Karnataka High Court
The State Of Karnataka vs M Balakrishna Reddy on 5 October, 2010
Bench: V.G.Sabhahit, B.V.Nagarathna
_ 1 _
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 05"' DAY OF OCTOBER, 2010
PRESENT
THE HONBLE MR. JUSTICE V.G.SAB1-IAHITH
AND
THE HONBLE MRS. JUSTICE B.V.NAGARATm~i_A
WRIT PETITION No.3o42:§/26:03.' (S--KATj.'-- " _
BETWEEN:
LTHE STATE OF' KARNATAKA,"=, "
BY ITS SECRETARY To GOVT,
HEALTH & FAMILY
M.S.BLDG., " _ V. '
BANGALORE -- 560 001. '
2.TBE L)IR7E."CTO1"{'OA'FT£jIE3ALTH -
AND FAMILY WELB'AR_E"S_ERX?*ICES,
ANANDA RAG CIRCLE, ~ A
BANGALORE; 5 '560:00E_
' ' _3."I*E£I?2 $-E.',CRETARY"T0' GOVT,
,FINAI"JCETDE.PT.
' _ VIDBANA 'E..r)LI_
560 001. PETITIONERS
(BY'Bb;£T_sHEELA KRISHNA. GOVT. ADV.)
'HAND: " . ~~
A if ~ SR1 "M.BALAKR1sHNA REDDY.
'S/'O,LA'TE.l\/IUNIREDDY.
AGED ABOUT 4.9 YRS.
' .._EiRsT DIVISINO ASSISTANT.
DIRECTORATE OF HEALTH AND
FAMILY WELFARE SERVIC ES,
ANANDA RAG CIRCLE.
BANGALORE ---- 560 079. ...RESPONDENT
{BY SR1 B.B.BAJEi\lTRI, ADV.) Ii€***$ THIS WRET PETITION IS FILED PRAYING ASIDE THE ORDER DT.21/10/2002 BY BANGALORE, IN APPLICATION N0.6495/ 1996 THIS PETITION COMING OAm:*.OR DAY, SABHAI-HTJ., MADE THE FC)4LL(3'.Vl'NG.:.{ 0 Raga This writ petition is State, being aggriepved" :3gg'j:::hé: 'E1-der,jdate¢1*~- 1/ 10/2002 passed by the Tribunal (hereinafter, referred tollasxtllep Wlirherein, the application filed by V' ..their'esp0n'dpent an endorsement withdrawing the upon the applicant for granting Time I3ound Ad_V4a.ncement and Time Bound Promotion has lgbeen quashed.
V. if The applicant was Working as a First Division Assistant (hereinafter, referred to as the FDA') in 'the Health and Family Welfare Services and he was working as Basic Health Worker. However, he suffered medical \\§::_.Aj,*(;.
n3_ disability and therefore, the benefit of Rule 41 was given to him and he was reverted to the post of Second Division Assistant (hereinafter, referred to as 'SD_A'). However, his salary was protected and it was that he will be junior to the junionrriost in SDA and having regard to the Rule"Wh_ic~.h grant of Time Bound Advazncementhaind Promotion, under Rule 83 an'd:"Rule 91,: W1'.iichv,'ret;uire the applicant should.i1~a=ye 1T0._pand 99195 "years of service respectively, in the i.e.. in the instant.'tcase;».in_V of it was found that the benefit to the appiicant was a mistake and the been rectified by withdrawing
9. '''the''said..,'benefit as VperAr1nexure 'A~ 5' dated 25/3 / 1996. the same, an application was filed before the challenging the validity of Rule 3(a) of Karriataka Civil Services (Time Bound Advancement) 1983 (hereinafter, referred to as the '1983 Rules') and Rule 4 [iii)(iv) of the Karnataka Civil Services " (Automatic Grant of Speciai Promotion to Senior Scale of Pay) Rules, 1991 (hereinafter, referred to as the '1991 Rules'), prescribing the period of service in thesame cadre.
3. The application was" '---resi_stedl": -lfthxe; respondent by contending that period of 10 years and 15 1983 it Rules and 1991 Ruleskwasalj'ustii'ie'd,._Aas benefit of Time Bound Advancelrnentl Grant of Special i3romotio.n:V:'to can be granted to those 10 years and 15 years proinotion in the same cadre and therefore,-- at Annexure 'A-5' dated 25/3/96 jilustifieid and respondents were entitled to ' ''''reCoVerij't.he* _amoui?1t"li.e., paid by virtue of the earlier
-order' «per Anriexure 'A«~ 4'.
AA _ it The Tribunal after considering the rpllleontelntion of the learned counsel appearing for the parties, held that the Validity of the rule need not be quashed without following the judgment of the Honble Supreme Court in case of Dwijen Chandra Sarkar and Another ---vs.~ Union of India and Others [ (1.999) 2 Supreme Court Cases 119] wherein, it held that the services rendered in the cadre H Health Worker should also be in-cludedfl lpurposefi of grant of Time Bound Advancement Grant of Special Promoti'onj"-,and is unnecessary to quash" the benefit in view of the judgment oaflthe Court and allowed the the order at Annexure Vthe"tsame and it was ordere(1Vllthat..:t7}ave liable to suffer any recoverv'ipursuaifitttollPinnexure 'A-5'. Being aggrieved by the.,said4"4"or:der .501" 7'the'$Tribuna1, this Writ petition is 'S V. °fi1ped~h'y ithe respondenlt ~--- State. A. heard the learned Govt. Advocate 'gappeaiting "for the petitioner ~-- State and the learned V' llV~fjcdunsel appearing for the respondent and the reply arguments.
6. Learned Govt. Advocate submitted that in the instant case, since the applicant was suffering from W5- medical disability, in View of Rule 4l(a), since the applicant could not perform his duties as Basic Health Worker, he was reduced to the cadre of SDA on medical grounds. However, the salary he was drawing Health Worker was protected and unless requisite years of service in the cadre of 'SD;A._Ali"n_ View of; Rule 3(a) of 1983 Rules and Rulea4__(iii}V(AiV) of_~l99l'~ the applicant ie, the respondent hereltn not entitled to Time Bound Arltfaneenient Scale "and also Time Bound Promotion Rules and therefotreilly 'has.VV.been"_"Vrectified under Annexure 'A--5', V but the Tribunal was not justified in4'"upho.ldingf Rule and giving liberty to the on thleivblasis of the decision of the Hon'ble which is not at all applicable to the facts of.t11e'4lpresent case.
On the other hand, learned counsel for the ':f..resp.ond'ent vehemently argued that because of the ' riiedical disability, the applicant has been reverted from post of Basic Health Worker to the cadre of SDA and his pay scale has been protected and merely \,<;;aXs because he was reverted to the junior most in the cacire of SDA, for the purpose of granting benefit under Rules or 199}. Rules, it cannot be said that---he V' entitled to count the service ren'd'ered of Basic Health Worker, which is eq:u.iVai.ent FDA and wherefore, the benefithandelr has it been rightly granted rand l?;e'enn_:'vQrongfully"'*withdrawn and therefore, the order Tribunal is justified.
8. 'l1a3g,e giy'en"-c*arefuvlf consideration to the contentions urgetdxbyggthe'-learned counsel appearing for the parties and slcrutiriiaegd the material on record. g .lC9.%,.,.o<f['h'e,'materialon record would clearly show that appointed as Basic Health Worker on Thereafter, since he suffered medical ll""«._'V"disabi1ityf in exercise of the powers under Article 41(a], reverted to the post of SDA and the salary which he was getting as Basic Health Worker was protected. The Tribunal has held that it is unnecessary to quash the conditions prescribed for granting the benefit under 1983 Rules and 1991 Rules, prescribing the requisite qualifying service for granting the However, relief has been given only by V' judgment of the Hon'b1e vlateig decision reported in case of iiniisnl of" India "
Another --vs.~ V.N.Bhat [(209318 scc':71;i1""~i$;vhe£e-in, "
the Hon'ble Supreme Court --._'.["f1a'Ell;\?l\fVl"'1't":1'i"ltl"l€I'e is a transfer from one department on request, he should be junior to thief the same would not come iinflthe counting service in the .-the said case the employee had been transferred'*.in".the same cadre and it was a 'l"'vcas'e.. llof": tr--a._nsferllV"'from one department to another i.q:lep;artr:rie.r1tMinistry of Defence to the Department of Chief Master and transfer was in the same cadre wherefore, the said decision was not at all helpful to rt,he».applicant. In the present case. the Tribunal was not jtistified in relying upon the said decision and when l once it is held that the period prescribed has to be rendered in the same cadre as per the above referred W9"
Rules and admittedly, applicant had not put in 10 and 15 years of service as per 1983 Rules and 1991 Rules and hence, the question of granting benefit under the said Rules would not arise and the same hajsnbeen' rectified as per Annexure 'A6' and therefore';:'--theT'crd-er":l "
of the Tribunal setting aside Annexure it sustained and the same is liaialeiv. to be ._set ..as:ide'V;'w. However, the benefit was to" the and it payment has been made thou'ghi:he"*.vas notiierititled to the benefit under l983lRi.;11'es Since he worked"in"t'l=i.ev5.saidV the said period and since he-has attained"superannuation and also retired from Vserviceon rncdicaiddisability, it is unnecessary to .ll""recoveri..y'-sthe ..éamo1intlV paid as the benefit had been " of the said benefit, the respondent has'---..__vvorvkedj'.i'iAn the said post and having received the "addpition.al benefit, he must have contributed additional _ '»voi'3«:flaIso. it is therefore unnecessary to recover the ..a-inount which is already paid since he has attained superannuation and has retired from service and was medicaiiy disabled. Accordingly, the writ petitiqn is disposed of.
'mus _ '