Full Judgment Text
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PETITIONER:
S.C. MANDAKKI ETC.
Vs.
RESPONDENT:
THE DIRECTOR OF HEALTH ANDFAMILY WELFARE SERVICE ETC.
DATE OF JUDGMENT: 02/02/1996
BENCH:
K. RAMASWAMY, G.B. PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
We have heard the counsel on both sides. The appellant
was appointed as a Junior Laboratory Technician in the
Department of Family Health and Family Welfare Service on
May 3, 1979. He had applied on September 16, 1986 for
transfer and posting him as Ist Divisional Assistant in the
same Department. By proceedings dated October 28, 1986, he
was posted as a Ist Divisional Assistant in the same
department. Karnataka Civil Services (Time Bound
Advancement) Rules, 1983) provide for giving advance
increment, under Rule 16 thereof to the candidate who has
completed 10 years of service but was not promoted to a
higher post. The appellant had applied for grant of the said
benefit in 1989. By proceedings dated October 15, 1989, the
same was rejected. Consequently, he filed a representation
in the Administrative Tribunal which by its order dated
January 13, 1993 in Application No.1545/92 dismissed the
same. Thus this appeal by special leave.
Shri P.R. Ramesh, the learned counsel for the
appellant, contended that the descriptive criteria
prescribed in Rule 3 clause (a) of the Rules must be read
analogous to the work charged service or the service put up
by a local candidate which would only be excluded. Since the
appellant has been discharging his duties from May 3, 1979
carrying the same scale of pay though of descriptive nature
of the post, the appellant had completed ten years of
service as on May 19, 1989 and that, therefore, he is
eligible to the increment under the Rules. Shri Veerappa,
the learned counsel for the State, contended that proviso to
Rule 6 of the Karnataka Government Servants’ (Seniority)
Rules, 1957 as amended in 1976 is applicable to the facts of
this case. By its operation, the appellant having
voluntarily opted to get posted as a Junior Assistant,
though in the same department, for the purpose of promotion,
he having become junior most, unless he completes 10 years
of service along with his companions, he is not eligible to
be promoted. Thereafter, he becomes eligible to be
considered. The Tribunal, therefore, was right in rejecting
the claim of the appellant.
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Having regard to the facts and respective conditions,
the only question is that whether the appellant is entitled
to tag his service from May 3, 1979 to October 28, 1986 for
the computation of the 10 years period under the Rules for
getting advance increment. Rule 3 of the Rules reads thus:
"3. Grant of time bound advancement
and conditions of eligibility :
The Appointing Authority shall
grant to a Government servant who
is holding a post carrying pay
scale specified in column (2) of
the Schedule the selection time
scale of pay specified in the
corresponding Column (3) thereof,
if :
(a) he has put in a service of not
less than ten years in the post
held by him excluding his service
as a local candidate work-charged
employees or any other service
which does not count for the
purpose of determining seniority
for promotion;
Rule 6 of the Seniority Rules reads
thus:
"The transfer of a person in public
interest from one class or grade of
a service to another class or grade
carrying the same pay or scale of
pay shall not be treated as first
appointment to the latter for
purposes of seniority; and the
seniority of a person so
transferred shall be determined
with reference to his first
appointment to the class or grade
from which he was transferred :
Provided that, where the transfer
is made at the request of the
officer, he shall be placed in the
seniority list of the class or
grade or service to which he is
transferred below all the officers
borne on that class or grade of
service on or before the date of
the transfer:
Provided further, that the
seniority of a person transferred
in public interest vis a vis the
person actually holding the post in
the Class or Grade to which he is
transferred shall be determined on
the date of such transfer with
reference to his first appointment
to the class or grade from which he
was transferred.
A combined reading of these rules would clearly
indicate that the appointing authority shall grant to a
Government Servant who holds a post carrying pay scale
specified in Column 2 of the Schedule the selection time
scale of pay specified in the corresponding Column (3)
thereof, if he has put in a service of not less than 10
years in the post held by him excluding his service as a
local candidate work-charged employees or any other service
which does not count for the purpose of determining
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seniority for promotion. Under the proviso to Seniority
Rules on account of his request for transfer from the post
Junior Technician to Ist Divisional Assistant and assuming
the charge he holds the post as Ist Divisional Assistant
with effect from October 10, 1986, he becomes junior-most
among Ist Assistants in the seniority list as on that date.
If more than one joins on that date, in the order of
respective dates of seniority in the transferred serial. He
holds the post as Ist Divisional Assistant with effect from
October 28, 1986 and his 10 years service would be reckoned
from the date on which he holds the post for the purpose of
his seniority for promotion to the higher post. It would
appear that the single Judge of the High Court of Karnataka
had taken a contrary view and the Tribunal has pointed that
the learned single Judge had not considered the effect of
the word "for promotion". We think that the Tribunal is
correct in the interpretation of the Rules. Under these
circumstances, we do not find any illegality in the judgment
of the Tribunal.
Accordingly the appeal is dismissed. No costs.
CIVIL APPEAL NO. OF 1996
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(Arising out of SLP (C) No.3252/94)
Leave granted.
In this case though the appellant has claimed his right
for increment in the time bound promotion in the category as
Sheristedar in view of the fact that his seniority was
determined in the list published on January 23, 1992 and
became final, obviously, seniority had to be reckon and with
reference to the date with effect from which seniority for
promotion to the cadre of Taluk Sheristedar was ultimately
determined. As it became final, it forms basis for fixing 10
years service his time bound increment. Under this seniority
list, obviously, he had not completed ten years of service.
Therefore, proceedings were issued to recover the amount
under which he was wrongly paid. The Tribunal by the
impugned order dated November 5, 1992 made in Application
No.3367/92 dismissed his petition. Though in view of the
above reasoning, the appellant is not entitled to the
payment of the increment, however, the arrears paid so far
need not be recovered. He will be considered for increment
as soon as he completed his ten years of service unless and
otherwise he become eligible for promotion in the meanwhile.