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B. Varadha Rao Vs. State of Karnataka - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 17646/84
Judge
Reported inILR1986KAR4054; 1985(2)KarLJ517; (1987)ILLJ398Kant
ActsState Reorganization Act
AppellantB. Varadha Rao
RespondentState of Karnataka
Excerpt:
.....1/2008 is allowed and i.a. no. iii/2008 is dismissed.   - 4. it is on this observation that reliance was placed by the petitioner to support his claim that annexure-d to the petition clearly is the sanction accorded by the government to three posts of assistant inspectors of labour and as he was appointed as assistant inspector of labour the sanction of pay scale must be attached to the post to which he was appointed at annexure-a with effect from the date of appointment. the order cannot be read in isolation like that. the order sets out in the preamble very clearly with reference to the order of the government dated 15/18th april 1961 for shifting of the marginally noted posts from mangalore to bangalore......to bangalore. it further states that the order is with reference to extension of time as the said posts sanctioned earlier had ceased to have that sanction after 28th february, 1961. therefore, the purport of the order dated 18/19th may, 1961 at annexure-d is to extend the period of sanction earlier granted to the posts and question of attaching the pay scale indicated therein would be a misconstruction of that letter. therefore, the petitioner cannot place any reliance on annexure-d to be read as an order fixing his pay scale. it does not contain his name. it makes no reference to his original appointment order at annexure-a. it does not purport to be an order regularising his service which was otherwise temporary on that date and had never yet become a cadre appointment. 5. the.....
Judgment:
ORDER

1. The petitioner is an employee of the Government of Karnataka in the Department of Labour. In this Writ Petition he has made the following prayers :

(1) Issue a writ of mandamus directing the respondents to grant the scale of pay of Rs. 120-220 from the date of reporting for duty by the petitioner on 17th October, 1960 and the scale of pay of Rs. 150-270 from 1st January, 1961 under the 1961 Pay Revision Rules.

(2) Declare the transfer of the petitioner from the Factories and Boilers Department to the Labour Department on 2nd May 1963 to a post in scale of pay of Rs. 120-240 under the 1961 Pay Revision Rules to be illegal and direct the respondents for a posting to a post in the scale of pay of Rs. 150-270; and

(3) For consequential benefits.

The facts asserted by the petitioner as evidenced by the Annexures and the Additional Statement may be briefly stated and they are as follows :

He was appointed by an order dated 14th October, 1960 made by the Inspector of Factories, Mangalore, as Assistant Inspector of Labour on a pay of Rs. 80/- p.m. in the pay scale of Rs. 80-200 plus D.A. His appointment was purely temporary until further orders and subject to termination without assigning any reason therefor. He came to accept that appointment and did not protest that appointment till now. The Inspector of Factories at Mangalore was originally part of the Department of Labour and Factories of the erstwhile State of Madras prior to 1st November, 1956. From 1st November, 1956 that office in Mangalore continued in the new State of Karnataka and became part of the Department of Labour in the State of Karnataka. Having regard to the appointment order dated 14th October, 1960 it is not disputed by the petitioner that he is not an allottee within the meaning of that expression occurring in the State Reorganization Act. He is a person appointed by the new State of Karnataka. In April, 1961 Government accorded sanction to shift the office of the Inspector of Factories, Mangalore, to the office of the Chief Inspector of Factories and Boilers, Bangalore. The same order gave similar sanction to transfer of Inspector of Factories office from Hubli to Bangalore with certain staff strength indicted therein. In the following month of May, 1961 in amplification of that order made in April, 1961 sanction was accorded for continuance of the posts, with reference to what was stated in the preamble, beyond 28th February, 1961 for a further period of one year. In that order three posts of Assistant Inspectors of Labour (Rs. 120-220), one post of II Division Clerk (Rs. 50-120) and three posts of peons of the Inspector of Factories establishment at Mangalore were mentioned. In these circumstances, the petitioner now claims that this must be held to be the sanction afforded for his appointment under Annexure-A as Assistant Inspector of Labour. He further claims that with effect from the date of appointment he must be permitted to draw the scale of pay mentioned in the order at Annexure-D to the petition right through and his consequential benefits worked out on that basis. It was submitted from the Bar by the petitioner who argued the case in person that he was actually regularised in service of the State of Karnataka only in the year 1967 in accordance with the Rules made in that behalf in 1963.

2. Before dealing with the claim advanced by the petitioner it would be useful to state that he has on numerous occasions urged many of his rights in regard to his conditions of service. One such Writ Petition filed by him namely. W.P. No. 153/1966 was disposed of by a Division Bench of this Court on 16th January, 1969. In the course of that order the following is what the Division Bench observed :

'It would thus be seen that neither the Cadre and Recruitment Rules of the Factories and Boilers Branch nor the corresponding Rules of the Branch of the Labour Service make mention of the posts, in which the petitioners were appointed viz., Assistant Inspectors of Labour. If any appointment is made by the State Government or any other competent authority to a post which is not mentioned in the Cadre and Recruitment Rules, it has got to be regarded as an out of the cadre post. To such a post, it is open to the competent authority to fix an adhoc scale of pay pending sanction of Government and framing of Cadre and Recruitment Rules. That seems to be the position in which the petitioners stand.'

3. It is needless to say, from the above it is clear and it must be deemed to have been concluded that the petitioner's appointment at Annexure-A was ex-cadre and therefore the competent authority could fix any pay scale.

4. It is on this observation that reliance was placed by the petitioner to support his claim that Annexure-D to the petition clearly is the sanction accorded by the Government to three posts of Assistant Inspectors of Labour and as he was appointed as Assistant Inspector of Labour the sanction of pay scale must be attached to the post to which he was appointed at Annexure-A with effect from the date of appointment. The order cannot be read in isolation like that. The order sets out in the preamble very clearly with reference to the order of the Government dated 15/18th April 1961 for shifting of the marginally noted posts from Mangalore to Bangalore. It further states that the order is with reference to extension of time as the said posts sanctioned earlier had ceased to have that sanction after 28th February, 1961. Therefore, the purport of the order dated 18/19th May, 1961 at Annexure-D is to extend the period of sanction earlier granted to the posts and question of attaching the pay scale indicated therein would be a misconstruction of that letter. Therefore, the petitioner cannot place any reliance on Annexure-D to be read as an order fixing his pay scale. It does not contain his name. It makes no reference to his original appointment order at Annexure-A. It does not purport to be an order regularising his service which was otherwise temporary on that date and had never yet become a cadre appointment.

5. The essential ingredients in the service under the Government, the following ingredients may be stated :

(1) There must be a post;

(2) A person must be appointed to that post :

(3) Post must have a pay scale;

(4) The pay scale must be in accordance with the relevant Cadre and Recruitment Rules concerning the post;

(5) The appointment to that post must be in accordance with the Rules of Recruitment for that post.

If these ingredients are to be found in any particular appointment then that would be a valid appointment which confers right on the holder of the post and convert the post on contract into a post held under the State by virtue of the Statute. The petitioner unfortunately cannot fulfil the above ingredients. As already stated his appointment was an ex-cadre post meaning thereby it was not in accordance with the Cadre and Recruitment Rules. The post was temporary awaiting the sanction of the Government. In other words, the post was created by the head of the department at Mangalore. In fact no material has been placed before me which is indicative that sanction was ever accorded to that appointment or creation of the post by the head of the department.

6. One other argument of Mr. Varadha Rao must be noticed. He has stated that my reference to two Sections of the same department is not accurate in as much as in an earlier decision this Court has already taken the view that the Department of Labour is different from the Department of Factories and Boilers. It may be so. But the difference is not of much help.

7. In this nebulous circumstance surrounding the appointment of the petitioner he should consider himself fortunate that he somehow came to be regularised in 1967 after being transferred from post to post on a pay scale which was mentioned only with reference to extending the three sanctioned posts by one year. The petitioner is not entitled to the first prayer and therefore the second and the consequential prayers also cannot be granted. The petition is therefore dismissed.

8. Interlocutory applications filed by the petitioners which are not specifically disposed of above are deemed to have been disposed of by this order.


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