STATE OF KARNATAKAversusSRI K. VASUDEVA MAYYA AND ANR.

A                          STATE OF KARNATAKA
                                  v.
                   SRI K. VASUDEVA MAYYAAND ANR.

                                OCTOBER 5, 1994

B            [K. RAMASWAMY AND N. VENKATACHALA, JJ.]

          Service Law :

          Kamataka Civil Services Rules 1957:
c        Rule' 313(b)-After superannuation Officers re-employed on contract
  basis-During their re-employment State Govt. enhancing age of superannua-
  tion from 55 to 58 years-Treated as continued in service and superannuated
  on reaching the age of 5&-Before their superannuation Revised Pay Rules
  coming into force-Applicability of the Revised Rules with regard to pay and
D pension to such officers-Period of re-employment after the age of 55 and
  prior to superannuation al the age of 58 since treated as continuous service
  R.313(b) not applicable as held by State Administrative tribunal-Held no
  inteiference called for.

          Respondent 1 belonged to Kamataka Administrative Service, Group
E   A(Jr. Scale). Respondent 2 was a member of the Kamataka Secretariat
    Service. Both of them retired on attaining the superannuation age of 55
    years and were re-employed on contract basis subject to the conditions· of
    service In rule 313(b) or Kamataka Civil Services Rules, 1957.

          While the Respondents were no their re.i!mployment, the State Govt.
F by. its order dated 24.8.1984 enhanced the superannuation age of its
    employees from 55 years to 58 years, with retrospective elfect from 2.8.1984.
    Consequently Respondents 1 and 2 were treated to be In regular service
    and retired when they attained the age of superannuation i.e. 58 years, on
    31.7.1987 and 31.3.1987 respectively.
G
          The Kamataka Civil Services (Revised Pay) Rules, 1987 came into
    force from 1.7.1986. Though the respondent retired In 1987, after the
    coming Into force of the Revised Pay Rules 1987, they were denied the
    benefit of the revised pay and pension.

H         The Respondents filed a joint application before the Karnataka
                                         254
                            STATE v.K.V.MAYYA                             255

     Administrative Tribun@I claiming revised pay and pension, and for treat· A
     ing as continuous service, the service rendered between 55 years of age and
     58 years of age. The Tribunal allowed the benefit of Revised Pay Rules, but
     disallowed the claim for counting their service between earlier superan·
     nuation and subsequent superannuation. Respondents as also the State
     filed Review Applications against the said order. The Tribunal allowed the
                                                                                 B
     Review Application of the Respondents and dismissed that of the State.

           In the present appeals, the State contended that when the Resppn·
     dents were re-employed, it was snbject to Rnle 313(b) of the Karnataka
     Civil Service Rules; that the Government Order dated 17.9.1984 also
     mentioned that there would not be any change in the nature or character     C
     or conditions of service of re-employment; therefore the Respondents
     should be regarded as Government servants not entitled to combine their
     pensionable service rendered prior to attaining 55 and subsequently upto.
     58 years, for claiming pensionary benefits admissible under the Karnataka
     Civil Services Rules.
                                                                                 D
           Dismissing the appeals, this Court

           HELD : 1. An examination of the orders of the Government relating
     to increase in the snperannnatiou age of Government servants from 55
     years to 58 years for their retirement from State Civil Service and their   E
     applicability to such of the Government Servants who had retired on
     attaining the superannuation age of 55 years but were in re-employment
     on contract basis and further orders made by the Government in relation
     to applicability of those Government orders to the respondents and their
     orders on retirement, specifically made on their completion of superan·
     nuation age of 58 years, leaves no scope for interference with the order    F
     under appeal made by the Karnataka Appellate Tribunal. [261-C to E

           2. It is, the order dated 17.9.1984 of the State Government, which
     made the respondents retire from Government service after they attained
     the superannuation age of 58 years, by putting an end to their earlier G
.J   retirements done at their superannuation age of 55 years, and gave them ·
     the benefit of continuity in their service npto the age of 58 years, instead
     of their service on re-employment. If that be so, it is understandable, bow
     their pay and other service benefits to be given to them, could be fixed on
     the basis that they had retired at the age of 55 years and re-employed
     thereafter, resorting to the provisions in Rule 313(b) of the Karnataka H
    256                   SUPREME COURT REPORTS (1994) SUPP. 4S.C.R.

A Civil Services Rules, 1957. The rule of course, would have governed the
    conditions of service of the respondents, had their re-employment service
    not been made the continued service of their earlier service by the Govern-
    ment orders. [260-F to HJ

          CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 849-50
B of 1992.

           From the Judgment and Order dated 3.9.90 of the Karnataka Ad-
    rifilstrative Tribunal, Bangalore in RA. Nos. 204 & 220 of 1989.

C        Altaf Ahmed, Additional Solicitor General, M. Veerappa and K.H.
    Nobin Singh for the Appellant.

          Krishnamurthi Swami and P. Mahale for the Respondents.

          The Judgment of the Court was delivered by
D
          VENKATACHALA, J. These appeals by special leave, of the State of
    Karnataka are directed against a common Order of the Karnataka Ad-
    ministrative Tribunal - "the KAT' made on September 3, 1990 in Review
    Application Nos. 204 and 220 of 1989.

E          K. Vasudeva Mayya, respondent-I was a Govt. servant belonging to
    the cadre of KAS, Group-A (Junior Scale). He was working as Secretary,
    Karnataka Housing Board on 31.7.1984 when he was ordered to retire on
    attaining the superannuation age of 55 years. However, he was re-employed
    by the State Government on contract basis w.e.f. 1.8:1984, subject to the
F   conditions of service contained in rule 313(b) of the Karnataka Civil
    Service Rules, 1957 - 'the KCS Rules", as Secretary to the Chairman,
    Karnataka State Sports Council, for the period co-terminus with that of the
    Chairman.

          A.H. Someshwar, respondent-2, who belonged to the Karnataka
G   State Secretariat Service, was ordered to retire on 31.3.1984 on attaining
    the superannuation age of 55 years, while he was working as Joint Secretary
    to Government. However, he was re-employed by the State Government
    on contract basis w.e.f. 1.4.1984 subject to the conditions of service in rule
    313(b) of the KCS Rules, as Secretary, Dr. Sarojini Mahishi Committee,
H   for the period co- terminus with that of the committee.
            STATE v. K.V. MAYYA[VENKATACHALA,J.]                    257

        While respondents·! and 2 were in State Civil Service. On their A
 re-employment, the State Government issued an order dated 24.8.1984
 enhancing the retirement superannuation age of all Govermnent servants
 in State Civil Service from 55 to 58 years and gave retrospective effect to
 it from 2.8.1984. Subsequently, the Govermnent issued another order dated
 17.9.1984, treating some of the retired Govermnent servants who had B
 retired on superannuation at the age of 55 years, but had been re-employed
 in State Civil Service on contract basis as those continuing in State Civil
Service till they attained the superannuation age of 58 years, .if they were
 to satisfy three conditions specified thereunder. Since respondent-I satis·
lied the three conditions of the Govermnent order dated 17.9 .1984, the
State Govermnent, by its order dated 5.6.1985, treated respondent-! as one C
who had continued in regular Civil service and appointed him as Assistant
 Director (Co-ordination), Directorate of Backward Classes and Minorities.
 Bangalore. Vice; Sri R. Stanly Joseph, promoted. Thereafter, the State
 Government, by its order dated 3.7.1987 retired respondent - 1 from service
 on 31.7. 1987 (A/N), when he attained the superannuation age of 58 years D
 on 15.7.1987, as was being done in respect of other regular Govermnent
 servants. Similarly, respondent-2 who satisfied the three conditions of the
said ·Government order dated 17.9.1984 and who had been specifically
 continued in State Civil Service as Joint Secretary to Government under
Government order dated 25.1.1985, was subsequently retired from service
w.e.f. 31.3.1987 when he also attained the superannuation age of 58 years. E
However, the Karnataka Civil Services (Revised Pay) Rules, 1987 • 'the
Revised Pay Rules", came into force w.e.f. 1.7.1986 enhancing the scales of
pay of the State Government servants, while respondents-1 and 2 had
continued in State Civil Service because of specific orders made in that
regard on the basis of Government order dated 17.9.1984 which treated the p
periods of re-employment also as their regular continuing Civil Service.
Yet, the benefits of the Revised Pay Rules were denied to the respondents,
as regards their pay and pension. This situation led respondents· 1 and 2
to the filing of a joint Application No. 2382 of 1987 before the KAT calling
in question a provision in the Revised Pay Rules which had made those
rules inapplicable to pensioners who had been re-employed in Government G
service after retirement. However, while the first relief claimed in that
application was that the respondents should be given the benefit of the
revised Pay Rules, the second relief claimed therein was that the service
rendered by each of them to the State between their earlier retirement at
                                                                          H
    258                   SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R.

A   the superannuation age of 55 years and their subsequent retirement at their
    superannuation age of 58 years, ought to be taken into account as their
    continued State Civil Service for computing their pensionary benefits.

          The KAT which decided that application by its order dated
    11.10.1988, while held that the respondents were entitled to the benefit of
B   the Revised Pay Rules and directed the State to give the benefit of those
    Revised Pay Rules tc them, disallowed the claim of the respondents for
    counting the period of their service between their earlier superannuation
    and their subsequent superannuation, for granting their pensionary
    benefits. However, the respondents by making Review Application No. 204
c   of 1989 and the State by making Review Application No. 220 of 1989 before
    the KAT sought from it, review of the said order dated 11.10.1988 in so far
    it had gone against each or them. The KAT on consideration of the said
    Review Applications, by its common order made in them on 3.9.1990 while
    allowed the Review Application of the respondents, dismissed the review
D   Application of the State. It is the said common order made in the Review
    Applications which is questioned by the State in the present appeals, by
    special leave.

           Shri Altaf Ahmad, the Additional Solicitor General, appearing for
    the appellant-State did not dispute the fact that by reason of the Govem-
E   ment order dated 17.9.1984, the respondents who had been ordered by the
    Government to retire after they had completed their superannuation age
    of 35 years and re-employed on contract basis, were treated as Government
    Servants who had continued in Government service from such date of
    superannuation age until they attained their superannuation age of 58
F   years. Bu~ he contended, rather strenuously, that the respondents periods
    of continuance in Government service after their earlier retirements on
    attaining 55 years of superannuation age, until their subsequent retirements
    on their attaining 58 years of superannuation age under the Government
    order dated 17.9.1984, when was subject also to the condition mentioned
    therein, viz., "that there shall not be any change in the nature or character
G   or conditions of service of the re-employment or the re-employment on
    contract basis or the extension of service" such periods cannot be treated
    as the periods of service which could be added to their earlier periods of
    service, for purpose of computing the pensionary benefits claimed by them.
    His contention, to be precise, was that the respondents when were re-
H   employed by Government on their retirement at their superannuation age
              STATE v.K.V.MAYYA[VENKATACHALA,J.]                      259

of 55 years, one of the terms of such re-employment since indicated that A
rule 313(b) of the KCS Rules would become applicable to their re-employ-
ments, the same term stood unaffected in its application to service of the
respondents subsequently out in by them until they attained the superan-
nuation age of 58 years, the same having been saved by Government order
dated 17.9.1984, by mentioning therein that there shall not be any change B
in the nature or character or conditions of service of re-employment, on
contract basis or the extension of service. It was, therefore, maintained that
the respondents should be regarded as Government servants not entitled
to combine their pensionable service rendered by them prior to their
attaining the age of 55 years with their service rendered subsequently upto
the age of 58 years, for claiming the pensionary benefits admissible under C
the KCS Rules. The contentions, so advanced on behalf of the appellant-
State, do not, in our view, merit acceptance, for the reasons which we shall
presently set out.

      Since rule 313(b) of the KCS Rules referred to by the Additional
Solicitor General is the rule which is mentioned in the appointment order D
of one of the respondents as that subject to which he had been re-employed
on contract basis, it could be excerpted in order to appreciate the sus-
tainability or otherwise of the contentions based upon it :

        "313. (b) The pay to be allowed on re-employment is subject to       E
        the following conditions all of which must be satisfied :

        (i) Pay on re-employment plus pension (including pension
        equivalent of death-cum-retirement gratuity or gratuity in lieu of
        pension) should not exceed the substantive pay in a permanent
        post but not pay in a temporary post drawn before retirement or      F
        the officiating pay in cases (where the officiating post has been
        held) for not less than one year immediately prior to retirement.

        Note - 1 ............................................ .

        Note - 2 ............................................ .              G
        Note - 3 ............................................ .

        Note - 4 ............................................ .

        Note - 5 ............................................ .              H
    260                          SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R.

A           (a) ··················································

            (b)      (i) ············································
            (ii) Where the Government servant has elected to retain the scales
            of pay applicable to him as on 31st December 1976 according to
B           the proviso to rule 5 of the Karnataka Civil Services (Revised Pay)
            Rules 1976, and the retirement takes place while he held such
            scale, the· dearness allowance as on !st April 1973 sanctioned in
            G.O. No. FD 19 SRP (2) 73 dated 22nd June 1973 and ordered as
            counting for pension in G.O. No. FD 2 SRP (3) 74, dated 29th
c           March 1974.

            (iii) Pay on re-employment, plus pension (including pension
            equivalent of death-cum-retirement gratuity or gratuity in lieu of
            pension) should not exceed the maximum of the time- scale of the
            post in which the Government serv;µit is re-employed.
D
            (iv) Special pay can be drawn in addition to pay on re- employment
            provided ( 1) the total of pension and pay on re-employment plus
            special pay, is restricted to the substantive pay last drawn or
            officiating pay last drawri where such officiating pay has been
            drawn for not Jess than one year immediately prior to retirement
E           plus special day last drawn, and (2) the special pay is attached to
            the. post in which he is re-employed."

          It is the order dated 17.9.1984 of the State Government, which made
    the respondents retire from Government service after they attained the
F   superannuation at of 58 years, by putting an end to their earlier retirements
    done at their superannuation age of 55 years, and gave them the benefit of
    continuity in their service upto the age of 58 years, instead of their service
    on re- employment. If that be so, if is ununderstandable, how their day and
    other service benefits to be given to them, could be fixed on the basis that
    they had retired at the age of 55 years and re-employed thereafter, resort-
G   ing to the provisions in Rule 313(b) above. The rule, of course, would have
    governed the conditions of service of the respondents, had their re-employ-
    ment service not been made the continued service of their earlier service
    by the Government orders, to which we have already adverted to. In other
    words, if the respondents re-employment on contract basis, had been
H   allowed to continue before they attained the superannuation age of 58
             STATE v. K.V. MAYYA(VENKATACHALA,J.]                         261

years, the said rule could have governed their service conditions, and would     A
have resulted in denying them the benefit of subsequent service put in by
them between 55 years of age and 58 years of age, for the purpose of
obtaining pensionary benefits. It is obviously this situation which has made
the KAT to rely, in its order under appeal on rules 283 and 284 of the KCS
Rules, for its conclusion that the service out in earlier to their superannua-
                                                                                 B
tion age of 58 years count for purposes of their superannuation pension,
i.e., service put in by the respondents before they had attained the earlier
superannuation age of 55 years and re-employed on contract basis, and the
period put in by them thereafter till they attained the superannuation age
of 58 years subject to the other rules adverted to by it.
                                                                                 c
      Thus, on examination of the orders of the Government relating to
increase in the superannuation age of Government servants from 55 years
to 58 years for their retirement from State Civil Service and their ap-
plicability to such of the Government Servants who had retired on attaining
the superannuation age of 55 years but were in re-employment on contract
basis and further orders made by the Government in relation to ap- D
plicability of those Government orders to the respondents and their orders
on retirement, specifically made on their completion of superannuation age
of 58 years, leaves no scope for us to interfere with the Order under appeal
made by the KAT.
                                                                                 E
       In the result, we dismiss these appeals, but without costs.

G.N.                                                      Appeals dismissed.