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2021 Supreme(Kar) 224
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
M. Nagaprasanna, J.
Smt. Shamimunnisa, W/O Sadiq Munawar – Petitioner
Versus
The Karnataka Power Transmission Corporation Limited And Ors. – Respondents
Writ Petition No.7337 of 2017
Decided On : 11-01-2021
Advocate Appeared:
For the Petitioner:Sri Subramanya Bhat M., Advocate (Video Conferencing))
For the Respondent:Sri Varun Gowda, Advocate (Video Conferencing), Smt.Girija Patil, Advocate (Physical Hearing)
Headnote:
Age of superannuation - Annual increment - Pay scale - Petitioner joined services of erstwhile Karnataka Electricity Board as a Second Division Clerk - She was placed on probation by an order - Respondent-Board had issued a clarification regarding fixation of pay of employees who have not passed Kannada language examination, as required under regulations, employees who have crossed 45 years of age such employees should be granted increment prospectively from date on which they crossed 45 years of age - Owing to this clarification petitioner was also given annual increment with effect on which she has attained or crossed 45 years of age by an order of second respondent - Petitioner continued to work in cadre that she was appointed to and retired on attaining age of superannuation - At the time of retirement of the petitioner, annual increment that was granted to her in year 1998 was withdrawn by an order and her pay was fixed at bottom of pay scale obtaining in cadre of Second Division Clerk which would mean, pay of petitioner was revised with effect on which she was appointed in services of erstwhile Board – Held, Tribunal has examined the case of respondent and rightly placed reliance on the Sub-rule (3) of Rule 3 of the Rules - Having regard to fact that respondent crossed age of 45 years - Tribunal has held that respondent is entitled to claim annual increments though she has not passed Kannada language Examination and further rightly made an observation that though respondent had been granted usual increment due subsequent increments that fell due had not been granted on ground that she has not passed Kannada Language Examination - Therefore, she has rightly approached the Tribunal - Tribunal after examining legal aspects with reference to statutory provisions of Sub-Rule (3) of Rule 3 of the Rules has rightly exercised its power and granted the relief - Apex Court has clearly held that pension should not be effected/applicable to an employee who has not been confirmed in his service on ground that he is not confirmed in service or did not pass requisite language examination under Rules - So is order of learned Division Bench with regard to grant of increments after 45 years - Writ petition is allowed.
ORDER :
The 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 with 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 a 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.Girija Ptil, 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 service 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 they 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 fo
