(1) of the Karnataka Civil Services Rules is unconstitutional and 3 ultra vires the Constitution of India and consequently, issue a writ of mandamus restraining the respondents from enforcing the said rule and to quash the order dated 03.06.2008 (Annexure 'A6') and to extend all consequential benefits including pensionary benefits to the petitioner.
2. The said application has been dismissed by the Tribunal. However the Tribunal has directed that the period from 29.02.2008 till 07.06.2008 shall be treated as the period spent on duty with all consequential benefits and the period subsequent to that till the petitioner reports for duty shall be treated as leave without allowances. Being dissatisfied with the order passed by the Tribunal, the petitioner has presented this writ petition seeking appropriate reliefs as stated supra.
3. Brief facts of the case are:
The petitioner claims that he was appointed as a civil police constable on 26.06.1996. He was discharging his duties sincerely, honestly and with utmost diligence 4 without giving room for any complaint from the higher Officers. Be that as it may, he sought for voluntary retirement on 28.11.2007 on the ground of ill-health and family difficulties. After considering the said application, the Superintendent of Police, Chitradurga District, by order No.Sibbandi (3) Sammishra/08 O.B.No.495/07-08 vide Annexure 'A1' produced along with the application, under Rule 285(1)(a) of the Karnataka Civil Services Rules, granted permission to voluntarily retire from service with effect from 29.02.2008 and he was relieved on the afternoon of 29.02.2008. When the said papers were forwarded to the Accountant General, it was pointed out that minimum period to qualify for pension on voluntary retirement under Rule 285(2) was 15 years of qualifying service and not 10 years and the petitioner having completed only 11 years 5 months of service as on the date of the voluntary retirement application, was not entitled for pensionary benefits. On the basis of the same, Superintendent of Police, Chitradurga, by its order dated 5 03.06.2008 cancelled the order by which the petitioner was permitted to voluntarily retire with effect from 29.02.2008.
The said order has been challenged by the petitioner on two grounds. The first ground is that the Rules requiring 15 years of qualifying service for pension on voluntary retirement is discriminatory and ultra vires the Constitution of India. The second ground is that the permission having already been granted could not have been withdrawn without notice to the petitioner.
4. The said matter had come up for consideration before the Tribunal. The Tribunal after hearing the learned Counsel for the petitioner and the learned Government Pleader appearing for the respondents and after perusal of the relevant records and following the order of the Tribunal in the case of Geethalakshmi Vs. State & Ors. (1994 KSLJ 53), dismissed the application filed by the petitioner and observed that the period from 29.02.2008 till 07.06.2008 shall be treated as the period spent on duty with all consequential benefits and the 6 period subsequent to that till the petitioner reports for duty shall be treated as leave without allowances. Being dissatisfied with the order passed by the Tribunal, the petitioner has presented this writ petition.
5. Submission of the learned Counsel appearing for the petitioner, Sri M.S.Bhagwat, at the outset is that the Tribunal is not justified in declining the relief sought for by the petitioner in the application. It is not in dispute that the petitioner filed the application seeking voluntary retirement on ill-health and family problems and the same was accepted by the Superintendent of Police, Chitradurga and was permitted to retire exercising the powers under Rule 285 (1)(a) of the Karnataka Civil Services Rules with effect from 29.02.2008. That order has been reluctantly withdrawn on the sole ground that the Accountant General has raised objection that he has not completed 15 years of qualifying service to take voluntary retirement and that he has completed only 11 years 5 months. He further 7 submitted that if he was given an opportunity, he might have substantiated that he is entitled for voluntary retirement, as the case of similarly situated persons who had opted for Voluntary Retirement has been considered and accepted in the light of the Government Order dated 22.10.2007 bearing No.FD 06/SRA-2003. This aspect has not been looked into nor considered by the Tribunal. The Tribunal has proceeded to decline the relief sought for by the petitioner and the same cannot be sustained and is liable to be set aside.
6. Per contra, the learned Government Pleader appearing for the respondents inter alia substantiated the impugned order passed by the Tribunal. The Tribunal after due consideration of the relevant material on record observed that the petitioner has completed 11 years five months of service and the same cannot be equated to 15 years of qualifying service to take voluntary retirement. Therefore, the same has been rightly accepted by the 8 Tribunal and has declined to grant the relief. However, the Tribunal has taken a sympathetic view by treating the period from 29.02.2008 till 07.06.2008 as the period spent on duty with all consequential benefits. She further submitted that by the Government Order dated 22.10.2007 the petitioner is not entitled to the benefit of voluntary retirement and the same is not applicable to him. Therefore, interference by this Court is not called for.
7. After considering the submissions made by the learned Counsel for both the parties and after perusal of the impugned order passed by the Tribunal, it is manifest on the face of the order that there is no error muchless material irregularity resulting in miscarriage of justice as such against the petitioner. It is significant to note that as per Rule 285(2) of the Karnataka Civil Services Rules, the employee is entitled to take voluntary retirement only if he/she completes 15 years of qualifying service and not ten years. In the instant case, it is not disputed that the 9 petitioner has completed only 11 years 5 months of service. The objection has been raised by the Accountant General that the petitioner has not completed 15 years of service.
8. It is the case of the petitioner that the respondents ought to have given five years weightage as per Rules. If that is the case, the petitioner ought to have given a representation to that effect to the authorities concerned. Without doing so, the petitioner has unilaterally questioned the correctness of the order dated 07.07.2009 passed by the Tribunal in this writ petition. Therefore, the Tribunal is justified in dismissing the application by declining the relief sought for and taking the period from 29.02.2008 to 07.06.2008, as the period spent on duty with all consequential benefits.
10
9. It is needless to clarify that there is no impediment for the petitioner to submit a representation along with consolidated statement of facts along with necessary Government Order/Circulars including Rules giving weightage of 5 years for taking voluntary retirement, which benefit was given to similarly situated persons who opted for voluntary retirement. The representation shall be given by the petitioner within two weeks from the date of receipt of a copy of this order.
10. On receipt of such representation, the third respondent is directed to dispose of the same without being influenced by the observations made by the Tribunal in accordance with law and after affording reasonable opportunity of hearing to the petitioner, as expeditiously as possible but not later than six months from the date of receipt of such representation. 11
With these observations, the writ petition stands disposed of.
Learned Government Pleader is permitted to file memo of appearance within three weeks.
Sd/-
JUDGE Sd/-
JUDGE JT/-