(Prayer: This writ petition is filed under Article 226 of the Constitution of India praying to call for the records pertaining to the case of the petitioner; quash the resolution passed by the R-4 in subject No. 82/A04 which is produced at annexure-G as the same is in contravention of the Rule 222 of the kebesr besides being violative of Articles 14 and 21 of the constitution and etc.,)1. This petitioner in this writ petition has called in question the resolution passed by the fourth respondent denying pension to the petitioner and has sought an amendment to raise challenge to the order at Annexure R7 dated 27.02.2012.2. Petitioner joined the services of the erstwhile Karnataka Electricity Board as a Second Division Clerk. She was placed on probation by an order dated 22.07.1974. On 16.10.1998 the respondent-Board had issued a clarification regarding fixation of pay of employees who have not passed Kannada language examination, as required under the regulations, employees who have crossed 45 years of age such employees should be granted increment prospectively from the date on which they crossed 45 years of age. Owing to this clarification dated 16.10.1998, petitioner was also given annual increment with effect from 05.03.1998 i.e., the date on which she has attained or crossed 45 years of age by an order of the second respondent dated 9.11.1998.3. The petitioner continued to work in the cadre that she was appointed to and retired on attaining the age of superannuation on 31.7.2011. At the time of retirement of the petitioner, the annual increment that was granted to her in the year 1998 was withdrawn by an order dated 27.02.2012 and her pay was fixed at the bottom of the pay scale obtaining in the cadre of Second Division Clerk which would mean, the pay of the petitioner was revised the effect from 22.07.1974, the date on which she was appointed in the services of the erstwhile Board.4. The petitioner has approached this Court in writ petition seeking direction for payment of appropriate pension and other terminal benefits taking her last drawn pay at Rs.11,413/- as against Rs.9050/- taken by the first respondent.5. The respondent-Board has filed its statement of objections placing on record the reason for reduction of basic pay in determination of pension, which is withdrawal of the annual increment that was granted in the year 1998 to the petitioner. It is in this light the petitioner has raised a challenge to the said order as well by way of an amendment. Therefore, the order dated 27.02.2012 is also called in question in the writ petition.6. Heard Sri. Subramanya Bhat. M., learned counsel appearing for petitioner, Sri. Varun Gowda, learned counsel appearing for respondent Nos.1 and 4 and Smt. GirijaPtil, learned counsel appearing for respondent Nos.2 and 3.7. Learned counsel for the petitioner would submit that the petitioner though joined the services on 25.07.2014 and was placed on probation for a period of two years, no order of confirmation of services was passed in favour of the petitioner for the entire services she rendered in the Corporation which is from 1974-2011 for about 37 years.8. The Board had issued a clarificatory note that employees who have crossed 45 years of age without passing Kannada language examination as is required under the regulation, such employees should be granted increments that they are entitled to, prospectively, from the date on which the attain the age of 45 years.9. It is in pursuance of this clarification, annual increments were granted to the petitioner. That could not have been withdrawn after about 13 years of its grant and reduced the pension payable to the petitioner on two counts, namely, the petitioner was not entitled to said annual increment and the petitioner had not been confirmed in the services of the Board.10. On the other hand, learned counsel for the first respondent-Corporation would concede that the action taken against the petitioner is after 37 years of her service as the pay of the petitioner is sought to be altered in the year 2011 is with effect from 25.07.1974, the date on which she entered service. But would submit that they were entitled to undo the increment that was granted in the year 1998 on the score that the petitioner had not passed the requisite Kannada language examination as mandated in the rules.11. Learned counsel appearing for the respondents 2 and 3 would submit that a clarification was issued by the KPTCL in the year 2005 with regard to the increment that had been granted to the petitioner and it is continuous and therefore, no fault can be laid with the action taken by BESCOM in submitting the papers to the first respondent for disbursement of pension in the manner it is done.12. I have given my anxious consideration to the submissions made by the learned counsel for the parties and perused the material on record.13. The petitioner though was placed on probation on 22.07.1974, was never confirmed in services for 37 years and was granted annual increment in terms of a clarification issued by the erstwhile Board on 16.10.1998 with effect from 05.03.1998 and the petitioner had a particular pay scale in terms of the said order of release of annual increment from the date on which she attained 45 years of age. The respondents after the retirement of the petitioner have now sought to undo the grant of annual increment with effect form 09.11.1998 by an order passed on 27.02.2012.14. The order dated 27.02.2012 revises the pay scale of the petitioner obtaining from 25.07.1974 and on withdrawal of the increment that is granted from 01.04.1998, both of which are 37 and 14 years respectively, from the pay that was granted to the petitioner and the increment in the year 1998.15. The said alteration of pay that was granted to the petitioner is unavailable in law notwithstanding that the petitioner was not confirmed in the services of the Corporation. It is apposite to refer to the judgment of the Apex Court in the case of Chief Engineer/Operation, Dakshini Haryana BijliVitran Nigam Limited and Another Vs. Mauj Khan and others reported in (2009) 7 SCC 355, dealing with similar kind of a situation where the employee was not confirmed in the services till retirement. The relevant paragraphs of the judgment of the Apex Court referred (supra) reads as follows:€œ19. The purported clarification issued by the State of Haryana to which our attention has been drawn, in our opinion, is also not relevant. The clarification furnished by the State Government was in relation to those employees who were not being promoted to the next higher post. The same must have reference to those Junior Clerks whose services were confirmed but who had not been promoted to the post of UDC or higher posts. Once the services are confirmed, an employee would be borne on the regular cadre. He thus being in the regular service, satisfactory completion of the stipulated period therein would entitle him to the benefits thereof.20. We, therefore, are of the opinion that the impugned judgement cannot be sustained. The question however remains that he appellants deliberately or otherwise despite a clear provision contained in the Rules did not terminate the services of Respondent 1. He was allowed to continue in service.21. It is neither denied nor disputed that despite the fact that the respondent did not pass the Departmental Accounts Examination, he was otherwise a competent officer. In fact, he has been permitted to officiate on a higher post. In a situation of this nature, in our opinion, the appellants had a duty to give him a warning. His case should have been treated in terms of the Rules. Failure on the part of the State to do so, in our opinion, has seriously prejudiced him. Had such warning been given, he could have appeared in the examination.22. It is the case of the appellants that Respondent 1 did not appear at the examination at all. It has been held that the respondent is not entitled to the benefit claimed. He was bound to pass the test within the prescribed period. On failure to pass the test, his services were liable to be terminated. Under the Rules he was not entitled to any warning regarding the failure to pass the test. However, he was allowed to continue in service and received the salary. What is denied is only the benefit of additional increment which can be granted on fulfilling certain conditions.23. In such circumstances, there may not be justification for payment of compensation. Instead, the appellants should be directed not to deny pensionary benefits to the respondent on the ground that his services were not regularised/confirmed. Such direction is necessary only if there is a move to deny pensionary benefits.€(emphasis supplied)The Division Bench of this Court in W.P.No. 37861/2009 disposed on 05.01.2010, on consideration of grant of annual increments to an employee who had attained the age of 45 years and its validity, has held as follows:€œ4. The Tribunal has examined the case of the respondent and rightly placed reliance on the Sub-rule (3) on the Rule 3 of the Rules. Having regard to the fact that the respondent crossed the age of 45 years on 03.12.1986, the Tribunal has held that the respondent is entitled to claim annual increments though she has not passed the Kannada language Examination and further rightly made on observation that though the respondent had been granted usual increment due on 01.12.1987, the subsequent increments that fell due on 01.12.1988 had not been granted on the ground that she has not passed the Kannada Language Examination. After careful perusal of the aforesaid proviso to Sub-rule (3) of the Rule 3 of the Rules, the view taken by the Tribunal is in order and further, the statutory benefit of granting annual increments to the respondent is the statutory liability upon the petitioner herein. Therefore, the stand taken by the Government that the claim of the respondent before the Karnataka Appellate Tribunal suffers from delay and laches cannot be accepted by this Court. The statutory entitlement or the monetary benefit under the provision of the Rules is re
Please Login To View The Full Judgment!
quired to be paid by the petitioner herein which has not been paid to the respondent. Therefore, she has rightly approached the Tribunal. The Tribunal after examination the legal aspect with reference to the statutory provisions of Sub-Rule (3) of Rule 3 of the Rules has rightly exercised its power and granted the relief€.(emphasis supplied)16. The Apex Court has clearly held that pension should not be effected/applicable to an employee who has not been confirmed in his service on the ground that he is not confirmed in service or did not pass requisite language examination under the Rules. So is the order to the learned Division Bench with regard to grant of increments after 45 years.17. Therefore, in the light of the facts and the law laid down by the Apex Court and that of the learned Division Bench, the following:ORDER(i) The Writ petition is allowed.(ii) Order dated 27.02.2012 is quashed and the respondents are directed to pay pension to the petitioner taking into consideration her last drawn basic pay and grant all other consequential benefits within six months from date of receipt of a copy of the order.