IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 21ST DAY OF OCTOBER 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT APPEAL No.546 OF 2012 (S-RES) AND WRIT APPEAL No. 2074 OF 2013 BETWEEN:
1. THE MANAGING DIRECTOR KARNATAKA POWER TRANSMISSION CORPORATION LIMITED HAVING OFFICE AT CAUVERY BHAVAN BENGALURU-560 009.
2. THE FINANCIAL ADVISOR (FORMERLY KNOWN AS THE CHIEF CONTROLLER OF ACCOUNTS) KARNATAKA POWER TRANSMISSION CORPORATION LIMITED CAUVERY BHAVAN BENGALURU-560 009.
3. THE GENERAL MANAGER (ADMN & HRD) KARNATAKA POWER TRANSMISSION CORPORATION LIMITED CAUVERY BHAVAN BENGALURU-560 009.
….APPELLANTS (BY SRI. HARIKRISHNA S HOLLA, ADVOCATE) AND:
1. MR T G SUBBA RAO SON OF LATE SRI T G GUNDU RAO ASSISTANT EXECUTIVE ENGINEER EL (RETD.) WAS RESIDING AT NO.628/28, 3RD CROSS, JAYAKUMAR LAYOUT, KONANAKUNTE BENGALURU-560 062 SINCE DECEASED REPRESENTED BY HIS LRS 1(a) SMT SHANTALAKSHMI SUBBA RAO WIFE OF LATE T G SUBBA RAO AGED ABOUT 69 YEARS RESIDING AT NO.628/28 SRI LAKSHMI NARASIMHA NILAYA JAIKUMAR LAYOUT BEHIND PRIMARY HEALTH CENTRE KONANAKUNTE BENGALURU-560 062.
1(b) SRI T S SRIKANTH PRASAD SON OF LATE T G SUBBA RAO AGED ABOUT 39 YEARS RESIDING AT NO.628/28 SRI LAKSHMI NARASIMHA NILAYA JAIKUMAR LAYOUT BEHIND PRIMARY HEALTH CENTRE KONANAKUNTE BENGALURU-560 062.
1(c) SMT UMA NAGARAJ DAUGHTER OF LATE T G SUBBA RAO AGED ABOUT 50 YEARS RESIDING AT NO.14/78 EAT ROAD BASAVANAGUDI BENGALURU-560 004.
1(d) SMT GEETA PRABHAKAR DAUGHTER OF LATE T G SUBBA RAO AGED ABOUT 49 YEARS RESIDING AT NO.162/d SRI NILAYA, NEAR KEERTHANA LADIES TAILOR, NEW BANK COLONY KONANAKUNTE BENGALURU-560 062.
1(e) SMT RATNA ANIL DAUGHTER OF LATE T G SUBBA RAO AGED ABOUT 47 YEARS #15, SRI LAKSHMI NARASIMHA NILAYA BEHIND PRIMARY HEALTH CENTRE JAIKUMAR LAYOUT KONANAKUNTE BENGALURU-560 062.
1(f) SMT BHAGYALAKSHMI SHIVAPRAKASH DAUGHTER OF LATE T G SUBBA RAO AGED ABOUT 40 YEARS NO.194, LALITADRI, 30TH CROSS DASE GOWDANA PALYA, BSK 6TH STAGE 7TH BLOCK, VIDYAPEETA POST KENGERI HOBLI BENGALURU-560 060.
…..RESPONDENTS (R-1(a), R-1(b), R-1(c), R-1(e) AND R-1(f) ARE SERVED AND UNREPRESENTED VIDE ORDER DATED 15.10.2014, NOTICE TO R-1(c) IS HELD SUFFICIENT) THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION Nos.1680-1681 OF 2009 DATED 06.09.2011.
THESE WRIT APPEALS COMING ON FOR HEARING THIS DAY, ASHOK S. KINAGI, DELIVERED THE FOLLOWING:
JUDGMENT The appellant herein is the respondent, and the respondent herein was the petitioner, in the writ petition. The parties are referred to as per their rank in the writ petition.
2. The petitioner was appointed as a Supervisor in the respondent-Corporation. The service of the petitioner was absorbed in the Board and he exercised his option permanently in favour of absorption in the Board with effect from 30.09.1957. The petitioner was promoted to the post of Junior Engineer by order dated 07.11.1975, and the said promotion was regulated as per the order OM.NO.A/ACE/CYS/288/75-76. The post of Junior Engineer was subsequently designated as Assistant Engineer. The petitioner reported for duty as Junior Engineer (Non-Graduate) at Hubli Division on 12.04.1976. Later on he was transferred to Bangalore and he worked in the same place as Assistant Executive Engineer-E1 in the pay scale of 1,000-1,900/-, which has been subsequently revised.
The petitioner retired from service as Assistant Executive Engineer-E1 on attending the age of superannuation on 31.08.1991. There was reduction in his pay scale. The petitioner questioned the said reduction of his pay scale in Writ petition No.6470 of 1980 before this court. It was allowed by order dated 14.03.1986, wherein a direction was given to the Board to re-consider the matter in accordance with law. The respondent- Corporation passed an order dated 14.10.1986, re- fixing pay at Rs.1,030/- in the scale of Rs.690- 1405, with effect from 12.04.1976. By an official memorandum dated 13.11.1986, the pay of the petitioner was reduced in terms of the order dated 14.10.1986.
The petitioner challenged the official memorandum dated 13.11.1986, in Writ Petition No.662 of 1987. The learned Single Judge, by order dated 25.10.1996, rejected the writ petition and upheld the validity of the order passed by the respondent-Corporation. The petitioner aggrieved by the said order dated 25.10.1996, passed in the aforesaid writ petition preferred Writ Appeal No.9929 of 1996. By order dated 18.09.1998, the appeal was allowed and the order of learned Single Judge was set aside quashing the endorsement bearing Ref.No.HBL/AO/AAO1/EA3/11236-48 dated 14.10.1986, and the official memorandum dated 13.11.1986, and further directed the respondent- Corporation to grant the petitioner all the consequential benefits to which he is entitled, consequent upon quashing Annexures ‘M’ and ‘N’ in the said writ petition, and to re-fix the appellant’s initial pay at Rs.1090/- with effect from 12.04.1976, and to grant him all the consequential benefits including arrears and to re-fix his pay as Assistant Executive Engineer (Electrical), by taking into consideration the proper fixation of pay to which he is entitled to and to grant him all the benefits including the financial benefits in accordance with the Service Regulations of the Board. The respondents were further directed to refund the petitioner whatever the deductions have been made from his salary by re-fixing his pay in accordance with the Rules. The respondent- Corporation questioned the said order passed in the aforesaid writ appeal, in Special Leave Petition (Civil) No.2659 of 1999 before the Hon’ble Apex Court, which came to be rejected on 31.03.2000, having regard to the fact that the order passed in the writ appeal has attended finality. The respondent-Corporation did not implement the direction issued in Writ Appeal No.9929 of 1996. The petitioner gave representations on 19.7.2000 and 17.10.2000, as per Annexures ‘C’ and ‘C1’ enclosed to the writ petition, requesting to comply the direction issued in the aforesaid writ appeal. However, the respondents did not choose to comply with the order of this Court. On the other hand, by endorsement dated 23.02.2001, informed the petitioner that the pay fixation made as on 01.04.1976 and subsequent dates was in accordance with the directions issued in the aforesaid writ appeal. Further he was informed that he was not eligible for sanction of certain increments in view of the Board order No.KEB/B16/ 5624/79-80 dated 29.03.1986, and the petitioner was denied the benefit of increment payable to the petitioner with effect from 01.03.1983.
The petitioner made a representation on 31.08.2001, requesting the respondent-corporation to settle his legitimate demands in respect of certain monetary benefits due and payable by the respondent - Corporation. The respondent - Corporation rejected the claim of the petitioner and the same was questioned in Writ Petition No.35358 of 2002 which came to be allowed by order dated 07.02.2008, and quashed the endorsement dated 19.06.2002, and remanded the matter to the respondent-Corporation for fresh disposal in accordance with law, keeping in view the directions issued by this court in Writ Appeal No.9929 of 1996. The respondent-Corporation issued an endorsement dated 14.10.2008, as per Annexure-M enclosed to the writ petition, rejecting the claim of the petitioner. The petitioner questioned the said endorsement dated 14.10.2008 in Writ Petition Nos.1680-81 of 2009. The said writ petitions were allowed on 06.09.2011 and quashed Annexures ‘M’ and ‘D’ and directed the respondent to re-fix the pay of the petitioner in the cadre of Assistant Executive Engineer by extending him the elongation increment due and payable to him in the cadre of Assistant Engineer in terms of the Board order dated 29.11.1984 at Annexure-E and in term of the judgment of this court in Writ Appeal No.9929 of 1996 and release all consequential benefits flowing therefrom in favour of the legal representatives of the petitioner. The respondents-Corporation, aggrieved by the said order, have preferred this writ appeal.
3. Heard the arguments of learned counsels appearing for the parties.
4. The petitioner is fighting for getting his service benefits since 1987, but the respondent – Corporation, on one or the other ground is rejecting the claim of the petitioner. This court has issued a direction in Writ Appeal No.9929 of 1996, which reads as follows:
“In the result, this appeal is allowed with costs assessed at Rs.
2,000/-, setting aside the impugned order passed by the Learned Single Judge and quashing the endorsements bearing reference No. HBL/AO/AAO1 /EA3/11236-48 dated 14.10.1986 (Annexure ‘M’) and the Official Memorandum No. HBL/AO/AAO1/ EA3/12825-36 dated 13.11.1986 (Annexure ‘N’) issued by the 5th respondent, declaring that the Board Order No. KEB/BPO/16/76-77 dated 2.5.1977 as illegal and without authority of law and that the appellant is entitled to the benefit of Rule 42(B) (1) of K.C.S.Rs as adopted by the Karnataka Electricity Board and incorporated in Board’s Service Regulations at Regulation No. 30 and the respondents are directed to grant the appellant all the consequential benefits to which he is entitled consequent upon quashing Annexures ‘M’ and ‘N’ and to re fix the appellant’s initial pay at Rs.-1,090/- with effect from 12.4.1976 and to grant him all the consequential benefits including arrears and to re fix his pay as Assistant Executive Engineer (Electrical) by taking into consideration the proper fixation of pay which he is entitled to and to grant him all the benefits including the financial benefits in accordance with the Service Regulations of the Board. The respondents are further directed to refund to the appellant whatever deductions have been made from his salary by re-fixing his pay in accordance with the Rules.”
5. From the above said order, this court declared that the petitioner is entitled to the benefit of Rule 42(B)(i) of Karnataka Civil Service Rules, as adopted by Karnataka Electricity Board and incorporated in the Board Service Regulations.
In view of the dictum of this court in Writ Appeal No.9929 of 1996, the reasoning of the respondent in the impugned order to reject the claim of the petitioner, is illegal and perverse. That the conditions of service of the petitioner are regulated by set of regulations called as Karnataka Electricity Board Employees Service Regulations (‘the Regulations’ for short). It is pertinent to mention that Regulation 36C of the Regulations, is relevant for the present purpose and the same reads as under:
“36.C.(1) Notwithstanding anything contained in this Regulation, when an employee is promoted to a post or appointed to an ex-cadre post and such promotion or appointment involves the assumption of duties and responsibilities of greater importance than those of the post held by him, his initial pay in the time-scale of the higher post shall be fixed the stage next above the pay in the time-scale of lower post at the time of such fixation.
Provided that where an employee appointed to a higher ex-cadre post is promoted while holding such higher ex-cadre post, to a higher post in accordance with the Recruitment Regulations of the service of which he belongs the pay drawn in such ex-cadre post shall not be taken into account for the purpose of fixation of initial pay on such promotion, but his initial pay in the post which he is promoted shall be fixed with reference to the pay in which could have drawn in the post held by him before his appointment to the ex- cadre post.
Provided further that if an employee either (a) has previously held substantially or officiated in (i) the same post, or (ii) a permanent or temporary post on the same time-scale; or (iii) a permanent post other than a tenure post or a temporary post on an identical time-scale, or (b) is appointed substantively to a tenure post on a time-scale identical with that of another tenure post which he has previously held substantively or in which he is previously officiated, then proviso to Regulation 36 shall apply in the matter of the initial fixation of pay and counting of previous service for increment.
(2) The pay of an employee to whom sub-regulation (1) is applicable, and who would have normally earned his next increment in the time-scale of the lower post but for his promotion to the said higher post or appointment to the said higher ex-cadre post shall be re-fixed in accordance with the provisions of sub- regulation (1) in the time-scale of the higher post held by him as if he had been promoted to the said higher post or appointed to the said higher ex-cadre post after he had earned the said increment in the lower post.
(3) The expression “ex-cadre post” used in this regulation means a stray post, which has been created in or outside the regular line of promotion for a purely temporary period to meet a special need and appointment to which is made by selection from employees possession the required qualification and experience.
(4) The principles of fixation of pay as laid down in sub-regulation (1) and (2) of this regulation shall be applicable also to a board employee appointed through direct recruitment to a post carrying higher scale of pay.
6. A reading of the above said regulation makes it clear that the petitioner is entitled for increment in the cadre of Assistant Engineer. It is also clear from the said regulation that the respondent-Corporation must extend the benefit to the petitioner in view of the above regulation and re-fix his pay in the cadre of Assistant Executive Engineer, which has admittedly not been done by the respondent-Corporation for the reasons best known to them. In view of the dictum laid down by this court in Writ Appeal No.9929 of 1996, this court has directed the respondent to grant the petitioner all the consequential benefits to which he is entitled consequent upon quashing Annexures ‘M’ and ‘N’ and to re-fix the petitioner’s basic pay at Rs.1090 with effect from 12.04.1976, and to grant him all the consequential benefits including arrears and to re-fix his pay as the Assistant Executive Engineer (Electrical), by taking into consideration proper fixation of pay to which he is entitled to and to grant him all the benefits including financial benefits, in accordance with the service regulations of the Board. That, inspite of the direction issued by this court in the aforesaid writ appeal, the respondent-Corporation is making the petitioner to run from pillar to post and he has spent his life in the litigation for getting the benefit of re-fixation of pay scale, but he could not get the fruits of order passed in earlier round of litigation, during his life time. Since he died during the pendency of the writ petition, his legal representatives were brought on record. The petitioner had reached the maximum of time scale of Assistant Engineer (Non-graduate) and thereafter the elongation benefit was afforded to all the workmen who had reached the highest level of pay before 01.04.1983. When the petitioner having been promoted with effect from 16.12.1983, could not have been denied the said increment. The action of the respondent in rejecting the claim of the petitioner, is arbitrary and illegal.
7. The learned Single Judge, after considering the entire material on record and also orders passed in the earlier round of litigations, allowed the writ petition and quashed Annexure-M and directed the respondent-Corporation to re-fix the pay of the petitioner in the cadre of Assistant Executive Engineer by extending him the elongation increment due and payable to him in the cadre of Assistant Engineer in terms of the Board order dated 29.11.1984 at Annexure-E and in terms of the judgment of this court in Writ Appeal No.9929 of 1996 and release all consequential benefits. Hence, we do not find any good grounds to interfere with the order passed by the learned Single Judge.
8. In this view of the matter, we find the order passed by the learned Single Judge is just and proper and we do not find any grounds to interfere with the impugned order.
9. Accordingly, we pass the following:
Order The writ appeals are dismissed.
The respondent-Corporation is directed to comply with the directions issued by the learned Single Judge in Writ Petition Nos.1680-1681 of 2009 within a period of eight weeks from the date of receipt of a certified copy of this order.
Sd/- Sd/-
JUDGE JUDGE RD