Karnataka High Court
K. O. Varkey vs State Of Karnataka on 6 March, 2020
Equivalent citations: AIRONLINE 2020 KAR 2561
Bench: Alok Aradhe, M.Nagaprasanna
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH 2020
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
W.P. NO.3166 OF 2019 (S-KAT)
BETWEEN:
K. O. VARKEY
AGED ABOUT 64 YEARS
S/O LATE K V OUSEPH
RESIDENT OF KODIYAN HOUSE
THUMBARASSERY VILLAGE
KUZHUR POST, TRISSUR DISTRICT
KERALA STATE-680 734.
... PETITIONER
(BY SRI. V. LAKSHMINARAYANA, SENIOR COUNSEL A/W
SMT. ANUSHA L, ADV., FOR BALAJI ASSTS.)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY
DEPARTMENT OF TRANSPORT
M S BUILDING, BANGALORE-560 001.
2. STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY
DEPARTMENT OF PERSONAL AND
ADMINISTRATIVE REFORMS
M S BUILDING, BANGALORE-560 001.
3. THE COMMISSIONER FOR TRANSPORT
GOVERNMENT OF KARNATAKA
5TH FLOOR
2
M S BUILDING
BANGALORE-1.
4. THE JOINT COMMISSIONER FOR
TRANSPORT (ADMINISTRATION)
OFFICE OF THE TRANSPORT COMMISSIONER
IV FLOOR, M S BUILDING
BANGALORE-1.
5. THE ZILLA PANCHAYATH
MYSORE DISTRICT
MYSORE-570 001
REPRESENTED BY ITS CHIEF SECRETARY.
6. THE DEPUTY COMMISSIONER
MYSORE DISTRICT
MYSORE-570 001.
... RESPONDENTS
(BY SMT. SHILPA S. GOGI, HCGP FOR R1 TO R4 & R6
SRI. B.J. SOMAYAJI, ADV., FOR R5)
---
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER OF THE HON'BLE TRIBUNAL DTD:23.1.2018 IN
APPLICATION NO.3195/2013 AS PER ANNEXURE-C. DIRECT THE
RESPONDENTS TO TREAT THE RETIREMENT BENEFITS AS IF THE
PETITIONER IS IN CONTINUOUS SERVICE BASED ON THE ORDER
DTD:15.1.1994 AS PER ANNEXURE-A2 & ETC.
THIS WRIT PETITION COMING ON FOR ADMISSION, THIS
DAY, ALOK ARADHE J., MADE THE FOLLOWING:
ORDER
Mr.V.Lakshminarayan, learned Senior counsel for the petitioner along with Smt.Anusha L., learned counsel.
3
Smt.Shilpa S.Gogi, learned High Court Government Pleader for the respondent Nos.1 to 4 and 6.
Mr.B.J.Somayaji, learned counsel for the respondent No.5.
The petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally.
2. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 23.01.2018 passed by the Karnataka State Administrative Tribunal, by which original application preferred by the petitioner has been dismissed.
3. Facts leading to filing of this petition briefly stated are that the petitioner was initially employed as a daily wage employee. After the petitioner put in 14 years of service as First Division Assistant, his services were regularized by an order dated 15.02.1991. The 4 petitioner was issued a show cause notice dated 27.03.2003 to which the petitioner submitted his explanation. Thereafter, for a period of approximately 10 years, no action in the matter was taken. Show cause notice dated 02.03.2013 was issued which was received by the petitioner and the petitioner submitted his explanation on 27.03.2013. However, by the impugned order dated 10.05.2013, the order dated 09.07.1996 by which the petitioner was appointed as First Division Assistant was recalled and it was directed that the petitioner shall be deemed to have been appointed as Second Division Assistant w.e.f. 09.07.1996. The aforesaid action was taken on the eve of the superannuation of the petitioner. The petitioner attained the age of superannuation on 31.05.2013. Being aggrieved by the order dated 10.05.2013, the petitioner approached the Tribunal. However, the Tribunal, vide impugned order, has rejected the original application preferred by the petitioner inter alia on the 5 ground that at the time when the petitioner was initially employed as Literate Assistant, he did not have a requisite qualification namely graduation degree and therefore, the petitioner could not have been subsequently promoted as a First Division Assistant. However, by taking into account the law laid down by the Supreme Court in the case of STATE OF PUNJAB AND OTHERS Vs. RAFIQ MASIH (WHITE WASHER) 2015 AIR SCW 501, the Tribunal directed that no recovery shall be made from the payments which have already been made to the petitioner. Being aggrieved, the petitioner is before this Court.
4. Learned Senior counsel for the petitioner submitted that after his initial appointment in the post of Literate Assistant in the year 1976, the petitioner had obtained degree in graduation in the year 1984 and therefore, his services were regularized by an order dated 15.02.1991 w.e.f. 01.01.1990. It is further 6 submitted that on the eve of retirement, the impugned action has been taken which is in contravention of the law laid down by the Division Bench of this Court dated 14.12.2004 in W.A.No.3001/2003 and connected matters.
5. On the other hand, learned High Court Government Pleader has submitted that the order passed by the Tribunal is just and legal and does not call for any interference.
6. Learned counsel for the respondent No.5 submitted that as per the Government order dated 20.10.1994, the petitioner did not have requisite qualification when he joined to the post of Literate Assistant. Therefore, the Tribunal has rightly upheld the impugned order dated 10.05.2013.
7. We have considered the submissions made on both the sides and have perused the record. 7 Admittedly, when the petitioner joined the post of Literate Assistant, he did not have the degree in graduation. However, in the year 1984, he obtained the degree in graduation and thereafter, his services were regularized by an order dated 15.02.1991 w.e.f. 01.01.1990. After putting in 22 years of service, an action was initiated against him and just on the eve of the retirement of the petitioner, a show cause notice dated 02.03.2013 was issued and eventually, an order was passed on 10.05.2013 on the ground that at the time of initial appointment, the petitioner did not have requisite qualification. The issue involved in this petition is no longer res integra as the Supreme Court in BHAGAVATHI PRASAD AND ORS. Vs. DELHI STATE MINERAL DEVELOPMENT CORPORATION AIR 1990 SC 371, has held that practical experience would always aid a person to effectively discharge the duties and it is a sure guide to assess the suitability. It is further held that the initial minimum qualification prescribed for the 8 different posts is undoubtedly a factor to be reckoned with. But, once the appointments are made as daily rated workers and the employees are allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. It is further held that three years experience ignoring artificial break in service for short period/periods created by the respondent, in the circumstances, would be sufficient for confirmation. In the instant case, the petitioner not only obtained requisite qualification in the year 1984 but his services were subsequently regularized by an order dated 15.02.1991 w.e.f. 01.01.1990. The absorption of the services of the petitioner was modified subsequently in the year 1996 on the post of First Division Assistant. The action against the petitioner is sought to be taken after a period of 17 years which is impermissible in view of the law laid down by the Supreme Court in 9 BHAGAVATHI PRASAD, supra. However, the Tribunal has failed to appreciate the aforesaid aspect of the matter.
8. In view of the preceding analysis, the impugned order dated 23.01.2018 as well as the order passed by the Tribunal dated 10.05.2013 are hereby quashed and set aside. Needless to state that the petitioner shall be entitled to all consequential benefits for the post of First Division Assistant.
In the result, the petition is allowed.
Sd/-
JUDGE Sd/-
JUDGE RV