Dr. K.S. Jayanthi Wife of Late S. Prakash, Retired Medical Superintendent Vs. the State of Karnataka, Department of Health and Family Welfare Services Represented by Its Principal Secretary, - Court Judgment

Excerpt:

.....235-a - consideration of length of service rendered between bbmp and government as continues service - grant of pension accordingly instead of pro rata pension for different length of service held, the petitioner has been granted pro rata pension for the service rendered in the state government and the pro rata pension for the service rendered in the bbmp, on proportionate basis . petitioners claim for a combined pension has been denied by the bbmp on the ground that the petitioner being governed by the karnataka civil service rules, 1958, as the same have been made applicable to the employees of the bbmp and particular reference is drawn to rule 235-a(1) of the kcs rules. bbmp has filed statement of objections the primary contention is that in terms of rule 235-a(1) of the kcs rules, the petitioners are entitled to claim only pro rata pension and there is no provision for payment of a combined single pension for periods of service rendered with the government and the bbmp, respectively. it may only be possible to pay both the pension amounts for convenience, through the bbmp but in the absence of a rule providing for payment of pensionary benefits for the entire length of..........the services of bbmp, in the interest of public service. this is evident from the order dated 12.4.1991. though the petitioner has been granted pro-rata pension for the service rendered in the stale government and (he pro-rata pension for the service rendered in the bbmp, on proportionate basis - the petitioner's claim for a combined pension has been denied by the bbmp on the ground that (he petitioner being governed by the karnataka civil service rules (hereinafter referred to as 'kcs rules' for brevity) as the same have been made applicable to the employees of (he bbmp and particular reference is drawn to rule 235a(1) of the kcs rules. it is in the above background that these petitions are filed.the petitioner in wp 16130/2009 is placed in similar circumstances. she was appointed as an assistant surgeon in the year 1972 in the department of health and family welfare services. she was later deputed to the office of the bbmp on 20.7.1987. she was absorbed into the services of the bbmp with effect from 30.10.1990, in public interest. she retired from service as a medical superintendent on attaining the age of superannuation on 28.2.2005. however, her pension was paid pro-rata.....

Judgment:

ORDER

Anand Byrareddy, J.

1. These petitions are heard and disposed of together as they involve an identical issue.

2. The petitioner in WP 16129/2009 was initially appointed as an Assistant Surgeon in the year 1978 in the Department of Health and Family Welfare Services. She was later deputed to the office of the second respondent in the year 1984. It is her case that she was absorbed in the Bangalore City Corporation with effect from the year 1990. This was endorsed by the Bruhal Bangalore Mahanagara Palike (hereinafter referred to as 'BBMP'' for brevity), by an order dated 12.4.1991.

This petitioner was promoted as a Medical Superintendent in the month of October 2003. The petitioner retired from service as Medical Superintendent on attaining the age of superannuation on 31.7.2007. It is her case that she has served for a total period of 29 years 3 1/2 months.

It is the petitioner's case that the petitioner is entitled to all pensionary benefits counting her service from 16.3.1978 to 31.7.2007. She was absorbed into the services of BBMP, in the interest of public service. This is evident from the order dated 12.4.1991. Though the petitioner has been granted pro-rata pension for the service rendered in the Stale Government and (he pro-rata pension for the service rendered in the BBMP, on proportionate basis - the petitioner's claim for a combined pension has been denied by the BBMP on the ground that (he petitioner being governed by the Karnataka Civil Service Rules (hereinafter referred to as 'KCS Rules' for brevity) as the same have been made applicable to the employees of (he BBMP and particular reference is drawn to Rule 235A(1) of the KCS Rules. It is in the above background that these petitions are filed.

The petitioner in WP 16130/2009 is placed in similar circumstances. She was appointed as an Assistant Surgeon in the year 1972 in the department of Health and Family Welfare Services. She was later deputed to the office of the BBMP on 20.7.1987. She was absorbed into the services of the BBMP with effect from 30.10.1990, in public interest. She retired from service as a Medical Superintendent on attaining the age of superannuation on 28.2.2005. However, her pension was paid pro-rata towards her services in the State Government and her services with the BBMP, separately and hence the petition.

The petitioner in WP 16131/2009 was appointed as an Assistant Surgeon in the Department of Health and Family Welfare Services on 20.8.1974. She was deputed to the BBMP in the year 1986. And retired from service on 31.3.2005. She is now aggrieved pro-rata pension being paid separately by the Government for 16 years, 2 months and 7 days and the BBMP for a period of 14 years 3 months and 4 days, respectively.

3. The Counsel for the petitioners contends that payment of pro-rata pension separately towards her service with the Government and the BBMP, (he pensioners' benefit stands reduced considerably. In this regard, the Counsel seeks to draw attention to the cases of three others who were similarly placed as the petitioners and who have been granted a single pension which is more than double the pension that is drawn by the petitioners.

The Counsel also draws the attention of this court to the following decisions:

Nagappa v. State of Karnataka : ILR 1985 Kar. 2152, wherein it is laid down that every person need not be driven to approach the Court, if a decision of the court rendered in identical circumstances can be applied by the authorities, with reference to the same, to another's case.

Ami decision in K.T. Veeranna v. State of Karnataka (2006) Supreme 668 wherein the apex Court has reiterated the above principle in order to avoid unnecessary litigation.

It is contended that in terms of a Government Order No. FD 70 SRS 77 dated 27.10.1977 entitles the petitioners for pension for the entire length of their service. It is pointed out that in so far as the petitioner in the first of these petitions has not been settled with pensionery benefits either in respect of services rendered with the Government or the BBMP. Insofar as the petitioner in die second petition is concerned, pro-rata pension has been settled only in respect of her service rendered in the Government.

And insofar as the petitioner in the third of the petitions is concerned - the pro-mitt pension is paid separately towards service rendered in the Government and the BBMP.

4. The respondent BBMP hassled statement of objections only in WP 16130/2009 - the primary contention is that in terms of Rule 235A(1) of the KCS Rules, the petitioners are entitled to claim only pro-rata pension and there is no provision for payment of a combined single pension for periods of service rendered with the Government and the BBMP, respectively. It may only be possible to pay both the pension amounts for convenience. through the BBMP -~ but in the absence of a Rule providing for payment of pensionery benefits for the entire length of service both with the Government and the BBMP, it would not be possible for the BBMP to pay such combined pension.

It is contended that insofar as the contention that certain others who were similarly placed having been granted the benefit of a common pension is concerned - as the said persons were not actually placed in similar circumstances and hence their cases were not relevant.

It is contended that there would be difficulty in computing the pensionery benefit due and the extent of liability to be borne pro-rata by the Government and the BBMP, if a common pension for the entire length of service is to be computed and therefore, it is pleaded that the petitions be dismissed.

5. In the above circumstances, the question that arises for consideration is whether the petitioners can be disentitled to claim that they ought to be paid pension for their entire length of service in view of the Rule which provides for payment of pro-rata pension for services rendered in the parent department and the service rendered elsewhere on absorption.

Even if the respondent's contention that the decided cases, cited by the petitioners, are not applicable to the facts of the present case, there is no valid reason shown as to why the petitioners' claim ought not to be granted. The contention that there is no rule which provides for such payment is not tenable. For there is no prohibition to grant such benefit. The possible incongruity that the BBMP considering the entire length of service for payment of pension when the actual length of service with the BBMP may only be for a portion of the period but would result in the BBMP becoming liable to pay a larger amount of pension even if pro-rata - is not a ground for the denial of such benefit to the petitioners. The petitioner having been deputed with the BBMP was not the petitioners' making.

The BBMP has not chosen to answer as to how Dr.Smitha Subbarayappa, who had served 29 years and draws a pension of Rs. 13,314/- per month whereas the petitioner in WP 16131/2009, who has rendered more than 30 years service draws Rs. 6,000/- per month as pension.

In the above circumstances, these writ petitions are allowed. The impugned endorsements in the respective petitions are hereby quashed. The respondents are directed to extend and pay one pension - borne pro-rata by the respondents - for the entire length of service of the petitioners as detailed in the respective petitions.