AI Structured Summary
Not yet generated for this judgment
Judgment
Anand Byrareddy, J.—Heard the learned Counsel for the Petitioners and the learned Government Pleader.
The facts of the case are that the Petitioners had joined the services of the Respondent as Stenographers and were promoted as judgment Writers with effect from 6.11.1987. The first Petitioner was promoted as a Court Officer by a Notification dated 5.10.1990 and the second Petitioner was promoted as a Court Officer by a notification dated 11.10.1990. By a Notification elated 18.11.2000, the Petitioners were granted the benefit of selection time scale of pay as per the provisions of the Karnataka Civil Services (Time Bound Advancement) Rules. 1983 (hereinafter referred to as '' the Rules '' for brevity)'' with effect from the date on which each of the Petitioners completed ten years of service in the cadre of Court Officer from 6.10.2000 and 11.10.2000, respectively and were given pay fixation in the pay scale of Rs. 6300-11840.
The Petitioners were due for promotion to the cadre of Assistant Registrar. By a notification dated 5.9.2003, promotions were made by the Respondent to the cadre of Assistant Registrar and two other persons were promoted, namely, one Shri Narasa Reddy and another Shri V. Vijayaprabhakara, who were said to be juniors to the Petitioners. Therefore, the Petitioners being aggrieved by such promotions had preferred writ petitions in WP 45490-91/2003, which were disposed of by an order dated 10.9.2004 allowing the petitions and setting aside the promotions impugned. The Respondent was directed to consider the case of the Petitioners for promotion to the cadre of Assistant Registrars with effect from the date their juniors were promoted and if they were found fit for promotion, to grail them all consequential benefits. Accordingly, by a notification dated 12.5.2005, the Respondent promoted the Petitioners. The first Petitioner was placed below one Shri Devaraju and was granted promotion from 2.9.2003 with retrospective effect. The second Petitioner was granted promotion from 1.9.2004 with retrospective promotion. The Petitioners thereafter made representations to promote both of them with effect from 2.9.2003 and to place them above Shri Devaraju. Those representations are said to be pending and the Petitioners however restrict their claim to set aside a memo rejecting the Petitioners'' claim to continue in the selection time scale of pay till 5.10.2005 and 10.10.2005, respectively, and to fix their pay in the pay-scale applicable to the cadre of Assistant Registrar with effect from 6.10.2005 and 11.10.2005 respectively.
It is the case of the Petitioners that the Karnataka Civil Services (Automatics Grant of Special Promotion to Senior Scale of Pay) Rules, 1991 have been promulgated by a notification dated 29.1.1991. These Rules with amendments made from time to time were made applicable to the employees of the Respondent. An Official Memorandum dated 1.2.1993 produced at Annexure-C reads as follows:
A Government servant who is promoted on or after 1.6.1991 or who gets promotion to the higher cadre before completion of fifteen years of service may be permitted to continue in the scale of pay of the lower post or in the selection time scale of pay thereof until he becomes eligible for the benefit of the senior scale of pay, provided an option is given in writing to that effect to the appointing authority within two months from the date of promotion or from the date of commencement of the Karnataka Civil Services (Automatic Grant of Special Promotion to Senior Scale of Pay) (Amendment) Rules, 1993 i.e., 4.1.1993 which ever is later.
As could be seen from the above Official Memorandum it is the case of the Petitioners that option is required to be exercised within two months from the date of promotion and there is no outer limit insofar as the period of continuance in the scale of pay of lower post or selection time scale of pay. The entitlement to continue in the scale of pay of the lower post or in the selection time scale of pay thereof is until he becomes eligible for the benefit of senior scale of pay and there is no outer limit prescribed, it is exercising the right as provided under the Guidelines and the 1991 Rules, the Petitioners had submitted their options requesting the Respondent to allow them to continue as aforesaid. Both the representations submitted by the Petitioners were rejected as per Annexure-F. It is contended that the said rejection is not only contrary to the Rules, but is also contrary to the treatment extended by the Respondent to similarly situated employees. It is contended that though the Petitioners were promoted from 2.9.2003 and 1.9.2004, respectively, the same was given effect to by a Notification dated 12.5.2005 and they had a right to opt for continuance in the selection time scale of pay till they become eligible for senior scale of pay and this could have been exercised by the Petitioner before 12.7.2005. if the 1991 Rules and the Guidelines issued therein in respect of implementation of the Rules is to be followed and the Petitioners having exercised their option on 27.5.2005, which is well within the time limit stipulated, there was no impediment to accept the request of the Petitioners which is permitted under the Rules. It is contended that the Rule governing promotion and senior scale of pay and exercise of option does not prescribe any time limit for the continuance in the selection time scale of pay. The further ground of rejection that no such prayer was made and no such relief was granted earlier in the writ petition filed by the Petitioners is untenable as the nature of relief sought for therein and the circumstances did not permit the Petitioners to raise any such claim even before they were promoted.
The learned Senior Advocate would point out that the opinion expressed in the memo dated 26.5.2005 at Annexure-F to the effect that the option to remain in the scale of pay of the lower post could be exercised only if the officials are due to get increment within the immediate future from the date of promotion. The learned Senior Advocate would point out that the option could be exercised alter the expiry of ten years without any promotion being granted and before the promotion after fifteen years and therefore if promotion is to be granted on the 12th, 13th or 14th year, such option being exercised is contemplated under the Rules. This is what has been exercised by the Petitioners and therefore, he would submit that the petition be allowed.
The learned Government Pleader, in support of the statement of objections filed, would draw attention of this Court to Annexure-C and particularly Paragraph 2A therein which reads as follows:
(a) A Government servant holding a post carrying scale of pay specified in column (2) or selection time scale of pay granted under Karnataka Civil Service (Time Bound Advancement (Rules, 1983 in column (3) of the table under Sub-rule (3) of Rule (1) of the Karnataka Civil Service (Automatic Grant of Special Promotion to Senior Scale of Pay) Rules, 18991 and continues in the same post without any promotion for 15 year is eligible for grant of senior scale of pay, The details of the pay scales and the Selection Time Scale of pay are given in the annexure to this Official Memorandum.
This read with the Official Memorandum which is already extracted herein, to the effect that a Government servant who is promoted on or after 1.6.1991 or who gets promotion to the higher cadre before completion of fifteen years of service may be permitted to continue in the scale of pay of the lower-post or in the selection time scale of pay thereof until he becomes eligible for the benefit of the senior scale of pay, provided an option is given in writing to that effect to the appointing authority within two months from the date of promotion or from the date of commencement of the Karnataka Civil Services (Automatic Grant of Special Promotion to Senior Scale of Pay) (Amendment) Rules, 1993 i.e., 4.1.1993 which ever is later, would give an impression that to secure the benefit under the said Government Order, the officer has to exercise the option to continue in the lower scale, if the officials are due to get inclement within the immediate future from the date of promotion. Whereas in the instant case, since the promotion is accorded, the Petitioners may have to continue in the old scale for a period of more than one year or two years, as the ease may be and hence, the Petitioners were not entitled to the benefit under the above said Government Order and would reiterate the objections taken earlier that no such prayer was made in the earlier writ petition and therefore, the prayer could not be considered.
He would reiterate that the Rules are framed in order to provide relief to Government servants who are otherwise eligible for promotion, but stagnate in the same post held by them without any promotion for a total continuous service of not less fifteen years. Whereas the Petitioners having been admittedly promoted over the years, they cannot be said to be aggrieved and to compound the same, they could not also seek the benefit of postponement of the pay fixation on the specious plea that there is no bar to seek such a relief.
In the above facts and circumstances, the point for consideration is whether there is any time frame within which the option could be exercised as held by the Respondent and whether there was a bar to enable the Petitioners to postpone their pay fixation till the expiry of fifteen years from the date of their assuming duties as Court Officers in order to avail the benefit.
From a plain reading of the Rules, it cannot be said that there is any such bar. The endeavour on the part of the Government Pleader to sustain the Memo at Annexure-F by seeking to read Annexure-C coupled with the Note at Ink Page-18 of the writ petition, to contend that the option should be capable of being exercised within a short period and it could not be indefinitely postponed and there was a bar to such postponement cannot be countenanced. The Notification would also only specify that a Government servant holding a post carrying the scale of pay granted under the 1983 Rules and the 1991 Rules continuing in the same post without any promotion for fifteen years is eligible for grant of senior scale of pay and a Government servant who gets promotion to the higher cadre before the completion of fifteen years of service are read disjunctively and would apply in different circumstances. It cannot be said that the two ought to be read together to deny the benefit of seeking the option which is otherwise, without any such condition of a time frame being imposed as to the period within which from the expiry of fifteen years that an employee could seek such an option. The option however ought to be exercised within two months and the Petitioners having done so there is no impediment for the Petitioners being entitled to such relief.
Accordingly, the writ petition is allowed. Annexure-F stands quashed. Insofar as the first Petitioner is concerned, the Respondent is directed to allow the Respondent with retrospective effect to continue in the selection time scale till 5.10.2005 and grant senior scale of pay from 6.10.2005 and to fix his pay in the pay scales applicable to the cadre of Assistant Registrars with effect from 6.10.2005, after sanctioning the senior scale of pay and grant all consequential benefits including the payment of arrears. Insofar as the second Petitioner is concerned, she having attained the age of superannuation would equally be entitled to the benefit of the higher scale of pay and accordingly, the Petitioner is deemed to have been allowed to continue in the senior scale of pay till 10.10.2005 and the senior scale of pay shall be granted from 11.10.2005 and the pay-scale applicable to the cadre of Assistant Registrars shall be fixed with effect from 11.10.2005 and shall be granted all consequential benefits including the payment of arrears of salary. Consequently, the Petitioners are bound by their memorandum which has been filed undertaking to refund of any excess that they may have received by virtue of their pay fixation with effect from the date of promotion.
The petitions are allowed accordingly.