Karnataka High Court
Sri S Mariswamy vs State Of Karnataka on 18 December, 2024
Author: S Sunil Dutt Yadav
Bench: S Sunil Dutt Yadav
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NC: 2024:KHC:52284
WP No. 28601 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE S SUNIL DUTT YADAV
WRIT PETITION NO. 28601 OF 2024 (S-RES)
BETWEEN:
1. SRI S MARISWAMY
S/O LATE SIDDAIAH
AGED ABOUT 62 YEARS
R/AT ANNAPOORNA HOMES,
5TH CROSS, HEMMIGEPURA WARD
C .V. RAMAN ROAD,
KODIMALLYA, KENGERI - 560 060.
2. SRI RAMEDH D. BELACHADA
S/O DORMA BELACHADE
AGED ABOUT 62 YEARS
R/ATNO 4-104 (1)
MOODALAKATTE TONSE EAST
UDUPI - 576 114.
Digitally signed 3. SRI RAMESH POOJARY
by VIJAYA P
Location: S/O LATE MANSA POOJARY
HIGH COURT
OF AGED ABOUT 62 YEARS,
KARNATAKA
R/AT NO 3-50 , AIKALA POST,
MANGALURU TALUK,
MANGALURU - 574 141.
...PETITIONERS
(BY SRI. I. THARANATH POOJARY SENIOR COUNSEL FOR
SMT. VEENA T.N.,ADVOCATE)
AND:
1. STATE OF KARNATAKA
REP BY ITS PRINCIPAL SECRETARY,
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WP No. 28601 of 2024
DEPARTMENT OF VETERINARY
AND ANIMAL HUSBANDRY
VIKASA SOUDHA
BENGALURU - 560 001.
2. KARNATAKA VETERINARY
ANIMAL FISHERIES SCIENCES UNIVERSITY
REP., BY ITS REGISTRAR
NANDINAGAR, BIDAR - 585 226.
3. THE ADMINISTRATIVE OFFICER
KARNATAKA VETERINARY
ANIMAL FISHERIES SCIENCES UNIVERSITY
NANDINAGAR, BIDAR- 585 226.
4. THE DEAN
KARNATAKA VETERINARY
ANIMAL FISHERIES SCIENCES UNIVERSITY
VETERINARY COLLEGE, HEBBAL,
BENGALURU - 560 021.
5. THE DEAN
KARNATAKA VETERINARY
ANIMAL FISHERIES SCIENCES UNIVERSITY
COLLEGE OF FISHERIES
MANGALORE - 575 002.
...RESPONDENTS
(BY SRI. G.J.ARUN, AGA FOR R-1;
SMT. VAISHALI HEGDE, ADV., FOR R2 TO R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
COMMANDING THE RESPONDENTS TO SETTLE THE BACK
WAGES AND OTHER CONSEQUENTIAL BENEFITS TO THE
PETITIONERS IN TERMS OF THE ORDER OF APPOINTMENT DTD
01.07.2017 MADE IN NO. ISSUED BY THE R2 PER ANNX-A.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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WP No. 28601 of 2024
CORAM: HON'BLE MR JUSTICE S SUNIL DUTT YADAV
ORAL ORDER
Petitioners who are employees of respondent No.2 having attained superannuation have filed the present petition seeking for a writ in the nature of mandamus to direct the respondents to settle the backwages and other consequential benefits to the petitioners in terms of the appointment order dated 01.07.2017 at Annexure-A. Petitioners have also sought for appropriate writ to declare that the petitioners are entitled to benefits under the old pension scheme in terms of the Government Order dated 31.3.2006. The petitioners have also sought for quashing of the communication dated 19.12.2023 issued by the respondent No.1/State and have sought for setting aside of the endorsement at Annexure-C issued by the respondent No.2, whereby the claims of the petitioners for old pension scheme has been rejected.
2. It is the case of the petitioners that they were initially working on daily wage basis and subsequently -4- NC: 2024:KHC:52284 WP No. 28601 of 2024 regularized as per order dated 01.07.2017 at Annexure-A and in terms of such order the petitioners were directed to be regularized from the date mentioned in the said order, which dates were prior to 01.04.2006 and accordingly, it is submitted that petitioners are entitled for benefit of the old pension scheme.
3. Attention is drawn to the proceedings of the Government of Karnataka dated 31.03.2006 at Annexure- K where there is a reference that new pension system would be applicable to new entrants in Central Government joining Government service on or after 01.01.2004. Further in the same proceedings it is resolved that New Defined Contributory Pension Scheme shall be mandatory to all new recruits to the State Government service joining on or after 01.04.2006. Thus, it is pointed out that in terms of the said proceedings the applicability of a new pension scheme is only for new recruits joining services on or after 01.04.2006.
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4. It is submitted that in light of the order of regularization relating back to the date on which they had completed 10 years, all of which dates were prior to cut of date of 01.04.2006, the petitioners are entitled for benefits under the old pension scheme and cannot be equated to new recruits.
5. Further, it is submitted that the order of regularization cannot be reinterpreted, as in the order of regularization the service benefit is from the date of they having completed 10 years of service which date is enumerated in column No.4 of the order of regularization.
6. That apart, learned Senior Counsel appearing for the petitioners makes out a ground of parity and submits that many of the employees who were working as daily wagers after 01.07.1984 as well, were extended the benefit of old pension scheme and relies on various documents to such effect and submits that there cannot be discrimination of similarly placed persons. -6-
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7. Attention is also drawn to the recommendation of the University at Annexures-H and W, wherein University itself which is appointing authority had recommended for extension of old pension scheme to persons as such of the petitioners.
8. Learned AGA appearing for the respondents has placed reliance on the statement of objections and contentions urged are;
(1) that the petitioners were not eligible to be regularized as they have joined services after 01.07.1984;
(2) that in the 78th meeting of the Board of management of the University the ex-officio representatives were absent and were unaware of the decision taken;
(3) that the University had only extended benefits of old pension scheme to those employees who were appointed before 01.10.1984.
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9. Learned counsel for the University submits that the correspondences made by the University to the Government were part of the records and leaves it to the Court to take appropriate decision in terms of the their correspondences addressed to the Government at Annexure-H.
10. Heard learned counsel appearing for both sides.
11. It must be noticed that admittedly the order of regularization at Annexure-A passed on 01.07.2017, as regards the petitioners, has been passed with a specific observation that "ಸದ ೌಕರರು ಹು ೆಯ ಮೂಲ ೇತನದ ೊ ೆ ೆ ಾಲ ಾಲ ೆ ಗ ಪ ಸುವ ಇತ"ೆ ಭ ೆ$ಗಳನು& ಸಕ'ಮ ೊಂಡ ಾಂಕ ಂದ ಪ*ೆಯಲು ಅಹ, ರು ಾ-"ೆ .ಾಗೂ ಈ ಾಗ0ೇ ವೃ2- .ೊಂ ದ ೌಕರರು ಸಕ'ಮ ೊಂಡ ಾಂಕ ಂದ ಅನ3ಯ ಾಗುವಂ ೆ 4ೌಲಭ$ವನು& ಪ*ೆಯಲು ಅಹ,"ಾ5ರು ಾ-"ೆ".
12. It is evident that the petitioners were entitled for benefits from the date on which they were regularized. The table extracted in the order of regularization at -8- NC: 2024:KHC:52284 WP No. 28601 of 2024 Annexure-A at column No.4 mentions the effective date of regularization.
13. Insofar as the petitioner No.1 whose name is found at Sl.No.6 the date on which he is regularized is 20.02.1997. The petitioner No.2 has been regularized w.e.f. 01.01.1998 and the petitioner No.3 has been regularized w.e.f. 1.08.1998. Unequivocally, the order of regularization would indicate that the orders regularizing their services would date back to the year 1997 and 1998.
14. Perusal of the Government Order at Annexure-K relating to adoption of new pension scheme would make it clear in the operative portion at point No.1 that the New Defined Contributory Pension Scheme would be applicable to all new recruits of the State Government service joining after 01.04.2006. Point No.1 of the said order is extracted as below;
"(1) The New Defined Contributory Pension Scheme shall be mandatory to all new recruits to the State Government service joining on or after 01.04.2006. The monthly contribution -9- NC: 2024:KHC:52284 WP No. 28601 of 2024 shall be 10% of Basic Pay and Dearness Allowance thereon to be paid by the employee and matched by the State Government in equal proportion. However, there shall be no contribution from the Government in respect of individuals who are not State Government employees."
15. In light of the same, it cannot be stated that the petitioners were new recruits who have joined services after 01.04.2006. If the date of regularization has conferred service benefits with effect from the year 1997 and 1998, such conferment of benefit with retrospective effect, cannot be defeated by any stand of the Government contrary to the order of the regularization. Further, the order of regularization is also not to be treated as conferring retrospective benefits, but an order recognizing the legal entitlement with effect from completion of 10 years from date of joining. If that is the nature of order passed by regularizing temporary daily wage worker, the petitioners are entitled for service benefits from the year 1997 and 1998.
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16. Insofar as the contention regarding parity is concerned, it is seen that in terms of Annexure-R, employee-Sri. Y.N.Narasimhamurthy who was regularized w.e.f. 01.01.1997 with order of regularization being passed on 12.09.2013 has been conferred benefit under the old pension scheme. This fact is not controverted by the State and it is made clear by the pay-slip. Insofar as the other employees who are similarly placed as that of the petitioners in the case of Chandrappa who again has been regularized w.e.f. 01.09.2000, has also been conferred benefit of old pension scheme. There are other cases as well, as is made out from Annexure-T, of employees who have been regularized w.e.f 29.11.1997, 20.07.2002 and 01.06.1996 have also been extended the benefit of old pension scheme as is evident from Annexure-V. Accordingly, on the ground of parity as well the petitioners are entitled for the same relief.
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17. The contention of the State that University had extended old pension scheme benefits only for those who had joined service before 01.07.1984 cannot be accepted. In effect, the State in the statement of objections is seeking to call in question the validity of order on regularization which is impermissible and the State is estopped once approval has been granted by the Financial Comptroller on 29.06.2013, from taking up such contention.
The order at Annexure-A having been passed on 01.07.2017, it is impermissible for the Government at this stage to contend the petitioners were not entitled for the regularization.
18. The other contention taken by the State is that these employees have joined the services after 01.04.2006. Needless to state the order of regularization at Annexure-A referred to above is clear that all benefits are conferred from the date of regularization, i.e. in the year 1997 and 1998. Obviously, such of the employees
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NC: 2024:KHC:52284 WP No. 28601 of 2024 whose services were regularized would have the service benefits dating back to the completion of 10 years in 1997 and 1998 and accordingly, cannot by any stretch of imagination be construed to be new recruits.
19. In light of the above discussion, the communication of the respondent No.1 at Annexure-B is set aside and the endorsement at Annexure-C which is consequential to the direction of the Government at Annexure-B requires to be set aside. In light of setting aside of the communication and endorsement at Annexure
-B as well as Annexure-C, the proposal of the University at Annexure-H is required to be considered by the Government and necessary orders in this regard be passed within a period of three (3) months from date of the receipt of the certified copy of this order.
20. In light of the observation and discussion made above, it is made clear that no fresh contention is permitted to be adverted to defeat the claims of the
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NC: 2024:KHC:52284 WP No. 28601 of 2024 petitioners as the objections by the State as contained in the statement of objections have been dealt with.
21. Insofar as the contention of the petitioners that backwages and other benefits as would flow from the order at Annexure-A dated 01.07.2017 which has not been extended to the petitioners, the petitioners are at liberty to make a fresh representation and the same shall be considered appropriately.
Accordingly, writ petition is disposed off.
Sd/-
(S SUNIL DUTT YADAV) JUDGE RU List No.: 1 Sl No.: 14