IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 9TH DAY OF OCTOBER 2012 PRESENT THE HON'BLE MR. JUSTICE N. KUMAR AND

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1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 9TH DAY OF OCTOBER 2012 PRESENT THE HON'BLE MR. JUSTICE N. KUMAR AND THE HON BLE MR. JUSTICE ARAVIND KUMAR BETWEEN: WA No.670 OF 2007(S-R) 1.The State of Karnataka By its Secretary, Education Department M.S.Building, Bangalore 2.The Accountant General (A & E), Post Box No.5369 Residency Park Road, Bangalore The Director of Collegiate Education Seshadri Road, Bangalore-1. APPELLANTS (By Smt.Revathy Adinath Narde, HCGP) AND: Smt. P.Chandra N. Rao, 60 years W/o.P.Nageshwara Rao R/o.No.666, Banashankari 3 rd Stage 2 nd Phase, 7 th Block, 11 th Main Bangalore RESPONDENT (By Sri.Suresh S. Joshi, Advocate)

2 2 This writ appeal is filed under Section 4 of the Karnataka High Court Act to set aside the order passed in the writ petition No.11005/03 dated This writ appeal coming on for preliminary hearing this day, N. KUMAR, J. delivered the following:- JUDGMENT The State has preferred this appeal against the order passed by the learned Single Judge who has held that the order dated is unconstitutional and invalid insofar as the petitioner is concerned and the appellants were directed to give weightage of unexpired period of service to the petitioner for the purpose of pension and other benefits and to grant all consequential benefits including arrears with interest at 8% per annum. 2. For the purpose of convenience, the parties are referred to as they are referred to in the writ petition. 3. The petitioner was serving in B.M.S. College for Women, Bangalore. It was an aided institution. Her

3 3 service was treated on par with the Government servants in Collegiate Education Department for all purposes, such as pay, allowances, age of superannuation and pension and other conditions of service on Government servants in the State of Karnataka. She was also governed by the scheme known as Triple Benefit Scheme for employees of aided colleges, B.Ed. Colleges and other technical institutions. The petitioner had put in 32 years and 6 months of service. She opted for voluntary retirement, which was extended to the benefit of the teachers working in the aided institutions also. For the purpose of granting pension, her service of 32 ½ years was taken into consideration. She had still one year ten months of unexpired service. Therefore, she was entitled to weightage and if that weightage had been given her qualifying service would have been 35 ½ years instead of 32 ½ years. She was denied the benefit of weightage relying on the Government Order dated Therefore she contends, the said Government order

4 4 Education Department and the employees of the Government aided institutions retiring voluntarily. Earlier there was no such distinction. It is discriminatory. There is no rationale. Therefore, she sought for quashing of the said Government order and to extend the benefit of pension by giving weightage to the unexpired period of service. The State filed objections contesting the said claim. They contended that though there exists a distinction it is a matter of policy. Therefore, the computation of qualifying service made by them is proper. The learned Single Judge relying on several judgments of the Apex Court has held that pension is not a bounty and it is treated to be a deferred salary. It is akin to a right to property. It is co-related and has a nexus with the salary payable to the employees as on the date of retirement. The teachers working in aided institutions were at par with the teachers of Government colleges and therefore, there cannot be any discrimination between them. Therefore, according to

5 5 the learned Single Judge denial of the benefit of qualifying service as claimed by the petitioner is arbitrary and unconstitutional and therefore, he has quashed the said Government order insofar as the petitioner is concerned and directed extension of the benefit to the petitioner. Aggrieved by the said order, the present appeal is filed by the State. 4. The learned Government Pleader assailing the impugned order contends that though the teachers of aided institutions were entitled to the benefit of the triple benefit scheme from the year 1976, the scheme of voluntary retirement was extended only from subject to the condition that if it is covered by contribution from Management, then weightage period upto five years available to Government servants retiring voluntarily would be extended. Otherwise they would not be entitled to the said benefit. Further, by a further Government order dated , the benefit of

6 6 weightage was withdrawn in all cases of the triple benefit beneficiaries with retrospective effect from When the petitioner applied for voluntary retirement in the year 2002, she was governed by the said Government order. She was not taken by surprise and therefore, after opting for voluntary retirement scheme, it is not open to her to challenge the said Government order seeking for the benefit of weightage. The learned Single Judge has not appreciated the facts of the case in a proper perspective. It is not a case of denial of pension. It is a case of denial of weightage to the unexpired period. Therefore, all the judgments relied on have no application to the facts of this case. 5. Per contra, the learned counsel appearing for the petitioner submitted, in 1985 Government order for payment of contribution of 3% from the Mangement was a condition precedent for extending the benefit of weightage. However, by an order dated the Government dispensed with the said contribution and therefore, once contribution is not required to be made

7 7 the teachers of the aided institutions are also put on par with the government servants and they are entitled to the said benefit and therefore, 1988 Government order which discriminates between government servants and the teachers working in aided institutions is arbitrary, unconstitutional and the learned Single Judge has rightly quashed the said Government order and extended the benefit to the petitioner and therefore, no case for interference is made out. 6. In the light of the aforesaid facts and the rival contentions the point that arises for consideration is as under:- Whether the Government order dated holding that the service weightage period upto five years applicable to Government servants retiring voluntary shall not be extended to triple benefit scheme beneficiaries who retire on or after is unconstitutional as held by the learned Single Judge?

8 8 7. The facts are not in dispute. The Government of Karnataka introduced triple benefit scheme for the employees of the aided colleges, B.Ed colleges and other technical institutions by the Government order dated The Rules regulating the extension of the said benefit was framed which is called as Karnataka State Aided Colleges and Technical Institutions Employees Triple Benefit Scheme(Pension, Insurance and Management Contribution) Rules (for short the Rules ). Rule 6 of the said Rules places the employees of the aided institutions on par with the government employees which reads as under:- In all matters relating to pension, the relevant provisions of the Karnataka Civil Service Rules shall apply Mutatis Mutandis if and to the extent these rules are silent.

9 9 However, Rule 7 of the Rules empowers the Government to dispense with or relax the requirement of the Rules which reads as under:- Regarding all pension matters the provisions of the rules as on the date of superannuation mentioned in Rule 17 below or death while in service shall apply. Where the State Government is satisfied that the operation of any rule regulating the conditions of service of employees cause under hardship in any particular case, it may be order dispense with or relax the requirement of that rule to such extent and subject to such conditions as it may consider necessary for dealing with any case in a just and equitable manner. Rule 17 deals with the date of superannuation, the age of superannuation and how the date of superannuation has to be reckoned with. The said triple benefit scheme does not deal with voluntary retirement scheme. Rule 285 of the Karnataka Civil Services Rules provides for

10 10 voluntary retirement after completion of thirty years of service. By the Government order dated the said benefit of voluntary retirement available to Government servants was extended to teachers in aided institutions. However, by the Government order dated and the period of service was reduced from 30 years to 20 years to be eligible for voluntary retirement scheme. Thereafter, the said scheme was extended to teachers in all aided educational institutions by the Government order dated The relevant clause is at Clause (iii), which reads thus:- (iii)as the T.B.S. service is pensionable only so far as it is covered by contribution from management, the weightage period upto five years available to Government servants retiring voluntarily shall not be extended to T.B.S. beneficiaries. Therefore, when the voluntary retirement scheme was extended to teachers of aided institutions, the aforesaid

11 11 clause in the Government order made it very clear that it is applicable to TBS beneficiaries only if the contribution from the Management is required. However, by the subsequent Government order dated , a clarification has been issued by the Government to the effect that the said benefit is not extended to TBS beneficiaries with retrospective effect from The relevant Clauses read as under:- (a) This amendment applies to the cases of voluntary retirement on or after (d)the service weightage period upto 5 years applicable to Government servants retiring voluntarily shall not be extended to TBS beneficiaries. From the aforesaid Government orders it is clear that it is not a case where the voluntary retirement scheme to which a Government employee is entitled is not extended to a teacher in an aided institution. What is denied to them is only the weightage.

12 12 8. The learned counsel for the petitioner relies on the Government order dated where the Government abolished the contribution of 3% from the Management to enable the teaches of aided institutions to the benefit of triple benefit scheme. Further by the circular dated a direction was issued to recover such contribution for the period prior to , if the managements have not contributed to the same. Therefore, relying on these two Government orders/circulars he contends that from 1986 onwards there is no obligation to make any contribution and once the obligation is absolved there cannot be any distinction between the government servants and teachers of aided institutions. There is no rationale behind this distinction. It is in this context the learned Single Judge was justified in holding it as unconstitutional. 9. We do not see any substance in the said contention. A reading of the aforesaid Government

13 13 orders makes it very clear that the Government formulated Triple Benefit Scheme for the employees of aided colleges, B.Ed colleges and Technical institutions and extended all benefits which was extended to the government servants prior to the formulation of the said scheme. Thereafter it was made clear by Rule 6 of the Rules that in the matter of pension, the provisions of KCSRs shall apply Mutatis Mutandis wherever the aforesaid rules are silent. The TBS did not extend the benefit of voluntary retirement to the teachers of aided institutions. It is only by a Government order dated the said benefit was extended. They made it clear insofar as weightage period upto five years is concerned unless the Management contributes 3%, the teachers under the TBS are not entitled to weightage. Subsequently, they realised there is no use in forcing the management to contribute. Therefore, an order was passed dispensing with such contribution. After dispensing with the contribution, they have passed the Order of 1988 making it clear that this weightage

14 14 benefit will not be given to teachers of aided institutions. However, both the benefits of pension and voluntary retirement were extended to teachers of aided institutions. Now what is not extended to them is only the benefit of weightage period. The Government order denying the said benefit was made in the year It is not a case where persons to whom such weightage benefit was extended was withdrawn by the subsequent Government order. Though retrospective benefit is given to the order of 1988 from the date on which the benefit of voluntary retirement was extended, no one is hurt by such Government order. Therefore, when the petitioner applied for voluntary retirement scheme in the year 2002 it is the Government order of 1988 which was in force. If she was not happy with the terms no body compelled her to opt for voluntary retirement. It is not open to her to opt for voluntary retirement and then contend that particular Clause in the scheme is discriminatory and that it has to be struck down. If she had contested and challenged the terms without opting

15 15 for voluntary retirement probably we could have considered her grievance in a different context. The distinction that is sought to be made out by the 1988 Government order is as the contribution from the management is not mandatory, consequently, they did not want to extend the benefit of weightage insofar as the unexpired period of service is concerned. These teachers form a class by themselves. They have been extended the benefit of pension and also voluntary retirement scheme. Before the petitioner opted for the said benefit, she had been made known what are the terms which govern the scheme insofar as aided institutions are concerned. With her eyes wide open she had opted for the scheme and now she cannot contend that it is unconstitutional. The learned Single Judge is not justified in the facts of this case in holding the said Government order as unconstitutional and invalid insofar as the petitioner is concerned. That is not permissible. Either the entire order is bad or it is valid. An order cannot be bad only insofar as the

16 16 petitioner is concerned and good insofar as the others are concerned. In that view of the matter, we do not see any justification to strike down the Government order, which is in the nature of policy decision where an opportunity is extended for good reasons for a class of persons who form a class by themselves. It is a reasonable classification. 10. Hence, we proceed to pass the following:- ORDER The appeal is allowed. The impugned order passed by the learned Single Judge is hereby set aside. The writ petition is dismissed. The parties to bear their own costs. Sd/- JUDGE. *alb/-. Sd/- JUDGE.