Karnataka High Court
Lakshminarayana vs Additional Chief Secretary on 3 November, 2023
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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NC: 2023:KHC:39278
WP No. 36470 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
WRIT PETITION NO. 36470 OF 2018 (S-R)
BETWEEN:
1. LAKSHMINARAYANA
S/O LATE R MUTHARAYAPPA
AGED ABOUT 76 YEARS,
RESIDING AT NO.3, MUNIREDDY STREET,
J C NAGARA, BENGALURU-560 006
SENIOR CITIZENSHIP CLAIMED
...PETITIONER
(BY SRI. LAKSHMINARAYANA., PETITIONER PARTY-IN-PERSON)
AND:
1. ADDITIONAL CHIEF SECRETARY
TO GOVERNMENT
GOVERNMENT OF KARNATAKA
ENERGY DEPARTMENT
VIDHANA SOUDHA BENGALURU-560 001.
Digitally 2. THE MANAGING DIRECTOR
signed by
KIRAN KARNATAKA POWER CORPORATION LTD.,
KUMAR R NO.82, SHAKTHI BHAVAN
Location: RACE COURSE ROAD, BENGALURU-560 0001
HIGH
COURT OF ...RESPONDENTS
KARNATAKA
(BY SMT.PRATHIBHA.R.K, AGA FOR R-1;
SRI.HARSHA.P.BANAD, ADVOCATE FOR R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PARTY-IN-PERSON
PRAYING TO ISSUE A WRIT OF DIRECTION OR ORDER TO THE
RESPONDENTS TO SET ASIDE THE REFERENCE, DATED
4.2.2004 VIDE NO. 1A1P2G/15227 PASSED BY THE R-2 VIDE
ANNEXURE-K TO ISSUE DIRECTION TO CONSIDER THE PAST
SERVICE RENDERED IN GOVERNMENT, ETC.
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NC: 2023:KHC:39278
WP No. 36470 of 2018
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The present writ petition is preferred challenging the Endorsements dated 04.02.2004 and 11.06.2004 (Annexure 'K'), by which the Karnataka Power Corporation Ltd. (hereinafter referred to as "the KPCL", and formerly known as "the Mysore Power Corporation Ltd.") has rejected the petitioner's representations to extend to him the benefits of the KPCL Employees Pension Scheme introduced in 1982 ("the Scheme") and consider his previous service of about 8 years and 10 months rendered at the Karnataka Food and Civil Supplies Corporation Ltd. ("the KFCSCL") in terms of Rule 252(b) of the Karnataka Civil Service Rules ("the KCSR").
2. The relevant (and admitted) facts of the present case are narrated hereunder:
a. The petitioner joined the services of the State Accounts Department and was on -3- NC: 2023:KHC:39278 WP No. 36470 of 2018 deputation at the KFCSCL as a First Division Clerk from 01.04.1965 to 31.01.1974;
b. The petitioner applied to the post of an Accountant at the KPCL (vide application dated 04.08.1973), and his application was forwarded from the Office of the Director, KFCSCL to the KPCL on 06.08.1973;
c. An appointment offer dated 18.12.1973 was issued to the petitioner indicating that he had been selected for appointment to the post of an Accountant at the KPCL and was asked to report with necessary documents on or before 18.01.1974;
d. The KFCSCL wrote to the KPCL on 18.01.1974 seeking extension of the petitioner's joining date until 01.02.1974, since the petitioner was assigned important work and could not be relieved immediately. This request -4- NC: 2023:KHC:39278 WP No. 36470 of 2018 was approved by the KPCL on 21.01.1974 and subsequently, the petitioner joined the services of the KPCL from 01.02.1974, and was also promoted twice - in the year 1978 and in 1996; e. On 18.03.1982, the KPCL introduced the Pension Scheme to overcome the hurdle of settlement of retirement benefits that arose out of its employees opting for the Contributory Provident Fund ("the CPF") Scheme, but not having an existing pension scheme to settle the pensionary benefits that accrued. The new Scheme was also introduced to substantially reduce the recurring expenditure on the CPF pattern;
f. A meeting was also conducted by the Board on 03.08.1982 (minutes of said meeting at Annexure 'F') proposing to extend the application of the Employees Provident Fund Act, 1952 and the Payment of Gratuity Act, 1972 to the -5- NC: 2023:KHC:39278 WP No. 36470 of 2018 employees of the KPCL opting for the CPF Scheme and the Group Gratuity Assurance Scheme. The Board also approved the proposal to introduce the Pension - DCRG ("Death-cum- Retirement Gratuity") Scheme in the KPCL, and resolved that the Managing Director would be responsible for framing the requisite rules, as well as implementing the new Scheme; g. Thereafter, on 08.03.1983, the Karnataka Power Corporation Employees' Pension Scheme Rules, 1983 ("the KPCL Pension Rules") were introduced by the KPCL;
h. On 21.10.1999, the petitioner submitted a representation to the KPCL to extend to him the pensionary benefits as envisaged under the Scheme, considering his previous experience of 8 years and 10 months at the KFCSCL, as per Rule 252(b) of the KSCR;
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NC: 2023:KHC:39278 WP No. 36470 of 2018 i. The KPCL issued a communication dated 27.04.2000 to the petitioner, informing him that they could not locate his service register; j. Immediately thereafter, the petitioner attained the age of superannuation and retired from service on 31.05.2000, at the age of 58 years;
k. Thereafter, the impugned Endorsements were issued by the KPCL (produced at Annexure 'K') on 04.02.2004 and on 11.06.2004, wherein it was stated that there were no provisions in the Scheme to consider the petitioner's previous experience and extend its benefits to him. The relevant portion of the Endorsement dated 04.02.2004 is reproduced as hereunder:
"G¯ÉèÃRzÀ°è£À ¥ÀvÀæzÀvÀÛ vÀªÀÄä UÀªÀÄ£À ¸É¼ÉAiÀħAiÀĸÀÄvÉÛêÉ. PɹJ¸ïDgï£À 252(b) ¤AiÀĪÀÄzÀAvÉ, ¸ÀPÁðj E¯ÁSÉUÀ¼À°è PÁAiÀÄð¤ªÀð»¹zÀ »A¢£À ¸ÉêÁ CªÀ¢üAiÀÄ£ÀÄß UÀt£ÉUÉ vÉUÉzÀÄPÉÆAqÀÄ -7- NC: 2023:KHC:39278 WP No. 36470 of 2018 ¤UÀªÀÄzÀ ¤ªÀÈwÛ ¸Ë®¨sÀåUÀ¼À£ÀÄß ªÀÄAdÆgÀÄ ªÀiÁqÀ®Ä PÉÆÃjzÉÝÃj.
¤ªÀÄä ªÀÄ£À«AiÀÄ£ÀÄß PÀÆ®APÀĵÀªÁV ¥Àj²Ã°¸À®¬ÄvÀÄ. ¤UÀªÀÄzÀ ¦AZÀt ¤AiÀĪÀÄUÀ¼ÀAvÉ, ¤ÃªÀÅ ¸ÀPÁðgÀzÀ°è PÁAiÀÄ𠤪Àð»¹zÀ ¸ÉêÁ CªÀ¢üAiÀÄ£ÀÄß ¤UÀªÀÄzÀ ¤ªÀÈwÛ ¸Ë®¨sÀåUÀ½UÉ ¥ÀjUÀt¸À®Ä CªÀPÁ±À«®èªÉAzÀÄ w½¸À®Ä «µÁ¢¸ÀÄvÉÛêÉ."
l. Subsequently, numerous representations that were filed by the petitioner were also rejected on the same premise;
m. The petitioner served a legal notice dated 17.07.2015 addressed to the Managing Director of the KPCL, requesting them to consider his case for extension of pensionary benefits under the Scheme as per Rule 252(b) of the KSCR; n. The KPCL sent a reply dated 08.12.2015, stating that there is no provision in the KPCL Pension Rules to count previous service rendered, except in those cases where such -8- NC: 2023:KHC:39278 WP No. 36470 of 2018 employees were absorbed permanently. The communication also contained that the provisions of the KCSR cannot be automatically applied unless the same are adopted by the KPCL;
o. The petitioner also submitted another representation addressed to the Board of Directors on 02.05.2016. The KPCL's communication dated 28.05.2016 (Annexure 'Q') indicates that the petitioner's appeal was not placed before the Board of Directors, since the benefit of Rule 252(b) of the KCSR cannot be availed through the Scheme;
p. Furthermore, the petitioner addressed another representation to the Minister of Energy, which was also not considered.
3. It is the case of the petitioner (appearing in person) that he ought to be given the pensionary benefits under -9- NC: 2023:KHC:39278 WP No. 36470 of 2018 Scheme with due consideration to his previous service at the KFCSCL. He also argued that availing the pension due to him is a vested right that cannot be taken away by citing trifling technical irregularities and that he had still rendered those 8 years and 10 months of service to a Government Department, which ought to have been duly considered. In addition, he also contended that the State had no power to withhold pension without assigning legitimate reasons.
4. The petitioner has also referred to the Finance Director's note in Para 8 of the Scheme to substantiate that any inconsistencies or irregularities in the pension rules issued by the second respondent would be resolved as per the KCSR. For ease of reference, Para 8 is extracted below:
"8. The pension scheme can be regulated on par with the state Government's rules and regulations as amended from time to time. Briefly, the following will be the benefits:
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NC: 2023:KHC:39278 WP No. 36470 of 2018
a) Pension (on superannuation, invalidation, premature retirement, etc., as admissible under the State Government rules.
b) Gratuity on retirement or on death
c) Family Pension in case of death
d) Benefit of extraordinary pension rules as under State Government.
e) GPF facility will be open to the employees on an optional basis and may be governed by the State Government GPF rules. Such of those employees who contribute to the GPF will get the deposit linked insurance on par with the State Government employees, Interest on GPF will be on par with the State Government."
5. Per contra, it is the case of the respondents that the petitioner had resigned from service of the KFCSCL before joining the second respondent and that he had not taken prior permission so as to take up another appointment with the 2nd respondent-KPCL.
6. Their contentions are twofold - firstly, that the pension Scheme did not contain a provision to consider
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NC: 2023:KHC:39278 WP No. 36470 of 2018 previous service rendered by an employee, and secondly, that the petition's lien under Rule 252(b) would not survive, since his resignation and subsequent appointment did not follow the requisite procedure in order to claim the benefit of Rule 252(b). The KPCL contends that the petitioner ought to have resigned as per procedure in order to take up another appointment and proper permission was to be obtained prior to the same.
7. It was vehemently contended that the order accepting his resignation should have clearly indicated that the petitioner is taking up another appointment after such permission was granted, only after which the benefit of Rule 252(b) of the KSCR are would be available to him. It is the KPCL's further averment that the provision of Rule 252(b) to count previous service rendered in government, for the purpose of availing pensionary benefits, is neither available nor mentioned in the Scheme provided by the KPCL and that the pension rules were not framed to the exact likeness of the KCSR itself.
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NC: 2023:KHC:39278 WP No. 36470 of 2018
8. The KPCL has also contended that the petitioner has not produced the permission letter mandatorily required from the government, before applying at the KPCL. The main contention of the respondents is that the petitioner had served for less than 10 years in the government i.e., from 01.04.1965 to 31.01.1974 and hence, was not eligible for pensionary benefits under Rule 252(b), but has received gratuity in lieu of pension and gratuity in lieu of DCRG.
9. This argument is untenable since the respondents have admitted, in their objections, that the petitioner has worked at the KFCSCL from 01.04.1965 to 31.01.1974, before joining the second respondent on 01.02.1974, and has, ultimately, retired on 31.05.2000.
10. The petitioner has also submitted a memo issued by the KPCL on 30.11.2011, wherein the KPCL has resolved to consider extending the benefits of the Pension Scheme to its retired employees (CPF optees) under humanitarian grounds, subject to the following conditions:
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NC: 2023:KHC:39278 WP No. 36470 of 2018 "22) The Board noted the report of the Sub Committee, request of the retired employees [CPF optees] for their coverage under KPCL Pension scheme, the status of legal writ petition/appeals before the Hon'ble High Court of Karnataka in the matter and the observations thereon. After careful consideration of the report of the Board Sub-
committee and the recommendations made on humanitarian grounds, the Board in its Circular resolution dated 22.11.2011 has resolved that the Managing Director be and is hereby authorized to implement the KPCL Pension scheme for the retired employees [CPF optees] subject to the following conditions.
i) No payment of arrears of pension from the date of retirement;
ii) they should be ready to refund the KPCL Contribution on CPF amount that has already been settled with interest up to 31.3.2011 as done for others when opted from CPF Scheme to KPCL Pension from 31.3.2003.
iii) they should be ready to refund the Non-
refundable loan (management contribution) drawn from the CPF amount during the service in KPCL with interest upto 31.03.2011 as done for others when
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NC: 2023:KHC:39278 WP No. 36470 of 2018 opted from CPF Scheme to KPCL Pension from 31.03.2003;
iv) they should be ready to pay the difference in Gratuity that has already been paid by the KPCL at the time of final settlement;
v) they shall not be eligible for the Commutation of Pension under the KPCL Pension and Allied Schemes;
vi) they should be ready to accept the KPCL Pension and or Family Pension as the case may be minus the amount of Pension and or Family Pension that is being received from the RPF authorities.
vii) They should submit the required option/s(devised for the purpose) duly signed by each of the retired employee (CPF optees) in writing.
viii) they should be ready to repay the amount towards KPCL CPF (management contribution) with interest, Non- refundable loan (management portion) drawn during the service in KPCL with interest & the repayment of Gratuity difference amount in lump sum by way of Cheque/DD/Pay Order within one month;
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NC: 2023:KHC:39278 WP No. 36470 of 2018 Some of the retired employees (CPF optees) may find it difficult to pay all the mentioned mount at one go. In such cases, the retired employee may be permitted to pay the interest amount in instalments;
ix) with regard to the interest on Management Contribution and Non- refundable loan (management portion) up to 31.03.2011, the retired employee may opt to pay the whole interest amount in lump sum or in 48 equal instalments recoverable from the pension payable. In case the retired employee deceases within that period (i.e., 48 months), the Management may consider the waiving off the balance interest amount;
x) if the retired employees (CPF) fulfils all the above conditions, then only they are eligible for the KPCL Pension and or Family Pension with effect from 1.4.2011 only;
xi) they should give an under taking in the form of an Affidavit that they would not move any; court of law to claim any arrears of Pension etc., in this regard in future."
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11. In terms of the above conditions, the KPCL has ordered as below:
"ORDERS THEREON:
1) Based on the Board's authorization given in Circular Resolution dated 22.11.2011, the KPCL Management is pleased to consider the request of 319 retired employees [CPF optees] for the coverage under KPCL Pension scheme purely on humanitarian grounds and on the following conditions.
i) No payment of arrears of pension from the date of retirement;
ii) the retired employees (CPF ootees) should be ready to refund the KPCL Contribution on CPF amount that has already been settled with interest up to 31.3.2011 as done for others when opted from CPF Scheme to KPCL Pension Scheme from 31.3.2003;
iii) the retired employees (CPF optees) should be ready to refund the Non-
refundable loan (management
contribution) drawn from the CPF
amount during their service with
interest upto 31.3.2011 as done for
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NC: 2023:KHC:39278 WP No. 36470 of 2018 others when opted from CPF Scheme to KPCL Pension Scheme from 31.3.2003;
iv) the retired employees (CPF optees) should be ready to pay the difference in Gratuity amount that has already been paid by the KPCL at the time of final settlement;
v) the retired employees (CPF optees)
shall not be eligible for the
Commutation of Pension under the KPCL Pension and Allied Schemes;
vi) the retired employees (CPF optees) should be ready to accept the KPCL Pension and or Family Pension as the case may be minus the amount of Pension and or Family Pension that is being received from the RFP authorities.
vii) the retired employees (CPF optees) should submit the required option/s(devised for the purpose) duly signed.
viii) The retired employees(CPF optees)
should be ready to repay amount
towards KPCL CPF (management
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WP No. 36470 of 2018
contribution) with interest, Non-
refundable loan (management portion) drawn during the service in KPCL with interest & the repayment of Gratuity difference amount in one lumpsum by way of Cheque/DD/Pay Order within two months;
Some of the retired employees (CPF optees) amy find it difficult to apy all the mentioned amount at one go. In such cases, the retired employee may be permitted to pay the interest amount in instalments.
ix) with regard to the interest on CPF amount (management contribution) and Non-refundable loan (management portion) up to 31.3.2011, the retired employees may opt to pay the hwole interest amount in lump sum of in 48 equal instalments recoverable from the pension payable. In case the retired employee deceases within that period (i.e., 48 months), the Management may consider the waiving off the balance interest amount;
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NC: 2023:KHC:39278 WP No. 36470 of 2018
x) if the retired employees (CPF) fulfils all the above conditions, then only they are eligible for the KPCL Pension and or Family Pension with effect from 1.4.2011 only.
xi) they should give an undertaking in the form of an Affidavit that they would not move any court of law to claim any arrears of Pension etc., in this regard in future."
12. Considering the above, the issue that would arise for adjudication would be - Whether the petitioner is entitled to the pensionary benefits provided under the Scheme, with consideration to his previous service of 8 years and 10 months rendered at the KFCSCL.
13. To answer the above, firstly, it would be pertinent to consider Rule 252(b) of the KCSR and the same is as extracted below:
"Rule 252(b): Resignation of an appointment to take up, with proper permission, another appointment, whether permanent or temporary,
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NC: 2023:KHC:39278 WP No. 36470 of 2018 service in which counts in full or in part, is not a resignation of public service."
14. From a reading of Rule 252(b) of the KCSR, it is clear that a government servant must have obtained prior permission to take up another appointment, before resigning from his current posting, and if such procedure is followed, that resignation would not be considered as being resignation from public service. In other words, not only can it be gathered that when permission is obtained before resignation from one post in anticipation of taking up his/her next appointment, such resignation cannot be considered as resignation from service itself, but also that such period must be included when considering the total service rendered by that person.
15. The fact that the KFCSCL, on 06.08.1973, forwarded the petitioner's application for the post of an Accountant to the KPCL, makes it clear that the KFCSCL had granted permission to the petitioner to apply for being appointed in the KPCL. This, by itself, would amount to "proper
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NC: 2023:KHC:39278 WP No. 36470 of 2018 permission" contemplated under Rule 252 (b) of the KCSR. Obviously, the KFCSL would not have permitted the petitioner to apply if it had any objections to the same.
16. It is also borne out by the record that when the petitioner subsequently sought to resign from the services of the KFCSCL, the KFCSCL issued a letter on 18.01.1974 requesting the KPCL to extend his joining date until 01.02.1974, on the ground of the petitioner being given an important assignment, and the same was also acceded to by the KPCL. This makes it undeniably clear that both Corporations were well aware that the petitioner was resigning from the KFCSCL in order to join the KPCL as an Accountant, and if "proper permission" was not obtained by the petitioner before resigning, the above-referred series of communications ought not to have taken place at all. It is, therefore, absolutely clear that the petitioner had resigned from his post at the KFCSCL and joined the KPCL with proper permission.
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17. This view of mine is also supported by a recent judgment rendered by the Apex Court in L.R. Patil1, wherein it has been held as follows:
"25. So far as question of the 'relieving order' being treated as resignation is concerned, in terms of Rule 252(b) of KCS Rules, it cannot be treated as resignation. The said Rule makes it clear that if another appointment is taken up by a government servant with proper permission, then it cannot be termed as resignation of public service. Thus, the finding as recorded by the Writ Appellate Court are not sustainable."
18. The contents of Para 8 of the Note (extracted above) introduced by the KPCL states that the Scheme would be regulated on par with the State Government's Rules and Regulations in matters pertaining to pension, gratuity, benefit of extraordinary pension rules by the State Government, and the GPF facility, would automatically 1 L.R. Patil v. Gulbarga University, Gulbarga, 2023 SCC OnLine SC 1110.
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NC: 2023:KHC:39278 WP No. 36470 of 2018 attract Rule 252(b) of the KCSR, especially when then there is no specific provision made in this regard.
19. Yet another factor to be noticed here, which fortifies this view of mine, is that the petitioner is entitled to the benefit of past service of the petitioner under Rule 10 of the Pension Rules, which reads as follows:
10. ABSORBED In the case of employees whose services have EMPLOYEES:
been absorbed in the Corporation,, in public interest, from Central/State Government and/or Organisations owned and controlled by Government/s, the service rendered in the respective Organisations prior to absorption will be reckoned for computation of the qualifying service, provided such employees were eligible for Pension benefits in their parent Organisation, as though the service has been continued uninterruptedly.
Note-1: This provision will be applicable only to those who would be in the service of the Corporation on the date of introduction of these rules.
Note-2: The Pension calculated int eh Corporation for the period as reckoned above will be reduced by such quantum of Pension the absorbed employee is eligible to receive from the Government Department/Government
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NC: 2023:KHC:39278 WP No. 36470 of 2018 Organisation from where he was transferred.
20. Though this Rule pertains to absorbed employees and may not apply stricto sensu to the petitioner, the intent of the Rule is clear that the employees who had rendered past service in State or Central organisations and also organisations owned and controlled by the State/Centre, are entitled to reckon the past service that they had rendered before absorption into the KPCL for the purposes of computation of qualifying service.
21. It is to be borne in mind the overarching objective behind granting the benefit of past service is that if an employee had worked for the State, that benefit should not be lost merely because he joined another Government service. The total service rendered by a person to the State is the real criteria to grant him pensionary benefits. This objective would be nullified if the KPCL were to state that it can ignore past service only because there is no specific provision in the Pension Rules that it has framed.
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22. The right to receive pension is a right vested on a government servant upon rendering his/her service for a specified period and once such condition is satisfied, the same cannot arbitrarily be taken away by the State, citing trivial technical irregularities. The object and the incentives attached to the concept of "pension" would truly be defeated if the petitioner herein is not given the pensionary benefits that he is entitled to after rendering 35 years of service in toto, on the ground that the permission obtained by him was improper and consequently, for the reason that his appointment was in contravention to the procedure established under Rule 252(b) of the KCSR.
23. In view of the above reasoning, this Writ Petition deserves to be allowed. As a consequence, the endorsements issued by the KPCL rejecting the Petitioner's representation to consider his previous service of 8 years and 10 months for the purpose of claiming pensionary benefits as per Rule 252(b) of the KCSR, are set aside. The petitioner is entitled to draw pension as per the KPCL's
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NC: 2023:KHC:39278 WP No. 36470 of 2018 Scheme of 1982, considering his previous service of 8 years and 10 months.
24. The arrears of pension and other benefits under the Scheme (if any) already accrued shall be made over to him within two months from the date of receipt of a copy of this order. It is also directed that the KPCL shall make over the arrears of pension to the petitioner along with 9% interest from the date of superannuation, until the date of payment, for the undue and unnecessary harassment caused to the petitioner in granting the pension that he is rightly entitled to.
Sd/-
JUDGE PKS/P List No.: 2 Sl No.: 15