Karnataka High Court
The State Of Karnataka By Its Secretary vs Mallawwa Shivarudrappa Hanchinamani on 3 September, 2012
Author: N.K.Patil
Bench: N.K.Patil
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IN THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT DHARWAD.
DATED THIS THE 3RD DAY OF SEPTEMBER, 2012
PRESENT
THE HON'BLE MR.JUSTICE N.K.PATIL
AND
THE HON'BLE MR. JUSTICE B.V.PINTO
WRIT APPEAL NO.1008/2007 (S-R)
BETWEEN:
1. THE STATE OF KARNATAKA,
BY ITS SECRETARY,
DEPARTMENT OF GENERAL LIBRARY,
M S BUILDING, BANGALORE-560001.
2. THE DIRECTOR,
DEPARTMENT OF GENERAL LIBRARY,
VISHWESHWARAIAH MAIN TOWER,
4 FLOOR, DR AMBEDKAR VEEDHI,
BANGALORE-560001.
3. CHIEF LIBRARY OFFICER,
DISTRICT CENTRAL LIBRARY,
D C COMPOUND,
BELGAUM- 590 010. ... APPELLANTS
(BY SMT. K.VIDYAVATI, ADDL. GOVT. ADVOCATE.)
AND
MALLAWWA SHIVARUDRAPPA
HANCHINAMANI,
41 YEARS,
2
OCC: RETIRED SERVANT,
R/O BAILHONGAL,
BELGAUM DIST. 590 010. ... RESPONDENT
(BY SRI. V.M.SHEELAVANT, ADV.)
This writ appeal is filed u/s 4 of the Karnataka High Court
Act praying to set aside the order passed in the writ petition
No.8158/2004 dated 11/10/2006 etc.
This appeal coming on for Hearing this day, N.K.Patil J.,
delivered the following:
JUDGMENT
The appellants assailing the correctness of the order dated 11.10.2006 passed in W.P. No.8158/2004 by the learned Single Judge wherein, the respondent had assailed intimation dated 31.10.2001 issued by the 2nd appellant herein at Annexure-D to the writ petition etc., have presented this appeal.
2. It is the case of the respondent that she had been appointed as a cleaner in the year 1997 in the General Library Department, Bailhongal and was discharged from service on 30.06.1998. During the entire period the case of the respondent was not considered for regularisation of service. Though the State Government has issued a notification as early as on 22.4.1999 to regularise the service of daily wage employees who 3 have completed ten years of service, the respondent's case was not considered. The respondent having attained the age of superannuation, had made several representations to the authorities to regularise the services and to fix the pay as per revision of pay.
3. Though the appellants have chosen to regularise 162 similarly placed persons as the respondent, the respondent's case was not considered. The reason put forth was that there are no records pertaining to the years from 1977 to show that she was so engaged. Though records from the year 1981 are said to be available, the records pertaining to the period from 1977 were said to be unavailable. It is the respondent's case that daily wage workers who worked along with the respondent have been regularised and fixed salary at the rate of Rs.750/- per month, but whereas the case of the respondent has not been considered. The specific claim under a legal notice dated 5.9.2001 has been denied by the appellants as per reply dated 31.10.2001 to state that the respondent was not entitled to regularisation of service and she would not be entitled to 4 pension, since she had never been appointed on a regular basis. The appellants have not chosen to ascertain from the records as regards the engagement of services of the respondent from the year 1977 and the case of the respondent's has not been considered. On the pretext that she would not have completed ten years of service as on the date of judgment of the Supreme Court dated 23.10.1990, whereby the Government was directed to regularise the services of daily wagers. It is the case of the respondent that she has completed 20 years and 7 months of service and therefore was entitled for regularisation. Accordingly, the writ petition was allowed with a direction to the appellants to regularise the services of the respondent with effect from 1.4.1999 and fix the pension at Rs.500/- per month with effect from 1.4.1999 and pay arrears of pension, as the respondents have done in the case of 162 other similarly placed employees, within a period of eight weeks from the date of receipt of a copy of this judgment. Being aggrieved by the direction issued by the learned Single Judge in the impugned order, the appellants felt necessitated to present this appeal.
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4. Learned Additional Government Advocate appearing for the appellants at the outset submits that the service of the respondent was voluntary on honorary basis and not against sanctioned post and that the respondent was not working as a daily wage employee and she is not similar to 162 persons who have been regularised. Therefore, she is not entitled for regularisation of her services in the appellants department.
5. Therefore, she submits that the order passed by the learned Single Judge is liable to be set aside in view of the judgment of the Apex Court in the case of State of Karnataka V/s Umadevi and 3 others reported in 2006(4) SCC 1.
6. Per contra, learned counsel for the respondent inter alia submits that the impugned order passed by the learned Single Judge is well founded. In spite of sufficient opportunity being granted, the appellants failed to file the statement of objections and denied the averment made in the writ petition. They have no locus standi to take a ground contrary to the order before the learned Single Judge and further it is not a case of the appellants and that they have in fact not regularised 6 the services of 162 other similarly placed employees and fixed their salary at the rate of Rs.750/- per month. This aspect of the matter is not denied nor made any statement nor such ground is taken in the appeal. Therefore, interference by this Court is not called for.
7. After considering submission for the learned counsel of both parties and after perusal of the impugned order passed by the learned Single Judge, we do not find any error as such committed in quashing the intimation issued at Annexure-D dated 31.10.2001 by appellant No.2. But however, what we feel is that the direction issued to regularise the services with effect from 1.4.1999 and fix the salary of Rs.500/- with effect from 1.4.1999 on par with other similarly placed 162 persons is liable to be modified if a person is serving against a sanctioned vacant post, he is entitled for regularisation, in the light of the judgment of the Apex Court cited supra wherein, the Apex Court categorically held, if any person enters service against a sanctioned vacant post, case of such person should be regularised from the date of entering into service till the date 7 of regularisation. Therefore, we are of the considered view that the order impugned is liable to be modified to the effect that the appellants shall consider the case of the respondent for regularisation of her service with effect from 1.4.1999 if she is serving in a sanctioned vacant post in the light of the judgment cited supra and also taking into consideration the fact that services of 162 similarly situated persons have been regularised as expeditiously as possible within a period of four months from the date of a copy of this judgment.
With this modification, the instant appeal filed by the appellants is disposed of.
Sd/-
JUDGE Sd/-
JUDGE Bs