Karnataka High Court
Gururaj Kulkarni vs The Union Of India on 23 February, 2024
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
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WP No. 103001 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 23RD DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE N.S.SANJAY GOWDA
WRIT PETITION NO. 103001 OF 2022 (S-RES)
BETWEEN:
1. GURURAJ KULKARNI,
AGE: 37 YEARS,
DESIGNATION: TECHNICIAN/F,
R/O: C-273 KAIGA TOWNSHIP,
UTTARAKANNADA DISTRICT,
KARNATAKA-581400.
2. SREEJITH P.S.,
AGE: 35 YEARS,
DESIGNATION: TECHNICIAN/F,
R/O: C-3/1/3 KAIGA TOWNSHIP,
U K DIST. KARNATAKA-581400.
3. CHETAN TELKAR
AGE. 35 YEARS,
DESIGNATION. TECHNICIAN F,
Digitally
ADDRESS: C-6/6/1 KAIGA TOWNSHIP,
signed by UTTARA KANNADA-581400.
KIRAN
KUMAR R
Location: 4. MANGALDAS A BANDEKAR,
HIGH
COURT OF AGE: 38 YEARS,
KARNATAKA DESIGNATION: TECHNICIAN/F,
R/O: B-149 KAIGA TOWNSHIP,
UTTARAKANNADA DISTRICT,
KARNATAKA-581400.
5. GOKUL R. DHEPI,
AGE: 40 YEARS,
DESIGNATION: TECHNICIAN/F,
R/O: C-6/8/2 KAIGA TOWNSHIP,
UTTARAKANNADA DISTRICT,
KARNATAKA-581400.
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6. SANDEEP V.,
AGE: 38 YEARS,
DESIGNATION: TECHNICIAN/F,
R/O: B/L/3/W KAIGA TOWNSHIP,
UTTARAKANNADA DISTRICT,
KARNATAKA-581400.
7. VIKASH KUMAR,
AGE: 34 YEARS,
DESIGNATION: TECHNICIAN/F,
R/O: B-193 KAIGA TOWNSHIP,
UTTARAKANNADA DISTRICT,
KARNATAKA-581400.
8. PANKAJ V. SALUNKE,
AGE: 41 YEARS,
DESIGNATION: TECHNICIAN/F,
R/O: C/K/4/N KAIGA TOWNSHIP,
UTTARAKANNADA DISTRICT,
KARNATAKA-581400.
9. NIRANJANAMURTHY B.L.,
AGE: 37 YEARS,
DESIGNATION: TECHNICIAN/F,
R/O: C-5/1/4 KAIGA TOWNSHIP,
UTTARAKANNADA DISTRICT,
KARNATAKA-581400.
10. G. SHIVAKUMARA,
AGE: 38 YEARS,
DESIGNATION: TECHNICIAN/F,
R/O: B/P/7/W KAIGA TOWNSHIP,
UTTARAKANNADA DISTRICT,
KARNATAKA-581400.
11. T.S. MAHANTESHA,
AGE: 40 YEARS,
DESIGNATION: TECHNICIAN/F,
R/O: B/P/8/S KAIGA TOWNSHIP,
UTTARAKANNADA DISTRICT,
KARNATAKA-581400.
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12. RAMESH N. PATGAR,
AGE: 35 YEARS,
DESIGNATION: TECHNICIAN/F,
R/O: B/L/9/N KAIGA TOWNSHIP,
UTTARAKANNADA DISTRICT,
KARNATAKA-581400.
13. KUMAR S. NAIK,
AGE: 38 YEARS,
DESIGNATION: TECHNICIAN/F,
R/O: B/L/8/S KAIGA TOWNSHIP,
UTTARAKANNADA DISTRICT,
KARNATAKA-581400.
14. NAGARAJ S. NAIK,
AGE: 34 YEARS,
DESIGNATION: TECHNICIAN/F,
R/O: B/P/5/S KAIGA TOWNSHIP,
UTTARAKANNADA DISTRICT,
KARNATAKA-581400.
15. SANJAY KUMAR DEHARIYA,
AGE: 36 YEARS,
DESIGNATION: TECHNICIAN/F,
R/O: B/P/5/W KAIGA TOWNSHIP,
UTTARAKANNADA DISTRICT,
KARNATAKA-581400.
16. RAVI MARATHI,
AGE: 38 YEARS,
DESIGNATION: TECHNICIAN/F,
R/O: B-163 KAIGA TOWNSHIP,
UTTARAKANNADA DISTRICT,
KARNATAKA-581400.
17. RANGANATHA G.P.
AGE: 34 YEARS,
DESIGNATION: TECHNICIAN/F,
R/O: B/P/7/N KAIGA TOWNSHIP,
UTTARAKANNADA DISTRICT,
KARNATAKA-581400.
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18. MANJUNATH V. NAIK,
AGE: 35 YEARS,
DESIGNATION: TECHNICIAN/F,
R/O: B/L/9/E KAIGA TOWNSHIP,
UTTARAKANNADA DISTRICT,
KARNATAKA-581400.
19. NITAL S. HUTAGI
AGE: 40 YEARS,
DESIGNATION: TECHNICIAN/F,
R/O: C-4/6/4 KAIGA TOWNSHIP,
UTTARAKANNADA DISTRICT,
KARNATAKA-581400.
20. SACHIN SHARAD ROKADE,
AGE: 44 YEARS,
DESIGNATION: TECHNICIAN/F,
R/O: C-8/10/4 KAIGA TOWNSHIP,
UTTARAKANNADA DISTRICT,
KARNATAKA-581400.
21. SURAJ DEVKAR,
AGE: 37 YEARS,
DESIGNATION: TECHNICIAN/F,
R/O: C-7/7/4 KAIGA TOWNSHIP,
UTTARAKANNADA DISTRICT,
KARNATAKA-581400.
22. GOURISH S. NAIK,
AGE: 39 YEARS,
DESIGNATION: TECHNICIAN/F,
R/O: B/N/5/N KAIGA TOWNSHIP,
UTTARAKANNADA DISTRICT,
KARNATAKA-581400.
23. P.H. SOMASHEKHAR,
AGE: 37 YEARS,
DESIGNATION: TECHNICIAN/F,
R/O: C/J/8/S KAIGA TOWNSHIP,
UTTARAKANNADA DISTRICT,
KARNATAKA-581400.
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24. GURURAJ I. MUNNOLLI,
AGE: 37 YEARS,
DESIGNATION: TECHNICIAN/F,
R/O: C-5/10/3 KAIGA TOWNSHIP,
UTTARAKANNADA DISTRICT,
KARNATAKA-581400.
25. RAJU S. PAGI,
AGE: 56 YEARS,
DESIGNATION: TECHNICIAN/F,
R/O: HOUSE NO:193 HINDUWADA,
MALLAPUR, UTTARAKANNADA DISTRICT,
KARNATAKA-581400.
26. SUKUMAR SAMANTHA,
AGE: 38 YEARS,
DESIGNATION: TECHNICIAN/F,
R/O: C-379 KAIGA TOWNSHIP,
UTTARAKANNADA DISTRICT,
KARNATAKA-581400.
27. SHANTA G. GOUDA,
AGE: 37 YEARS,
DESIGNATION: TECHNICIAN/F,
R/O: C-8/4/4 KAIGA TOWNSHIP,
UTTARAKANNADA DISTRICT,
KARNATAKA-581400.
28. SURESH A. PATIL,
AGE: 41 YEARS,
DESIGNATION: TECHNICIAN/F,
R/O: C-004 KAIGA TOWNSHIP,
UTTARAKANNADA DISTRICT,
KARNATAKA-581400.
29. GURUDATT R. PANDIT,
AGE: 39 YEARS,
DESIGNATION: TECHNICIAN/F,
R/O: C-2/3/3 KAIGA TOWNSHIP,
UTTARAKANNADA DISTRICT,
KARNATAKA-581400.
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30. ANSHUL JAIN,
AGE: 37 YEARS,
DESIGNATION: TECHNICIAN/F,
R/O: C-276 KAIGA TOWNSHIP,
UTTARAKANNADA DISTRICT,
KARNATAKA-581400.
31. NANJUNDASWAMY S.M.,
AGE: 39 YEARS,
DESIGNATION: TECHNICIAN/F,
R/O: C-196 KAIGA TOWNSHIP,
UTTARAKANNADA DISTRICT,
KARNATAKA-581400
... PETITIONERS
(BY SRI. SANTOSH B. MALLIGAWAD, ADVOCATE)
AND:
1. THE UNION OF INDIA,
R/BY THE MINISTRY OF LABOUR AND EMPLOYMENT,
SHRAM SHAKTI BHAVAN, RAFI MARG,
NEW DELHI-110001.
2. THE MINISTRY OF FINANCE,
R/BY ITS SECRETARY (EXP.) AND FINANCE,
DEPARTMENT OF EXPENDITURE,
ROOM NO. 74C, NORTH BLOCK,
NEW DELHI-110001.
3. THE MINISTRY OF PERSONEL,
PUBLIC GRIEVANCE AND PENSION,
THE DEPARTMENT OF PERSONNEL TRAINING,
R/BY THE NORTH BLOCK, NEW DELHI-110001.
4. THE ATOMIC ENERGY COMMISSION AND SECRETARY,
DEPARTMENT OF ATOMIC ENERGY,
R/BY ITS CHAIRMAN, ANUSHAKTI BHAVAN,
CHATRAPATI SHIVAJI MARG, MUMBAI-400001.
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5. THE NUCLEAR POWER CORPORATION OF INDIA LIMITED,
R/BY CHAIRMAN AND MANAGING DIRECTOR (CMD),
NABHIKIYA URJA BHAVAN, ANUSHAKTI NAGAR,
MUMBAI-400094.
6. THE KIAGA GENERATING STATION,
NUCLEAR POWER CORPORATION OF INDIA LIMITED,
KIAGA SITE, R/BY SITE DIRECTOR, KAIGA SITE,
KARWAR TALUK, UTTARA KANNADA DISTRICT,
KARNATAKA-581400.
... RESPONDENTS
(BY SRI. SANJAY S. KATAGERI, ASGI FOR R1-R3;
SRI. J.S. SHETTY, ADVOCATE FOR R4-R6 )
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE
ENDORSEMENT DATED 13.08.2021 BEARING
NO.NPCIL/HRP/1/9/2/2021/160 ISSUED BY THE 5TH
RESPONDENT VIDE ANNEXURE-L AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
1. On 25.07.2016, a Notification was issued, by which the Central Civil Services (Revised Pay) Rules, 2016 ("the Revised Rules" for short) was enacted. These Rules, as the name indicates, revised the pay that the Central Government servants were entitled to. -8-
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2. As against the existing pay structure, by which pay was determined through Pay Band and Grade Pay, a new pay structure was created in the form of a Pay Matrix. As a consequence of the pay being revised, the employees drawing under the existing system of Pay Band and Grade Pay were to be fitted against the Pay Matrix defined under the schedule, whereby an employee would be fitted into the appropriate level as stipulated in the Schedule provided therein.
3. Rule 5 of the Revised Rules declared that the Government Servant should draw pay in the level given in the revised pay structure applicable to the post to which he was appointed. For the sake of convenience, the entire Rule 5 of the Revised Rules is reproduced as follows:
5. Drawal of pay in the revised pay structure.- Save as otherwise provided in these rules, a Government servant shall draw pay in the Level in the revised pay structure applicable to the post to which he is appointed:
Provided that a Government servant may elect to continue to draw pay in the existing pay structure until the date on which he earns his next or any subsequent -9- NC: 2024:KHC-D:4493 WP No. 103001 of 2022 increment in the existing pay structure or until he vacates his post or ceases to draw pay in the existing pay structure:
Provided further that in cases where a Government servant has been placed in a higher grade pay or scale between 1st day of January, 2016 and the date of notification of these rules on account of promotion or upgradation, the Government servant may elect to switch over to the revised pay structure from the date of such promotion or upgradation, as the case may be.
Explanation 1.- The option to retain the existing pay structure under the provisos to this rule shall be admissible only in respect of one existing Pay Band and Grade Pay or scale.
Explanation 2.- The aforesaid option shall not be admissible to any person appointed to a post for the first time in Government service or by transfer from another post on or after the 1st day of January, 2016, and he shall be allowed pay only in the revised pay structure.
Explanation 3.- Where a Government servant exercises the option under the provisos to this rule to retain the existing pay structure of a post held by him in an officiating capacity on a regular basis for the
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NC: 2024:KHC-D:4493 WP No. 103001 of 2022 purpose of regulation of pay in that pay structure under Fundamental Rule 22, or under any other rule or order applicable to that post, his substantive pay shall be substantive pay which he would have drawn had he retained the existing pay structure in respect of the permanent post on which he holds a lien or would have held a lien had his lien not been suspended or the pay of the officiating post which has acquired the character of substantive pay in accordance with any order for the time being in force, whichever is higher.
4. As could be seen from said Rule, every Government servant was statutorily mandated to draw pay in the level prescribed in the revised pay structure. However, two exceptions were provided for under the two provisos - the first proviso indicated that a Government servant was entitled to elect to continue to draw pay in the existing pay structure i.e., Pay Band and Grade Pay until the occurrence of the following three events;
a) The date on which he earned his next or any subsequent increment in the existing pay structure; or
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b) Until he vacated his post; or
c) Until he ceased to draw pay in the existing pay structure.
5. The obvious intent behind the formulation of the first proviso was that a Government servant would be entitled to opt to continue in the existing pay structure if it was more beneficial to do so, however, that option would be available in the above three specific situations.
6. The second proviso provided for the specific case where a Government servant had already been placed in higher Grade Pay or scale between the 1st of January, 2016 (the date on which the Rules came into force) and the 25th of July, 2016 (date of publication of the Revised Rules in the Gazette) on account of promotion or upgradation. In other words, if a Government Servant had been promoted or his post had been upgraded between the 1st January, 2016 and the 25th Of June, 2016, he was also given the option to choose the revised pay structure from the day he was promoted or from the day the post had been upgraded.
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7. The intent behind this 2nd proviso is also clear. It is to enable the Government Servant to choose a more beneficial pay which he had missed because he was promoted before the Revised Rules were enacted. This was obviously because the Revised Rules of 2016 were given retrospective operation.
8. In these writ petitions, the petitioners contend that they chose to elect to remain in the existing pay structure till the date that they were to be promoted to the next cadre. In other words, according to the petitioners, they chose to postpone the applicability of the Revised Pay Rules till they secured the next promotion, and for this, they placed reliance on the first proviso to Rule 5, which states that the Government servant could elect to continue to draw pay in the existing pay structure till he vacates his post or ceases to draw pay in the existing pay structure.
9. It is further case of the petitioners that though they had opted remaining existing pay structure by virtue of the first proviso, the respondents had refused to grant
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NC: 2024:KHC-D:4493 WP No. 103001 of 2022 them the benefit of the remaining existing pay structure on the ground that the entitlement of choosing the date of applicability of the Revised Rules of 2016 in cases of promotion, would only be as per the second proviso.
10. In other words, it is the case of the respondent that the first proviso, in which it is stated that "until he vacates his post" would not bring within his purview the promotions that a Government servant would secure in the future, beyond the 25th July, 2016.
11. According to the respondents, in the case of promotions, it was only the second proviso that would apply and since the second proviso stated that only those Government servants who were promoted between 01.01.2016 and 25.07.2016 were entitled to choose the date of promotion for switching over to the revised pay scales, the claim of the petitioners would be untenable. It is therefore contended that the endorsement which is issued refusing the claim of the petitioners cannot be found fault with.
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12. Thus, as could be seen from the above, the crux of the matter is as to whether the petitioners were entitled to seek a switch-over to the Revised Rules from the date on which they were to be promoted in future i.e., after 25.07.2016.
13. As already stated above, Rule 5 of the Revised Rules expressly states that a Government servant should draw pay in the revised pay structure applicable to the post to which he was appointed. Since the Revised Rules are deemed to have come into effect from the 1st day of January, 2016, a Government servant, in the normal course, would have to draw pay from the 1st January, 2016 in the revised pay structure.
14. However, by virtue of the two provisos to Rule 5, a relaxation to this mandate is created. The first relaxation is to those Government servants who deliberately elect to continue in the existing pay structure until the occurrence of three events i.e.,-
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a) The date on which he would have
earned his next or subsequent
increment in the existing pay structure;
or
b) Until the Government servant vacated
his post; or
c) The Government servant ceased to
draw pay in the existing pay structure.
15. On a plain reading of this proviso, the Government servant is entitled to opt for drawing pay in the existing pay structure till he vacated his post or till he ceased to draw pay in the existing pay structure. It cannot be in dispute that a Government Servant, on being promoted, would vacate his existing post and would also cease to draw pay in his existing pay structure. Merely because the term "the date of promotion" is not mentioned in the first proviso, it would not mean that the Government servant is not entitled to elect to continue to draw pay in the existing pay structure till his next promotion.
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16. The stand of the respondent is that the first proviso cannot be applied to the petitioners, since the same would have the effect of postponing the applicability of the Revised Rules, and because the second proviso covers the field in respect of promotions, it is contended that in cases relating to promotions, the Government servant cannot elect to seek for drawal of pay in the revised pay structure from a date beyond 25.07.2016.
17. It is to be stated here that the 2nd proviso only deals with two specific contingencies or two specific issues i.e., in respect of those Government servants who had been promoted between the 1st of January, 2016 and the 25th of July, 2016 to posts which were upgraded during said period. The 2nd proviso to the aforementioned Rule basically intended to grant such promotees to choose the applicability of the Revised Rules from the date of their promotions, since that would entitle them to a higher level in the Pay Matrix from a retrospective date and it would be more beneficial to such an employee.
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18. In my view, in light of this clear intent, the argument of the respondents that the first proviso would not be attracted and it is only the second proviso which would be attracted, cannot be sustained.
19. After the matter was reserved, since a doubt arose as to whether the petitioners had made an option to continue the existing pay structure, the matter was posted for further hearing and the petitioners reiterated that they had chosen to continue the existing pay structure within the time stipulated in Rule 6. They have also filed an affidavit to that effect. In this affidavit, it is also stated that as a matter of fact, additional opportunities were granted to even revise the options that the Government servants had chosen earlier. It is also undertaken in said affidavit that if the petitioners have been paid any extra pay under the new pay structure, the same could be recovered from the subsequent salaries payable to the petitioners.
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20. It is to be noticed here that the respondents have not denied the fact that the petitioners did seek to continue in the existing pay structure, and that they had sought the applicability of the revised pay structure only from the date of their next promotion. This fact is now admitted in explicit terms by virtue of this affidavit.
21. In this view of the matter, the endorsement issued by the respondents refusing the claim of the petitioners cannot be sustained and, accordingly, the same is quashed.
22. A direction is issued to the respondents to continue the petitioners in the existing pay structures that they were drawing from 01.01.2016 (the date on which the revised pay rules came into force) till the day of the promotion of the petitioners to the next cadre, after the 25th July, 2016.
23. The respondents shall, however, be entitled to apply the revised pay structure from the date on which the
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The writ petition is accordingly allowed.
Sd/-
JUDGE EM/CT:BCK List No.: 1 Sl No.: 2