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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 ----------------------------- (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.