Karnataka High Court
Sri Srinivasa vs The Deputy Commissioner on 24 July, 2020
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 24TH DAY OF JULY, 2020
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO. 3283/2020 (S-RES)
C/W
WRIT PETITION NOS. 2488/2019, 2489/2019,
2490/2019 (S-RES)
IN W.P.NO. 3283/2020:
BETWEEN:
SRI SRINIVASA,
S/O SRI HULUGIAH,
AGE 50 YEARS,
MALI, GROUP -D,
TIME SCALE EMPLOYEE,
WORKING AS DISPATCH CLERK (OOD),
ZONE-2, MYSURU CITY CORPORATION,
MYSURU-570001.
R/A DOOR NO.74,
ARVINDANAGAR, 6TH CROSS,
MYSURU-570023.
... PETITIONER
(BY SRI. VIJAY SIMHA REDDY D V, ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER,
MYSURU DISTRICT,
MYSURU-570001.
2. THE COMMISSIONER,
MYSURU CITY CORPORATION,
MYSURU-570001.
... RESPONDENTS
(BY SRI.P B ACHAPPA, AGA FOR R1;
SMT. M P GEETHADEVI, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL
FOR RECORDS PERTAINING TO THE IMPUGNED
ENDORSEMENT DATED 13.02.2019 ANNEXURE-D AND
ANOTHER IMPUGNED ENDORSEMENT DATED 31.08.2019
2
ANNEXURE-M AND THE IMPUGNED OFFICIAL
MEMORANDUM DATED 18.12.2019 ANNEXURE-V ALL
PASSED BY THE R-2 AND SET ASIDE THE SAID IMPUGNED
ENDORSEMENTS AND THE SAID OFFICIAL MEMORANDUM IN
SO FAR IT RELATES TO THE PETITIONER AND DIRECT THE
RESPONDENTS TO CONTINUE THE PETITIONER TILL HE
ATTAINS THE AGE OF 60 YEARS ON THE BASIS OF HIS
CORRECT DATE OF BIRTH AS 15.10.1969 AND TO EXTEND
ALL CONSEQUENTIAL BENEFITS ARISING THERETO.
IN W.P.NO.2488/2019:
BETWEEN:
SRI H SHIVAKUMAR SWAMY,
S/O SRI HULIAIAH,
AGE 50 YEARS,
MALI, GROUP-D,
TIME SCALE EMPLOYEE,
POVERTY ERADICATION SECTION,
MYSURU CITY CORPORATION,
MYSURU-570001.
R/AT #363, 18TH MAIN,
D BLOCK, JP NAGAR,
MYSURU CITY,
MYSURU-570031.
... PETITIONER
(BY SRI. VIJAYA SIMHA REDDY D V, ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER,
MYSURU DISTRICT,
MYSURU -570001.
2. THE COMMISSIONER,
MYSURU CITY CORPOTATION,
MYSURU-570 001.
... RESPONDENTS
(BY SRI. P B ACHAPPA, AGA FOR R1;
SMT. M P GEETHADEVI, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL
FOR RECORDS PERTAINING TO THE IMPUGNED
ENDORSEMENT DATED 03.12.2018 (ANNEXURE-Q) AND THE
IMPUGNED OFFICIAL MEMORANDUM DATED 14.12.2018
(ANNEXURE-S) BOTH PASSED BY THE R-2 AND SET ASIDE
HE SAID IMPUGNED ENDORSEMENT AND THE SAID
3
OFFICIAL MEMORANDUM IN SO FAR IT RELATES TO THE
PETITIONER AND DIRECT THE RESPONDENTS TO CONTINUE
THE PETITIONER TILL HE ATTAINS THE AGE OF 60 YEARS,
ON THE BASIS OF HIS CORRECT DATE OF BIRTH AS
06.07.1968 AND TO EXTEND ALL CONSEQUENTIAL BENEFITS
ARISING THERETO.
IN W.P.NO.2489/2019:
BETWEEN:
SRI MAHADEVU,
S/O SRI PUTTAMADAIAH,
AGED 51 YEARS, MALI,
GROUP-D TIME SCALE EMPLOYEE,
HORTICULTURE SECTION,
MYSURU CITY CORPORATION,
MYSURU-570 001.
R/A C/O NO.363,18TH MAIN,
"D" BLOCK,J.P NAGAR,
MYSURU CITY,
MYSURU-570 031.
... PETITIONER
(BY SRI. VIJAYA SIMHA REDDY D V, ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER,
MYSURU DISTRICT,
MYSURU-570 001.
2. THE COMMISSIONER
MYSURU CITY CORPORATION,
MYSURU-570 001.
... RESPONDENTS
(BY SRI. P B ACHAPPA, AGA FOR R1;
SMT. M P GEETHADEVI, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL
FOR RECORDS PERTAINING TO THE IMPUGNED
ENDORSEMENT DATED 01.08.2018 (ANNEXURE-G) AND THE
IMPUGNED OFFICIAL MEMORANDUM DATED 14.12.2018
(ANNEXURE-L) BOTH PASSED BY THE R-2 AND SET ASIDE
HE SAID IMPUNGED ENDORSEMENT AND THE SAID
OFFICIAL MEMORANDUM IN SO FAR IT RELATES TO THE
PETITIONER AND DIRECT THE RESPONDENTS TO CONTINUE
THE PETITIONER TILL HE ATTAINS THE AGE OF 60 YEARS,
ON THE BASIS OF HIS CORRECT DATE OF BIRTH AS
4
01.06.1967 AND TO EXTEND ALL CONSEQUENTIAL BENEFITS
ARISING THERETO.
IN W.P. NO. 2490/2019:
BETWEEN:
SRI THIMMAIAH V,
S/O SRI VENKATAIAH,
AGED ABOUT 52 YEARS,
MALI, GROUP-D TIME SCALE EMPLOYEE,
HORTICULTURE SECTION,
MYSURU CITY CORPORATION,
MYSURU-570001.
R/A C/O NO.363, 18TH MAIN,
D BLOCK, J P NAGAR,
MYSURU CITY,
MYSURU-570031.
... PETITIONER
(BY SRI. VIJAYA SIMHA REDDY D V, ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER,
MYSURU DISTRICT,
MYSURU-570001.
2. THE COMMISSIONER,
MYSURU CITY CORPORATION,
MYSURU-570001.
... RESPONDENTS
(BY SRI. P B ACHAPPA, AGA FOR R1;
SMT. M P GEETHADEVI, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL
FOR RECORDS PERTAINING TO THE IMPUGNED
ENDORSEMENT DATED 01.08.2018 (ANNEXURE-D) AND THE
IMPUGNED OFFICIAL MEMORANDUM DATED 14.12.2018
(ANNEXURE-J) BOTH PASSED BY THE R-2 AND SET ASIDE
THE SAID IMPUNGED ENDORSEMENT AND THE SAID
OFFICIAL MEMORANDUM IN SO FAR IT RELATES TO THE
PETITIONER AND DIRECT THE RESPONDENTS TO CONTINUE
THE PETITIONER TILL HE ATTAINS THE AGE OF 60 YEARS,
ON THE BASIS OF HIS CORRECT DATE OF BIRTH AS
02.04.1966 AND TO EXTEND ALL CONSEQUENTIAL BENEFITS
ARISING THERETO.
5
THESE PETITIONS COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Petitioners claiming to be daily wage employees of the respondent statutory Local Body are knocking at the doors of Writ Court for assailing the action of the respondents whereby they are sought to be superannuated from service on the basis of disputed dates of birth as entered in the Service Records allegedly by mistake.
2. After service of notice, the respondents having entered appearance through their Panel Counsel, resist the writ petitions by filing the Statement of Objections.
3. Learned advocates appearing for the petitioners vociferously argue that: all the petitioners are daily wagers and they are semi-illiterates; their school records contain the correct entries of their dates of birth which are in variance with those in the Service Records; despite request the respondents have not rectified and further they are seeking to superannuate the petitioners from service on a wrong assumption that they have attained the age of 60 years, when they have not; they also bank upon the provisions of Karnataka Daily Wage Employees Welfare 6 Act, 2012 and Rules 2013; thus the indulgence of Writ Court is eminently warranted to interdict termination of their services.
4. Learned Sr. Panel Counsel appearing for the respondents passionately contends that all the petitioners have been serving the respondent Local Body since more than two decades; the Service Records generated and maintained by the statutory body in discharge of public duty contained the dates of birth which they themselves had given at the entry level or within reasonable time thereafter; they were extended times scales of pay way back in the year 1995; the challenge to withdrawal of the time scales having succeeded, they have retained the scales of pay and therefore the service particulars including the dates of birth on the basis of which these scales were extended cannot be now disputed at the fag end of service vide estoppel and fairness, so contending learned Panel Counsel seeks dismissal of the writ petitions.
5. Since these writ petitions involve similar questions of facts & law, the same are taken up for hearing by pooling them together as suggested at the Bar. Having heard the learned counsel for the parties and having 7 perused the petition papers and after adverting to the rulings cited at the Bar, this Court declines to grant indulgence in the matter whilst extending marginal benefits of interim orders to the petitioners, for the reasons stated below:
(a) Petitioners have put in long spells of service as daily wagers/monthly rated employees in the respondent-
Corporation and that they have been extended the time scales of pay and other allowances vide O.M. dated 24.11.1995, is not in dispute; the said O.M. was rescinded by the respondent-Corporation vide Order dated 23.09.1999 and that several employees including some of the petitioners had laid a challenge to the same in W.P.No.35817-964/1999 and other connected writ petitions successfully; a learned single Judge of this Court vide judgment dated 14.10.1999 at Annexure-R1 having read down the rescinding order as only a Show Cause proposal directed regularization; it is submitted at the Bar that the extension of time scales of pay was retained to the benefit of the petitioners; the O.M. dated 24.11.1995 had the enclosures containing the full particulars of each of the employees including the petitioners, such as their dates of birth, entry into service, etc.; that being the position, 8 petitioners who have been drawing their wages in the time scales of pay on the basis of the service particulars cannot now turn around and dispute the entries; learned Panel Counsel is justified in stating that the petitioners having accepted roses cannot complain about the accompanying thorns, the contra contention being likened to blowing hot & cold;
(b) there is lot of force in the contention of learned counsel for the Corporation that regardless of truthfulness of entries relating to dates of birth, petitioners cannot at the fag end of their service invoke the Writ Jurisdiction for challenging the said entries whatever be the supportive evidentiary material such as the School Records; correction of entries relating to dates of birth in the Service Records at a very belated stage is ordinarily discouraged vide STATE OF GUJARAT vs. VALI MOHD. DOSA BHAI SINDHI, (1993) 2 SCC 162; regard being had to the likely consequences of such belated correction of dates of birth on the carrier progression of co-employees, several States have enacted law relating to determination of age of the civil servants, ordinarily prescribing a period of one year from the date of entry into service, example being the Karnataka Civil Servants Determination of Age Act, 1974; 9 arguably the provisions of this Act stricto sensu is not applicable to the employees like the petitioners, does not advance their case; it is a settled legal position that when a period of limitation is not prescribed, ordinarily the employee should seek rectification of his service particulars within a reasonable period which may in the given circumstances of the case be three years; several such years having lapsed and their being no explanation for the delay in seeking rectification, relief cannot be granted to indolent petitioners vide STATE OF M.P. & ORS VS PREMLAL SHRIVAS, (2011) 9 SCC 664;
(c) the contention of the petitioners that they being only daily wagers, their service conditions are governed by the provisions of Karnataka Daily Wage Employees Welfare Act, 2012 and Rules 2013, again does not come to their aid; Section 3 of the Act provides for the continuance of the daily wagers in service till they attain the age of 60 years; no provision either in the Act or in the Rules is brought to the notice of this Court which provides for correction of dates of birth, decades after gaining entry to the service;
(d) there is lot of force in the vehement contention of learned advocates for the petitioners that despite an 10 interim direction to continue the services and the petitioners accordingly continuing, the respondents have not paid the salary for the said period; Article 23 of the Constitution of India proscribes begar i.e., extraction of labour sans wages; the Apex Court interpreting this Article has recognized the right to wages inhering even in the prisoners serving the jail term vide STATE OF GUJARAT vs. HIGH COURT OF GUJARAT, 1998(7) SCC 392; that sacrosanct this right being, the respondents are bound to pay the salary in the same pay scale for the services rendered by the petitioners pursuant to interim orders.
In the above circumstances, these writ petitions to the extent of challenging superannuation fail; however, a Writ of Mandamus issues to the respondents to pay to the petitioners their salary for the services rendered by them pursuant to interim orders granted by this Court, notwithstanding their age of superannuation, within a period of eight weeks, failing which the arrears of wages carry interest at the rate of 12% per annum to be recovered from the erring respondents personally; however, this dicta shall not be construed as an interdiction of their 11 superannuation on the basis of their dates of birth entered in the Service Records.
No costs.
Sd/-
JUDGE Bsv