ORDER
Doddakale Gowda, J.
1. In these series petitioners pay is required to be determined after a lapse of nearly two decades after regularisation of their services as Basic Health Workers in the Department of the Health and Family Planning Services.
2. Facts briefly stated are :
In the inception petitioners were appointed as local candidates between 1960 and 1964 on a consolidated salary but not on time scale pay of post in the implementation of a scheme known as ‘eradication of Malaria’. Consolidated salary of Rs. 50/- was enhanced to Rs. 75/- per month in 1961. After they underwent training meant for Health Inspectors shifted as Basic Health Workers with effect from 1-10-1964. Their services are regularised as per Official Memorandum dated 28-6-1972 with effect from 13-3-1967. They contended that they were unaware of order of regularisation till 1982. Most of them are posted as Junior Health Inspectors after training in 1960 and some or almost all of them are promoted as Senior Health Inspectors in 1982.
It is stated that their salary bills sanctioned by Accountant General show that they are paid salaries in regular scales applicable to the post but, they continued to receive consolidated salary of Rs. 75/- per month till 1970 from which date they are put in the scale of Rs. 100-220 Immediately they became aware of order of regularisation and discrepancy in their pay bills represented to concerned authorities for fixation of salary, increment and to grant consequential benefits. As there was no response from higher authorities, took advantage of Circular dated 14-5-1982 issued by first respondent in respect of Class III officials, whose services stood regularised as per Karnataka State Civil Services (Direct Recruitment to Class III Posts) (Special) Rules, 1970 and 1973 and drew entire arrears of pay accrued from 13-3-1967 till 1-1-1970, as their services were regularised with effect from 13-3-1967 as per Official Memorandum, dated 28-6 1972.
3. Second respondent directed recovery of the amount drawn at the rate of Rs. 25/- per month stating that it is illegal and impermissible in law. It is contended that on regularisation they are entitled to salary in scale of Rs. 100-180 from 13-3-1967 till 1-1-1970 and thereafter at revised scale of Rs. 100-220 with increment at Rs. 5/- from the date of joining of service.
It is also contended that order made for recovery without notice or without providing an opportunity of hearing is illegal.
4. Respondents have tried to justify the impugned action contending that they are not entitled to the amount which they have drawn and same being illegal is liable to be refunded. It is contended that Drawing and Disbursing Officers had no authority or jurisdiction to give the benefit of time scale of pay of Rs. 100-180 from 1963 to petitioners, therefore, the action taken by respondents to recover the amount paid in excess to petitioners is strictly in accordance with law.
5. Instead of deciding salary and increments due to each one of the petitioners from the date of joining of services and/or of regularisation till the date of drawal of amount in dispute, I feel it just and proper to declare the legal position I leaving the rest for parties to work out the details.
6. Official Memorandum dated 28th June 1972 under services of petitioners are regularised subject to certain terms and conditions mentioned therein reads thus–
“Sub : Regularisation of the services of the Basic Health Workers.
Ref : Government Notification No. GAD 102 SRR 65 17-8-1966.
The services of the following Class III Officials appointed as local candidates between the period from 1-1-1960 to 31-12-1964 (BDI) and now working as Basic Health Workers, in the pay scale of Rs. 100-5-150 6-180-EB-10-220 are regularised under the provisions of Mysore State Civil Services (Recruitment of local candidates to Class III Posts) Rules, 1966, subject to the following conditions :-
1. The Seniority of the candidates will be reckoned from the date of issue of Government Order, directing regularisation of the services of local candidates i.e., 13-3-67.
2. The previous service rendered as local candidates prior to the issue of Government Order dated 13-3-67, will count for pension, leave and increments only.
3. The pay drawn as local candidates i.e., on the date of issue of Government order 13-3-1967, will be protected.
Sd/- P. R. Desai,
DIRECTOR OF HEALTH & F. P. SERVICES.
No. Est/496/72-73 Office of the
District Health and Family
Planning Officer, Hassan.
Dated : 7th September.
Extract is forwarded along with the extract of list of candidates pertaining to this district is forwarded to the Medical Officer of Health,… for information and necessary action. The extract of this O. M. may be brought to the notice of the concerned candidate and necessary entries may be recorded in the Service Registers concerned officials with due attestation.
** ** **
Sd/- H. Srinivasa Rao,
DIST. HEALTH & FAMILY PLANNING OFFICER
HASSAN.
EXTRACT OF ANNEXURE
List of candidates appointed during the period 1-1-1960 to 1-1-1965 and who are eligible for regularisation of their services under the provisions of 1966 Rules —
** ** **
Sd/- Medical Officer,
Primary Health Centre,
Alur (Hassan).”
Thus two non-controversial facts are — (i) their services are regularised with effect from 13-3-1967 and (ii) services rendered by them as local candidates shall count for pension, leave and increment only.
7. This date of regularisation is later on modified to 17-8-1966 instead of 13-3-1967 by Official Memorandum dated 23rd April 1981 of the Director of Health and Family Welfare Services and it reads thus:-
“Sub : Regularisation of local candidates in terms of GO’s
(1) GAD 102 SRR 65, dated 17-8-66 ;
(2) GSR 426 dated 19-12-1970; and
(3) GAD 18 SRR 73-A dated 12-10-1973.
The date of regularisation of the services of local candidates regularised in terms of Government Orders (1) No. GAD 102 SRR 65 dated 17-8-1966, (2) No. GSR 426. dated 19-12-1970 and (3) No. GAD 18 SRR 73-A, dated 12-10-1973 will be deemed to have been effective from the date of issue of Government Orders as shown below :
(1) G. O. No. GAD 102 SRR 65 dated 17-8-1966 with effect from 17-8-1966.
(2) G. O. No. GSR 426 dated 19-12-1970 with effect from 19-12-1970.
(3) G O. No. GAD 18 SRR 73-A dated 12-10-73 with effect from 12-10-1970″
8. On account of regularisation of their services with effect from 17-8-1966 as per provisions of Karnataka State Civil Services (Direct Recruitment to Class III Posts) Rules, 1966, they are entitled to time scale pay of post from the date of regularisation. Under these Rules, all those appointed on or before 31st December 1964 as local candidates to Class III posts but continued in service till promulgation of these Rules, are entitled to appointment, by appointing authority, subject, of course, to fulfilment of other conditions specified in Sub-rule (2) of Rule 3 of the Rules. Under Sub-rule (1) of Rule 5 of the Rules, Basic pay of a candidate is required to be fixed in scale of pay of category of post to which he is appointed and at such stage that it shall not be less than the Basic pay to which a local candidate was eligible to draw prior to his appointment under Rule 4 of the Rules. Sub-rule (2) of Rule 5 of the Rules states that services rendered as local candidates shall count for purpose of leave, increment and pension in the same manner and to the same extent and subject to the same conditions applicable to a temporary Government Servant. By virtue of Rules 4 and 5, a local candidate appointed to Class III post becomes entitled to fixation of his pay in scale of the post with protection of Basic pay which he or they drew before regularisation. Pay scale of Basic Health worker in 1966 was Rs. 100-180 but revised to Rs. 100-220 in 1970. Consequent upon their regularisation with effect from 17 8-66 as per Official Memorandum dated 23rd April 1981, undisputedly, they are entitled to pay scale of the post of a Basic Health Worker with effect from 17-8-1966.
RE : INCREMENT
Decision regarding entitlement of increment depends upon the implication of the words “services rendered as local candidates shall count for purpose of leave, increment and pension” found in Sub-rule (2) of Rule 5 of the Rules, User of these words is not peculiar in Service Law. In case of local candidates who were on time scale pay of post, there is no difficulty regarding fixation of their increment on regularisation as pay which he/they was/were getting prior to date of regularisation is protected as per Circular, dated 14-6-1982. But difficulty arises regarding determination or fixation of increments due to local candidates who were on consolidated pay. Above circular came to be issued in the context of amendments made to Sub-rule (2) of Rule 5 of 1970 and 1973 Special Rules of direct recruitment to Class III Posts deleting words ”services rendered as local candidates shall not count for purpose of leave, increment and pension” and sub-stituting words “services rendered as local candidates shall count for purpose of leave, increment and pension” bringing those rules in conformity with 1965 Rules. Department of Personnel and Administrative Reforms (hereinafter referred to as DPAR) while answering queries and doubts expressed by Heads of Department regarding implementation of amended provision has stated thus :-
“Having regard to this position, although the rules as now amended provided for counting of service for the purpose of increment, among others, in the same manner and to the same extent and subject to the same conditions applicable to a temporary Government servant, it is necessary that after fixation of pay of a local candidate in the light of principle laid down under O. M. dated 19-6-1972, while allowing the next increment the period of his service, if any, after he had earned the last increment as local candidate may be computed with the serving after regularisation and the date so which he completes one year service with such computing may be treated as the date and further pay revised accordingly and refixation done.”
In Official Memorandum, dated 19th June 1972 DPAR directed fixation of Basic pay of a local candidate as last drawn before recruitment, under Rule 4 of Rules, be in service or retrenched. Submission of learned Counsel for petitioners is that Sub-rule (2) of Rule 5 which reads thus:-
“5. Fixation of initial pay and reckoning of service for purpose of leave, increment etc. – Notwithstanding anything contained in the Karnataka Civil Services Rules and notwithstanding the appointment of a candidate to any category of post in a Department other than the Department in which he was serving immediately before the date of his appointment under Rule 4 –
(1) *** ***
(2) the service rendered by a person as a local candidate until the date of his appointment under these rules shall count for purposes of leave, increment and pension in the same manner and to the same extent and subject to the same conditions applicable to a temporary Government servant.”
enables them to reckon services rendered as local candidates for fixation of their increment in time scale pay. Contention of Sri S.V. Narasimhan, learned High Court Government Pleader, is that petitioners were not on time scale pay of post but were on a consolidated pay, hence not entitled to increments. Relying on Rule 53 of Karnataka Civil Service Rules, he contended that petitioners are not entitled to increments earlier to their regularisation.
Rule 41-A of Karnataka Civil Service Rules which reads thus :-
“41-A. Notwithstanding anything contained in Rules 20 and 41 of these rules or anything contained in the Recruitment rules in respect of particular services but subject to the Karnataka Civil Services (Direct Recruitment to Class III Posts) (Special) Rules, 1970 when a Government servant appointed to a post or category of posts as a local candidate or as regularly recruited candidate, is appointed regularly as per relevant rule of recruitment to any other pasts or category of posts, whether in the same or any other department, whether a period of probation is prescribed or not, his pay is regulated as follows :
(i) Where the appointment is to a post the scale of pay of which is lower than the scale of pay of the post he held last, his pay in his appointment shad be equivalent to the stage of pay which he would have reached had he been appointed to that scale of pay from the date he was initially appointed as a local candidate or as a regularly recruited candidate, as the case may be ;
(ii) In other cases, his initial pay shall be fixed at the stage which is equal to the pay drawn by him in the post last held by him, or if there is no such stage, the stage next below that pay, plus personal pay equal to the difference.”
entitle them for fixation of pay which he/they would have reached had they been put on time scale pay of post on regularisation.
Rule making authority realising position with which petitioners and persons similarly situate are placed, in order to obviate hardship that is likely to be caused, on account of denial of time scale pay of the post during their tenure as local candidates, has categorically declared in Sub-rule(2) of Rule 5 of the Rules that “services rendered as local candidates shall count for purpose of leave, increment and pension”. Undisputedly, these words imply that services rendered as local candidates count for determination of pension and leave. If that is so, a fortiori, same period must be reckoned for purpose of determination of increments due to them. No doubt, Sub-rule (2) of Rule 5 is not retrospective, but what it implies is that, that period shall be reckoned for the purpose of fixation of the increment notwithstanding anything contained in K C.S.Rs. or other law on the subject. It only means that, taking into consideration services rendered as local candidates, their pay should be determined, notionally fixing their increments which they would have drawn, had they been put on time scale pay of post. To illustrate, if their services are regularised in 1966 having been appointed as local candidate in 1960 services rendered for a period of five years as local candidate will have to be reckoned and treated as if he or they have earned five increments and on that basis salary has to be fixed on regularisation. If object of Rules is understood thus, Court will be giving effect to each word, Clause and Rule in its entirety and no part or Clause or Rule will be treated as redundant or surplusage, Any other interpretation would make these words redundant or surplusage.
First part of this order declares the date from which petitioners are entitled to time scale of pay of post and latter part declares the method or mode of calculating increment and consequential fixation of salary. Parties to work out their rights accordingly. If petitioners have drawn excess, it is legitimate to refund and authorities shall take steps on determination to recover what is due to department. Likewise, if any amount is due to petitioners over and above what they have already drawn he/they can equally claim the amount due to him/them.
For the reasons stated above, Writ Petitions are allowed, A Writ in the nature of Mandamus shall be issued directing respondents to adjudicate whether any amount is due to petitioners or due to Department by petitioners after providing an opportunity of hearing and to forbear from giving effect to the impugned demand notice/s till such adjudication. Authorities are directed to expedite the decision as some of the petitioners are on the verge of retirement without prolonging it any longer. Rule made absolute.