2010 Supreme(Kar) 1083

High Court of Karnataka
THE HONOURABLE MR. JUSTICE N KUMAR & THE HONOURABLE MR. JUSTICE ARALI NAGARAJ
State of Karnataka, Represented by its Secretary & Others
Versus
Subramanya & Others
Writ Petition No.39634 of 2004 (S-KAT) C/w Writ Petition Nos. 30374, 35290 of 2001, Writ Petition Nos. 9983, 9987, 9991, 9997, 9998, 13691, 13694, 13695 of 2005, Writ Petition No. 9473 of 2008 & Writ Petition No. 1247 of 2008
Decided On : 14-12-2010

Headnote:KARNATAKA CIVIL SERVICES RULES, 1958 - Rule 7: [N.Kumar & Aali Nagaraj,JJ] Rules providing relaxation - Village Accountant duly appointed and putting in the qualifying service - Payment of pension - Held, If a Village Accountant had been duly appointed and thereafter, after, putting in the qualifying service, he had retired on reaching the age of superannuation or in any other manner, rules provide for payment of pension as prescribed under the Rules. However, exception to Note 3 of Rule 237 expressly stated that Shanbhogues, Patels and other Village servants are not entitled to pension although they are paid from the Consolidated Fund of the State. In view of the aforesaid express rule, Shanbhogues were not entitled to pension. It is because of this express bar under the Rules, when the Government decided to grant them the pension, they had to invoke Rule 7 which empowers it to dispense with or relax the application of that rule, to such an extent and subject to such conditions as it may consider necessary for dealing with the case in just and equitable manner. When the Court looks into the philosophy behind the grant of pension and the fact that the Shanbhogues had rendered loyal service to the Government till they were removed from service or retired and that they are in the evening of their life and they are citizens of this express provision was unjust and unreasonable as the said provision was coming in the way of granting pension under the Rules, thy exercised their power under Rule 7 and relaxed the aforesaid provision, thereby, making it clear that Ex-Shanbhogues are entitled to pension. - Further held, For a person to be entitled for a pension under these rules, he has to satisfy Rule 222. First condition was, his service must be under the Government which condition is satisfied by these Ex-Shanbhogues. Third condition was, he must be paid for by the Government which condition was also satisfied. But they did not satisfy the second condition that employment must be substantive and permanent. Therefore, the aforesaid Rule did not apply to Ex-Shanbhogues to be entitled to the pension. In these circumstances, the Government invoked Rule 235 of the KCS Rules, 1958 which expressly states that the Government may by a general or special order, permit service, other than the pension able service, for performing which a Government servant is paid from the Consolidated Fund of the State or from a Local Fund, to be treated as a ’duty’ counting for pension. Therefore, by virtue of Rule 235, the power is vested in the Government to provide for pension in respect of the person who does not satisfy the requirements contemplated under Rule 222.

       LABOUR & SERVICES - Pension: [N. Kumar & Aali Nagaraj, JJ] Claim for Benefit of Pension - Persons served as Shanbhogs, Patvaris, Karnams who were holding a hereditary office and were continued as Village Accountants under sub-Section (2) of Section 16 of the Karnataka Land Revenue Act, 1964 - Their entitlement of pension in law - Order passed by the Karnataka Administrative Tribunal, holding that persons who served the State as Shanbhogues and thereafter who served the State as deemed Village Accountants are not only entitled to benefit of pension but also entitled to the benefit of Rule 247-A of the Karnataka Civil Services Rules - Challenge to - Held, The appointment of Village Accountant is under Section 16(1) of the Karnataka Land Revenue Act, 1964. Whereas, under Section 16(2) of the Act, persons who were holding the office of Village Accountant immediately prior to the commencement of the Act i.e., 1-4-1964 shall be deemed to be Village Accountants of such village till another person is appointed under sub-Section (1). From this deemed provision, it is clear that they are not Village Accountants actually, but by a fiction of law, they were treated as Village Accountants. It is also clear from the word ’Village Accountant’ found at Section 2(39) wherein the word ’Village Accountant’ has been defined. If a Village Accountant is appointed under Section 16(1), KCSRs apply to him with full force automatically, and he would be entitled to pension and other monetary benefits under the said Rules. Because the said KCSRs did not apply to deemed Village Accountants and the Government wanted to extend the benefit of pension to these deemed Village Accountants, it exercised its power under Rules 7 and 235 and made the pension applicable to persons who were otherwise not entitled to under the Rules. So, it is in this context, when we look at the order, it is explicit. When it says Ex-Shanbhogues who continued to hold the post of Village Accountant under Section 16(2) after abolition of the posts which they held under 1908 Act. Further held, Shanbhogues who either reached the age of superannuation or who were removed from service by virtue of the appointment of Village Accountants being made in their place under Section 16(1), claimed pension. When it was not granted, they approached High Court and several orders came to be passed both by the Tribunal as well as by High Court directing payment of pension. It is in this context, doubt arose in the minds of the Accountant General and Divisional Commissioners who were expected to give effect to the orders of the Court. It is in that context they addressed their letters to the Government seeking from it to clarify the position. Therefore, the order dated 28-11-1979 was passed by the Government to provide pension to Ex-Shanbhogues who continued as deemed Village Accountants by virtue of sub-Section (2) of Section 16 of the Karnataka Land Reforms Act who retire either on reaching the age of superannuation or their services were terminated as contemplated in the aforesaid provision. Therefore, it is clear that the case of ex-Shanbhogues and Village Accountants who were not regularly appointed are governed by the Government Order dated 28-11-1979, and to them Rule 247-A of KCSRs is no application.

       LABOUR & SERVICES - Pension: [N.Kumar & Aali Nagaraj, JJ] Object and philosophy behind grant of Pension -Liberalization of Pension Rules governing Pension - Held, Pension is not a bounty payable on the sweet will and pleasure of the Government. The right to pension is a valuable right vested in the Government servant. Grant of pension does not depend upon the order being passed by the authorities to the effect. The right to receive pension flows to the employee, by virtue of the Rules. It is the obligation on the part of the State to provide security in old age. It is not only a reward for past service but with a view to helping the employee to avoid destitution in old age. A retirement system therefore exists solely for the purpose of providing benefits. Further, The retrial benefit is grounded on ’considerations of State obligation to its citizens who having rendered service during the useful span of life must not be left to penury in their old age. The concept of social security is a late day development’ which is a goal set up in apolitical society in order to make it a welfare State. The term ’pension’ has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments, to one retired from service. The pension payable to a Government employee is earned by rendering long a efficient service and therefore can be said to be a deferred portion of the compensation or for service rendered. The pension scheme introduced by way of Government Order should receive a liberal construction and the Courts may not so interpret such statute as to render them inane. On facts, held, In the instant case, all these Ex-Shanbhogues rendered their services or their duty to the Government before Independence and even after Independence. What is abolished is the hereditary nature of the office and the emoluments attached to that office. Their services were not dispensed with, on the contrary their service were continued. Their service was utilized. As the hereditary office could not have been continued after coming into force of the Indian Constitution, as it offended Article 14 of the same, it was abolished. Therefore, notwithstanding the abolition of the hereditary office and the emoluments attached there to, the fact that they rendered duty to the Government cannot be lost sight of. Even after the abolition, by virtue of a statutory provision, as contained in 16(2) their services were continued and they continued to serve the Government.

       LABOUR & SERVICES - "Recruitment", "Appointment", "Absorption": [N. Kumar & Aali Nagaraj, JJ] Pensionary benefit to Ex-Shanbhogues who were continued in services as deemed Village Accountants by virtue of sub-Section (2) of Section 16 of the Karnataka Land Revenue Act - Held, The term ’recruitment’ connotes and clearly signifies enlistment, acceptance, selection or approval for appointment. Certainly, this is not actual appointment or posting in service. In contradistinction the word ’appointment’ means an actual act of posting as person to a particular office." Therefore, the word ’recruitment’ used in the order does not mean as contended by the State, that a notification has to be issued under the Act or Rule, calling for application, examination has to be conducted, interviews have to be conducted and a list of selected candidates is to be published. In the context in which it is used, all that it means is enlistment and the other word used is ’absorbed’ which means that they were not appointed but the persons whose services are continued were absorbed on recruitment as Village Accountants. Further held, As these Government servants were not regularly appointed, they were not holding any substantive and permanent posts and therefore, they did not satisfy the qualification prescribed under Rule 222 and were not entitled to pension, the Government invoked Rule 235 and extended the benefit of pension notwithstanding that these persons did not satisfy the requirement prescribed under Rule 222. That is the reason why, in the order portion thereof there is a reference to these Rules which empower the Government under the Rules to extend the benefit of pension to persons who are not otherwise eligible under the Rules. Clause (a) of the Government Order makes the intention of the Government very explicit. It states that Ex-Shanbhogues (Shanbhogues, Karnams and Patwaris) who were continued in service be deemed to have become regular Village Accountants. Sub-Section (2) of Section 16 of the Act are made. Therefore, the said provision is applicable to those Ex-Shanbhogues who were continued in service after 1-4-1964 and were declared to be deemed to have become regular Village Accountants. Then, their services are treated as having been regularized with effect from that date solely for the purpose of counting service from that date i.e., 1-4-1964 towards qualifying service for pension. The intention of the State Government is very clear. Though they were continued in service from 1-4-1964, under Section 16(2), intention was not to regularize them and make them permanent employees, but they were treated as regular employees for the purpose of counting their service, for pension. Therefore, the contention that Clause (a) applies only to the persons who were appointed under the Rules has no substance.