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Judgment
D.V. Shylendra Kumar, J.—Writ petition by the State of Karnataka being aggrieved by the order dated 11.072011 passed on application No. 327/2006 by the Karnataka Administrative Tribunal at Bangalore allowing the application of the respondent in this writ petition, inter alia, granting relief to the applicant that he is entitled for drawing of pension on the premise that his qualifying service for pension is from the year 1981, the year in which he was appointed temporarily as Head Cook by the Principal of the Karnataka Polytechnic, Mangalore, as per appointment order dated 28.01.1981. The services of the employee came to be regularized with effect from 1.2.1991 as per order dated 24.11.1995. This was on the premise that those employees who were working in the post on deputation on daily wages had opted to get their services regularized against Group ''D'' posts in the Department of Technical Education. The respondent had joined services on 28.01.1981 and his services was regularized with effect from 1.2.1991. The respondent since retired from service on 30.6.1995 but work had been extracted from him up to 31.07.1995
On retirement, the employee''s pension was not fixed on the premise that he is in qualifying service with effect from 1.2.1991 and not from the date of joining service. His annual date of retirement being on 30.6.1995 and he having received salary for the month of July 1995 also, that was sought to be recovered though he had worked. It is aggrieved by such recovery and also not fixing any pension as the qualifying service of the respondent was only with effect from 1.2.1991 onwards, the respondent had approached the Karnataka Administrative Tribunal seeking for relief on this aspect.
The stand of the respondent was that though the post was called as temporary, he had been appointed on a regular basis and not as a daily wager; that the competent authority had appointed him after going through the procedure of application being forwarded by the Employment Exchange and he had also been given annual increments and for all purposes he was a regular employee and except that status was indicated as temporary. Submission is that on regularization, his temporary services also qualifies for pension and therefore pension should have been fixed on the premise he is in qualifying service from the year 1981.
The other contention was that the person had actually worked during the month of July 1995 and salary was paid and there was nothing wrong about it and there was no occasion to recover the amount, particularly, after having extracted the work.
Application was resisted by pointing out that in terms of Rule 222 of the Karnataka Civil Services Rules [for short ''the Rules''] stipulating period of qualifying, service for eligibility to pension had stipulated three conditions; that the post held by the person should be substantive post and minimum qualifying service should be ten years for eligibility to pension, but from the date of regularizing the services of respondent, his services was only for a period of five years.
However, such resistance did not appeal to the Tribunal and the Tribunal has allowed the application in terms of the impugned order and has directed the present writ petitioners to extend the benefit of pension by regularizing the services of the respondent-employee from the date of initial appointment.
Notice had been issued to the respondent and is represented by Sri. G.R. Ramachandrappa, learned counsel.
The matter has come up for orders regarding seeking early date of hearing. With the consent of counsel appearing for the parties, we have taken up the matter for disposal.
Appearing on behalf of the petitioner-State Government, submission of Smt. S. Susheela, learned Additional Government Advocate is that the order passed by the Tribunal is clearly in the teeth of Rules 222 and 224 of the Rules which stipulates that services does not qualify for pension unless the Government Servant holds substantive office on permanent establishment, but temporary services is governed to the extent indicated in Rule 226 of the Rules; that even if Rule 226 is operated for the purpose of computing the qualifying period of pension, continuity of service being for ten years and half of this being five years and the period of service for regularization is for four years and it still falls short of ten years and therefore the employee did not qualify for pension in terms of rule 222 of the rules; that the Tribunal is in error in directing grant of pension by earlier direction for regularizing the services of the applicant with effect from his date of appointment etc.
On the other hand, Sri. Ramachandrappa, learned counsel for respondent has vehemently urged that the respondent was appointed against substantive post; that he had been treated as regular employee and he had been given annual increments and other benefits which are not available to a casual employee; that he had all along been treated as a regular employee and therefore assuming that in the year 1991 an order was passed by the Government purporting to regularize his services, that cannot make any difference to his earlier services; that the so called regularization order is a mistake insofar as the respondent is concerned as the respondent was even before in regular services, in the sense, he had been appointed under proper selection and by the competent authority against an existing post; that the mere fact that he was paid out of contingency fund for some time cannot make any difference for his qualifying service as ultimately services were confirmed without any break from the year 1981 and even during the period between the years 1981 and 1991, he was earning all increments and other benefits.
Sri. Ramachandrappa, learned counsel for respondent submits that in similar circumstances, the Tribunal; had taken the view that ''temporary services'' is on par with regular services though called as temporary service as no distinction is made between ''temporary service'' and ''regular service'' for the purpose of emoluments and other service conditions; that such view of the Tribunal was not disturbed by the High Court and also by the Supreme Court.
In the instant case, we find that the Tribunal on examining the service conditions and service record of the applicant, found that the appointment was not irregular or casual, but only temporary services to be paid out of contingency fund and therefore his service should be taken to be as regular appointment from the date of his appointment. It is a fact that ever since appointment till the date of retirement, the respondent was in continuous uninterrupted service and earning his increments and other benefits.
In the circumstances, we find it is not necessary for this court to interfere with the direction to regularize the services of the respondent from the date of his appointment and if so the respondent definitely fulfils the requirement of qualifying service for eligibility to pension as if services are to be counted from the year 1981 and by retirement he has put in more than ten years of service.
In this view of the matter, we are not inclined to disturb the order passed by the Tribunal as the employee who has worked for more than ten years has been given the benefit of pension which cannot be termed as something very obnoxious or illegal.
Though Smt. S. Susheela, learned Additional Government Advocate laid much stress on the qualifying service and ineligibility of the person for pension, if the services are counted from the date of appointment, the respondent has put in requisite number of years of qualifying services for getting pension.
Insofar as direction for refund of the remuneration which has already been recovered for the month of July 1995 is concerned, we do not find anything wrong or incorrect here as the respondent has actually worked and he should be remunerated whether retired later. It is for this reason and in the peculiar circumstances of the case, we do not propose to interfere with the order of the Tribunal. Writ petition is dismissed.